Case 2:18-at-00264 Document 1 Filed 03/06/18 Page 1 of 18

1

CHAD A. READLER Acting Assistant Attorney General

2 MCGREGOR SCOTT United States Attorney
3 AUGUST FLENTJE

4

Special Counsel WILLIAM C. PEACHEY

5 Director

EREZ REUVENI 6 Assistant Director, Office of Immigration Litigation

7 U.S. Department of Justice, Civil Division P.O. Box 868, Ben Franklin Station

8 Washington, DC 20044

Tel. (202) 307-4293 9 Erez.R.Reuveni@usdoj.gov

10 DAVID SHELLEDY Civil Chief, Assistant United States Attorney

11 LAUREN C. BINGHAM

JOSEPH A. DARROW 12 JOSHUA S. PRESS

13 Trial Attorneys Attorneys for the United States

14

15

UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA

17

18 THE UNITED STATES OF AMERICA,

19

Plaintiff, v.

20 THE STATE OF CALIFORNIA;
21 EDMUND GERALD BROWN JR., Governor of California, in his Official
22 Capacity; and XAVIER BECERRA, Attorney General of California, in his
23 Official Capacity,

No. 18-264 COMPLAINT

24

Defendants.

25

26 Plaintiff, the United States of America, by and through its undersigned counsel, brings
27 this civil action for declaratory and injunctive relief, and alleges as follows:
28

Complaint of the United States

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PRELIMINARY STATEMENT In this action, the United States seeks a declaration invalidating and preliminarily and permanently enjoining the enforcement of certain provisions of California law. These provisions are preempted by federal law and impermissibly discriminate against the United States, and therefore violate the Supremacy Clause of the United States Constitution. The United States has undoubted, preeminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress. California has no authority to enforce laws that obstruct or otherwise conflict with, or discriminate against, federal immigration enforcement efforts. This lawsuit challenges three California statutes that reflect a deliberate effort by California to obstruct the United States’ enforcement of federal immigration law, to regulate private entities that seek to cooperate with federal authorities consistent with their obligations under federal law, and to impede consultation and communication between federal and state law enforcement officials. The first statute, the “Immigrant Worker Protection Act,” Assembly Bill 450 (“AB 450”), prohibits private employers in California from voluntarily cooperating with federal officials who seek information relevant to immigration enforcement that occurs in places of employment. The second statute, Assembly Bill 103 (“AB 103”), creates an inspection and review scheme that requires the Attorney General of California to investigate the immigration enforcement efforts of federal agents. The third statute, Senate Bill 54 (“SB 54”), which includes the “California Values Act,”

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limits the ability of state and local law enforcement officers to provide the United States with basic information about individuals who are in their custody and are subject to federal immigration custody, or to transfer such individuals to federal immigration custody. The provisions of state law at issue have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California. The Supremacy Clause does not allow California to obstruct the United States’ ability to enforce laws that Congress has enacted or to take actions entrusted to it by the Constitution. Accordingly, the provisions at issue here are invalid.
JURISDICTION AND VENUE The Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345. Venue is proper in this jurisdiction under 28 U.S.C. § 1391(b) because Defendants reside within the Eastern District of California and because a substantial part of the acts or omissions giving rise to this Complaint arose from events occurring within this judicial district. The Court has the authority to provide the relief requested under the Supremacy Clause, U.S. Const. art. VI, cl. 2, as well as 28 U.S.C. §§ 1651, 2201, and 2202, and its inherent equitable powers.
PARTIES Plaintiff, the United States, regulates immigration under its constitutional and statutory authorities, and it enforces the immigration laws through its Executive agencies, including the Departments of Justice, State, and Labor, and the Department of Homeland Security (DHS) including its component agencies U.S. Immigration and Customs

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Enforcement (ICE), and U.S. Customs and Border Protection (CBP). Defendant State of California is a state of the United States. Defendant Edmund Gerald Brown Jr. is the Governor of the State of California and is being sued in his official capacity. Defendant Xavier Becerra is Attorney General for the State of California and is being sued in his official capacity.
FEDERAL IMMIGRATION LAW The Constitution affords Congress the power to “establish an uniform Rule of Naturalization,” U.S. Const., art. I § 8, cl. 4, and to “regulate Commerce with foreign Nations,” U.S. Const., art. I § 8, cl. 3, and affords the President of the United States the authority to “take Care that the Laws be faithfully executed.” U.S. Const., art. II § 3. The Supremacy Clause of the Constitution mandates that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. Thus, a state enactment is invalid if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67 (1941), or if it “discriminate[s] against the United States or those with whom it deals,” South Carolina v. Baker, 485 U.S. 505, 523 (1988). Based on its enumerated powers and its constitutional power as a sovereign to control and conduct relations with foreign nations, the United States has broad authority to establish immigration laws, the execution of which the States cannot obstruct or discriminate against. See Arizona v. United States, 567 U.S. 387, 394-95 (2012); accord North

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Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality); id. at 444-47 (Scalia, J., concurring). Congress has exercised its authority to make laws governing the entry, presence, status, and removal of aliens within the United States by enacting various provisions of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat 3359, codified at 8 U.S.C. § 1324a et seq., and other laws regulating immigration. These laws codify the Executive Branch’s authority to inspect, investigate, arrest, detain, and remove aliens who are suspected of being, or found to be, unlawfully in the United States. See 8 U.S.C. §§ 1182, 1225, 1226, 1227, 1228, 1231, 1357. Congress has also codified basic principles of cooperation and comity between state and local authorities and the United States. For example, federal law contemplates that removable aliens in state custody who have been convicted of state or local offenses will generally serve their state or local criminal sentences before being subject to removal, but that they will be taken into federal custody upon the expiration of their state prison terms. See id. §§ 1226(c), 1231(a)(1)(B)(iii), (a)(4). “Consultation between federal and state officials is an important feature of the immigration system.” Arizona, 567 U.S. at 411. Congress has therefore directed that a federal, state, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, DHS “information regarding the citizenship or immigration status of an individual.” 8 U.S.C. § 1373(a); see 8 U.S.C. § 1644 (same); see also 8 U.S.C. § 1357(g)(10)(A) (providing for state and local “communicat[ion] with [DHS] regarding the immigration status of any

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individual, including reporting knowledge that a particular alien is not lawfully present in the United States”). Congress also authorized states and localities “to cooperate with the [Secretary] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” Id. § 1357(g)(10)(B). Federal law also explicitly recognizes the United States’ authority to “arrange for appropriate places of detention for aliens detained pending removal or a decision on removal,” including the lease or rental of state, local, and private facilities. See 8 U.S.C. § 1231(g); accord 8 U.S.C. § 1103(a)(11). Federal regulation provides that “[n]o person, including any state or local government entity or any privately operated detention facility, that houses, maintains, provides services to, or otherwise holds any detainee on behalf of [DHS] (whether by contract or otherwise), and no other person who by virtue of any official or contractual relationship with such person obtains information relating to any detainee, shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee. Such information shall be under the control of [DHS] and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations and executive orders.” 8 C.F.R. § 236.6. Congress, through IRCA, has also enacted a “comprehensive framework for combating the employment of illegal aliens.” Arizona, 567 U.S. at 404. IRCA makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ aliens without appropriate work authorization. See 8 U.S.C. § 1324a(a)(1)(A), (a)(2). It also requires every employer to verify the employment authorization status of prospective employees. See id. § 1324a(a)(1)(B), (b). DHS enforces these requirements through criminal

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penalties and an escalating series of civil penalties tied to the number of times an

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employer has violated the provisions. See 8 U.S.C. §§ 1324a(e)(4), (f).

3 25. 4 5 6 7

As a means of enforcing IRCA’s criminal and civil penalties, Congress established a nationally uniform inspection process whereby employers are required to retain documentary evidence of authorized employment of aliens, and to permit federal investigative officers to inspect such documents. See 8 U.S.C. § 1324a(b), (e)(2)(A).

8 26. DHS, through ICE and CBP, performs a significant portion of its law enforcement

9

activities in California. In Fiscal Year 2017, ICE’s Enforcement and Removal Operations

10 (ERO) apprehended 20,201 aliens in California alone, or roughly 14% of the aliens
11 apprehended nationwide. Thus far in 2018, ICE ERO has apprehended 8,588 aliens in
12

13

California, or roughly 14% of the aliens apprehended nationwide. Of those aliens

14

apprehended nationwide in 2016, 2017, and thus far in 2018, 92%, 90%, and 87%

15

respectively, were criminal aliens. In Fiscal Year 2017, ICE ERO booked a total of

16 323,591 aliens into custody, 41,880 of whom were detained in California. And CBP is
17

18

responsible for enforcing the immigration laws at ports of entry and areas near the border

19

in California, including apprehending recent entrants with criminal convictions or who

20

are national security concerns, and patrolling the border for narcotics.

21 22 23 24 27.

CALIFORNIA PROVISIONS Restrictions on Cooperation with Workplace Immigration Enforcement (AB 450)
On October 5, 2017, Governor Brown signed into law the “Immigrant Worker Protection

25

Act,” Assembly Bill 450 (AB 450), effective January 1, 2018 (Exhibit 1). Through AB

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450, California regulates how private employers in California must respond to federal

27 efforts to ensure compliance with federal immigration laws through investigations in
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places of employment. AB 450 added Section 7285.1(a) of the California Government Code, which provides that an employer or its agent “shall not provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor,” unless “the immigration enforcement agent provides a judicial warrant” or consent is “otherwise required by federal law.” Section 7285.2(a)(1) similarly prohibits an employer or its agent from “provid[ing] voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or judicial warrant.” Section 7285.2(a)(2) contains an exception for certain documents for which the United States has provided a “Notice of Inspection,” Cal. Gov’t Code § 7285.2(a)(2). AB 450 added provisions to the California Labor Code that establish new requirements employers must satisfy before allowing ICE to conduct the inspection process directed by federal law. AB 450 requires employers to notify employees and their authorized representatives of upcoming inspections of employment records “within 72 hours of receiving notice of the inspection.” Cal. Lab. Code § 90.2(a)(1). It also requires employers to provide employees and their authorized representatives, within 72 hours, with copies of written immigration agency notices providing results of inspections. Id. § 90.2(b)(1). All these provisions are subject to a schedule of civil penalties “of two thousand dollars ($2,000) up to five thousand dollars ($5,000) for a first violation and five thousand dollars ($5,000) up to ten thousand dollars ($10,000) for each subsequent violation.” Cal. Gov’t Code §§ 7285.1(b), 7285.2(b); Cal. Lab. Code § 90.2(c). AB 450 added Section 1019.2(a) of the California Labor Code, which provides that an

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employer or its agent “shall not reverify the employment eligibility of a current employee at a time or in a manner not required by Section 1324a(b) of Title 8 of the United States Code.” Violators are subject to “a civil penalty of up to ten thousand dollars ($10,000).” Cal. Lab. Code § 1019.2(b). Upon information and belief, California law does not prohibit employers from voluntarily complying with requests from any other federal or California entities for information or inspection, or compel employers to provide notice to their employees of other efforts to collect information. In Fiscal Year 2017, ICE conducted approximately 1,300 worksite inspections authorized by IRCA across the country, including approximately 230 in California. If conditions are appropriate, any of those investigations could lead to an inspection with the consent of the employer, and often employers are very willing to provide consent in order to alleviate and address concerns that arise during the inspection process. In addition such inspections with the consent of the employer are critical to investigating cross border smuggling of people, narcotics, and terrorism. These provisions, individually and collectively, have the purpose and effect of interfering with the enforcement of the INA and IRCA’s prohibition on working without authorization. California has no lawful interest in protecting unauthorized workers from detection or in shielding employers who have violated federal immigration law from penalty. These provisions, as applied to private employers, violate the Supremacy Clause by, among other things, constituting an obstacle to the United States’ enforcement of the immigration laws and discriminating against federal immigration enforcement.
Inspection and Review of Immigration Detention Facilities (AB 103)

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Under longstanding California law, “local detention facilities” are subject to biennial inspections concerning health and safety, fire suppression preplanning, compliance with training and funding requirements, and the types and availability of visitation. Cal. Penal Code § 6031.1(a). The law defines “local detention facilities” as any city, county, or regional facility in which individuals are confined for more than 24 hours, and includes private facilities (though it excludes certain facilities for parolees, treatment and restitution facilities, community correctional centers, and work furlough programs). Id. § 6031.4. On June 27, 2017, California enacted Assembly Bill 103 (AB 103) (Exhibit 2). Section 12 of AB 103 added Section 12532 to the California Government Code. Rather than subject facilities housing civil immigration detainees to the inspection scheme deemed sufficient for other detention facilities, the statute imposes a new set of requirements specific to facilities housing immigration detainees. In particular, Section 12532(a) requires the California Attorney General or his designee “to engage in reviews of county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California.” The statute is not limited to an inspection of facilities. The law also requires the California Attorney General or his designee to examine the “due process provided” to civil immigration detainees, and “the circumstances around their apprehension and transfer to the facility.” Cal. Gov’t Code § 12532(b). Section 12532(c) instructs that the California Attorney General or his designee “shall be provided all necessary access for the observations necessary to effectuate reviews required pursuant to this section, including, but not limited to, access to detainees, officials, personnel, and records.”

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DHS, through ICE, has entered into contracts for detention services with private entities, intergovernmental services agreements (IGSAs) with county, city, or local government entities in California, and intergovernmental agreements (IGAs) with the U.S. Marshals service that provide ICE with guaranteed housing for ICE detainees as needed. ICE currently has twenty active contracts, IGSAs or IGAs, in California and regularly uses nine detention facilities in California to house civil immigration detainees in ICE custody. Information obtained or developed as a result of an agreement with the detention facility are federal records under the control of ICE for purposes of disclosure and are subject to disclosure only pursuant to applicable federal information laws, regulations, and policies, including but not limited to the Freedom of Information Act, 5 U.S.C. § 552 et seq., and 8 C.F.R. § 236.6. Three of these facilities, the Adelanto Correctional Facility, the Imperial Regional Detention Facility, and the Mesa Verde Detention Facility are dedicated facilities that exclusively house immigration detainees. In Fiscal Year 2018, these three facilities have had an average daily population of 1,685, 680, and 384 detainees pending the outcome of their administrative immigration cases, respectively. The remaining facilities with IGSAs house both immigration detainees and local detainees and are used on an as-needed basis. In Fiscal Year 2018, average daily detainee populations at the as-needed facilities have ranged between a high of 956 at Otay Mesa Detention and a low of 171 at Rio Cosumnes Correctional Center. DHS, through ICE, houses civil immigration detainees at the Otay Mesa Detention Center in California, a private detention facility that CoreCivic owns and operates. Otay

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Mesa has an average daily population of around 1,000 detainees awaiting removal or a decision on removal. Upon information and belief, on November 16, 2017, Defendant Becerra initiated via letter a request to inspect various ICE detention facilities, including Imperial, Adelanto, Mesa Verde, the Theo Lacy Facility, the James A. Musick Facility, Yuba County Jail, Rio Cosumnes Correctional Center, Contra Costa West County Detention Facility, and Otay Mesa, as well as a request to inspect DHS documents concerning aliens detained in these locations. Upon information and belief, Yuba, Rio Cosumnes, Contra Costa, Theo Lacy, and James A. Musick, have been inspected since the law’s passage On January 24, 2018, Defendant Becerra via letter informed Imperial, Adelanto, Mesa Verde, and Otay Mesa that he intended to inspect those facilities on either February 26, 2018 or March 5, 2018, and required access to documents and other material subject to ICE control and deemed privileged under federal law and regulation. See 8 C.F.R. § 236.6. Upon information and belief, California does not require any local detention facility to comply with section 12532’s heightened inspections regime when it houses detainees for other federal or California entities. AB 103’s requirements apply only when local detention facilities house federal civil immigration detainees. AB 103 thus requires the California Attorney General to investigate the law enforcement efforts of federal agents engaged in apprehending and transferring aliens, to assess the “due process” provided to those aliens and the “circumstances around their apprehension and transfer to the facility,” and to assess the law enforcement decisions of personnel

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under contract to the United States, as well as records of unspecified scope. The statute thus commands an improper, significant intrusion into federal enforcement of the immigration laws. California has no lawful interest in investigating federal law enforcement efforts. These provisions violate the Supremacy Clause by, among other things, constituting an obstacle to the United States’ enforcement of the immigration laws and discriminating against the United States. Restrictions on State and Local Cooperation with Federal Officials (SB 54) On October 5, 2017, the Governor signed into law the Senate Bill 54 (SB 54), which includes the “California Values Act,” effective January 1, 2018 (Exhibit 3). SB 54 limits state and local cooperation with federal immigration enforcement in a number of ways. New Section 7284.6 prohibits state and local law enforcement officials, other than employees of the California Department of Corrections, from, among other things: “[p]roviding information regarding a person’s release date or responding to requests for notification by providing release dates or other information,” Cal Gov’t Code § 7284.6(a)(1)(C); providing “personal information,” including (but not limited to) an individual’s home address or work address, id. § 7284.6(a)(1)(D); and “[t]ransfer[ring] an individual to immigration authorities,” id. § 7284.6(a)(4). These provisions contain limited exceptions. State and local law enforcement may share with the United States “information regarding a person’s release date” or respond “to requests for notification by providing release dates or other information,” but only where an individual subject to such information sharing has been convicted of a limited subset crimes, or where the information is available to the public. Cal. Gov’t Code §§ 7282.5(a), 7284.6(a)(1)(C). Personal information also may be shared only if it is available to the

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public. Id. § 7284.6(a)(1)(D). State and local law enforcement agencies may “[t]ransfer an individual to immigration authorities” only if the United States presents a “judicial warrant or judicial probable cause determination,” or the individual in question has been convicted of one of a limited set of enumerated felonies or other serious crimes. Cal. Gov’t Code §§ 7284.6(a)(4), 7282.5(a). The limited subset of criminal violations does not match federal law governing what may serve as the predicate for inadmissibility or removability, including listing a set of crimes more narrow than those that render an alien removable. See 8 U.S.C. §§ 1182(a)(2), 1227(a)(2). And it does not match the set of criminal offenses that require the federal government to detain such aliens upon their release from state or local custody. Id. § 1226(c). Upon information and belief, California law does not impose these restrictions on other forms of information sharing on other topics, nor does it restrict transfers of individuals to other law enforcement agencies in this way. These provisions impermissibly prohibit even the most basic cooperation with federal officials. As noted above, federal law contemplates that criminal aliens in state custody who may be subject to removal will complete their state or local sentences first before being detained by the United States, but that federal immigration detention for immigration proceedings or for removal will begin upon the alien’s release from state custody. 8 U.S.C. § 1226(c); § 1231(a)(4). Additionally, federal law contemplates that DHS will be able to inspect all applicants for admission, and take all appropriate action against those found to be inadmissible to the United States, even those that may have been transferred to the custody of state and local law enforcement pending such a state

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and local prosecution. See 8 U.S.C. §§ 1182, 1225(b)(2); 8 C.F.R. § 235.2. And, to facilitate coordination between state and local officials and the United States, Congress expressly prohibited any federal, state, or local government entity or official from prohibiting, or in any way restricting, any government entity or official from sending to, or receiving from, DHS “information regarding the citizenship or immigration status of an individual.” 8 U.S.C. § 1373(a); see also 8 U.S.C. § 1644. Although SB 54 purports to be consistent with section 1373, see Cal. Gov’t Code § 7284.6(e), sections 7284.6(a)(1)(C) and (D) explicitly forbid the sharing of information covered by 8 U.S.C. § 1373. The transfer restriction additionally requires that the United States present a “judicial warrant or judicial probable cause determination” before the state or locality may transfer an alien to DHS for appropriate immigration enforcement action. This provision also conflicts with federal law, which establishes a system of civil administrative warrants as the basis for immigration arrest and removal, and does not require or contemplate use of a judicial warrant for civil immigration enforcement. See 8 U.S.C. § 1226(a), 1231(a). Upon information and belief, since January 1, 2018, law enforcement agencies in California, as defined by SB 54, will not communicate to DHS the release date or home address of aliens DHS has reason to believe are removable from the United States, or transfer such aliens to DHS custody, even where DHS presents a Congressionallyauthorized civil administrative warrant of arrest or removal, see 8 U.S.C. § 1226(a); 1231(a), or has transferred those aliens to local law enforcement in the first instance to permit California or its subdivisions to criminally prosecute them for a state crime. By restricting basic information sharing and by barring the transfer to DHS of aliens in

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state or local custody upon their release through the means provided for by federal law,

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SB 54 requires federal immigration officers to either engage in difficult and dangerous

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efforts to re-arrest aliens who were previously in state custody, endangering immigration

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officers, the alien at issue, and others who may be nearby, or to determine that it is not

5 appropriate to transfer an alien to state or local custody in the first place, in order to
6

7

comply with their mission to enforce the immigration laws. California has no lawful

8

interest in assisting removable aliens to evade federal law enforcement.

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These provisions violate the Supremacy Clause by, among other things, constituting an obstacle to the United States’ enforcement of the immigration laws and discriminating against federal immigration enforcement, as well as (with respect to the informationsharing restrictions) expressly violating 8 U.S.C. § 1373(a).

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CLAIM FOR RELIEF

15 COUNT ONE – Restrictions on Cooperation with Workplace Immigration Enforcement

16 60.
17
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Plaintiff hereby incorporates paragraphs 1 through 26, and 27 through 35 of the Complaint as if fully stated herein.

19 61. Sections 7285.1, and 7285.2 of the California Government Code and Sections 90.2 and

20 21 22 23 24 62.

1019.2 of the California Labor Code, violate the Supremacy Clause as applied to private employers, and are invalid.
COUNT TWO – Inspection and Review of Detention Facilities Plaintiff hereby incorporates paragraphs 1 through 26, and 36 through 49 of the

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Complaint as if fully stated herein.

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Section 12532 of the California Government Code violates the Supremacy Clause, and is invalid.

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COUNT THREE – Restrictions on State and Local Cooperation Plaintiff hereby incorporates paragraphs 1 through 26, and 50 through 59 of the

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Complaint as if fully stated herein. Sections 7284.6(a)(1)(C) & (D) and 7284.6(a)(4) of the California Government Code violate the Supremacy Clause and 8 U.S.C. § 1373(a), and are invalid.
PRAYER FOR RELIEF

8 WHEREFORE, the United States respectfully requests the following relief:

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1. That this Court enter a judgment declaring that Sections 7285.1 and 7285.2 of the

10 California Government Code, and Sections 90.2 and 1019.2 of the California Labor Code
11 violate the Supremacy Clause as applied to private employers and are therefore invalid;
12

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2. That this Court enter a judgment declaring that Section 12532 of the California

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Government Code violates the Supremacy Clause and is therefore invalid;

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3. That this Court enter a judgment declaring that Sections 7284.6(a)(1)(C) & (D) and

16 7284.6(a)(4) of the California Government Code violate the Supremacy Clause and are
17

18

therefore invalid;

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4. That this Court issue preliminary and permanent injunctions that prohibit Defendants as

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well as their successors, agents, and employees, from enforcing against private employers

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sections 7285.1 and 7285.2 of the California Government Code, and Sections 90.2 and

22 1019.2 of the California Labor Code;
23

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5. That this Court issue preliminary and permanent injunctions that prohibit Defendants, as

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well as their successors, agents, and employees, from enforcing Section 12532 of the

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California Government Code;

27 6. That this Court issue preliminary and permanent injunctions that prohibit Defendants as
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well as their successors, agents, and employees, from enforcing Sections 7284.6(a)(1)(C)

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& (D) and 7284.6(a)(4) of the California Government Code;

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7. That this Court award the United States its costs in this action; and

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8. That this Court award any other relief it deems just and proper.

5 DATED: March 6, 2018
6

CHAD A. READLER Acting Assistant Attorney General

7 MCGREGOR SCOTT

8

United States Attorney

9

AUGUST FLENTJE

10

Special Counsel

11

WILLIAM C. PEACHEY

Director 12

13

/s/ Erez Reuveni

EREZ REUVENI

14

Assistant Director

U.S. Department of Justice, Civil Division

15

Office of Immigration Litigation

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P.O. Box 868, Ben Franklin Station

Washington, DC 20044

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Telephone: (202) 307-4293

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Fax: (202) 616-8202 E-mail: Erez.R.Reuveni@usdoj.gov

19 DAVID SHELLEDY

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Civil Chief, Assistant United States

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Attorney

22

LAUREN C. BINGHAM

JOSEPH A. DARROW

23

JOSHUA S. PRESS

24

Trial Attorneys

25

Attorneys for Plaintiff

26

27

28

Complaint of the United States

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 Case 2:18-at-00264 Document 2-1 Filed 03/06/18 Page 1 of 49

1

CHAD A. READLER Acting Assistant Attorney General

2 MCGREGOR SCOTT United States Attorney
3 AUGUST FLENTJE

4

Special Counsel WILLIAM C. PEACHEY

5 Director

EREZ REUVENI 6 Assistant Director, Office of Immigration Litigation

7

U.S. Department of Justice, Civil Division P.O. Box 868, Ben Franklin Station

8 Washington, DC 20044

Tel. (202) 307-4293 9 Erez.R.Reuveni@usdoj.gov

10 DAVID SHELLEDY Civil Chief, Assistant United States Attorney

11 LAUREN C. BINGHAM

JOSEPH A.DARROW 12 JOSHUA S. PRESS

13 Trial Attorneys Attorneys for the United States

14

15

UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA

17 THE UNITED STATES OF AMERICA,
18 Plaintiff,
19 v.
20 THE STATE OF CALIFORNIA;
21 EDMUND GERALD BROWN JR., Governor of California, in his Official
22 Capacity; and XAVIER BECERRA, Attorney General of California, in his
23 Official Capacity,

24

Defendants.

25

No. 18-264
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM OF LAW IN SUPPORT

26

27

28

Memorandum in support of motion for preliminary injunction

Case 2:18-at-00264 Document 2-1 Filed 03/06/18 Page 2 of 49

1

TABLE OF CONTENTS

2 INTRODUCTION..........................................................................................................................1

3 BACKGROUND ............................................................................................................................4

4

1. Immigrant Worker Protection Act (AB 450) ...........................................................4

5 2. Inspection and Review of Facilities Housing Federal Detainees (AB 103) ............6
6

7

3. SB 54 and the California Values Act .......................................................................7

8 LEGAL STANDARD ....................................................................................................................8

9 ARGUMENT..................................................................................................................................9

10 I. 11
12
13
14
15
16
17 II.
18

The United States Is Likely to Prevail on the Merits......................................................9
A. The Constitution does not allow California to obstruct federal law enforcement efforts by prohibiting employers from voluntarily cooperating with federal law enforcement officials (AB 450). ............................................................................11
B. The Constitution does not allow California to inspect facilities holding federal detainees to review federal law enforcement efforts (AB 103) .............................18
C. The Constitution does not allow California to restrict cooperation with the United States that is contemplated and protected by federal law (SB 54).........................23
Irreparable Harm to the United States, The Balance of Harms, and the Public Interest Strongly Militate in Favor of Injunctive Relief...............................................31

19 CONCLUSION ............................................................................................................................37
20 CERTIFICATE OF SERVICE ......................................................................................................
21

22

23

24

25

26

27

28

Memorandum in support of motion

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for preliminary injunction

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1

TABLE OF AUTHORITIES

2

CASE LAW

3 Abel v. United States, 4 362 U.S. 217 (1960).................................................................................................................. 30

5 Am. Civil Liberties Union of New Jersey, Inc. v. Cty. of Hudson, 6 799 A.2d 629 (N.J. App. Div. 2002)................................................................................... 22, 23

7 Arizona v. United States, 567 U.S. 387 (2012)........................................................................................................... passim
8

9

Blackburn v. United States, 100 F.3d 1426 (9th Cir. 1996) .................................................................................................. 22

10 Boeing Co. v. Movassaghi,
11 768 F.3d 832 (9th Cir. 2014) .................................................................................... 3, 10, 14, 21

12 Bologna v. City & Cnty. of San Francisco, 13 121 Cal. Rptr. 3d 406 (Cal. Ct. App. 3d Div. 2011) ................................................................. 27

14 Buckman Co. v. Plaintiffs’ Legal Comm., 15 531 U.S. 341 (2001).................................................................................................................. 13

16 Cal. Pharmacists Ass’n v. Maxwell–Jolly, 563 F.3d 847 (9th Cir. 2009) .................................................................................................... 37
17

18

City of New York v. United States, 179 F.3d 29 (2d Cir. 1999)........................................................................................................ 27

19 Comm’r of Correction v. Freedom of Info. Comm’n,
20 52 A.3d 636 (Conn. 2012) .................................................................................................. 22, 23

21 De Canas v. Bica, 22 424 U.S. 351 (1976).................................................................................................................... 9

23 Demore v. Kim, 24 538 U.S. 510 (2003).................................................................................................................. 29

25 Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 151 (1982).................................................................................................................. 10
26

27

Frontera v. Clarke, 891 N.W.2d 803 (Wis. 2017).................................................................................................... 23

28

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1

Gartrell Constr. Inc. v. Aubry, 940 F.2d 437 (9th Cir. 1991) .............................................................................................. 13, 20

2 Geier v. Am. Honda Motor Co.,
3 529 U.S. 861 (2000).................................................................................................................. 10

4 Harisiades v. Shaughnessy, 5 342 U.S. 580 (1952).................................................................................................................. 10

6 Hines v. Davidowitz, 7 312 U.S. 52 (1941)................................................................................................................ 3, 10

8 I.N.S. v. Delgado, 466 U.S. 210 (1984).................................................................................................................. 12
9

10

In re Tarble, 80 U.S. 397 (1871).................................................................................................................... 20

11 Int’l Molders’ & Allied Workers’ Local Union No. 164 v. Nelson,
12 799 F.2d 547 (9th Cir. 1986) .................................................................................................... 12

13 Int’l Paper Co. v. Ouellette, 14 479 U.S. 481 (1987).................................................................................................................. 27

15 Jennings v. Rodriguez, 16 No. 15-1204, --- U.S. ---, 2018 WL 1054878 (U.S. Feb. 27, 2018) ................................... 25, 29

17 Johnson v. Maryland, 254 U.S. 51 (1920).................................................................................................................... 20
18

19

Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956).................................................................................................................. 20

20 Montero v. I.N.S.,
21 124 F.3d 381 (2d Cir. 1997)...................................................................................................... 11

22 New El Rey Sausage Co. v. U.S. I.N.S., 23 925 F.2d 1153 (9th Cir. 1991) .................................................................................................. 18

24 New Orleans Pub. Serv., Inc. v. Council of New Orleans, 25 491 U.S. 350 (1989).................................................................................................................. 37
26 Nken v. Holder, 556 U.S. 418 (2009)............................................................................................................ 32, 37
27

28

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1

North Dakota v. United States, 495 U.S. 423 (1990)........................................................................................................... passim

2 People v. Shields,
3 205 Cal. App. 3d 1065 (6th Dist. 1988).................................................................................... 16

4 Preap v. Johnson, 5 831 F.3d 1193 (9th Cir. 2016) ............................................................................................ 24, 26

6 Rudolph and Sletten, Inc., Employer, 7 2004 WL 817770 (Ca. O.S.H.A. Mar. 30, 2004)...................................................................... 16

8 Salwasser Mfg. Co. v. Occupational Saf. & Health Appeals Bd., 214 Cal. App. 3d 625 (5th Dist. 1989)...................................................................................... 16
9

10

Sherman v. U.S. Parole Comm’n, 502 F.3d 869 (9th Cir. 2007) .................................................................................................... 30

11 Sol Inc v. Whiting,
12 732 F.3d 1006 (9th Cir. 2013) .............................................................................................. 9, 37

13 South Carolina v. Baker, 14 485 U.S. 505 (1988)............................................................................................................ 10, 15

15 Steinle v. City & Cty. of San Francisco, 16 230 F. Supp. 3d 994 (N.D. Cal. 2017) ...................................................................................... 28

17 United States v. Arizona, 641 F.3d 339 (9th Cir. 2011) ................................................................................................ 9, 37
18

19

United States v. City of Arcata, 629 F.3d 986 (9th Cir. 2009) .......................................................................................... 3, 14, 15

20 Walnut Hill Estate Enters., LLC v. City of Oroville,
21 No. 09-cv-0500, 2010 WL 2902346 (E.D. Cal. July 22, 2010)................................................ 16

22 Zepeda v. I.N.S., 23 753 F.2d 719 (9th Cir. 1983) .................................................................................................... 12

24

FEDERAL STATUTES

25 8 U.S.C. § 1101............................................................................................................................... 9

26 8 U.S.C. § 1101(a)(15)(B) ............................................................................................................ 28
27 8 U.S.C. § 1101(F)(1) ................................................................................................................... 28 28

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1 8 U.S.C. § 1101(H)(ii)(a) .............................................................................................................. 28
2 8 U.S.C. § 1101(H)(ii)(b).............................................................................................................. 28
3 8 U.S.C. § 1101(J)......................................................................................................................... 28
4 8 U.S.C. § 1101(L)........................................................................................................................ 28 5
8 U.S.C. § 1101(M)....................................................................................................................... 28 6 7 8 U.S.C. § 1101(O)(ii)(iv)............................................................................................................. 28
8 8 U.S.C. § 1101(P) ........................................................................................................................ 28
9 8 U.S.C. § 1101(Q) ....................................................................................................................... 28
10 8 U.S.C. § 1182(a)(2).................................................................................................................... 27 11
8 U.S.C. § 1187............................................................................................................................. 23 12 13 8 U.S.C. § 1225............................................................................................................................. 23
14 8 U.S.C. § 1226............................................................................................................................. 23
15 8 U.S.C. § 1226(a) ........................................................................................................................ 30
16 8 U.S.C. § 1226(a)(1).................................................................................................................... 30 17
8 U.S.C. § 1226(c) .................................................................................................................. 36, 37 18 19 8 U.S.C. § 1226(c)(1).................................................................................................. 23, 24, 26, 27
20 8 U.S.C. § 1226(c)(1)(C) .............................................................................................................. 27
21 8 U.S.C. § 1227(a)(1)(C) .............................................................................................................. 29
22 8 U.S.C. § 1227(a)(2).................................................................................................................... 27 23
8 U.S.C. § 1227(a)(4)(A) .............................................................................................................. 26 24 25 8 U.S.C. § 1231....................................................................................................................... 23, 28
26 8 U.S.C. § 1231(a) .................................................................................................................. 26, 30
27 8 U.S.C. § 1231(a)(2).............................................................................................................. 23, 24
28

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1 8 U.S.C. § 1231(g)(1) ................................................................................................................... 18 2 8 U.S.C. § 1231(g)(1)-(2) ............................................................................................................. 18

3 8 U.S.C. § 1231(a)(4).............................................................................................................. 24, 28

4 8 U.S.C. § 1305............................................................................................................................. 29
5 8 U.S.C. § 1324a(a)(1)(A) ............................................................................................................ 11
6 7 8 U.S.C. § 1324a(a)(2) .................................................................................................................. 17
8 8 U.S.C. § 1324a(b) .................................................................................................................. 5, 11

9 8 U.S.C. § 1324a(b)(3).................................................................................................................... 5

10 8 U.S.C. § 1324a(b)(6)(A) ............................................................................................................ 11
11 8 U.S.C. § 1357............................................................................................................................. 23
12 13 8 U.S.C. § 1357(a)(1).................................................................................................................... 11
14 8 U.S.C. § 1357(g)(10)(A) ............................................................................................................ 28

15 8 U.S.C. § 1373............................................................................................................. 3, 25, 27, 28

16

17

PUBLIC LAW

18 Pub. L. No. 99–603 ....................................................................................................................... 32

19

FEDERAL REGULATIONS

20 8 C.F.R. § 236.6 ............................................................................................................ 7, 18, 22, 23
21

22 8 C.F.R. § 287.7(a)........................................................................................................................ 25

23 FEDERAL RULES FOR CIVIL PROCEDURE’
24
25 Fed. R. Civ. P. 65 ............................................................................................................................ 1

26 CALIFORNIA STATUTES
27 Assem. B. 103 ........................................................................................................................ passim

28

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1 Assem. B. 450 ........................................................................................................................ passim
2 CA. S. B. 4 ................................................................................................................................ 7, 33
3 CA. S. B. 54 ........................................................................................................................... passim
4 Cal. Civil Code § 1798.3......................................................................................................... 26, 29 5
Cal. Gov’t Code § 7282.5(a).................................................................................................. passim 6 7 Cal. Gov’t Code § 7285.2(a)(1) .................................................................................................... 16
8 Cal. Gov’t Code § 7284.4(e)......................................................................................................... 31
9 Cal. Gov’t Code § 7284.6 ............................................................................................................. 25
10 Cal. Gov’t Code § 7284.6(a)(1) .................................................................................................... 31 11
Cal. Gov’t Code § 7284.6(a)(1)(C)........................................................................................ passim 12 13 Cal. Gov’t Code § 7284.6(a)(1)(D)........................................................................................ passim
14 Cal. Gov’t Code § 7284.6(a)(4) ............................................................................................. passim
15 Cal. Gov’t Code § 7285.1 ............................................................................................................... 1
16 Cal. Gov’t Code § 7285.1(b)..................................................................................................... 6, 14 17
Cal. Gov’t Code § 7285.1(c)........................................................................................................... 6 18 19 Cal. Gov’t Code § 7285.1(a)............................................................................................... 5, 13, 14
20 Cal. Gov’t Code § 7285.2 ............................................................................................................... 1
21 Cal. Gov’t Code § 12532 .................................................................................................... 1, 22, 23
22 Cal. Gov’t Code § 12532(a)...................................................................................................... 6, 21 23
Cal. Gov’t Code § 12532(b)........................................................................................................... 7, 24 25 Cal. Gov’t Code § 12532(c)...................................................................................................... 7, 22
26 Cal. Lab. Code § 90 ...................................................................................................................... 15
27 Cal. Lab. Code § 90.2 ............................................................................................................... 1, 17
28

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1 Cal. Lab. Code § 90.2(a)(1) ............................................................................................................ 5 2 Cal. Lab. Code § 90.2(c) ................................................................................................................. 6

3 Cal. Lab. Code § 1019.2(a) ....................................................................................................... 5, 17

4 Cal. Lab. Code § 1174 ............................................................................................................ 15, 17
5 Cal. Lab. Code § 1175(b).............................................................................................................. 15
6 7 Cal. Lab. Code § 6321 .................................................................................................................. 17
8 Cal. Penal Code § 6031.1(a) ................................................................................................. 6, 7, 21

9

10

LEGISLATIVE HISTORY

11 H.R. Rep. No. 99-682(I), at 45 ..................................................................................................... 11

12

13

CALIFORNIA LEGISLATIVE HISTORY

14 CA. Assem. Comm. on the Judiciary Rep., Apr. 22, 2017 ................................................... 1, 4, 33

15 CA. S. Comm. On the Judiciary Rep., July 10, 2017 ..................................................... 1, 4, 13, 33

16 CA S. Hearing, April 03, 2017

17 https://ca.digitaldemocracy.org/hearing/52288?startTime=1150&vid=910977abbea937bca742 4c93fe3caf1c (last visited on March 6, 2018)....................................................................... 7, 31
18

19

Hearing on S.B. 54 before the S. Standing Comm. On Public Safety (Jan. 31, 2017) (statement of Sen. Scott Wiener), https://ca.digitaldemocracy.org/hearing/10091?

20 startTime=275&vid=381a741e4e525c9efccbbf6062c67f3c (last visited on March 6, 2018) 7,31

21

22

MISCELLANEOUS

23 Assem. David Chui, Governor Brown Signs Bill to Provide Labor Protections Against ICE Worksite Raids.
24 https://a17.asmdc.org/press-releases/governor-brown-signs-bill-provide-labor-protections-agai
25 nst-ice-worksite-raids (last visited on March 6, 2018) ............................................................. 33

26 Angela Hart, ‘We will prosecute’ employers who help immigration sweeps, California AG says http://www.sacbee.com/news/politics-government/capitol-alert/article195434409.html (last
27 visited on March 6, 2018) ........................................................................................................... 6

28

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1

CA DOJ, Attorney General Becerra Issues Advisory Providing Guidance on the Privacy Requirements of the Immigrant Worker Protection Act,

2 https://oag.ca.gov/news/press-releases/attorney-general-becerra-issues-advisory%C2%A0prov iding-guidance-privacy-requirements (last visited on March 6, 2018)....................................... 6
3

4

CA DIR, Immigrant Worker Protection Act (Assembly Bill 450) Frequently Asked Questions https://oag.ca.gov/sites/all/files/agweb/pdfs/immigrants/immigration-ab450.pdf (last visited on

5 March 6, 2018)............................................................................................................................ 6

6 Jazmine Ulloa, California becomes 'sanctuary state' in rebuke of Trump immigration policy

7

http://www.latimes.com/politics/la-pol-ca-brown-california-sanctuary-state-bill-20171005-sto ry.html (last visited on March 6, 2018) .................................................................................... 33

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

In order to avoid ongoing, irreparable harm to the United States and its interests, and

2 pursuant to Federal Rule of Civil Procedure 65, the United States hereby moves this Court to

3 preliminarily enjoin enforcement of certain provisions of California law enacted through
4 Assembly Bill 450 (“AB 450”), Assembly Bill 103 (“AB 103”), and Senate Bill 54 (“SB 54”). 5
As detailed in the accompanying proposed order, the United States respectfully requests that this 6 7 Court preliminarily enjoin Sections 7285.1, 7285.2, 7284.6(a)(1)(C) and (D), 7284.6(a)(4), and

8 12532 of the California Government Code, and Sections 90.2 and 1019.2 of the California Labor

9 Code.
10 INTRODUCTION
11 California is intentionally obstructing the enforcement of federal law in violation of the
12
13 Supremacy Clause. California has enacted several laws with the express goal of interfering with

14 “an expected increase in federal immigration enforcement actions,” California Committee on the

15 Judiciary Report (Assembly), Apr. 22, 2017, at 1, and shielding the “more than 2.6 million 16
undocumented immigrant[s]” residing in California from any “increase in workplace 17 18 immigration enforcement.” California Committee on the Judiciary Report (Senate), July 10,
19 2017, at 1. As a matter of law and in the public interest, this Court should enter a preliminary

20 injunction to enjoin certain provisions of three such laws. The challenged provisions have both

21 the purpose and effect of obstructing enforcement of the federal immigration laws and

22 discriminating against the Federal Government.
23

24

The first statute, AB 450, the “Immigrant Worker Protection Act,” restricts private

25 employers from voluntarily cooperating with federal officials who seek to ensure compliance

26 with federal immigration laws in the workplace.
27 The second statute, AB 103, creates an intrusive inspection and review scheme applicable
28

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Case 2:18-at-00264 Document 2-1 Filed 03/06/18 Page 12 of 49

1 only to facilities holding civil immigration detainees on the United States’ behalf. The statute 2 authorizes the California Attorney General to examine, among other things, the “due process

3 provided” to civil immigration detainees by the United States, and the “circumstances around
4 their apprehension and transfer” to detention facilities. 5
The third statute, SB 54, includes the “California Values Act,” which precludes state and 6 7 local officials from voluntarily providing to the United States information about the release date

8 from state or local criminal custody of criminal aliens who may be subject to removal and are

9 subject to detention by the United States, or other information relevant to the alien’s immigration
10 status. SB 54 also prohibits state and local officials from transferring aliens to the United States
11 when they are scheduled to be released from state or local custody, thus interfering with the
12
13 United States’ ability to carry out its responsibilities under federal law.

14

All of these provisions are preempted by federal law. A state lacks the authority to

15 intentionally interfere with private citizens’ ability to cooperate voluntarily with the United
16 States or to comply with federal obligations. Likewise, a state has no authority to target facilities
17 18 holding federal detainees pursuant to a federal contract for an inspection scheme to review the

19 “due process” afforded during the arrest and detention. Similarly, a state cannot direct state and

20 local employees to refuse to engage in basic cooperation with federal immigration authorities

21 contemplated by federal law. For example, Congress has determined that—rather than having the
22 United States remove all criminal aliens immediately even if incarcerated for state convictions—
23
24 states should be allowed to vindicate their law enforcement interests in the alien serving their

25 sentence prior to their removal. This decision by Congress to allow states to punish individuals

26 who commit crimes against their citizens hinges on one very reasonable assumption—once the
27 individual has served his or her time under state law, the state will transfer custody to the United
28

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1 States so the person can be properly processed under applicable federal immigration laws. When 2 states release these criminals back onto the streets—rather than notifying DHS of the release and

3 transferring custody—they intentionally subvert the careful balancing of state and federal
4 interests that Congress established in the Immigration and Nationality Act (“INA”). And all the 5
more so given that Congress has enacted 8 U.S.C. § 1373, which expressly prohibits states from 6 7 restricting their officers from sharing information regarding immigration status with the United

8 States.

9

California’s acknowledged efforts to stymie immigration enforcement should be

10 enjoined. These state enactments ““stand[] as an obstacle to the accomplishment and execution
11 of the full purposes and objectives of Congress,” Valle del Sol Inc. v. Whiting, 732 F.3d 1006,
12

13 1023 (9th Cir. 2013) (quoting Arizona v. United States, 567 U.S. 387, 399 (2012)), and thus are

14 preempted by federal law. In addition, they are invalid under the intergovernmental immunity

15 doctrine: far from being laws that “affect the Federal Government incidentally as the 16
consequence of a broad, neutrally applicable rule,” United States v. City of Arcata, 629 F.3d 986, 17 18 991 (9th Cir. 2009), they “are invalid” because they “‘regulate the United States directly’” or
19 “‘discriminate against the Federal Government or those with whom it deals.’” Boeing Co. v.

20 Movassaghi, 768 F.3d 832, 839 (9th Cir. 2014) (quoting North Dakota v. United States, 495 U.S.

21 423, 435 (1990) (plurality op.) (brackets omitted)).
22 Absent injunctive relief, the United States will continue to suffer irreparable harm caused
23
24 by California. Enforcement of these provisions disrupts the constitutional order by undermining

25 the United States’ control over the enforcement of the immigration laws and regulation of

26 immigration policy. The challenged provisions severely frustrate the United States’ enforcement
27 of the immigration laws by placing significant burdens on the federal agencies responsible for
28

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1 such enforcement. They interfere with those agencies’ oversight of unlawful employment of 2 aliens; intrude upon their performance of federal functions by authorizing investigations into

3 their employees’ performance of their mandated duties; and force federal officers to engage in
4 burdensome, dangerous, and far more costly efforts to re-arrest aliens, including dangerous 5
criminals, who were previously in local or state custody and have been released to the streets 6 7 rather than to federal custody, thereby endangering federal officers, the alien at issue, others who

8 may be nearby, and the public at large.

9

BACKGROUND

10 The California legislature recently enacted the three statutes at issue here for the explicit
11 purpose of impeding the United States’ enforcement of the immigration laws.
12

13

1. Immigrant Worker Protection Act (AB 450)

14

The Immigration Worker Protection Act, or AB 450, was enacted to regulate employers

15 who might be the subject of “immigration worksite enforcement actions” by federal immigration 16
authorities. AB 450, Preamble. Like the other statutes at issue, AB 450 is designed to frustrate 17 18 “an expected increase in federal immigration enforcement actions.” California Committee on the
19 Judiciary Report (Assembly), Apr. 22, 2017, at 1. It also is intended to shield the “more than 2.6

20 million undocumented immigrant[s]” residing in California from any “increase in workplace

21 immigration enforcement.” Committee on the Judiciary Report (Senate), July 10, 2017, at 1. To
22 that end, AB 450 restricts private (and public) employers from voluntarily cooperating with
23
24 federal officers and in complying with obligations under federal law, including when those

25 officers seek information relevant to federal efforts to investigate the illegal employment of

26 aliens.
27 Among other things, AB 450 adds Sections 7285.1 and 7285.2 to the California
28

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1 Government Code. Section 7285.1(a) provides that an employer or its agent “shall not provide 2 voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of

3 labor,” unless “the immigration enforcement agent provides a judicial warrant,” or consent is
4 “otherwise required by federal law.” Section 7285.2(a)(1) similarly prohibits an employer or its 5
agent from “provid[ing] voluntary consent to an immigration enforcement agent to access, 6 7 review, or obtain the employer’s employee records without a subpoena or judicial warrant.”

8 Section 7285.2(a)(2) contains an exception for certain documents for which the United States has

9 provided a “Notice of Inspection” issued pursuant to 8 U.S.C. § 1324a(b)(3).
10 AB 450 also adds provisions to the California Labor Code that establish new
11 requirements that employers must satisfy before allowing U.S. Immigration and Customs
12
13 Enforcement (“ICE”), a component of the U.S. Department of Homeland Security (“DHS”), to

14 conduct its inspection process. New Section 90.2 of the Labor Code requires employers to notify

15 employees and their authorized representatives of upcoming inspections of employment records 16
“within 72 hours of receiving notice of the inspection,” Cal. Lab. Code § 90.2(a)(1), and requires 17 18 employers to provide employees and their authorized representatives, within 72 hours, with
19 copies of written immigration agency notices providing results of inspections, id. § 90.2(b)(1).

20 New Section 1019.2(a) of the Labor Code provides that an employer or its agent “shall not

21 reverify the employment eligibility of a current employee at a time or in a manner not required

22
by Section 1324a(b) of Title 8 of the United States Code.” 23

24

The California statutory framework imposes severe financial consequences on private

25 citizens who lawfully comply with federal immigration. All of these provisions are subject to a

26 schedule of civil penalties “of two thousand dollars ($2,000) up to five thousand dollars ($5,000)
27 for a first violation and five thousand dollars ($5,000) up to ten thousand dollars ($10,000) for
28

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1 each subsequent violation.” Cal. Gov’t Code §§ 7285.1(b), 7285.2(b); Lab. Code § 90.2(c).

2

On January 18, 2018, the California Attorney General issued a warning to all employers

3 in the state that his office would “prosecute those who violate [AB 450]” by voluntarily
4 cooperating with ICE enforcement efforts. See Angela Hart, ‘We will prosecute’ employers who 5
help immigration sweeps, California AG says, Sacramento Bee, Jan. 18, 2018.1 And on February 6 7 13, 2018, the California Attorney General issued guidance to employers, which “explains” that

8 “they cannot voluntarily grant immigration enforcement agents physical access to nonpublic

9 areas of the worksite or to employee records,”2 without “trigger[ing] certain penalties for their

10 violation.”3 11
2. Inspection and Review of Facilities Housing Federal Detainees (AB 103) 12

13

Under longstanding California law, “local detention facilities,” including those that house

14 federal immigration detainees on behalf of the United States, are subject to biennial inspections

15 concerning health and safety, fire suppression preplanning, compliance with training and funding 16
requirements, and the types and availability of visitation. Cal. Penal Code § 6031.1(a). The term 17 18 “local detention facilities” includes facilities operated by cities, counties, or private entities that
19 contract with cities or counties (while excluding certain facilities for parolees, treatment and

20 restitution facilities, community correctional centers, and work furlough programs), but does not
21 include federal facilities. Id. § 6031.4. 22
AB 103, which adds Section 12532(a) to the California Government Code, establishes an 23 24 additional inspection and review scheme applicable only to “county, local, or private locked
25 detention facilities in which noncitizens are being housed or detained for purposes of civil

26

27 1 http://www.sacbee.com/news/politics-government/capitol-alert/article195434409.html.
2 https://oag.ca.gov/news/press-releases/attorney-general-becerra-issues-advisory%C2%A0providing-guidance-
28 privacy-requirements.
3 https://oag.ca.gov/sites/all/files/agweb/pdfs/immigrants/immigration-ab450.pdf.

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1 immigration proceedings in California.” (emphases added). This new set of requirements goes 2 far beyond inspections and review already established by Cal. Penal Code § 6031.1(a). The

3 California Attorney General is instructed to examine and report on, among other things, the “due
4 process provided” to civil immigration detainees, and “the circumstances around their 5
apprehension and transfer to the facility.” Cal. Gov’t Code § 12532(b). Section 12532(c) requires 6 7 that the state “shall be provided all necessary access for the observations necessary to effectuate

8 reviews required pursuant to this section, including, but not limited to, access to detainees,

9 officials, personnel, and records.”
10 On November 16, 2017, the California Attorney General initiated via letter a request to
11 inspect various detention facilities housing ICE detainees. Five such facilities have been
12
13 inspected since the law’s effective date. Homan Decl.. ¶¶ 58-59.

14

3. SB 54 and the California Values Act

15

The California Values Act is part of SB 54, which “prohibit[s] state and local law

16 enforcement agencies,” other than employees of the state Department of Corrections and
17
18 Rehabilitation, from “cooperat[ing] with [Federal] immigration authorities” except in certain

19 circumscribed circumstances. See SB 54, Preamble; Cal. Gov’t Code § 7282.5(a). The Act is

20 intended to serve as a “counterbalance to this [Presidential] administration” on enforcement of

21 immigration laws, Hearing on S.B. 54 before the Senate Standing Comm. On Public Safety (Jan. 22
31, 2017) (statement of Sen. Scott Wiener),4 by requiring state and local actions on immigration 23 24 that are “separate from that of the Federal Government,” Senate Floor Hearing on 04-03-2017.5

25

Among other things, with certain exceptions discussed below, new Section 7284.6

26 prohibits state and local officials from “[p]roviding information regarding a person’s release date 27
28 4 https://ca.digitaldemocracy.org/hearing/10091?startTime=275&vid=381a741e4e525c9efccbbf6062c67f3c
5 https://ca.digitaldemocracy.org/hearing/52288?startTime=1150&vid=910977abbea937bca7424c93fe3caf1c.

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1 or responding to requests for notification by providing release dates or other information,” Cal 2 Gov’t Code § 7284.6(a)(1)(C); providing “personal information,” including an individual’s home

3 address or work address, id. § 7284.6(a)(1)(D); and “[t]ransfer[ring] an individual to immigration
4 authorities,” id. § 7284.6(a)(4). 5
SB 54 provides that state and local law enforcement (other than employees of the 6 7 California Department of Corrections and Rehabilitation) may share with the United States

8 “information regarding a person’s release date” or respond “to requests for notification by

9 providing release dates or other information,” only where an individual subject to such
10 information sharing has been convicted of certain crimes, or where the information is available
11 to the public. Cal. Gov’t Code §§ 7282.5(a), 7284.6(a)(1)(C). Personal information may be
12
13 shared only if it is available to the public. Id. § 7284.6(a)(1)(D). State and local law enforcement

14 agencies may “[t]ransfer an individual to immigration authorities” only if the United States

15 presents a “judicial warrant or judicial probable cause determination,” or the individual in
16 question has been convicted of one of certain crimes. Cal. Gov’t Code §§ 7282.5(a);
17 18 7284.6(a)(4).

19

LEGAL STANDARD

20

A preliminary injunction is warranted where, as here, the movant has established that:

21 (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of
22 preliminary relief; (3) the balance of equities tips in its favor; and (4) a preliminary injunction is
23
24 in the public interest. Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (citing

25 Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008)). Generally, where the United States

26 has demonstrated a likelihood of success on the merits of a Supremacy Clause claim, the other
27 factors similarly favor an injunction. See, e.g., id.; United States v. Arizona, 641 F.3d 339, 366
28

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1 (9th Cir. 2011), aff’d in part, rev’d in part, 567 U.S. 387 (2012).

2

ARGUMENT

3 I. The United States Is Likely to Prevail on the Merits

4

The federal immigration scheme, largely enacted in the Immigration and Nationality Act

5 (“INA”), 8 U.S.C. § 1101 et seq., empowers DHS, including its component agencies, ICE and
6

7 Customs and Border Protection (“CBP”), as well as other federal agencies including the

8 Department of Justice (“DOJ”), and the Department of State (“DOS”), to administer and enforce

9 the immigration laws. It affords the United States considerable discretion to provide for and
10 direct enforcement of the immigration laws in a manner consistent with federal policy objectives.
11 “The Government of the United States has broad, undoubted power over the subject of
12
13 immigration” and “[f]ederal governance of immigration and alien status is extensive and

14 complex.” Arizona v. United States, 567 U.S. 387, 394 (2012). The Constitution vests the

15 political branches with exclusive and plenary authority to establish the nation’s immigration
16 policy—a power inherent in national sovereignty. See U.S. Const., art. I § 8, cl. 4 (Congress has
17 18 the authority to “establish an uniform Rule of Naturalization”); U.S. Const., art. I § 8, cl. 3

19 (Congress has the authority to “regulate Commerce with foreign Nations”). The “[p]ower to

20 regulate immigration is unquestionably exclusively a federal power,” De Canas v. Bica, 424 U.S.

21 351, 354 (1976), and “[t]he federal power to determine immigration policy is well settled,”

22 Arizona, 567 U.S. at 395.
23

24

Where a state enactment “conflict[s] or [is] at cross-purposes” with the Federal exercise

25 of its authority, “[t]he Supremacy Clause of the U.S. Constitution, art. VI, cl. 2, provides a clear

26 rule that federal law ‘shall be the supreme Law of the Land; and the Judges in every State shall
27 be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary
28

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1 notwithstanding.’” Arizona, 567 U.S. at 399 (quoting U.S. Const., art. VI, cl. 2). And given that 2 immigration enforcement impacts foreign affairs—an exclusively federal function under the

3 Supremacy Clause—courts should be especially skeptical of state regulation impacting
4 immigration. See id. at 395 (explaining immigration regulation impacts the United States’ 5
“inherent power as sovereign to control and conduct relations with foreign nations”); cf. 6 7 Harisiades v. Shaughnessy, 342 U.S. 580, 588–589 (1952) (explaining that “[s]uch matters are so
8 exclusively entrusted to the political branches of government” because “any policy toward aliens
9 is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of 10
foreign relations, the war power, and the maintenance of a republican form of government”). 11
It follows that the California provisions at issue here are preempted and invalid under 12 13 each of two related doctrines. First, a state law is preempted by federal law if it “stands as an
14 obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
15 Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see also Geier v. Am. Honda Motor Co., 529 U.S. 16
861, 873 (2000) (“obstacle” exists whether it “goes by the name of conflicting; contrary to; 17 18 repugnance; difference; irreconcilability; inconsistency; violation; curtailment; interference, or
19 the like”) (quotation marks omitted)); Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S.

20 151, 153 (1982) (“Federal regulations have no less pre-emptive effect than federal statutes”).
21 Second, under the doctrine of intergovernmental immunity, state laws are invalid if they 22
“regulate the United States directly” or “discriminate against the Federal Government or those 23 24 with whom it deals.’” North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality op.);
25 see South Carolina v. Baker, 485 U.S. 505, 514-15 (1988) (similar).6 The provisions at issue here

26 have the purpose and effect of interfering with and effectively nullifying the United States’
27
6 Although the controlling opinion in North Dakota was a plurality, the Court was unanimous in concluding that
28 states may not regulate or discriminate against the United States. 495 U.S. at 435 (plurality op.); id. at 444 (Scalia,
J., concurring); id. at 451-52 (Brennan, J., dissenting).

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1 enforcement of the immigration laws, and of singling out for adverse treatment the federal 2 government and those who assist it with immigration enforcement efforts.

3

A. The Constitution does not allow California to obstruct federal law

4

enforcement efforts by prohibiting employers from voluntarily cooperating with federal law enforcement officials (AB 450)

5 1. In enacting the Immigration Reform and Control Act of 1986 (“IRCA”), Congress
6

7 established a “comprehensive framework for combating the employment of illegal aliens,”

8 Arizona, 567 U.S. at 404, and its “primary purpose” is to “reduce the flow of illegal immigration

9 into the United States by removing the employment ‘magnet’ that draws undocumented aliens
10 into the country,” Montero v. I.N.S., 124 F.3d 381, 384 (2d Cir. 1997) (quoting H.R. Rep. No. 11
99-682(I), at 45-46 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5649-50). IRCA makes it 12
13 illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized

14 workers. 8 U.S.C. § 1324a(a)(1)(A), (a)(2). Employers who attempt to comply in good faith with

15 verification requirements are protected from civil and criminal penalties under federal law. Id.
16 § 1324a(b)(6)(A). And importantly, Congress established a uniform inspection process whereby
17 employers are required to retain documentary evidence of authorized employment of aliens, and
18
19 to permit federal investigative officers to inspect that evidence. See id. § 1324a(b), (e)(2)(A).

20

Federal law contains no requirement that immigration officials seeking to enforce either

21 criminal or civil immigration provisions exclusively procure a judicial warrant before seeking to
22 enter a place of employment for immigration enforcement purposes. See 8 U.S.C. § 1357(a)(1)
23 24 (authorizing federal agents to interrogate suspected aliens without a warrant); id. § 1357(e)
25 (federal immigration officer may not, “without the consent of the owner (or agent thereof) or a

26 properly executed warrant,” enter “a farm or other outdoor agricultural operation for the purpose

27 of interrogating a person believed to be an alien as to the person’s right to be or to remain in the
28 United States”) (emphasis added). Instead, Congress provided for a method for immigration

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1 enforcement, including in the context of worksite inspections, that is premised on the private 2 property owner’s ability to consent to inspections of their property and employee records. This

3 framework, established by Congress, provides a rational balancing of Executive Branch and
4 Judicial Branch resources. 5
It is thus established that “[i]n the course of enforcing the immigration laws, [federal 6 7 immigration officers may] enter[ ] employers’ worksites to determine whether any illegal aliens

8 may be present as employees.” I.N.S. v. Delgado, 466 U.S. 210, 211-12 (1984). As the Supreme

9 Court explained, “it makes no difference . . . that the encounters t[ake] place inside a factory, a
10 location usually not accessible to the public.” See id. at 217 n.5. So long as immigration “officers
11 were lawfully present pursuant to consent or a warrant,” the “same considerations attending
12
13 contacts between the police and citizens in public places should apply.” Id. (emphasis added).

14 Indeed, the Ninth Circuit has agreed with the United States’ argument that “Congress, in

15 adopting [8 U.S.C. § 1357]” intended for immigration officers to possess enforcement authority 16
“to the fullest extent permissible under the fourth amendment.” Zepeda v. INS, 753 F.2d 719, 725 17 18 (9th Cir. 1983); accord Int’l Molders’ & Allied Workers’ Local Union No. 164 v. Nelson, 799
19 F.2d 547, 553 (9th Cir. 1986) (reversing portion of injunction against INS because it “exceed[ed]

20 the particularity requirements of the Fourth Amendment and unduly restrict[ed] [federal

21 immigration officers’] ability to engage in consensual questioning” by requiring the United
22 States to procure search warrant identifying specific persons suspected of being unlawfully
23
24 present before undertaking a workplace search).

25

2. AB 450 imposes civil penalties on private employers in California who provide

26 “consent[] to an immigration enforcement agent to enter any nonpublic areas of a place of labor,”
27 unless “the immigration enforcement agent provides a judicial warrant” or consent is “otherwise
28

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1 required by federal law.” Cal. Gov’t Code § 7285.1(a).

2

The Constitution does not allow California to impede federal law enforcement in this

3 fashion. It is well established that a state enactment is preempted if it “results in interference with
4 Federal Government functions.” Gartrell Constr. Inc. v. Aubry, 940 F.2d 437, 438 (9th Cir. 5
1991) (invalidating statute that purported to preclude a contractor from performing services on a 6 7 federal construction project without first obtaining a license from the state); cf. Buckman Co. v.

8 Plaintiffs’ Legal Comm., 531 U.S. 341, 347 (2001) (“the relationship between a federal agency

9 and the entity it regulates is inherently federal in character because the relationship originates
10 from, is governed by, and terminates according to federal law”). AB 450 interferes with federal
11 law enforcement by making it more difficult for federal officers to investigate both criminal and
12
13 civil immigration violations at employment sites. In particular, the statute poses an obstacle to

14 federal enforcement by effectively restricting the ability to conduct federal investigations without

15 a judicial warrant, despite the INA’s express authorization of such enforcement.7 See, e.g., 16
Arizona, 567 U.S. at 402, 406 (finding preempted a state law that conflicted with the “method of 17 18 enforcement” of immigration laws available to the United States through the INA and thus
19 “diminish[ed] the Federal Government’s control over enforcement and detract[ed] from the

20 integrated scheme of regulation created by Congress”). Indeed, the INA does not provide a

21 mechanism for procuring judicial rather than administrative warrants for immigration
22 enforcement. Thus, any requirement to do so further burdening DHS’s ability to fulfill its
23
24 statutory mandate in the manner prescribed by Congress. Homan Decl. ¶ 70. California cannot

25 plausibly assert that it is vindicating a legitimate state interest in employee privacy here, given

26
7 Indeed AB 450 was expressly designed to thwart federal law on consent. See Committee on the Judiciary Report
27 (Senate), July 10, 2017, at 3 (acknowledging that “existing law provides, under federal law, that an immigration
officer may” enter nonpublic areas of an employer with either “a warrant or the consent of the owner) (emphasis
28 added).

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1 that this restriction on employer consent does not apply to any other types of investigatory 2 activity—not any state enforcement, or even federal non-immigration enforcement. Rather, AB

3 450’s clear purpose and effect is to prevent federal immigration officials alone from carrying out
4 their congressionally-mandated functions.8 5
For similar reasons, the state enactment violates principles of intergovernmental 6 7 immunity. It is established that “the States may not directly obstruct the activities of the Federal

8 Government.” United States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2009) (quoting North

9 Dakota, 495 U.S. at 437-38 (plurality op.)). Applying this principle in Arcata, the Ninth Circuit
10 invalidated local ordinances that purported to regulate military recruiting. As the court explained,
11 such ordinances “do not merely regulate the Federal Government incidentally,” but “are
12
13 expressly intended to do so.” Arcata, 629 F.3d at 991. Similarly, in Boeing Co. v. Movassaghi,

14 768 F.3d 832 (9th Cir. 2014), the Ninth Circuit invalidated a state enactment that purported to

15 create special rules for cleanup of a federal nuclear site, concluding that by imposing regulations
16 on a government contractor, the statute “directly interfere[d] with the functions of the Federal
17 18 Government.” Id. at 840.

19

AB 450 violates this settled principle. The state enactment imposes penalties on private

20 8 AB 450 also poses an obstacle to enforcement activities that are unrelated to workplace enforcement but happen to
occur at what AB 450 defines as a “place of labor,” including critical enforcement activities that occur near the
21 international border. For example, when DHS is engaged in an enforcement action – such as the search for an
identified suspect who is a known criminal alien, or trying to locate or pursue recent illegal border-crossers near the
22 international border – that action may lead agents onto private property. Homan Decl. ¶ 88; Scott Decl. ¶ 27-29. In
those circumstances, seeking consent from the private property owner may be the most efficient method to continue
23 that operation, including in potentially dangerous circumstances involving pursuit of absconding aliens near the
border. Id. But AB 450 would preclude the property owner from providing consent if its property counted as a
24 “place of labor” – a term with a potentially broad and malleable meaning that could include wide swaths of property
used for farming or ranching, a warehouse, or other locations where DHS might need to conduct non-workplace
25 enforcement related operations. Indeed, Congress has explicitly authorized immigration officers within a reasonable
distance from the international border to have access—without a warrant—to private lands, but not dwellings, for
26 the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.” 8 U.S.C. §
1357(a)(3). More generally, non-work related enforcement operations frequently rely on property owner consent,
27 and AB 450 places a clear obstacle in the path of an immigration enforcement scheme that clearly envisions access
to property with the consent of the property owner. Cf. id. § 1357(e) (DHS officers authorized to enter farm property
28 for interrogation with “consent of the owner”).

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1 employers, but only to the extent that they voluntarily cooperate with the United States. See Cal. 2 Gov’t Code §§ 7285.1(a), 7285.1(b). California is not attempting to impose a generally

3 applicable law that purports to protect employee privacy, but rather is specifically targeting

4 federal immigration enforcement. As in Arcata, the statute “do[es] not merely regulate the

5 Federal Government incidentally; rather, [it is] expressly intended to do so.” 629 F.3d at 991.
6

7

California cannot plausibly assert that it has authority to directly prohibit the United

8 States from entering private property with consent from the property owner. Its effort to do so is

9 no more permissible when achieved indirectly through regulation of the property owner. Because
10 “a regulation imposed on one who deals with the Government has as much potential to obstruct
11 governmental functions as regulation imposed on the Government itself,” the Supreme Court
12
13 “has required that the regulation be one that is imposed on some basis unrelated to the object’s

14 status as a Government contractor or supplier, that is, that it be imposed equally on other

15 similarly situated constituents of the State.” North Dakota, 495 U.S. at 438 (plurality op.). Here, 16
the state enactment is imposed based solely on the private entity’s decision to deal with the 17 18 United States. Similarly, California cannot plausibly assert that it has authority to impose a tax
19 only on those businesses that enter into agreements with the United States. See, e.g., South

20 Carolina, 485 U.S. at 514-15. That basic principle does not yield when the tax takes the form of

21 a civil penalty, and the agreement with the United States takes the form of cooperation with

22 immigration officers.
23

24

That AB 450 regulates private property owners in a manner that discriminates exclusively

25 against the United States is made plain by the fact that California law does not establish any

26 similar proscription on a private employer’s consenting to inspections by any California law
27 enforcement agencies, some of whose regulatory schemes in fact mandate that regulated places
28

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1 of employment provide state inspectors “free access” to their premises, often on penalty of 2 criminal prosecution, and with no warrant requirement. See, e.g., Cal. Lab. Code §§ 90, 1174,

3 1175(b) (Division of Labor Standards Enforcement); id. §§ 2666, 2667 (Department of Industrial
4 Relations); id. § 6314 (Division of Occupational Safety and Health); see also id. § 1151 5
(Agricultural Labor Relations Board shall have “free access to all places of labor”). None of 6 7 these provisions forbid private property owners from consenting to a State inspection. Nor does

8 California law require private employers to refuse State officers consent unless a judicial warrant

9 is presented. Rather, “[e]mployers have the right to consent to a police search,” People v.
10 Shields, 205 Cal. App. 3d 1065, 1068 (6th Dist. 1988), or to a regulatory “inspection.” Appeal of
11 Rudolph and Sletten, Inc., Employer, 2004 WL 817770, at *5 (Ca. O.S.H.A. Mar. 30, 2004).
12
13 Moreover, law enforcement entities may rely on consent and need not normally procure judicial

14 warrants before fulfilling their regulatory mandates. See, e.g., Walnut Hill Estate Enters., LLC v.

15 City of Oroville, No. 09-cv-0500, 2010 WL 2902346, at *3 (E.D. Cal. July 22, 2010); Salwasser

16 Mfg. Co. v. Occupational Safety & Health Appeals Bd., 214 Cal. App. 3d 625 (5th Dist. 1989).
17

18

The other challenged provisions of AB 450 have the same purpose and effect of

19 impermissibly regulating and discriminating against the United States. California prohibits

20 employers from “provid[ing] voluntary consent to an immigration enforcement agent to access,

21 review, or obtain the employer’s employee records without a subpoena or judicial warrant.” Cal.
22 Gov’t Code § 7285.2(a)(1). Although the statute contains exceptions for particular categories of
23
24 documents, id. § 7285.2(a)(2), there can be no serious dispute that the statute, when it applies,

25 deliberately stands as an obstacle to the enforcement of federal laws and targets the United States

26 for adverse treatment. See Homan Decl. ¶¶ 86, 88 (explaining that AB 450’s exception does not
27 exempt criminal investigations, including, for example, investigations into “human smuggling
28

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1 and trafficking” at certain employers, and impedes “[n]on-work related enforcement operations” 2 that rely on “property owner consent and cooperation”). Indeed, California treats itself far better,

3 providing that any place of business that “refuses to furnish [upon request] any statistics or

4 information” to some of its own regulatory entities “is guilty of a misdemeanor.” Cal. Lab. Code

5 § 1174.
6

7

Similarly impermissible is California’s requirement that employers provide notice to their

8 employees and their authorized representatives of upcoming inspections within 72 hours of

9 receiving notice of such inspections and their results. Cal. Lab. Code § 90.2. Federal
10 investigations obiously will be less effective if targets of the investigations are warned ahead of
11 time and kept abreast of the status of the United States’ enforcement efforts. It would be
12
13 unthinkable for a state to require that suspects be warned of upcoming criminal investigations by

14 the Federal Bureau of Investigation (“FBI”) or the California Bureau of Investigations, or that

15 suspects be kept up to date on the results of investigative work done by the FBI and similar state 16
law enforcement entities. There is no basis for a different rule for federal officers enforcing the 17 18 immigration laws, particularly where California does not apply the same standard to its own law
19 enforcement officers. See Cal. Lab. Code § 6321 (“[n]o person or employer shall be given

20 advance warning of an [OSHA] inspection or investigation”).

21

Finally, AB 450 precludes employers from reverifying the employment eligibility of their

22 employees, except when such reverification is required by federal law. Cal. Lab. Code 1019.2(a).
23

24 Under IRCA, it is unlawful both to hire an unauthorized worker and “to continue to employ [an]

25 alien in the United States knowing the alien is (or has become) an unauthorized alien with

26 respect to such employment.” 8 U.S.C. § 1324a(a)(2). Thus, although employers do not have an
27 obligation to continually reverify employment status for any particular individual, they do have a
28

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1 continuing obligation to avoid knowingly employing unauthorized aliens. And as the Ninth 2 Circuit has recognized, in some circumstances “deliberate failure to investigate suspicious

3 circumstances imputes knowledge.” New El Rey Sausage Co. v. U.S. I.N.S., 925 F.2d 1153, 1158
4 (9th Cir. 1991). Congress thus intended that employers remain well-informed of their employees’ 5
immigration status and work authorization, thus satisfying their obligation to prevent 6 7 unauthorized employment under IRCA. Prohibiting employers from reverifying work

8 authorization when they deem it appropriate to remain in lawful compliance interferes with that

9 employer’s ability to mitigate liability and frustrates ICE’s overall worksite enforcement efforts,

10 which seek to instill a culture of compliance and accountability.

11

B. The Constitution does not allow California to inspect facilities holding

12

federal detainees to review federal law enforcement efforts (AB 103)

13

1. The INA explicitly recognizes the United States’ authority to “arrange for appropriate

14 places of detention for aliens detained pending removal or a decision on removal.” 8 U.S.C.
15

16 § 1231(g)(1). Congress expressly contemplated that some of those aliens might not be housed in

17 federal facilities. See id. § 1231(g)(1)-(2) (lease or rental of facilities); id. § 1103(a)(11)

18 (authorizing payment to states and localities for bed space for detainees).
19 Although detainees may be housed in nonfederal facilities, they remain federal detainees
20 subject to the control of the United States. Federal law does not contemplate any role for the
21
22 facility itself, or for states and localities, in determining which aliens are properly subject to

23 detention or the terms and conditions of that detention. And federal regulation prohibits state,

24 local, or private facilities from disclosing information related to detainees. 8 C.F.R. § 236.6.
25 DHS, through ICE, utilizes twenty detention facilities in California to house civil
26 27 immigration detainees in federal custody, and regularly uses nine of these facilities. Homan Decl.
28 ¶ 51. All together, these facilities can house approximately 5,700 immigration detainees. Id.

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1 Most of these detention facilities are governed by agreements that ICE enters into with county, 2 city, or local government entities. Id. ¶¶ 48-51.

3

2. AB 103 mandates inspection and review of immigration detention facilities that

4 includes the California Attorney General’s own assessment of the United States’ basis for the 5
alien’s detention and transfer and the due process afforded to the alien. California thus seeks 6
7 through AB 103 to use the location of detention as a mechanism to undertake its own inspection

8 and review of the United States’ enforcement of federal immigration law. Cal. Gov’t Code

9 § 12532(a), (b). But the Constitution and the INA give the Federal Government authority over
10 federal immigration enforcement, and neither affords California authority to second-guess the
11 Federal Government’s determinations regarding detention and transfer of aliens. See generally
12
13 Arizona, 567 U.S. at 394-97.

14

Under the federal immigration scheme, “[f]ederal officials,” and not States, “must decide

15 whether it makes sense to pursue removal.” Arizona, 567 U.S. at 396. The Supreme Court has
16 thus recognized “the principle that the removal process is entrusted to the discretion of the
17 18 Federal Government,” and held (invalidating a state statute that purported to authorize state

19 officers to make unilateral immigration arrests) that states may not authorize their “officers to

20 decide whether an alien should be detained for being removable.” Id. at 409. “Decisions of this

21 nature,” the Court explained, “touch on foreign relations and must be made with one voice.” Id.
22 AB 103 disregards the Federal Government’s exclusive authority to determine detention
23
24 and transfer of removable aliens by creating a state inspection scheme designed to review and

25 publicly report on the circumstances surrounding an alien’s apprehension. California’s efforts to

26 interfere with the Federal Government’s enforcement efforts by applying its own assessment of
27 due process afforded an alien pose an impermissible obstacle to administering the federal
28

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1 immigration scheme. Just as incarceration of convicted criminals in a nonfederal facility does not 2 afford states the authority to second-guess the circumstances of the prisoners’ arrest and criminal

3 conviction, the states have no authority to second-guess the United States’ immigration

4 enforcement efforts through an inspection and review scheme. Cf. Tarble’s Case, 80 U.S. 397

5 (1871) (state courts cannot exercise habeas review of federal detention).
6

7

As the Ninth Circuit explained in invalidating state licensing requirements for federal

8 contractors, a state enactment is preempted to the extent that it “is effectively attempting to

9 review the Federal Government’s responsibility determination” in selecting its contractor.
10 Gartrell Constr., 940 F.2d at 439; see also Leslie Miller, Inc. v. Arkansas, 352 U.S. 187, 189-90
11 (1956) (invalidating state licensing requirement for federal contractors). Here, California
12
13 attempts to inspect and review the United States’ actions in an area of exclusive federal

14 responsibility.

15

For similar reasons, the effort to inspect and review federal enforcement efforts is

16 prohibited by the doctrine of intergovernmental immunity. See Johnson v. Maryland, 254 U.S.
17
18 51, 56–57 (1920) (“immunity of the instruments of the United States from state control in the

19 performance of their duties extends to a requirements [sic] that they desist from performance

20 until they satisfy a state officer upon examination that they are competent for a necessary part of

21 them”). While neutral, generally applicable state regulations may in certain circumstances
22 incidentally regulate federal contractors, the Ninth Circuit has recognized that absent
23
24 unambiguous congressional authorization, a state is barred from “regulat[ing] not only the

25 federal contractor[,] but the effective terms of federal contract itself.” Boeing, 768 F.3d at 840.

26 Here, California impermissibly seeks to regulate and second-guess not only the performance of a
27 federal contract for detention, but the government behavior that led to detention in the first place.
28

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1 This is an impermissible effort to regulate the United States. See id. (invalidating California law 2 that “directly interfere[d] with the functions of the Federal Government” by “mandating the ways

3 in which [federal contractors] render[ed] services that the Federal Government hired [them] to
4 perform”). 5
California’s violation of fundamental tenets of our federal system is underscored by the 6 7 fact that its law applies solely to those having contracts with the United States. The inspection

8 requirements of Section 12532 of the California Government Code apply only to “county, local,

9 or private locked detention facilities in which noncitizens are being housed or detained for
10 purposes of civil immigration proceedings in California.” Cal. Gov’t Code § 12532(a). In
11 contrast, California subjects all other “local detention facilities” to only biennial inspections
12
13 concerning health and safety, fire suppression preplanning, compliance with training and funding

14 requirements, and the types and availability of visitation. Cal. Penal Code § 6031.1(a) (with the

15 exception of certain specialized facilities). And these state investigations are limited to 16
“minimum standards” concerning the conditions of local correctional facilities and the treatment 17 18 of prisoners. Id. § 6030; accord 15 Cal. Code Reg. §§ 1000–1282. Any legitimate state interest
19 in the operation of detention facilities within the state’s borders could be addressed by the

20 application of such provisions. There is no legitimate basis for conducting a unique review of

21 immigration facilities merely because the state disagrees with the United States’ enforcement of
22 federal immigration law. See Boeing, 768 F.3d at 843 (contractor “cannot be subjected to
23
24 discriminatory regulations because it contracted with the Federal Government”).

25

The statute also impermissibly interferes with federal enforcement of the immigration

26 laws by requiring facilities housing immigration detainees to provide “all necessary access for
27 the observations necessary to effectuate reviews required pursuant to this section, including, but
28

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1 not limited to, access to detainees, officials, personnel, and records.” Cal. Gov’t Code 2 § 12532(c). The California Attorney General has already attempted to enforce this provision by

3 seeking to inspect various detention facilities—and in fact inspecting five such facilities—
4 housing immigration detainees on behalf of ICE, including detainee records and law enforcement 5
decisions by facility personnel. Homan Decl. ¶¶ 58-59. Thus, Section 12532(c) intrudes on the 6 7 orderly operation of facilities carrying out federal functions and is irreconcilable with 8 C.F.R. §
8 236.6, which establishes that information about immigration detainees belongs solely to the
9 Federal Government. See 8 C.F.R. § 236.6. Section 12532(c) therefore “directly regulate[s] the 10
Federal Government’s . . . property,” and is invalid for that reason as well. See Blackburn v. 11
United States, 100 F.3d 1426, 1435 (9th Cir. 1996) (emphasis added). Indeed, AB 103 actually 12 13 requires contractors to violate that regulation, which prohibits “any state or local government
14 entity or any privately operated detention facility that houses, maintains, provides services to, or
15 otherwise holds any detainee on behalf” of DHS from “disclos[ing] or otherwise permit[ting] to 16
be made public the name of, or other information relating to, such detainee.” 8 C.F.R. § 236.6; 17 18 see Am. Civil Liberties Union of New Jersey, Inc. v. Cty. of Hudson, 799 A.2d 629, 646–47 (N.J.
19 App. Div. 2002) (explaining that 8 C.F.R. § 236.6 “prohibits the disclosure” of information

20 “concerning federal detainees”). And, unlike laws in other states concerning contract facilities
21 housing immigration detainees, Section 12532 does not “expressly exempt[] from the act any 22
information that is protected from disclosure under federal law.” See, e.g., Comm’r of Correction 23 24 v. Freedom of Info. Comm’n, 52 A.3d 636, 654 (Conn. 2012). Section 12532 therefore conflicts
25 with federal law and is preempted because ICE contractors cannot comply with it and 8 C.F.R. §

26 236.6.9 See Arizona, 567 U.S. at 399. 27
28 9 E Even if section 12532 was not subject to preemption on its face, the manner in which Defendant Becerra has
sought to enforce it demonstrates that it is preempted as applied. As noted, Defendant Becerra has, through various

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1

C. The Constitution does not allow California to restrict cooperation with the United States that is contemplated and protected by federal law (SB 54)

2 1. In addition to establishing the circumstances in which aliens can enter, remain in, or be
3

removed from the United States, the INA codifies the Executive Branch’s constitutional and 4

5 inherent authority to investigate, arrest, and detain aliens suspected of being, or found to be,

6 unlawfully present in the United States. See 8 U.S.C. §§ 1182, 1225, 1226, 1231, 1357. Actual

7 knowledge of the date of release from state or local custody or the home address of an alien
8 covered by these provisions is critical to DHS’s ability to fulfill its statutory obligations
9
10 regarding detention and removal.

11

Where an alien has committed certain criminal offenses, “the [Secretary] shall take into

12 custody any alien who” has committed such offenses “when the alien is released,” if the alien is 13 already in the custody of state or local officials. Id. § 1226(c)(1). Detention following such 14
apprehension is mandatory. Id. Where “an alien [ha]s [been] ordered removed, the [Secretary] 15 16 shall remove the alien from the United States within a period of 90 days,” during which time an
17 alien subject to a final order of removal shall be detained pending effectuation of the order. Id. §
18 1231(a)(2). Detention during the removal period prevents the alien from absconding and ensures 19
the alien’s presence for removal. See id. Aliens may be detained beyond the removal period if 20
they have qualifying criminal convictions, have engaged in activity which endangers public 21 22 safety, or have been found to be a risk to the community or to be unlikely to comply with the
23 order of removal. Id. § 1231(a)(6).
24

25 letters to DHS’s detention contractors, indicated an intention to imminently inspect their facilities and has demanded
access to various private documents respecting the “welfare of persons detained.” To the extent such documents
26 refer to any specific immigration detainee in any way, they are covered by section 236.6, and section 12532 is
therefore preempted. See, e.g., Cty. of Hudson, 799 A.2d at 655 (finding preempted law “requiring public disclosure
27 of information regarding [DHS] detainees”); accord Voces de la Frontera v. Clarke, 891 N.W.2d 803, 815 (Wis.
2017) (request under state law for disclosure of ICE Detainer Form I-247 would be preempted); Comm'r of
28 Correction, 52 A.3d at 653 (request under state law for “[National Crime Information Center] printout” of
immigration detainee would be preempted).

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1

Congress has also determined, however, that confinement as part of a state criminal

2 sentence shall generally be permitted to proceed notwithstanding the prospect of or pendency of

3 federal removal proceedings, providing that the United States “may not remove an alien who is
4 sentenced to imprisonment until the alien is released from imprisonment.” 8 U.S.C. § 1231(a)(4); 5
see id. § 1231(a)(4)(B) (permitting earlier removal in certain circumstances when the State 6 7 agrees it is in the “best interest of the State”). The structure of the INA makes clear that states

8 and localities are, in turn, required to allow a basic level of information-sharing to ensure that

9 they do not frustrate federal immigration law. The INA presumes that the United States will be
10 made aware of the release date of aliens who are subject to a final order of removal, providing
11 that an alien’s release date from state or local criminal custody and transfer to DHS will trigger a
12
13 90-day period in which to execute removal. See 8 U.S.C. § 1231(a)(1)(B)(iii) (removal period

14 “begins on . . . the date the alien is released from [state criminal] detention”). Detention during

15 this “removal period” is mandatory for aliens with a qualifying criminal history. See 8 U.S.C. 16
§ 1231(a)(2). Likewise, as to removable aliens in removal proceedings but not yet subject to a 17 18 final order of removal, the INA directs DHS to take criminal aliens into mandatory detention
19 during removal proceedings “when the alien is released” from state criminal custody. 8 U.S.C.

20 § 1226(c)(1) (emphasis added). The need for information sharing is made more stark by the

21 Ninth Circuit’s holding in Preap v. Johnson that DHS may not detain such a criminal alien under
22 the mandatory detention provisions if it does not take the alien into custody “promptly upon [his
23
24 or her] release” from criminal custody. 831 F.3d 1193, 1205 (9th Cir. 2016), pet. for cert.

25 pending, No. 16-1363 (U.S. filed May 11, 2017). Thus, it is critical that DHS timely obtain

26 release date information in order to carry out its statutorily mandated functions. Cf. Jennings v.
27 Rodriguez, No. 15-1204, --- U.S. ---, 2018 WL 1054878, at *4 (U.S. Feb. 27, 2018) (“To
28

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1 implement its immigration policy, the Government must be able to decide (1) who may enter the 2 country and (2) who may stay here after entering.”).

3

To effectuate the INA’s provisions, DHS issues an “immigration detainer” that “serves to

4 advise another law enforcement agency that [DHS] seeks custody of an alien presently in the 5
custody of that agency, for the purpose of arresting and removing the alien.” 8 C.F.R. § 287.7(a). 6
7 An immigration “detainer is a request that such agency advise the Department, prior to release of

8 the alien, in order for the Department to arrange to assume custody.” Id. DHS may also request,

9 but not require, that custody be extended by a period not to exceed 48 hours, “in order to permit
10 assumption of custody by the Department.” Id. § 287.7(d).
11 Congress has underscored the necessity for “[c]onsultation between federal and state
12
13 officials” in immigration enforcement, Arizona, 567 U.S. at 411, by expressly providing in 8

14 U.S.C. § 1373(a), that “[n]otwithstanding any other provision of . . . law, a Federal, State, or

15 local government entity or official may not prohibit, or in any way restrict, any government
16 entity or official from sending to, or receiving from, [federal authorities] information regarding
17 18 the citizenship or immigration status . . . of any individual.”

19

2. New California Government Code Section 7284.6 deliberately seeks to undermine the

20 system that Congress designed, under which states are permitted to have aliens complete their

21 state criminal sentences before being subject to removal by federal officials. The new California
22 statute restricts state and local officials, other than state correctional officers, from cooperating
23
24 with the United States. Among other things, Section 7284.6 prohibits state and local officials

25 from: “[p]roviding information regarding a person’s release date or responding to requests for

26 notification by providing release dates or other information,” Cal Gov’t Code § 7284.6(a)(1)(C);
27 providing “personal information,” including an individual’s home address or work address or
28

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1 any “statements made by, or attributed to, the individual,” id. § 7284.6(a)(1)(D); Cal. Civil Code
2 § 1798.3; and “[t]ransfer[ring] an individual to immigration authorities,” id. § 7284.6(a)(4). This
3 general bar is subject to only limited exceptions. State and local law enforcement may share with
4 the United States “information regarding a person’s release date” or respond “to requests for 5
notification by providing release dates or other information,” but only where an individual 6 7 subject to such information sharing has been convicted of a limited subset of crimes established
8 by California rather than Congress, or where the information is available to the public. Cal.
9 Gov’t Code §§ 7282.5(a), 7284.6(a)(1)(C). Personal information may be shared only if it is 10
available to the public. Id. § 7284.6(a)(1)(D). State and local law enforcement agencies may 11
“[t]ransfer an individual to immigration authorities” only if the United States presents a “judicial 12 13 warrant or judicial probable cause determination,” or the individual in question has been
14 convicted of a similarly limited subset of crimes, also established by California rather than
15 Congress. Id. §§ 7284.6(a)(4), 7282.5(a). 16
Notably, the limited subset of crimes under SB 54 that permits sharing release dates or 17 18 personal information or transferring aliens to federal custody without a judicial warrant does not
19 match the set of crimes under federal law governing that may serve as the predicate for
20 removability (even without a conviction). See, e.g. 8 U.S.C. § 1227(a)(4)(A), (B) (individuals
21 who engage in “criminal activity which endangers public safety or national security,” or “is 22
engaged in or is likely to engage . . . in any terrorist activity”); see generally id. §§ 1182(a)(2), 23 24 1227(a)(2), (4). Nor does SB 54 track the set of crimes that require the federal government to
25 detain such aliens upon their release from state or local custody. See, e.g., 8 U.S.C. §
26 1226(c)(1)(C); 1227(a)(2)(A)(i)(II) (mandating federal custody of aliens “convicted of a crime 27
for which a sentence of one year or longer may be imposed”) (emphasis added); see generally id. 28

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1 § 1226(c)(1).

2

If a state refuses to share with DHS an alien’s release date, then DHS cannot fulfill its

3 statutory responsibilities regarding detention and removal because it cannot arrest the alien upon
4 the alien’s release from custody. And if it cannot arrest the alien promptly upon release, DHS is 5
impeded in effectuating its statutory mandate to detain dangerous criminals and prevent danger 6 7 to the community or flight by removable aliens during the administrative immigration hearing

8 and removal process. See 8 U.S.C. §§ 1226(c)(1), 1231(a); Preap, 831 F.3d at 1205. The effect

9 of the prohibition on providing release dates is compounded by SB 54’s prohibition on sharing
10 personal information, including home addresses, with the United States, § 7284.6(a)(1)(D),
11 which deprives DHS of information it needs to locate an alien if the locality refuses to provide
12
13 notice of release. Such obstruction of DHS’s ability to fulfill Congress’s directives to it “stand[]

14 as an obstacle to the accomplishment and execution of the full purposes and objectives of

15 Congress.” Arizona, 567 U.S. at 399; see also Int’l Paper Co. v. Ouellette, 479 U.S. 481, 494
16 (1987) (“state law . . . is pre-empted if it interferes with the methods by which the federal statute
17 18 was designed to reach [its] goal”) (emphasis added).

19

In prohibiting officials from sharing information such as an alien’s release date, sections

20 7284.6(a)(1)(C) & (D) also directly conflict with 8 U.S.C. § 1373(a), under which a state or local

21 government may not prohibit the exchange of “information regarding” an individual’s
22 immigration status. In “enacting section 1373, Congress sought to prevent any State or local law
23
24 . . . that prohibits or in any way restricts any communication between State and local officials

25 and the INS.’” Bologna v. City & Cty. of San Francisco, 121 Cal. Rptr. 3d 406, 414 (Cal. Ct.

26 App. 3d Div. 2011) (quoting House report) (explaining further that Congressional reports on
27 section 1373 “demonstrate legislative intent to facilitate the enforcement of federal immigration
28

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1 law”); see also City of New York v. United States, 179 F.3d 29, 31-33 (2d Cir. 1999) (discussing 2 legislative history and purpose of § 1373 and concluding that states cannot claim “an
3 untrammeled right to forbid all voluntary cooperation by state or local officials with particular 4 federal programs”). The relevant legislative history of the 1996 amendments to the INA, which 5
added section 1373, explains that “[t]he acquisition, maintenance, and exchange of immigration6 7 related information by State and local agencies is consistent with, and potentially of considerable
8 assistance to, the Federal regulation of immigration and the achieving of the purposes and
9 objectives of the Immigration and Nationality Act.” S. Rep. No. 104–249, at 19-20 (2d Sess. 10
1996). 11
Information such as the release date is “information regarding” immigration status within 12 13 the contemplation of Section 1373, particularly where the release date implicates the federal
14 authority to take custody pursuant to the removal statute in 8 U.S.C. § 1231. That term does not
15 merely denote an alien’s technical immigration status (as has been argued elsewhere), a reading 16
that disregards the interrelationship between state custody and federal obligations. Indeed, 17 18 Congress’s use of “information regarding” in section 1373(a) was intended to broaden the scope 19 of the information covered, as demonstrated by comparing Section 1373(a) to Section 1373(c),
20 which uses the different phrase “[immigration] status information.” 8 U.S.C. § 1373. Moreover,
21 another provision of the INA, 8 U.S.C. § 1357(g)(10)(A), in fact defines the phrase “immigration 22
status” to include whether “a particular alien is not lawfully present in the United States.” 23 24 Whether an alien has been released from state or local charges is highly relevant to his “lawful
25 presence” given that Congress has explicitly excepted DHS from its duty to remove unlawfully
26 present aliens subject to final orders of removal only where those aliens are serving a criminal 27
28

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1 sentence in State or local custody. See 8 U.S.C. § 1231(a)(4).10

2

An alien’s home and work address is also relevant to many immigration status issues,

3 including whether an alien admitted in a particular nonimmigrant status (e.g., B-1 business
4 visitor) has remained in the United States beyond their authorized period of admission, 5
evidenced an intent not to abandon his or her foreign residence, or otherwise violated the terms 6 7 and conditions of such admission (e.g., engaged in unauthorized employment), see 8 U.S.C. §
8 1227(a)(1)(C), 8 C.F.R. § 214.1; whether the alien has been granted work authorization as a
9 benefit attached to a particular status or form of relief, see 8 C.F.R. § 274a.12; whether the alien 10
has kept DHS informed of any change of address as required under 8 U.S.C. § 1305; and whether 11
an alien has accrued the necessary continuous presence to be eligible for relief from removal, id. 12 13 § 1229b(a)(1), (a)(2), (b)(1)(A). Moreover, because section 7284.6(a)(1)(D) incorporates Cal.
14 Civil Code § 1798.3, SB 54’s general prohibition on sharing any “statements made by, or
15 attributed to” an alien in state or local custody does not just reach home and work address: it 16
reaches even information “regarding immigration” status stated orally by an alien concerning 17 18 whether they are illegally in the United States or subject to federal custody and removal from the
19 United States.

20

New section 7284.6(a)(4) likewise impermissibly undermines the INA and impedes the

21 enforcement of the immigration laws. That provision prohibits state and local law enforcement
22 from “[t]ransfer[ring] an individual to immigration authorities,” Cal. Gov’t Code § 7284.6(a)(4),
23
24 unless the United States presents a “judicial warrant or judicial probable cause determination,” or

25 the individual in question has committed one of a limited subset of crimes. Id. § 7282.5(a). As

26 discussed, the INA contemplates that DHS will be able to take custody of removable criminal
27
10 To the extent Steinle v. City & Cty. of San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017) suggests
28 otherwise, that Court lacked the benefit of briefing from the United States on this question and did not squarely
address the arguments raised by the United States here.

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1 aliens directly at the point and place of release from state or local detention and that detention of
2 such aliens “must continue pending a decision on whether the alien is to be removed from the
3 United States” “and that detention may end prior to the conclusion of removal proceedings ‘only
4 if’ the alien is released for witness-protection purposes.” Jennings, --- U.S. ---, 2018 WL 5
1054878, *14-15. Frustrating that scheme will afford an alien the opportunity to abscond and 6 7 potentially endanger federal officers or members of the public. Cf. Demore v. Kim, 538 U.S. 510,
8 528 (2003) (Congress determined that permitting “release of aliens pending their removal
9 hearings would lead to large numbers of deportable criminal aliens skipping their hearings and 10
remaining at large in the United States unlawfully”). 11
Requiring a judicial warrant or judicial finding of probable cause is irreconcilable with 12 13 the INA, which establishes a system of civil administrative warrants as the basis for immigration
14 arrest and removal, and does not require or contemplate use of a judicial warrant for civil
15 immigration enforcement. See 8 U.S.C. §§ 1226(a), 1231(a). Congress established, through the 16
INA, that civil immigration enforcement is premised on administrative “warrant[s] issued by” 17 18 DHS and that “an alien may be arrested and detained” based on such a warrant “pending a
19 decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a)(1);
20 see Sherman v. U.S. Parole Comm’n, 502 F.3d 869, 876–80 (9th Cir. 2007) (stating that an
21 executive officer can constitutionally make the necessary probable-cause determination to 22
warrant arrest of an alien “outside the scope of the Fourth Amendment’s Warrant Clause,” 23 24 without presentment to a judicial officer); see also Abel v. United States, 362 U.S. 217, 233
25 (1960) (observing “impressive historical evidence of acceptance of the validity of statutes
26 providing for administrative deportation arrest from almost the beginning of the Nation”). The 27
INA does not require a judicial warrant or a judicial probable cause determination unless a 28

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1 criminal offense is being charged. See 8 U.S.C. § 1226(a); see also Homan Decl. ¶ 70. Requiring 2 that DHS procure a judicial warrant in order to take custody of aliens that Congress has already

3 determined are subject to Federal, and not state or local, custody, for removal purposes thus
4 upsets the careful calibration that Congress established in requiring only an administrative 5
warrant as the basis of civil immigration enforcement. See, e.g., Arizona, 567 U.S. at 402, 406, 6 7 408. It would add significant resource burdens to both the Judicial Branch and the Executive

8 Branch – burdens that would be magnified if other states follow California’s example.

9

Finally, sections 7284.6(a)(1)(C) & (D) and 7284.6(a)(4) are especially flawed because

10 the restrictions on information-sharing and transfer apply only to requests made by federal
11 entities, including “United States Immigration and Customs Enforcement or United States
12

13 Customs and Border Protection as well as any other immigration authorities.” Cal. Gov’t Code

14 § 7284.4(e); see id. §§ 7284.6(a)(1)(C), (D)(4). Moreover, while the statute defines “immigration

15 authorities” to include, in addition to federal officers, “state, or local officer[s], employee[s], or 16
person[s] performing immigration enforcement functions,” id. § 7284.4(c), it also defines 17 18 “[i]mmigration enforcement” to mean “any and all efforts to investigate, enforce, or assist in the
19 investigation or enforcement of any federal civil immigration law, and also includes any and all

20 efforts to investigate, enforce, or assist in the investigation or enforcement of any federal

21 criminal immigration law that penalizes a person’s presence in, entry, or reentry to, or

22 employment in, the United States.” Id. § 7284.4(f) (emphasis added).
23

24

The challenged provisions have the purpose and effect of treating federal immigration

25 officials worse than other entities that might seek information. If other states or federal officials

26 seek information or transfer of prisoners, SB 54 has no application. Rather, the provision is
27 specifically designed to obstruct federal immigration enforcement: the Bill’s drafters made clear
28

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1 that the Bill is intended to serve as a “counterbalance to this administration” on immigration 2 matters, see Hearing on S.B. 54 before the S. Standing Comm. on Public Safety (Jan. 31, 2017)

3 (statement of Sen. Scott Wiener),11 by requiring state and local actions on immigration “separate

4 from that of the Federal Government.” Senate Floor Hearing of 04-03-2017.12 California has no
5 legitimate interest in obstructing federal immigration enforcement.
6

7 II. 8 9

Irreparable Harm to the United States, The Balance of Harms, and the Public Interest Strongly Militate in Favor of Injunctive Relief.
The challenged provisions of AB 450, AB 103, and SB 54 are intended to uniquely

10 impede the enforcement of the immigration laws, and they have their intended effect. In so

11 doing, the provisions inflict irreparable harm on the United States and on the strong public

12 interest in enforcement of the immigration laws. Cf. Nken v. Holder, 556 U.S. 418, 435 (2009)
13 (stating, in the related context of criteria governing stay of removal, that the criteria of “harm to
14 the opposing party” and “the public interest” “merge when the Government is the opposing
15
16 party” because the Government represents the public interest). In contrast, the State has no

17 legitimate interest in thwarting the operation of the immigration laws and will suffer no harm
18 whatsoever as a result of an injunction. 19
1. The challenged provisions irreparably undermine the United States’ control over 20 21 regulation of immigration and immigration policy and thereby interfere with the United States’
22 ability to achieve the purposes and objectives of federal law and to pursue its chosen
23 enforcement priorities. In so doing, they undermine the strong public interest in enforcement of
24 the immigration laws. 25
Among other things, as explained above, these provisions impede federal immigration 26 27 enforcement by (1) hindering the United States’ detection of unauthorized alien workers and
28 11 https://ca.digitaldemocracy.org/hearing/10091?startTime=275&vid=381a741e4e525c9efccbbf6062c67f3c
12 https://ca.digitaldemocracy.org/hearing/52288?startTime=1150&vid=910977abbea937bca7424c93fe3caf1c

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1 employers who employ them, (2) inspecting facilities that hold federal immigration detainees to 2 review the United States’ law enforcement efforts to apprehend and detain removable aliens, and

3 (3) restricting cooperation and thus assisting removable aliens, including dangerous criminal
4 aliens, in their efforts to evade federal law enforcement, thereby impairing the United States’ 5
ability to locate, detain, prosecute, and remove aliens who pose risks to the safety and security of 6 7 our Nation’s citizens. See Homan Decl. ¶¶ 12-92; Scott Decl. ¶¶ 9-29; Hoffman Decl. ¶¶ 13-21.

8 If left intact, these provisions of California law would conflict with Congress’s instruction that

9 “the immigration laws of the United States should be enforced vigorously and uniformly,” see
10 IRCA, Pub. L. No. 99–603, § 115(1), 100 Stat. 3359, 338, and would encourage other state or
11 local laws throughout the United States that seek to restrict or regulate the United States’
12
13 immigration enforcement efforts, creating a patchwork system of laws severely undermining the

14 “‘integrated scheme of regulation’ created by Congress,” Arizona, 567 U.S. at 400; see also id. at

15 395 (immigration the province of “the national sovereign, not the 50 separate States”); see Risch 16
Decl. ¶ 10 (“it is critically important that national immigration policy – including immigration 17 18 enforcement – be governed by a uniform legal regime, and that decisions regarding the
19 development and enforcement of immigration policy be made by the national government, so

20 that the United States can speak to the international arena with one voice in this area.”)

21

The impact on federal enforcement efforts and priorities is not speculative; it is the clear

22 purpose and effect of these provisions. See AB 450, Preamble; Cal. Gov’t Code § 12532(b); SB
23

24 4, Preamble; Cal. Gov’t Code § 7282.5(a). Indeed, according to AB 450’s sponsor, the purpose

25 of AB 450 is to “protect[] workers from immigration enforcement.” See Press Release, Assembly

26 Member David Chiu, Governor Brown Signs Bill to Provide Labor Protections Against ICE 27

28

Memorandum in support of motion for preliminary injunction

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Case 2:18-at-00264 Document 2-1 Filed 03/06/18 Page 44 of 49

1 Worksite Raids.13 And according to SB 54’s sponsors, that law is designed to “build[] a wall of 2 justice against” the United States’ “immigration policies.” Jazmine Ulloa, California becomes

3 'sanctuary state' in rebuke of Trump immigration policy, L.A. Times, Oct. 5, 2017.14 And all
4 three of these laws serve California’s “goal of protecting immigrants from an expected increase 5
in federal immigration enforcement activities,” California Committee on the Judiciary Report, 6 7 Apr. 22, 2017 (Assembly), at 1, including the “more than 2.6 million undocumented
8 immigrant[s]” residing in California. California Committee on the Judiciary Report (Senate),
9 July 10, 2017, at 1. 10
Irreparable harm will result because enforcement of the challenged provisions, as 11
discussed above, has caused and continues to cause a significant burden on DHS resources and 12 13 enforcement of the immigration laws. Homan Decl. ¶¶ 80-89; Hoffman Decl. ¶¶ 14-21; Scott
14 Decl. ¶¶ 27-29. To start, by prohibiting consensual access to any non-public location in a “place
15 of labor,” AB 450 eliminates a critical enforcement tool—authorized by the INA—that ICE 16
relies on to combat unauthorized employment of aliens. Homan Decl. ¶¶ 84-88. Similarly, it 17 18 impedes enforcement efforts by both ICE and CBP, which rely on consent to locate and
19 apprehend illegal aliens such as criminals, aliens unlawfully entering or re-entering between

20 ports of entry, and aliens in flight, but who are located within a place of employment, including
21 exigent circumstances where ICE or CBP agents are in pursuit of illegal aliens. Homan Decl. ¶¶ 22
86 (AB 450’s bar on consent undermines investigations into “human smuggling and 23 24 trafficking”); Scott Decl. ¶¶ 27, 28 (“If employers are not able to provide such consensual
25 access, Border Patrol’s ability to detect and interdict real time illegal activity, ranging from

26 criminal activity to the smuggling of narcotics to potential terrorists seeking to enter the United
27
13 available at https://a17.asmdc.org/press-releases/governor-brown-signs-bill-provide-labor-protections-against-ice-
28 worksite-raids (last visited Feb. 14, 2018)
14 available at http://www.latimes.com/politics/la-pol-ca-brown-california-sanctuary-state-bill-20171005-story.html

Memorandum in support of motion for preliminary injunction

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Case 2:18-at-00264 Document 2-1 Filed 03/06/18 Page 45 of 49

1 States, along the border will be diminished” and “the threat of cross border clandestine tunnels 2 and maritime smuggling going undetected will increase”). Additionally, AB 450 interferes with

3 ICE’s ability to resolve civil and criminal cases based on mitigating factors that may warrant
4 lower monetary penalties by limiting what actions employers may agree to take as part of any 5
settlement. Homan Decl. ¶ 85. Furthermore, AB 450 could cause disclosure of employee’s 6 7 personal and sensitive information due to its prohibition on document inspection in private areas,

8 unlike prior to AB 450. Homan Decl. ¶¶ 84, 87.

9

AB 103 similarly impedes DHS’s ability to manage the congressionally mandated

10 detention of removable aliens. Homan Decl. ¶ 60. Already the California Attorney General has
11 demanded that ICE contractors allow inspections of their facilities, provide access to
12

13 immigration detainees, and turn over sensitive information concerning detainees and

14 immigration enforcement operations. Id. ¶¶ 58-60. These inspections require ICE contractors to

15 violate federal statutes and regulations protecting detainee privacy and the confidentiality of ICE 16
records, and require ICE contractors to devote scarce time and resources to responding to such 17 18 inspection requests, which requires ICE and its contractors to re-allocate resources away from
19 other mission-critical tasks. Id. ¶¶ 60, 65. The imposition of these burdensome review

20 requirements, further, may deter private contractors from continuing to work with ICE, thereby

21 necessitating the transfer of immigration detainees outside of California to detention facilities

22 further afield, and the reallocation of scarce resources to do so. Id. ¶ 68.
23

24

Likewise, SB 54 severely impedes the United States’ ability to identify and apprehend

25 removable aliens, especially criminal aliens. Homan Decl. ¶ 22. “In effect, these laws shield

26 from detection removable aliens detained in California prisons and jails and obstruct ICE’s
27 efforts to take these aliens into custody for removal purposes.” Id. ¶ 22. And that effect requires
28

Memorandum in support of motion for preliminary injunction

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Case 2:18-at-00264 Document 2-1 Filed 03/06/18 Page 46 of 49

1 ICE to expend greater time and resources to identify and apprehend removable criminal aliens.
2 Id. ¶ 35. Unlike the transfer of custody in a custodial setting, at-large arrests of removable aliens
3 are both far more costly and dangerous. Id. ¶¶ 36-38. While a single ICE officer with timely
4 information and access to a state or local detention facility can identify and arrest multiple 5
individuals each day, ICE otherwise must provide a team of officers to engage in time6 7 consuming work, e.g., data-base searches, visits to address(es) associated with the target,
8 coordination with the activities of other law enforcement agencies, and surveillance, in order to
9 locate each at-large alien. Id. ¶ 37. Such apprehensions generally require five officers to be 10
present for officer safety reasons, compared to an arrest of a removable alien within a prison or 11
jail through an orderly transfer from state custody, where only one officer is needed, and require 12 13 greater training and equipment investment for officers engaged in this comparatively more
14 dangerous field work. Id. At-large arrests also involve a greater possibility of the use of force or
15 violence by the target, who, once out in the community, may resist being taken back into custody 16
and have greater access to weapons, exposing officers, the public, and the alien to greater risks of 17 18 harm. Id. ¶ 38. The law has already caused ICE to repurpose at-large teams, which used to be
19 focused on fugitive aliens with final orders of removal, to identifying and apprehending aliens
20 who were released back into the community. Id. ¶ 39. This shift has necessarily caused a backlog
21 of fugitive aliens evading their final orders of removal. Id. 22
Moreover, SB 54 undermines the cooperative scheme the INA establishes for purposes of 23 24 prosecuting criminals on their state charges before removal. Because California effectively
25 requires its subdivisions to release dangerous criminal aliens to the public rather than transfer
26 them back to DHS custody upon release, Scott Decl. ¶ 22, DHS faces a deterrent to transferring 27
aliens it encounters to state or local law enforcement to face accountability for state and local 28

Memorandum in support of motion for preliminary injunction

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Case 2:18-at-00264 Document 2-1 Filed 03/06/18 Page 47 of 49

1 criminal charges, including serious charges like child sexual abuse, possession of explosive 2 devices, trafficking in controlled substances, slavery, human trafficking, torture, rape, and

3 murder. Scott Decl. ¶¶ 11, 22, 26; Hoffman Decl. ¶¶ 14-18; Homan Decl. ¶ 75. And the release
4 of criminal aliens Congress intended for mandatory detention under 8 U.S.C. § 1226(c) permits 5
those aliens to commit further crimes, as illustrated by their high re-arrest rate, including for very 6 7 serious crimes likes murder, rape, kidnapping, burglary, domestic abuse, and crimes involving

8 child sexual assault, abuse, or cruelty. Homan Decl. ¶¶ 43-45. Further, SB 54’s restrictions on

9 information sharing impede DHS’s counterterrorism operations as well, by obstructing real-time
10 sharing of information between DHS and local law enforcement; this “could significantly delay a
11 time-sensitive investigation, the identification of additional targets, and the ability for DHS to
12
13 place lookouts in systems to prevent outbound travel via air carrier should a target attempt to flee

14 the United States.” Homan Decl. ¶ 72.

15

These provisions also cause irreparable harm to the United States’ ability to manage

16 foreign affairs. “A decision on removability requires a determination whether it is appropriate to
17
18 allow a foreign national to continue living in the United States. Decisions of this nature touch on

19 foreign relations and must be made with one voice.” Arizona, 567 U.S. at 409. “[E]ven small

20 changes or differences across states in immigration laws, policies, and practices can have

21 ramifications for [the United States’] ability to communicate [its] foreign policy in a single voice
22 – both in the immigration context and across American diplomatic concerns.” Risch Decl. ¶ 12.
23
24 “By imposing requirements on the federal government such as a search warrant to enter premises

25 to enforce U.S. immigration law, or notice requirements prior to surrendering an alien to federal

26 authorities for removal, California law deviates from the national government’s policies of strict
27 immigration enforcement and removal of aliens,” id. ¶ 14, “interfere[s] with efforts to
28

Memorandum in support of motion for preliminary injunction

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Case 2:18-at-00264 Document 2-1 Filed 03/06/18 Page 48 of 49

1 communicate to foreign governments the need to take back their nationals who are subject to 2 final orders of removal,” id., and “interfere[s] with actual removal efforts and dilute[s] the

3 messages the U.S. government communicates to foreign governments concerning their need to

4 cooperate with the United States on removal of their nationals who are subject to final orders of

5 removal.” Id. ¶ 15.
6

7

Finally, even apart from these immediate and concrete effects, the challenged provisions

8 cause ongoing irreparable harm to the constitutional order. As the Supreme Court and the Ninth

9 Circuit have explained, irreparable harm inherently results from the enforcement of a preempted
10 state law. See New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 366-67
11 (1989) (suggesting that “irreparable injury may possibly be established . . . by a showing that the
12
13 challenged state statute is flagrantly and patently violative of . . . the express constitutional

14 prescription of the Supremacy Clause”); Valle del Sol, 732 F.3d at 1029 (finding irreparable

15 harm where Supremacy Clause violated); Arizona, 641 F.3d at 366 (same). 16
2. By contrast, a preliminary injunction will not meaningfully burden California and will 17 18 restore the longstanding constitutional order. California enacted these statutes for the purpose of
19 undermining federal enforcement of the immigration laws. It has no lawful interest in that goal,

20 and it will suffer no cognizable harm as a result of an injunction. See Cal. Pharmacists Ass’n v.

21 Maxwell–Jolly, 563 F.3d 847, 852–53 (9th Cir. 2009) (“[I]t is clear that it would not be equitable
22 or in the public’s interest to allow the state . . . to violate the requirements of federal law,
23
24 especially when there are no adequate remedies available. . . . In such circumstances, the interest

25 of preserving the Supremacy Clause is paramount.”). There is, however, “always a public

26 interest in prompt execution of [the immigration laws.]” Nken, 556 U.S. at 436 (recognizing that
27 “[t]he continued presence of an alien lawfully deemed removable undermines [federal removal
28

Memorandum in support of motion for preliminary injunction

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Case 2:18-at-00264 Document 2-1 Filed 03/06/18 Page 49 of 49

1 proceedings] and permits and prolongs a continuing violation of United States law”).

2

CONCLUSION

3

For the foregoing reasons, the Court should grant the United States’ motion for a

4 preliminary injunction.
5 DATED: March 6, 2018
6

CHAD A. READLER Acting Assistant Attorney General

7 MCGREGOR SCOTT

8

United States Attorney

9

AUGUST FLENTJE

10

Special Counsel

11

WILLIAM C. PEACHEY

Director 12

13

/s/ Erez Reuveni

EREZ REUVENI

14

Assistant Director

U.S. Department of Justice, Civil Division

15

Office of Immigration Litigation

16

P.O. Box 868, Ben Franklin Station

Washington, DC 20044

17

Telephone: (202) 307-4293

18

Fax: (202) 616-8202 E-mail: Erez.R.Reuveni@usdoj.gov

19 DAVID SHELLEDY

20

Civil Chief, Assistant United States

21

Attorney

22

LAUREN C. BINGHAM

JOSEPH A. DARROW

23

JOSHUA S. PRESS

24

Trial Attorneys

25

Attorneys for Plaintiff

26

27

28

Memorandum in support of motion for preliminary injunction

- 39 -

 
 Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 1 of 39
CIVIL,STAYED
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:18−cv−00490−JAM−KJN

United States of America v. State of California et al Assigned to: District Judge John A. Mendez Referred to: Magistrate Judge Kendall J. Newman Case in other court: USCA, 18−16496 Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 03/06/2018 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

United States of America

represented by David Taylor Shelledy U.S. Attorney's Office 501 I Street, Suite 10−100 Sacramento, CA 95814 916−554−2799 Fax: 916−554−2900 Email: david.shelledy@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Anton Darrow U.S. Department Of Justice, Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 202−598−2445 Fax: 202−305−7000 Email: joseph.a.darrow@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua Samuel Press U.S. Department of Justice Civil Division − Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−305−0106 Fax: 202−305−7000 Email: joshua.press@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryne M. Gray U.S. Department of Justice 450 Fifth St.NW Washington, DC 20001 202−305−7386 Email: kathryne.m.gray@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren C. Bingham U.S. Department Of Justice, Civil Division Office Of Immigration Litigation, District Court Section PO Box 868, Ben Franklin Sation Washington, DC 20044 202−616−4458 Email: lauren.c.bingham@usdoj.gov LEAD ATTORNEY

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 2 of 39
ATTORNEY TO BE NOTICED
August Edward Flentje U.S. Department Of Justice 950 Pennsylvania Avenue NW, Room 3613 Washington, DC 20530 202−514−3309 Email: august.flentje@usdoj.gov ATTORNEY TO BE NOTICED
Francesca Genova U.S. Department Of Justice, Civil Division Office Of Immigration Litigation, District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 202−305−1062 Email: Francesca.M.Genova@usdoj.gov ATTORNEY TO BE NOTICED
Erez Reuveni , GOVT U.S. Department of Justice Civil Division 450 5th Street, NW Washington, DC 20530 202−307−4293 Email: erez.r.reuveni@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant State of California

represented by Anthony R. Hakl , III Attorney General's Office for the State of California Department of Justice 1300 I Street P.O. Box 255200 Sacramento, CA 95814 916−210−6065 Fax: 916−324−8835 Email: anthony.hakl@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cherokee Dawn−Marie Melton California Department of Justice Office of the Attorney General 300 S. Spring St, Ste 1702 Los Angeles, CA 90013 213−269−6405 Email: cherokee.melton@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine Chuang Office of the Attorney General California Department of Justice 1515 Clay Street, 20th Floor Oakland, CA 94612 510−879−0094 Email: christine.chuang@doj.ca.gov LEAD ATTORNEY

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 3 of 39

ATTORNEY TO BE NOTICED

Lee I. Sherman California Department of Justice Bureau of Children's Justice 300 S. Spring St. Los Angeles, CA 90013 213−897−2409 Fax: 213−897−7605 Email: Lee.Sherman@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maureen C. Onyeagbako Department of Justice, Office of The Attorney General 1300 I Street Suite 125 P.O. Box 944255 Sacramento, CA 94244 916−322−7119 Fax: 916−324−5205 Email: maureen.onyeagbako@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Edmund Gerald Brown, Jr. Governor of California

represented by Anthony R. Hakl , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cherokee Dawn−Marie Melton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine Chuang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee I. Sherman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maureen C. Onyeagbako (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Xavier Becerra Attorney General of California

represented by Anthony R. Hakl , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cherokee Dawn−Marie Melton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine Chuang

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 4 of 39

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee I. Sherman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maureen C. Onyeagbako (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Annie Lai and associated parties

represented by Bradley S. Phillips Munger Tolles and Olson 350 South Grand Avenue 50th Floor Los Angeles, CA 90071−1560 213−683−9100 Email: brad.phillips@mto.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Intervenor Defendant
Coalition for Humane Immigrant Rights TERMINATED: 06/05/2018

represented by Spencer E. W. Amdur American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 415−343−1198 Fax: 415−395−0950 Email: samdur@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angelica H. Salceda ACLU of Northern California P.O. Box 188 Fresno, CA 93707 (559) 554−2994 Fax: (559) 468−6071 Email: asalceda@aclunc.org ATTORNEY TO BE NOTICED
Cody H. Wofsy American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 415−343−0785 Fax: 415−395−0950 Email: cwofsy@aclu.org ATTORNEY TO BE NOTICED
Julia Harumi Mass American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 5 of 39

415−621−2493 Email: jmass@aclunc.org ATTORNEY TO BE NOTICED

Lee Gelernt , PHV American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2616 Fax: 212−549−2654 Email: lgelernt@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Omar C. Jadwat , PHV American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−249−2620 Fax: 212−549−2654 Email: ojadwat@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant
California Partnership to End Domestic Violence TERMINATED: 06/05/2018

represented by Spencer E. W. Amdur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angelica H. Salceda (See above for address) ATTORNEY TO BE NOTICED

Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass (See above for address) ATTORNEY TO BE NOTICED

Lee Gelernt , PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Omar C. Jadwat , PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus American Center for Law and Justice

represented by Vladimir F. Kozina Mayall Hurley, P.C. 2453 Grand Canal Boulevard Stockton, CA 95207 209−477−3833 Fax: 209−473−4818 Email: vkozina@mayallaw.com

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 6 of 39

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus State of Texas

represented by David Jonathan Hacker Office of Attorney General of Texas P.O. Box 12548 Austin, TX 78711−2548 512−936−2330 Fax: 512−936−0545 Email: david.hacker@oag.texas.gov ATTORNEY TO BE NOTICED

Amicus State of Alabama

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of Arkansas

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of Florida

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of Georgia

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of Indiana

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of Kansas

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of Louisiana

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of Michigan

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of Missouri

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 7 of 39

State of Nebraska

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of Nevada

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of Ohio

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of Oklahoma

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of South Carolina

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus State of West Virginia

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus
Phil Bryant Governor of the State of Mississippi

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus
Paul Lepage Governor of the State of Maine

represented by David Jonathan Hacker (See above for address) ATTORNEY TO BE NOTICED

Amicus National Sheriffs' Association

represented by Julie Beth Axelrod Center for Immigration Studies 1629 K Street Suite 600 Washington, DC 20006 Email: jba@cis.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Advocates for Victims of Illegal Alien Crime

represented by Julie Beth Axelrod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Fight Sanctuary State

represented by Julie Beth Axelrod (See above for address) LEAD ATTORNEY

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 8 of 39

ATTORNEY TO BE NOTICED

Amicus Criminal Justice Legal Foundation

represented by Kent Stephen Scheidegger Criminal Justice Legal Foundation 2131 L Street Sacramento, CA 95816 916−446−0345 Fax: 916−446−1194 Email: kent.scheidegger@cjlf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Michael Rushford

represented by Kent Stephen Scheidegger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Federal Law Enforcement Officers Association

represented by Bradley A. Benbrook Benbrook Law Group 400 Capitol Mall Suite 2530 Sacramento, CA 95814 916−447−4900 Fax: 916−447−4904 Email: brad@benbrooklawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
City of Aliso Viejo TERMINATED: 06/11/2018

represented by Lawrence John Joseph Law Office of Lawrence J. Joseph 1250 Connecticut Avenue, NW Suite 200 Washington, DC 20036 202−355−9452 Fax: 202−318−2254 Email: ljoseph@larryjoseph.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus City of Barstow

represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
City of Escondido TERMINATED: 06/11/2018

represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus City of Fountain Valley

represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 9 of 39

Amicus City of Hesperia
Amicus City of Mission Viejo
Amicus City of Yorba Linda TERMINATED: 06/11/2018
Amicus Mike Spence TERMINATED: 06/11/2018
Amicus David Harrington
Amicus Jim Desmond
Amicus Rebecca Jones TERMINATED: 06/11/2018
Amicus Ryan Vienna
Amicus Dana T. Rohrabacher
Amicus Law Enforcement Action Partnership LEAP, and associated parties

represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joshua Geltzer , PHV Institute For Constitutional Advocacy And Protection

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 10 of 39

600 New Jersey Ave NW Washington, DC 20001 202−661−6728 Email: jg1861@georgetown.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Tahirih Justice Center and associated parties

represented by Christopher Edmunds Babbitt Wilmer Cutler Pickering Hale and Dorr, LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 202−663−6681 Fax: 202−663−6363 Email: christopher.babbitt@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamie S. Gorelick , PHV Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave. NW Washington, DC 20006 202−663−6500 Fax: 202−663−6363 Email: jamie.gorelick@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Immigrant Legal Resource Center

represented by Elaine Y. Lee Pillsbury Winthrop Shaw Pittman LLP 725 S. Figueroa Street Suite 2800 Los Angeles, CA 90017 213−488−7100 Fax: 213−629−1033 Email: elaine.lee@pillsburylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Human Rights Watch

represented by Elaine Y. Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Freedom For Immigrants

represented by Elaine Y. Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
National Health Law Program NHeLP, and associated parties

represented by Abigail Coursolle National Health Law Program 3701 Wilshire Blvd., Suite 750 Los Angeles, CA 90010 310−736−1652

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 11 of 39

Email: coursolle@healthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus City of Los Angeles

represented by Harit Upendra Trivedi Los Angeles City Attorney's Office 200 N. Main Street Floor 8 Los Angeles, CA 90012 213−978−7193 Email: harit.trivedi@lacity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
County of Los Angeles and associated parties

represented by Margaret L. Carter O'Melveny and Myers LLP 400 South Hope Street Los Angeles, CA 90071 213−430−6000 Fax: 213−430−6407 Email: mcarter@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel R. Suvor O'Melveny and Myers LLP 400 South Hope Street Los Angeles, CA 90071 213−430−6000 Fax: 213−430−6407 Email: dsuvor@omm.com ATTORNEY TO BE NOTICED

Daniel Joseph Tully O'Melveny and Myers LLP 400 South Hope Street Los Angeles, CA 90071 213−430−6000 Fax: 213−430−6407 Email: dtully@omm.com ATTORNEY TO BE NOTICED

Amicus
Seth Davis and associated parties

represented by Kevin A. Calia Law Office of Kevin A. Calia 1478 Stone Point Dr. Ste. 100 Roseville, CA 95661 9165474175 Email: kevin@calialaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus City of New York

represented by Jonathan Victor Holtzman Renne Public Law Group 350 Sansome Street Suite 300 San Francisco, CA 94104 415−848−7200

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 12 of 39

Fax: 415−848−7230 Email: jholtzman@publiclawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus City and County of San Francisco

represented by Sara Eisenberg San Francisco City Attorney's Office Fox Plaza 1390 Market Street, 7th Floor San Francisco, CA 94102 415−554−3857 Fax: 415−437−4644 Email: sara.eisenberg@sfcityatty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mollie Mindes Lee San Francisco City Attorney's Office Fox Plaza 1390 Market Street, 7th Floor San Francisco, CA 94102 415−554−4290 Fax: 415−554−3985 Email: mollie.lee@sfcityatty.org TERMINATED: 08/27/2018

Amicus California State Senate

represented by Monica Ramirez Almadani Covington and Burling LLP 1999 Avenue of the Stars Los Angeles, CA 90067 424−332−4762 Fax: 424−332−4749 Email: mralmadani@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
California Labor Federation, AFL−CIO and associated parties

represented by Monica T. Guizar Weinberg Roger & Rosenfeld 800 Wilshire Blvd. Suite 1020 Los Angeles, CA 90017 213−380−2344 Fax: 213−443−5098 Email: mguizar@unioncounsel.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
California State Council of Service Employees

represented by Monica T. Guizar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Anti−Defamation League

represented by Robert W. Perrin Latham and Watkins LLP 355 South Grand Avenue Suite 100 Los Angeles, CA 90071

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 13 of 39

213−485−1234 Fax: 213−891−8763 Email: robert.perrin@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
National Immigration Law Center and associated parties

represented by Jonathan D. Weissglass Law Office of Jonathan Weissglass 410 12th Street Suite 250−B Oakland, CA 94607 510−836−4200 Email: jonathan@weissglass.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus California Immigrant Policy Center

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Alabama Coalition for Immigrant Justice

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Alliance San Diego

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
American−Arab Anti−Discrimination Committee

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Americans for Immigrant Justice

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Arizona Dream Act Coalition

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Asian Services In Action, Inc.

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 14 of 39

Asian American Legal Defense and Education Fund

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Asian Law Alliance

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Bet Tzedek

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
California Employment Lawyers Association

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Canal Alliance

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus CASA

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Catholic Charities of Oregon Immigration Legal Services

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Causa

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Center for Employment Training Immigration and Citizenship Program

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Center for Popular Democracy

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 15 of 39

Amicus
Central Coast Alliance United for a Sustainable Economy

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Central Coast Immigrant Rights Coalition

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Central Valley Immigrant Integration Collaborative

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Centro de los Derechos del Migrante, Inc.

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Centro Laboral de Graton

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Centro Legal de la Raza

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Coalition for Humane Immigrant Rights

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Communities for a Better Environment

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Community Legal Services in East Palo Alto

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Council on American−Islamic Relations, California

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 16 of 39

Amicus Dolores Street Community Services
Amicus Esperanza Community Housing Corporation
Amicus GLBTQ Legal Advocates & Defenders
Amicus Illinois Coalition for Immigrant and Refugee Rights
Amicus Immigrant Defenders Law Center
Amicus Immigration Center for Women and Children
Amicus Innovation Law Lab
Amicus International Service Center
Amicus Korean Resource Center
Amicus La Raza Centro Legal

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 17 of 39

ATTORNEY TO BE NOTICED

Amicus LatinoJustice PRLDEF

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Legal Aid Justice Center

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Legal Aid Society of San Mateo County

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Legal Services for Children

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Long Beach Immigrant Rights Coalition

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Los Angeles Center for Law and Justice

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Lowcountry Immigration Coalition

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Maintenance Cooperation Trust Fund

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Michigan Migrant Legal Assistance Project Inc.

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Miguel Contreras Foundation

represented by Jonathan D. Weissglass (See above for address)

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 18 of 39

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus National Employment Law Project

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus National Immigrant Justice Center

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus New York Immigration Coalition

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Northwest Health Foundation

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Northwest Immigrant Rights Project

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus OneAmerica

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus OneJustice

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Oregon Interfaith Movement for Immigrant Justice

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Oregon Justice Resource Center

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Pangea Legal Services

represented by

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 19 of 39

Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Presente Action

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Public Advocates Inc.

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Public Counsel

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Public Justice Center

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Refugee and Immigrant Center for Education and Legal Services

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
San Diego Chapter of the American Immigration Lawyers Association

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
San Diego Immigrant Rights Consortium

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus San Diego LGBT Community Center

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Services, Immigrant Rights, and Education Network

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 20 of 39

Amicus Sierra Club

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Sin Barreras−Without Borders, Inc.

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus South Bay People Power

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Southern CA Coalition for Occupational Safety & Health

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
St. Johns Well Child and Family Center

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Student Action with Farmworkers

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus T.R.U.S.T. South LA

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus UnidosUS

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus United Farm Workers Foundation

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Washington Defender Associations Immigration Project

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 21 of 39

Amicus White People 4 Black Lives
Amicus Worker Justice Center of New York
Amicus Worksafe, Inc.
Amicus PICO California
Amicus District of Columbia
Amicus Center for Human Rights and Constitutional Law and assciated parties
Amicus Franciscan Action Network
Amicus

represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan D. Weissglass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Esra Acikalin Hudson Manatt, Phelps & Phillips, LLP 11355 W. Olympic Blvd Los Angeles, CA 90064 310−312−4381 Fax: 310−312−5744 Email: ehudson@manatt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Taylor Cross Morosco D.C. Office of the Attorney General 441 4th Street, N.W. Suite 630 South Washington, DC 20001 202−442−9867 Fax: 202−741−0499 Email: taylormorosco@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Peter Anthony Schey Center For Human Rights And Constitutional Law 256 S. Occidental Blvd Los Angeles, CA 90057 213−388−8693−304 Fax: 213−386−9484 Email: pschey@centerforhumanrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Esra Acikalin Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 22 of 39

Jonathan D. Klein Rabbi

represented by Esra Acikalin Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
National Council of Jewish Women−California

represented by Esra Acikalin Hudson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Christopher Lasch and associated parties

Amicus
Kathleen Kim and associated parties

represented by Bradley S. Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Emily Robinson and associated parties

represented by Bradley S. Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus National Border Patrol Council

represented by Bradley A. Benbrook (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
City of Glendora TERMINATED: 06/11/2018

represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
City of Laguna Niguel TERMINATED: 06/11/2018

represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Rebecca Jones

represented by Lawrence John Joseph (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Vadim Stanley Miesegaes TERMINATED: 06/12/2018

represented by Vadim Stanley Miesegaes 0527333, U−29 Atascadero State Hospital 10333 El Camino Real Boulevard Atascadero, CA 93423−7001 PRO SE

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 23 of 39

V. Intervenor County of Orange TERMINATED: 06/04/2018
Intervenor Sandra Hutchens Sheriff−Coroner for the County of Orange TERMINATED: 06/04/2018 Intervenor Dana T. Blackmore TERMINATED: 04/27/2018

represented by John Wisner Golden Office of Orange County Counsel 333 W. Santa Ana Blvd., Suite 407 P.O. Box 1379 Santa Ana, CA 92702−1379 714−834−3300 Fax: 714−834−2359 Email: JACKWGOLDEN@GMAIL.COM LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Wisner Golden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dana T. Blackmore P.O. Box 811101 Los Angeles, CA 90081 832−885−6684 PRO SE

Date Filed 03/06/2018 03/06/2018
03/06/2018 03/06/2018
03/06/2018 03/07/2018 03/07/2018

# Docket Text
1 COMPLAINT against All Defendants by United States of America. Attorney Reuveni, Erez added. (Reuveni, Erez) (Entered: 03/06/2018)
2 MOTION for PRELIMINARY INJUNCTION by United States of America. (Attachments: # 1 Memorandum, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Proposed Order)(Reuveni, Erez) Modified on 4/3/2018 (Mena−Sanchez, L). (Entered: 03/06/2018)
3 CIVIL COVER SHEET by United States of America (Reuveni, Erez) (Entered: 03/06/2018)
4 SUMMONS ISSUED as to *Xavier Becerra, Edmund Gerald Brown, Jr., State of California* with answer to complaint due within *21* days. Attorney *Erez Reuveni* *US Department of Justice, Office of Immigration Litigation* *P.O. Box 868* *Washington, DC 20044*. (Donati, J) (Entered: 03/06/2018)
5 CIVIL NEW CASE DOCUMENTS ISSUED (Attachments: # 1 Consent Form, # 2 Order re Filing Requirements, # 3 VDRP) (Donati, J) (Entered: 03/06/2018)
6 MOTION for enlargement of page limit for memorandum in support of 2 motion for preliminary injunction by United States of America. (Attachments: # 1 Proposed Order)(Reuveni, Erez) Modified on 3/7/2018 (Zignago, K.). (Entered: 03/07/2018)
7 MINUTE ORDER: Plaintiffs Request for Leave to File its Memorandum in Support of its Motion for Preliminary Injunction in Excess of the Page Limit, ECF No. 6, is GRANTED. The page restrictions outlined in the Courts Order re Filing Requirements, ECF No. 5−2, are suspended in relation to the pending Motion for Preliminary Injunction only. Defendants Opposition shall not exceed forty pages. Plaintiffs Reply shall not exceed twenty−five pages. The parties should file a stipulation as to the briefing schedule by Friday, March 9, 2018. Should the parties be unable to reach an agreement, the Court will set the schedule and hearing date. (TEXT ENTRY ONLY) (Vine, H) (Entered: 03/07/2018)

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 24 of 39

03/08/2018 03/08/2018 03/09/2018 03/09/2018 03/09/2018 03/09/2018 03/09/2018 03/11/2018 03/12/2018 03/12/2018
03/13/2018 03/13/2018 03/14/2018

8 SUMMONS RETURNED EXECUTED: State of California, Edmund Gerald Brown, Jr. and Xavier Becerra served on 3/7/2018. (Reuveni, Erez) Modified on 3/8/2018 (Donati, J). (Entered: 03/08/2018)
9 NOTICE of RELATED CASE 18−322 by United States of America. (Reuveni, Erez) (Entered: 03/08/2018)
10 PROPOSED BRIEFING SCHEDULE by Plaintiff United States of America re: 2 Motion for Preliminary Injunction (Attachments: # 1 Proposed Order)(Reuveni, Erez) Modified on 3/9/2018 (Donati, J). (Entered: 03/09/2018)
11 NOTICE of APPEARANCE by Lee I. Sherman on behalf of State of California, Edmund Gerald Brown, Jr. and Xavier Becerra. Attorney Sherman, Lee I. added. (Sherman, Lee) Modified on 3/9/2018 (Donati, J). (Entered: 03/09/2018)
12 NON−RELATED ORDER signed by Chief Judge Lawrence J. O'Neill on March 9, 2018 ORDERING that the court determined that it is INAPPROPRIATE to relate or reassign the cases, and therefore DECLINES to do so. (Munoz, I) Modified on 3/9/2018 (Donati, J). (Entered: 03/09/2018)
13 [DISREGARD− DUPLICATE of 11 Notice of Appearance] NOTICE of APPEARANCE by Lee I. Sherman on behalf of Xavier Becerra, Edmund Gerald Brown, Jr, State of California. (Sherman, Lee) Modified on 3/9/2018 (Donati, J). (Entered: 03/09/2018)
14 PROPOSED BREFING SCHEDULE by Xavier Becerra, Edmund Gerald Brown, Jr., State of California. (Sherman, Lee) Modified on 3/12/2018 (Reader, L). (Entered: 03/09/2018)
15 NOTICE of APPEARANCE by Christine Chuang on behalf of Xavier Becerra, Edmund Gerald Brown, Jr, State of California. Attorney Chuang, Christine added. (Chuang, Christine) (Entered: 03/11/2018)
16 RESPONSE by United States of America to 14 Scheduling Report. (Reuveni, Erez) (Entered: 03/12/2018)
17 MINUTE ORDER: The parties are ordered not to file any further statements, responses, or arguments, see ECF Nos. 10, 14, 16, not specifically authorized or requested by the Court, see ECF No. 7 (requesting a stipulation by the parties). Only formal motions that comply with the Federal Rules of Civil Procedure, the Courts Local Rules, and this Courts Order re filing Requirements, ECF No. 5−2, will be considered by the Court. The Court authorizes Defendants to file their motion to transfer and the Court will decide this motion on shortened time. Defendants opening brief in support of the motion to transfer is due by March 13, 2018. Plaintiffs opposition is due March 20, 2018, and Defendants reply is due March 23, 2018. No hearing on this motion will be set as the Court will decide the motion on the papers. See E.D. Local Rule 230(g). Any motion for expedited discovery shall be filed with the assigned Magistrate Judge in this case, Kendall J. Newman. The parties are instructed to discuss a briefing schedule and contact Magistrate Judge Newmans chambers by the close of business tomorrow. The final briefing schedule for Plaintiffs Motion for Preliminary Injunction is, of course, dependent on the Courts rulings with respect to the motion to transfer and/or motion for expedited discovery. For now, amicus briefs in support of Plaintiffs motion are due March 26, 2018. Defendants opposition, amicus briefs in support of Defendant, Plaintiffs reply, and the hearing date on the Motion for Preliminary Injunction will, if necessary, be set following resolution of the motion to transfer. (TEXT ENTRY ONLY) (Vine, H) (Entered: 03/12/2018)
18 MOTION to TRANSFER VENUE to the Northern District of California by Xavier Becerra, Edmund Gerald Brown, Jr, State of California. (Attachments: # 1 Proposed Order)(Chuang, Christine) Modified on 3/15/2018 (Reader, L). (Entered: 03/13/2018)
19 REQUEST for JUDICIAL NOTICE by Xavier Becerra, Edmund Gerald Brown, Jr, State of California. re 18 Motion to transfer venue. (Attachments: # 1 Exhibit A through I)(Chuang, Christine) Modified on 3/15/2018 (Reader, L). (Entered: 03/13/2018)
20 ORDER signed by Magistrate Judge Kendall J. Newman on 3/14/2018 ORDERING that, no later than 3/19/2018 at 4:00 PM Pacific Time, the parties shall file a joint letter

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 25 of 39

03/15/2018
03/19/2018 03/19/2018
03/20/2018 03/20/2018 03/21/2018 03/22/2018 03/22/2018
03/23/2018 03/23/2018

brief re expedited discovery. The parties' joint letter brief shall not exceed 10 pages. Upon review of the parties joint letter brief, the court may elect to entertain oral argument or may submit the matter for decision without oral argument on the record and written briefing. If the court elects to entertain oral argument, it will be conducted on 3/21/2018, at 3:00 PM Pacific Time, in Courtroom No. 25 before the undersigned. The parties shall set aside that time in the interim for a potential court appearance. Telephonic appearances will be permitted. (Zignago, K.) (Entered: 03/14/2018)
21 ORDER signed by Magistrate Judge Kendall J. Newman on 03/15/2018 CLARIFYING 20 Order: 1) Prior to the 3/19/2018 filing of the joint letter brief, parties are EXPECTED to meet and confer, which should include voice−to−voice dialogue; 2) To initiate such meet−and−confer efforts, the State of California shall promptly identify and provide to the United States what discovery is sought; 3) The parties shall the COOPERATIVELY prepare the joint letter brief; and 4) The joint letter brief shall not exceed 10 pages, in Times New Roman pt. 12 or equivalent font. (Donati, J) (Entered: 03/15/2018)
22 JOINT LETTER BRIEF by Xavier Becerra, Edmund Gerald Brown, Jr, State of California. Attorney Hakl, Anthony R. added. (Hakl, Anthony) Modified on 3/20/2018 (Mena−Sanchez, L). (Entered: 03/19/2018)
23 MINUTE ORDER issued by Courtroom Deputy for Magistrate Judge Kendall J. Newman on 3/19/2018: Upon review of the joint letter brief (ECF No. 22 ), the Court CONFIRMS the 3/21/2018 discovery hearing at 03:00 PM (Pacific Time) in Courtroom 25 (KJN) before Magistrate Judge Kendall J. Newman. Counsel appearing by telephone for the hearing are instructed to call 5 minutes prior to the hearing into the conference line 1−888−363−4734 and use the access code 1245690 plus # and security code 4223 plus # when prompted. (TEXT ONLY ENTRY) (Waldrop, A) (Entered: 03/19/2018)
24 NOTICE of APPEARANCE by August Edward Flentje on behalf of United States of America. Attorney Flentje, August Edward added. (Flentje, August) (Entered: 03/20/2018)
25 OPPOSITION by United States of America to 18 Motion to Transfer Venue. (Attachments: # 1 Exhibit A)(Press, Joshua) (Entered: 03/20/2018)
26 MINUTES (Text Only) for proceedings before Magistrate Judge Kendall J. Newman: DISCOVERY HEARING held on 3/21/2018. Counsel for parties present. The Court and counsel discussed discovery related issues in the case. Order to issue. Plaintiff's Counsel David Shelledy, Lauren Bingham, and August Flentje present. Defendants' Counsel Anthony Hakl and Lee Sherman present. Court Reporter: Kimberly Bennett. (Waldrop, A) (Entered: 03/21/2018)
27 TRANSCRIPT REQUEST by Xavier Becerra, Edmund Gerald Brown, Jr, State of California for proceedings held on March 21, 2018 before Judge Kendall J. Newman. Court Reporter Kimberly Bennett. (Sherman, Lee) (Entered: 03/22/2018)
28 ORDER signed by Magistrate Judge Kendall J. Newman on 3/22/2018 GRANTING−IN−PART and DENYING−IN−PART California's Request for Expedited Discovery. California may depose Thomas D. Moman and Todd Hoffman on the terms outlined in the order. No later than 3/23/2018 at 12:00 pm. Pacific Time, California shall provide the United States a list of paragraphs in the deponents' declarations containing alleged specific facts of irreparable injury for which existing supportive documents should be produced at the depositions. Any request for expedited discovery beyond the parameters of this order is DENIED. (Donati, J) (Entered: 03/22/2018)
29 TRANSCRIPT REQUEST by United States of America for proceedings held on March 21, 2018 before Judge Kendall J. Newman. Court Reporter Kimberly Bennett. (Shelledy, David) (Entered: 03/23/2018)
30 REPLY by Xavier Becerra, Edmund Gerald Brown, Jr, State of California re 18 Motion to Transfer Venue. (Attachments: # 1 Request for Judicial Notice & Exhibits A−D) (Sherman, Lee) (Entered: 03/23/2018)

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 26 of 39

03/23/2018 03/26/2018 03/26/2018 03/26/2018 03/26/2018 03/26/2018
03/27/2018
03/27/2018 03/29/2018 03/29/2018
03/29/2018

31 MOTION for 11−DAY EXTENSION OF TIME by United States of America to Allow Amicus Filings On Plaintiff's Behalf re 17 Minute Order. (Press, Joshua) Modified on 3/26/2018 (Donati, J). (Entered: 03/23/2018)
32 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by the American Center for Law and Justice. Attorney Kozina, Vladimir F. added. (Attachments: # 1 Proposed Amicus Curiae Brief, # 2 Proposed Order)(Kozina, Vladimir) Modified on 3/26/2018 (Donati, J). (Entered: 03/26/2018)
33 [DISREGARD− DUPLICATE of 32 Motion ] MOTION for LEAVE by the American Center for Law and Justice to filed Amicus Curiae in support of 2 Motion for Preliminary Injunction. (Attachments: # 1 Proposed Amicus Curiae Brief, # 2 Proposed Order)(Kozina, Vladimir) Modified on 3/26/2018 (Donati, J). (Entered: 03/26/2018)
34 MINUTE ORDER (Text Only) issued by Courtroom Deputy J. Streeter for District Judge John A. Mendez on 03/26/2018: The United States' Motion for 11−Day Extension of Time for Amicus Filings on Plaintiff's Behalf, ECF No. 31 , is GRANTED. Amicus briefs in support of Plaintiff's motion are now due April 6, 2018. (Streeter, J) (Entered: 03/26/2018)
35 NOTICE of APPEARANCE by David Jonathan Hacker on behalf of State of Texas, State of Alabama, State of Arkansas, State of Florida, State of Georgia, State of Indiana, State of Kansas, State of Louisiana, State of Michigan, State of Missouri, State of Nebraska, State Of Nevada, State of Ohio, State of Oklahoma, State of South Carolina, State of West Virginia, Phil Bryant, Paul Lepage. (Hacker, David) (Entered: 03/26/2018)
36 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by Phil Bryant, Paul Lepage, State Of Nevada, State of Alabama, State of Arkansas, State of Florida, State of Georgia, State of Indiana, State of Kansas, State of Louisiana, State of Michigan, State of Missouri, State of Nebraska, State of Ohio, State of Oklahoma, State of South Carolina, State of Texas, State of West Virginia to file Amicus Curiae in support of 2 Motion for Preliminary Injunction. (Attachments: # 1 Proposed Amicus Curiae Brief, # 2 Proposed Order)(Hacker, David) Modified on 3/26/2018 (Donati, J). (Entered: 03/26/2018)
37 MINUTE ORDER (Text Only) issued by Courtroom Deputy J. Streeter for District Judge John A. Mendez on 03/27/2018: Amici curiae are advised that the Court will only consider briefing that helps the Court beyond the help the lawyers for the parties are able to provide; duplicative or cumulative arguments will not be considered. Amici should substantially comply with Federal Rule of Appellate Procedure 29(a), except that parties should look to the Federal Rules of Civil Procedure and Local Rules for guidance as to form. Briefs shall not exceed 15 pages. (Streeter, J) (Entered: 03/27/2018)
38 STIPULATION for EXTENSION of TIME to Respond to 1 Complaint until 4/25/2018. (Sherman, Lee) Modified on 3/28/2018 (Donati, J). (Entered: 03/27/2018)
39 ORDER signed by District Judge John A. Mendez on 3/29/2018 DENYING 18 Motion to Transfer Case to the Northern District of California. (Donati, J) (Entered: 03/29/2018)
40 TRANSCRIPT of Proceedings held on 3/21/18, before Magistrate Judge Kendall J. Newman, filed by Court Reporter Kimberly Bennett, Phone number 916−442−8420 E−mail reporter.bennett@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 4/19/2018. Redacted Transcript Deadline set for 4/30/2018. Release of Transcript Restriction set for 6/28/2018. (Bennett, K) (Entered: 03/29/2018)
41 ORDER signed by District Judge John A. Mendez on 3/29/2018 ORDERING: Defendants' Opposition Brief due by 5/4/2018; Amici Curiae Briefs due by 5/18/2018; Plaintiff's Reply Brief due by 6/8/2018; and the hearing on 2 Motion for Preliminary Injunction hearing set for 6/20/2018 at 10:00 AM in Courtroom 6 (JAM) before District Judge John A. Mendez. (Donati, J) (Entered: 03/29/2018)

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 27 of 39

03/30/2018
03/30/2018 03/30/2018 04/02/2018 04/02/2018 04/06/2018 04/06/2018 04/06/2018 04/06/2018
04/09/2018 04/11/2018
04/12/2018

42 MINUTE ORDER: The Court has received and reviewed two motions for leave to file amicus curiae briefs in support of Plaintiff, one by the American Center for Law and Justice, ECF No. 32, and one by the States of Texas, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Missouri, Nebraska, Nevada, Ohio, Oklahoma, South Carolina, West Virginia, and the Governors of Mississippi and Maine, ECF No. 36. The Court GRANTS each motion and the proposed briefs, ECF Nos. 32−1, 36−1, are deemed filed. (TEXT ENTRY ONLY) (Vine, H) (Entered: 03/30/2018)
43 AMICUS CURIAE BRIEF by American Center for Law and Justice in Support of 2 Motion for Preliminary Injunction. (Donati, J) (Entered: 03/30/2018)
44 AMICI CURIAE BRIEF by Phil Bryant, Paul Lepage, State Of Nevada, State of Alabama, State of Arkansas, State of Florida, State of Georgia, State of Indiana, State of Kansas, State of Louisiana, State of Michigan, State of Missouri, State of Nebraska, State of Ohio, State of Oklahoma, State of South Carolina, State of Texas, State of West Virginia in Support of 2 Motion for Preliminary Injunction. (Donati, J) (Entered: 03/30/2018)
45 NOTICE of APPEARANCE by Cherokee Dawn−Marie Melton on behalf of Xavier Becerra, Edmund Gerald Brown, Jr, State of California. Attorney Melton, Cherokee Dawn−Marie added. (Melton, Cherokee) (Entered: 04/02/2018)
46 AMENDED DECLARATIONS by United States of America in Support of 2 Motion for Preliminary Injunction (Attachments: # 1 Supplemental Declaration of Thomas Homan, # 2 Amended Declaration of Thomas Homan, # 3 Supplemental Declaration of Todd Hoffman, # 4 Amended Declaration of Todd Hoffman)(Bingham, Lauren) Modified on 4/2/2018 (Donati, J). (Entered: 04/02/2018)
47 MOTION for LEAVE to FILE AMICI CURIAE BRIEF in Support of Plaintiff by National Sheriffs' Association, Advocates for Victims of Illegal Alien Crime, Fight Sanctuary State. Attorney Axelrod, Julie Beth added. (Attachments: # 1 Proposed Amicus Brief)(Axelrod, Julie) Modified on 4/6/2018 (Mena−Sanchez, L). (Entered: 04/06/2018)
48 AMICI CURIAE BRIEF by Criminal Justice Legal Foundation and Michael Rushford in SUPPORT of 2 Motion for Preliminary Injunction. Attorney Scheidegger, Kent Stephen added. (Scheidegger, Kent) Modified on 4/6/2018 (Donati, J). (Entered: 04/06/2018)
49 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by Federal Law Enforcement Officers Association and National Border Patrol Council. Attorney Benbrook, Bradley A. added. (Benbrook, Bradley) Modified on 4/6/2018 (Mena−Sanchez, L). (Entered: 04/06/2018)
50 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by City of Aliso Viejo, City of Barstow, City of Escondido, City of Fountain Valley, City of Hesperia, City of Mission Viejo, City of Yorba Linda, Mike Spence, David Harrington, Jim Desmond, Rebecca Jones, Ryan Vienna, Dana T Rohrabacher. Attorney Joseph, Lawrence John added. (Attachments: # 1 Corporate Disclosure, # 2 Proposed Order, # 3 Proposed Amici Curiae Brief, # 4 Addendum to Amici Brief)(Joseph, Lawrence) Modified on 4/9/2018 (Donati, J). (Entered: 04/06/2018)
51 STIPULATION and PROPOSED PROTECTIVE ORDER by United States of America. (Bingham, Lauren) Modified on 4/10/2018 (Donati, J). (Entered: 04/09/2018)
52 MINUTE ORDER: Amici curiae are advised that the Court will only consider briefing that helps the Court beyond the help the lawyers for the parties are able to provide; duplicative or cumulative arguments will not be considered. Amici should substantially comply with Federal Rule of Appellate Procedure 29(a), except that parties should look to the Federal Rules of Civil Procedure and Local Rules for guidance as to form. Briefs shall not exceed 15 pages. (TEXT ENTRY ONLY) (Vine, H) (Entered: 04/11/2018)
53 STIPULATED PROTECTIVE ORDER signed by District Judge John A. Mendez on 4/11/2018. (Fabillaran, J) (Entered: 04/12/2018)

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 28 of 39

04/12/2018
04/12/2018 04/12/2018 04/12/2018 04/20/2018 04/20/2018
04/20/2018 04/23/2018 04/24/2018 04/24/2018 04/24/2018 04/24/2018
04/24/2018 04/27/2018

54 MINUTE ORDER: The Court has received and reviewed three motions for leave to file amicus curiae briefs in support of Plaintiff, one by the National Sheriffs Association, Advocates for Victims of Illegal Alien Crime, and Fight Sanctuary State, ECF No. 47, one by the Federal Law Enforcement Officers and National Border Patrol Council, ECF No. 49, and one by municipalities and elected officials, ECF No. 50. The Court GRANTS each motion and the proposed briefs, ECF Nos. 47−1, 49, and 50−3 are deemed filed. (TEXT ENTRY ONLY)(Vine, H) (Entered: 04/12/2018)
55 AMICI CURIAE BRIEF by Advocates for Victims of Illegal Alien Crime, Fight Sanctuary State, National Sheriffs' Association in Support of 2 Motion for Preliminary Injunction. (Donati, J) (Entered: 04/12/2018)
56 AMICI CURIAE BRIEF by Federal Law Enforcement Officers Association and National Border Patrol Council. (Donati, J) (Entered: 04/12/2018)
57 AMICI CURIAE BRIEF by Municipalities and Elected Officials in Support of 2 Motion for Preliminary Injunction. (Donati, J) (Entered: 04/12/2018)
58 NOTICE of APPEARANCE by John Wisner Golden on behalf of County of Orange, Sandra Hutchens, Sheriff−Coroner for the County of Orange. Attorney Golden, John Wisner added. (Golden, John) (Entered: 04/20/2018)
59 MOTION to INTERVENE by County of Orange, Sandra Hutchens, Sheriff−Coroner for the County of Orange. Motion Hearing set for 6/5/2018 at 01:30 PM in Courtroom 6 (JAM) before District Judge John A. Mendez. (Attachments: # 1 Declaration Jack W. Golden, # 2 Exhibit 1, # 3 Declaration Robert J. Peterson, # 4 Exhibit 1, # 5 Exhibit 2 , # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Proposed Order)(Golden, John) Modified on 4/23/2018 (Reader, L). (Entered: 04/20/2018)
60 CERTIFICATE of SERVICE by County of Orange, Sandra Hutchens, Sheriff−Coroner for the County of Orange re 59 Motion to Intervene, 58 Notice of Appearance. (Golden, John) Modified on 4/23/2018 (Reader, L). (Entered: 04/20/2018)
61 STIPULATION and PROPOSED ORDER for Re: Extension of Time for the State of California to Respond to the United States' Complaint by Xavier Becerra, Edmund Gerald Brown, Jr, State of California. (Hakl, Anthony) (Entered: 04/23/2018)
62 STIPULATION and ORDER signed by District Judge John A. Mendez on 4/24/18 ORDERING that The State of California's time to respond to the complaint is EXTENDED an additional nine (9) days, up to and including 5/4/18. (Mena−Sanchez, L) (Entered: 04/24/2018)
63 MOTION to INTERVENE by Dana T. Blackmore. Motion Hearing set for 6/5/2018 at 01:30 PM in Courtroom 6 (JAM) before District Judge John A. Mendez. (Attachments: # 1 Proposed Complaint in Intervention, # 2 Proposed Order)(Donati, J) (Entered: 04/24/2018)
64 MOTION for PERMISSION to ELECTRONICALLY FILE by Dana T. Blackmore. (Attachments: # 1 Proposed Order)(Donati, J) (Entered: 04/24/2018)
65 MINUTE ORDER: The Court has received Proposed Intervenor Dana T. Blackmores (Blackmore) Motion for Permission to Electronically File. ECF No. 64. Blackmore is appearing pro se. Local Rule 133 provides that [a]ny person appearing pro se may not utilize electronic filing except with the permission of the assigned Judge or Magistrate JudgeAll pro se parties shall file and serve paper documents as required by applicable Federal Rules of Civil or Criminal Procedure or by these Rules. E.D. Cal. L.R. 133(b)(2). Blackmores motion does not set forth a compelling reason why the Court should deviate from the Local Rules and its standard practice of disallowing the use of electronic filing by pro se litigants. See E.D. Cal. L.R. 133(b)(3). Blackmores motion is DENIED. (TEXT ENTRY ONLY) (Vine, H) (Entered: 04/24/2018)
SERVICE BY MAIL: 65 Minute Order served on Dana T. Blackmore. (Donati, J) (Entered: 04/24/2018)
66 ORDER signed by District Judge John A. Mendez on 4/27/2018 DENYING 63 Motion to Intervene. Dana T. Blackmore terminated. (Donati, J) (Entered: 04/27/2018)

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 29 of 39

04/27/2018 04/27/2018 04/27/2018 04/30/2018
04/30/2018 04/30/2018 04/30/2018
05/01/2018 05/04/2018
05/04/2018 05/04/2018
05/04/2018 05/04/2018 05/04/2018 05/07/2018

SERVICE BY MAIL: 66 Order served on Dana T. Blackmore. (Donati, J) (Entered: 04/27/2018)
67 JOINT STATUS REPORT by Xavier Becerra, Edmund Gerald Brown, Jr, State of California and United States of America (Hakl, Anthony) Modified on 4/27/2018 (Donati, J). (Entered: 04/27/2018)
68 AMENDED 64 MOTION for PERMISSION to ELECTRONICALLY FILE by Dana T. Blackmore. (York, M) (Entered: 04/30/2018)
69 MINUTE ORDER: The Court has received Dana T. Blackmores Amended Motion for Permission to Electronically File. ECF No. 68. The Court denied Blackmores Motion to Intervene. See ECF No. 66. Blackmores Amended Motion for Permission to Electronically File is DENIED as moot. (TEXT ENTRY ONLY) (Vine, H) (Entered: 04/30/2018)
SERVICE BY MAIL: 69 Minute Order served on Dana T. Blackmore. (Donati, J) (Entered: 04/30/2018)
70 CERTIFICATE of SERVICE by County of Orange, Sandra Hutchens re 60 Certificate of Service, 59 Motion to Intervene, 58 Notice of Appearance. (Golden, John) (Entered: 04/30/2018)
71 ORDER signed by District Judge John A. Mendez on 4/30/18: No hearing date and no dates for the filing of the opposition and reply briefs for Defendants' anticipated Motion to Dismiss will be set at this time. The Motion to Dismiss will not, under any circumstances, be heard before June 20, 2018. The requests to enlarge the Court's page limits for the Motion to Dismiss are denied. (Kaminski, H) (Entered: 04/30/2018)
72 CERTIFICATE of SERVICE by County of Orange, Sandra Hutchens re 60 Certificate of Service, 59 Motion to Intervene, 58 Notice of Appearance. (Golden, John) (Entered: 05/01/2018)
73 MOTION to INTERVENE by Coalition for Humane Immigrant Rights, California Partnership to End Domestic Violence. Attorney Amdur, Spencer E. W. added. Motion Hearing set for 6/5/2018 at 01:30 PM in Courtroom 6 (JAM) before District Judge John A. Mendez. (Attachments: # 1 Memorandum, # 2 Proposed Opposition to Motion for Preliminary Injuction, # 3 Proposed Motion to Dismiss, # 4 Declaration of Kathy Moore, # 5 Declaration of Angelica Salas, # 6 Proposed Order)(Amdur, Spencer) Modified on 5/7/2018 (Fabillaran, J). (Entered: 05/04/2018)
74 OPPOSITION by Xavier Becerra, Edmund Gerald Brown, Jr, State of California to 2 Motion for Preliminary Injunction. (Attachments: # 1 Proposed Order # 2 Declaration of Cherokee Melton)(Sherman, Lee) Modified on 5/7/2018 (Fabillaran, J). (Entered: 05/04/2018)
75 DECLARATION of Joe Dominic in opposition to 2 Motion for Preliminary Injunction. (Attachments: # 1 Declaration of Chris Caligiuri, # 2 Declaration of Arif Alikhan, # 3 Declaration of Jim Hart, # 4 Declaration of Jeffrey Rosen, # 5 Declaration of Diana Carbajal, # 6 Declaration of Holly Cooper, # 7 Declaration of Tom Wong)(Sherman, Lee) (Entered: 05/04/2018)
76 NOTICE of Request to Seal Document(s) pursuant to L.R. 141 by All Defendants. (Sherman, Lee) (Entered: 05/04/2018)
77 MOTION to DISMISS by Xavier Becerra, Edmund Gerald Brown, Jr, State of California. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Proposed Order)(Sherman, Lee) Modified on 5/7/2018 (Fabillaran, J). (Entered: 05/04/2018)
78 REQUEST for JUDICIAL NOTICE by Xavier Becerra, Edmund Gerald Brown, Jr, State of California in Support of 77 Motion to Dismiss and 74 Opposition to Motion. (Attachments: # 1 Proposed Order)(Sherman, Lee) Modified on 5/7/2018 (Fabillaran, J). (Entered: 05/04/2018)
79 MINUTE ORDER: After reviewing Defendants Motion to Dismiss, ECF No. 77, and Opposition to the Preliminary Injunction, ECF No. 74, the Court has determined that it will conserve judicial resources and set the hearing on the Motion to Dismiss for the same date and time as the hearing on the Motion for Preliminary Injunction. See ECF No. 41. Plaintiffs opposition is due June 6, 2018, and Defendants reply is due June 13,

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 30 of 39

05/07/2018 05/07/2018 05/08/2018 05/14/2018 05/15/2018
05/15/2018
05/15/2018 05/15/2018 05/15/2018 05/16/2018 05/16/2018 05/16/2018

2018. The parties are reminded of the Courts instruction cautioning against objections to evidence. ECF No. 41. This instruction does not extend to Defendants requests for judicial notice, see ECF No. 78, which Plaintiff may address where pertinent. (TEXT ENTRY ONLY) (Vine, H) (Entered: 05/07/2018)
80 ORDER signed by District Judge John A. Mendez on 5/7/2018 GRANTING 76 Request to Seal Documents in Support of Defendants' Opposition to Motion for Preliminary Injunction. (Fabillaran, J) (Entered: 05/07/2018)
81 SEALED EVENT (Attachments: # 1 part 2, # 2 part 3) (Donati, J) (Entered: 05/08/2018)
82 NOTICE of APPEARANCE by Cody H. Wofsy on behalf of California Partnership to End Domestic Violence, Coalition for Humane Immigrant Rights. Attorney Wofsy, Cody H. added. (Wofsy, Cody) (Entered: 05/08/2018)
83 NOTICE of FILING CORRECTED 74 DECLARATION by Defendants. (Attachments: # 1 Supplemental Declaration of Cherokee Melton, # 2 Amended Declaration of Cherokee Melton )(Melton, Cherokee) Modified on 5/21/2018 (Benson, A.). (Entered: 05/14/2018)
84 MINUTES (Text Only) for proceedings before Magistrate Judge Kendall J. Newman: INFORMAL TELEPHONIC CONFERENCE held on 5/15/2018. Counsel for parties present and appearing by phone. Court and counsel discussed case. Minute Order to issue. Plaintiffs Counsel Lauren Bingham and Erez Reuveni present. Defendants Counsel Lee Sherman and Cherokee Melton present. (Waldrop, A) (Entered: 05/15/2018)
85 MINUTE ORDER issued by Courtroom Deputy for Magistrate Judge Kendall J. Newman on 5/15/2018: A discovery conference in this matter is set for 05/18/2018 at 09:30 a.m. Pacific Time in Courtroom No. 25 before Judge Newman. The parties may appear in person or by telephone. If a telephonic appearance is desired, the parties shall promptly contact the undersigned's courtroom deputy clerk at (916) 930−4187 to make appropriate arrangements. Additionally, no later than 05/17/2018 at 11:00 a.m., the parties shall file a joint letter brief, limited to no more than 8 pages, addressing the parties' remaining disputes concerning proposed expedited discovery. (TEXT ONLY ENTRY) (Waldrop, A) (Entered: 05/15/2018)
86 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by California Partnership to End Domestic Violence, Coalition for Humane Immigrant Rights for attorney Omar C. Jadwat to appear Pro Hac Vice. (Filing fee $ 225, receipt number 0972−7661725) (Attachments: # 1 Certificate of Good Standing − Jadwat)(Amdur, Spencer) (Entered: 05/15/2018)
87 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by California Partnership to End Domestic Violence, Coalition for Humane Immigrant Rights for attorney Lee Gelernt to appear Pro Hac Vice. (Filing fee $ 225, receipt number 0972−7661749) (Attachments: # 1 Certificate of Good Standing − Gelernt)(Amdur, Spencer) (Entered: 05/15/2018)
88 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by Proposed Amici Current and Former Prosecutors and Law Enforcement Leaders for attorney Joshua A. Geltzer to appear Pro Hac Vice. (Filing fee $ 225, receipt number 0972−7661815) (Pitts, Patrick) (Entered: 05/15/2018)
89 PRO HAC VICE ORDER signed by District Judge John A. Mendez on 5/16/18. Added Attorney Lee Gelernt for California Partnership to End Domestic Violence and Coalition for Humane Immigrant Rights. (Mena−Sanchez, L) (Entered: 05/16/2018)
90 NOTICE of APPEARANCE by Francesca Genova on behalf of United States of America. Attorney Genova, Francesca added. (Genova, Francesca) (Entered: 05/16/2018)
91 PRO HAC VICE ORDER signed by District Judge John A. Mendez on 5/16/18. Added Attorney Omar C. Jadwat, PHV for California Partnership to End Domestic Violence and Coalition for Humane Immigrant Rights. (Mena−Sanchez, L) (Entered: 05/16/2018)

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 31 of 39

05/16/2018
05/17/2018 05/17/2018 05/17/2018 05/17/2018
05/18/2018 05/18/2018 05/18/2018 05/18/2018
05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018

92 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by Tahirih Justice Center for attorney Jamie S. Gorelick to appear Pro Hac Vice. Attorney Babbitt, Christopher Edmunds added. (Filing fee $ 225, receipt number 0972−7662576) (Attachments: # 1 Certificate of Good Standing)(Babbitt, Christopher) Modified on 5/16/2018 (Nelson, J). (Entered: 05/16/2018)
93 PRO HAC VICE ORDER signed by District Judge John A. Mendez on 5/16/18. Added Attorney Jamie S. Gorelick, PHV for Tahirih Justice Center. (Becknal, R) (Entered: 05/17/2018)
94 PRO HAC VICE ORDER signed by District Judge John A. Mendez on 5/16/18. Added Attorney Joshua A. Geltzer, PHV for Proposed Amici Current and Former Prosecutors and Law Enforcement Leaders. (Becknal, R) (Entered: 05/17/2018)
95 JOINT LETTER BRIEF re (#85) Order by United States of America. (Genova, Francesca) Modified on 5/21/2018 (Benson, A.). (Entered: 05/17/2018)
96 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by Immigrant Legal Resource Center, Human Rights Watch, Freedom For Immigrants. Attorney Lee, Elaine Y. added. Motion Hearing set for 6/20/2018 at 10:00 AM in Courtroom 6 (JAM) before District Judge John A. Mendez. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Proposed Order)(Lee, Elaine) Modified on 5/21/2018 (Benson, A.). (Entered: 05/17/2018)
97 NOTICE of APPEARANCE by Abigail Coursolle on behalf of National Health Law Program (and associated parties). Attorney Coursolle, Abigail added. (Coursolle, Abigail) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
98 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by Law Enforcement Action Partnership (LEAP) (and associated parties). (Attachments: # 1 Exhibit Proposed Amici Curiae Brief, # 2 Proposed Order)(Geltzer, Joshua) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
99 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by City of Los Angeles. Attorney Trivedi, Harit Upendra added. (Attachments: # 1 Amicus Curiae Brief, # 2 Proposed Order)(Trivedi, Harit) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
100 MINUTES (Text Only) for proceedings before Magistrate Judge Kendall J. Newman: DISCOVERY HEARING held on 5/18/2018. Counsel for parties present. The Court and counsel discussed discovery issues in the case. Order to issue. Plaintiffs Counsel David Shelledy, Lauren Bingham, and Erez Reuvani present. Defendants Counsel Anthony Hakl and Lee Sherman present. Court Reporter: Jennifer Coulthard. (Waldrop, A) (Entered: 05/18/2018)
101 NOTICE of APPEARANCE by Margaret L. Carter on behalf of County of Los Angeles. Attorney Carter, Margaret L. added. (Carter, Margaret) (Entered: 05/18/2018)
102 NOTICE of APPEARANCE by Daniel R. Suvor on behalf of County of Los Angeles. Attorney Suvor, Daniel R. added. (Suvor, Daniel) (Entered: 05/18/2018)
103 NOTICE of APPEARANCE by Daniel Joseph Tully on behalf of County of Los Angeles. Attorney Tully, Daniel Joseph added. (Tully, Daniel) (Entered: 05/18/2018)
104 AMICI CURIAE BRIEF by National Health Law Program (and associated parties). (Attachments: # 1 Appendix Studies cited in brief)(Coursolle, Abigail) Modified on 5/18/2018 (Benson, A.). (Entered: 05/18/2018)
105 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by County of Los Angeles (and associated parties). (Attachments: # 1 Proposed Brief of Amici Curiae, # 2 Proposed Order)(Carter, Margaret) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
106 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by Administrative Law, Constitutional Law, Criminal Law, and Immigration Law Scholars for attorney Harry Sandick to appear Pro Hac Vice. Attorney Calia, Kevin A. added. (Filing fee $ 225, receipt number 0972−7667734) (Attachments: # 1 Certificate of Good Standing)(Calia, Kevin) (Entered: 05/18/2018)

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 32 of 39

05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018

107 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by Administrative Law, Constitutional Law, Criminal Law, and Immigration Law Scholars for attorney Jamison Davies to appear Pro Hac Vice. (Filing fee $ 225, receipt number 0972−7667777) (Attachments: # 1 Certificate of Good Standing)(Calia, Kevin) (Entered: 05/18/2018)
108 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by Administrative Law, Constitutional Law, Criminal Law, and Immigration Law Scholars for attorney Michael D. Schwartz to appear Pro Hac Vice. (Filing fee $ 225, receipt number 0972−7667789) (Attachments: # 1 Certificate of Good Standing)(Calia, Kevin) (Entered: 05/18/2018)
109 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by Tahirih Justice Center (and associated parties). (Attachments: # 1 Proposed Brief of Amici Curiae, # 2 Proposed Order)(Gorelick, Jamie) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
110 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by City of New York (and associated parties). Attorney Holtzman, Jonathan Victor added. Motion Hearing set for 6/20/2018 at 10:00 AM in Courtroom 6 (JAM) before District Judge John A. Mendez. (Attachments: # 1 Opposition, # 2 Proposed Order)(Holtzman, Jonathan) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
111 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by Seth Davis, Christopher Lasch (and associated parties), (Attachments: # 1 Proposed Brief of Amici Curiae, # 2 Proposed Order)(Calia, Kevin) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
112 AMICI CURIAE BRIEF by City and County of San Francisco. Attorney Lee, Mollie Mindes added. (Lee, Mollie) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
113 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by California State Senate. Attorney Almadani, Monica Ramirez added. (Attachments: # 1 Proposed Order, # 2 Proposed Amicus Brief)(Almadani, Monica) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
114 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by California Labor Federation (and associated parties). Attorney Guizar, Monica T. added. Motion Hearing set for 6/20/2018 at 10:00 AM in Courtroom 6 (JAM) before District Judge John A. Mendez. (Attachments: # 1 Brief of Amici Curiae, # 2 Proposed Order)(Guizar, Monica) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
115 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by Anti−Defamation League. Attorney Perrin, Robert W. added. Motion Hearing set for 6/20/2018 at 10:00 AM before District Judge John A. Mendez. (Attachments: # 1 Proposed Amicus Curiae Brief , # 2 Proposed Order)(Perrin, Robert) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
116 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by National Immigration Law Center (and associated parties). Attorney Weissglass, Jonathan D added. Motion Hearing set for 6/20/2018 at 10:00 AM before District Judge John A. Mendez. (Attachments: # 1 Proposed Amicus Brief, # 2 Proposed Order)(Weissglass, Jonathan) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
117 TRANSCRIPT REQUEST by Xavier Becerra, Edmund Gerald Brown, Jr, State of California for proceedings held on May 18, 2018 before Judge Kendall J. Newman. Court Reporter Jennifer Coulthard. (Hakl, Anthony) (Entered: 05/18/2018)
118 ORDER signed by Magistrate Judge Kendall J. Newman on 5/18/2018 DIRECTING parties on discovery issues. Any request for expedited discovery beyond the parameters of this order is DENIED. (See Order for details and instructions). (York, M) (Entered: 05/18/2018)
119 NOTICE of SUBSEQUENT AUTHORITY re 73 Motion to Intervene by California Partnership to End Domestic Violence, Coalition for Humane Immigrant Rights. (Attachments: # 1 Exhibit)(Amdur, Spencer) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 33 of 39

05/18/2018
05/18/2018 05/18/2018
05/18/2018
05/18/2018
05/21/2018
05/21/2018 05/21/2018 05/21/2018 05/21/2018 05/21/2018 05/21/2018 05/21/2018 05/21/2018 05/21/2018 05/21/2018 05/21/2018 05/21/2018 05/21/2018

120 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by PICO California, National Council of Jewish Women−California, Franciscan Action Network, Rabbi Jonathan D. Klein. Attorney Hudson, Esra Acikalin added. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Addendum to Proposed Amici Curiae Brief, # 3 Proposed Order)(Hudson, Esra) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
121 NOTICE of APPEARANCE by Bradley S. Phillips on behalf of Annie Lai, Kathleen Kim, Emily Robinson (and associated parties). Attorney Phillips, Bradley S. added. (Phillips, Bradley) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
122 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by Annie Lai, Kathleen Kim, Emily Robinson (and associated parties). (Attachments: # 1 Appendix A − Motion for Leave, # 2 Proposed Amici Curiae Brief, # 3 Appendix A − Proposed Amici Curiae, # 4 Proposed Order)(Phillips, Bradley) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
123 MOTION for LEAVE to FILE AMICI CURIAE BRIEF of The District of Columbia (and associated parties). Attorney Morosco, Taylor Cross added. (Attachments: # 1 Proposed Brief of Amici Curiae)(Morosco, Taylor) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
124 MOTION for LEAVE to FILE AMICI CURIAE BRIEF by Center for Human Rights and Constitutional Law (and associated parties). Attorney Schey, Peter Anthony added. (Attachments: # 1 Proposed Amicus Curiae Brief, # 2 Proposed Order)(Schey, Peter) Modified on 5/21/2018 (Benson, A.). (Entered: 05/18/2018)
125 MINUTE ORDER: The Court has received and reviewed the timely filed motions for leave to file amicus and amici curiae briefs. ECF Nos. 96, 98, 99, 105, 109, 110, 111, 113, 114, 115, 116, 120, 122, 123, & 124. Each motion is GRANTED. The proposed briefs attached to the motions are deemed filed. ECF No. 96−1, 98−1, 99−1, 105−1, 109−1, 110−1, 111−1, 113−2, 114−1, 115−1, 116−1, 120−1, 120−2, 122−2, 122−3, 123−1, and 124−1. (TEXT ENTRY ONLY) (Vine, H) (Entered: 05/21/2018)
126 AMICI CURIAE BRIEF by Freedom For Immigrants, Human Rights Watch, Immigrant Legal Resource Center. (Donati, J) (Entered: 05/21/2018)
127 AMICI CURIAE BRIEF by Law Enforcement Action Partnership (and associated parties). (Donati, J) (Entered: 05/21/2018)
128 AMICUS CURIAE BRIEF by City of Los Angeles. (Donati, J) (Entered: 05/21/2018)
129 AMICI CURIAE BRIEF by County of Los Angeles (and associated parties). (Donati, J) (Entered: 05/21/2018)
130 AMICI CURIAE BRIEF by Tahirih Justice Center (and associated parties). (Donati, J) (Entered: 05/21/2018)
131 AMICI CURIAE BRIEF by City of New York (and associated parties). (Donati, J) (Entered: 05/21/2018)
132 AMICI CURIAE BRIEF by Seth Davis, Christopher Lasch (and associated parties). (Donati, J) (Entered: 05/21/2018)
133 AMICUS CURIAE BRIEF by California State Senate. (Donati, J) (Entered: 05/21/2018)
134 AMICI CURIAE BRIEF by California Labor Federation (and associated parties). (Donati, J) (Entered: 05/21/2018)
135 AMICUS CURIAE BRIEF by Anti−Defamation League. (Donati, J) (Entered: 05/21/2018)
136 AMICI CURIAE BRIEF by National Immigration Law Center (and associated parties). (Donati, J) (Entered: 05/21/2018)
137 AMICI CURIAE BRIEF by PICO California (and associated parties). (Donati, J) (Entered: 05/21/2018)
138 AMICI CURIAE BRIEF by Annie Lai (and associated parties). (Donati, J) (Entered: 05/21/2018)

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 34 of 39

05/21/2018 05/21/2018 05/21/2018 05/21/2018 05/21/2018 05/21/2018 05/22/2018
05/22/2018
05/22/2018 05/22/2018 05/22/2018 05/22/2018 05/22/2018 05/22/2018 05/23/2018

139 AMICI CURIAE BRIEF by The District of Columbia (and associated parties). (Donati, J) (Entered: 05/21/2018)
140 AMICI CURIAE BRIEF by Center for Human Rights and Constitutional Law (and associated parties). (Donati, J) (Entered: 05/21/2018)
141 NOTICE of APPEARANCE by Kathryne M. Gray on behalf of United States of America. Attorney Gray, Kathryne M. added. (Gray, Kathryne) (Entered: 05/21/2018)
142 STIPULATION and PROPOSED ORDER for Briefing Schedule and Supplemental Briefing by Edmund Gerald Brown, Jr. (Chuang, Christine) (Entered: 05/21/2018)
143 NOTICE of APPEARANCE by Julia Harumi Mass on behalf of California Partnership to End Domestic Violence, Coalition for Humane Immigrant Rights. Attorney Mass, Julia Harumi added. (Mass, Julia) (Entered: 05/21/2018)
144 NOTICE of APPEARANCE by Angelica H. Salceda on behalf of California Partnership to End Domestic Violence, Coalition for Humane Immigrant Rights. Attorney Salceda, Angelica H. added. (Salceda, Angelica) (Entered: 05/21/2018)
145 MINUTE ORDER: The Court has reviewed the parties stipulation and proposed order. ECF No. 142. It is hereby ordered that: The State may file a five−page supplemental brief discussing the significance of Murphy v. National Collegiate Athletic Assn on or before Wednesday, May 23, 2018. The United States is permitted an additional five pages for its Reply in support of Plaintiffs Motion for Preliminary Injunction to respond to the States supplemental brief, only. The Court declines to grant extensions on the remaining filing deadlines. (TEXT ENTRY ONLY) (Vine, H) (Entered: 05/22/2018)
146 TRANSCRIPT of Proceedings Discover Hearing held on 5/18/18, before Magistrate Judge Kendall J. Newman, filed by Jennifer Coulthard, Phone number 312−617−9858 E−mail jenrmrcrr2@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 6/14/2018. Redacted Transcript Deadline set for 6/22/2018. Release of Transcript Restriction set for 8/20/2018. (Dunn−Coulthard, J) (Entered: 05/22/2018)
147 TRANSCRIPT REQUEST by United States of America for proceedings held on 5/18/18 before Judge Kendall J. Newman. Court Reporter Jennifer Coulthard. (Shelledy, David) (Entered: 05/22/2018)
148 OPPOSITION by Xavier Becerra, Edmund Gerald Brown, Jr, State of California to 59 Motion to Intervene. (Hakl, Anthony) (Entered: 05/22/2018)
149 OPPOSITION by Xavier Becerra, Edmund Gerald Brown, Jr, State of California to 73 Motion to Intervene. Attorney Onyeagbako, Maureen C. added. (Attachments: # 1 Proof of Service)(Onyeagbako, Maureen) (Entered: 05/22/2018)
150 [WITHDRAWN PER 152 NOTICE] OPPOSITION by United States of America to 59 Motion to Intervene. (Gray, Kathryne) Modified on 5/23/2018 (Benson, A.). (Entered: 05/22/2018)
151 OPPOSITION by United States of America to 73 Motion to Intervene. (Gray, Kathryne) (Entered: 05/22/2018)
152 NOTICE OF WITHDRAWAL of 150 Opposition to Motion by All Plaintiffs (Attachments: # 1 [DISREGARD − TO BE REFILED AS SEPARATE DOCKET ENTRY] Corrected Brief) (Gray, Kathryne) Modified on 5/23/2018 (Benson, A.). (Entered: 05/22/2018)
153 CLERKS NOTICE: All Attorneys must comply with Local Rule 131(c). The Combination of a Login, Password and signature consisting of a /s/ First Name−Last Name must all be from the same attorney to constitute a signature of the user for the purposes of CM/ECF. In addition, attorneys name must appear in the attorney caption information at the top left side of the first page of every document filed. Documents filed by attorneys not appearing as counsel and/or not in compliance with Local Rule 131(c) may have their document stricken by the court. This Notice is for future filings. No Attorney is required to re−file their document at this time. (TEXT

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 35 of 39

05/23/2018 05/23/2018
05/23/2018 05/24/2018
05/24/2018 05/29/2018 05/29/2018 05/29/2018 05/30/2018
06/04/2018 06/04/2018 06/05/2018
06/06/2018 06/06/2018 06/08/2018

ONLY ENTRY) (Donati, J) (Entered: 05/23/2018)
154 RESPONSE by United States of America to 59 Motion to Intervene. (Genova, Francesca) (Entered: 05/23/2018)
155 MINUTE ORDER issued by Courtroom Deputy for Magistrate Judge Kendall J. Newman on 5/23/2018: After communication with parties, an informal telephonic discovery conference in this matter is set for 05/24/2018 at 08:30 a.m. Pacific Time before Magistrate Judge Kendall J. Newman. The parties are instructed to call 5 minutes prior to the telephonic conference using the conference call instructions sent to them in a separate email. (TEXT ONLY ENTRY) (Waldrop, A) (Entered: 05/23/2018)
156 SUPPLEMENT by Xavier Becerra, Edmund Gerald Brown, Jr, State of California re 77 Motion to Dismiss, 74 Opposition to Motion. (Sherman, Lee) (Entered: 05/23/2018)
157 MINUTES (Text Only) for proceedings before Magistrate Judge Kendall J. Newman: INFORMAL TELEPHONIC DISCOVERY CONFERENCE held on 5/24/2018. Counsel for parties present and appearing by telephone. The Court and counsel discussed discovery. Order to issue. Plaintiffs Counsel Lauren Bingham and Erez Reuveni present. Defendants Counsel Anthony Hakl and Lee Sherman present. (Waldrop, A) (Entered: 05/24/2018)
158 ORDER signed by Magistrate Judge Kendall J. Newman on 5/24/2018 ORDERING that California shall respond to interrogatories 2, 3, 7, and 8 as limited by the court at the conference. California's responses to the interrogatories shall be due 6/1/2018, unless the parties agree otherwise. (Washington, S) (Entered: 05/24/2018)
159 REPLY by County of Orange, Sandra Hutchens to RESPONSE to 59 Motion to Intervene. (Golden, John) (Entered: 05/29/2018)
160 NOTICE of ERRATA by County of Orange, Sandra Hutchens re 59 Motion to Intervene. (Golden, John) (Entered: 05/29/2018)
161 REPLY by California Partnership to End Domestic Violence, Coalition for Humane Immigrant Rights to RESPONSE to 73 Motion to Intervene. (Amdur, Spencer) (Entered: 05/29/2018)
162 MINUTE ORDER: The hearing on the motion(s) now calendared for June 5, 2018 is/are ordered submitted without appearance and without argument pursuant to Local Rule 230 (g). If the Court subsequently concludes that oral argument is necessary, a hearing will be set and the parties notified accordingly. (TEXT ENTRY ONLY) (Vine, H) (Entered: 05/30/2018)
163 ORDER signed by District Judge John A. Mendez on 6/4/2018 DENYING 59 Motion to Intervene by County of Orange and Sandra Hutchens. County of Orange and Sandra Hutchens may file an amici curiae brief by 6/12/2018. (Donati, J) (Entered: 06/04/2018)
179 MOTION to file Amicus Curiae Brief by Vadim Stanley Miesegaes. (Attachments: # 1 Proposed Amicus Curiae Brief, # 2 IFP Application)(Donati, J) (Entered: 06/12/2018)
164 ORDER signed by District Judge John A. Mendez on 6/4/2018 DENYING 73 Motion to Intervene by Coalition for Humane Immigrant Rights, California Partnership to End Domestic Violence. Coalition for Humane Immigrant Rights and California Partnership to End Domestic Violence may file an amici curiae brief by 6/12/2018. (Donati, J) (Entered: 06/05/2018)
165 AMENDED DECLARATIONS by State of California re 75 . (Attachments: # 1 Supplemental Declaration of Wong, # 2 Amended Declaration of Wong) (Chuang, Christine) Modified on 6/6/2018 (York, M). (Entered: 06/06/2018)
166 OPPOSITION by United States of America to 77 Motion to Dismiss. (Reuveni, Erez) (Entered: 06/06/2018)
167 [WITHDRAWN pursuant to 170 Notice] REPLY by United States of America to RESPONSE to 2 Motion for Preliminary Injunction. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 36 of 39

06/08/2018
06/08/2018 06/08/2018 06/08/2018
06/08/2018 06/08/2018
06/08/2018 06/11/2018
06/11/2018 06/11/2018 06/11/2018 06/12/2018
06/12/2018

Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y)(Reuveni, Erez) Modified on 6/8/2018 (Donati, J). Modified on 6/11/2018 (Donati, J). (Entered: 06/08/2018)
168 MOTION for LEAVE to file Amici Curiae Brief by City of Aliso Viejo, City of Escondido, City of Glendora, City of Laguna Niguel, City of Yorba Linda, Rebecca Jones, Mike Spence . Attorney Joseph, Lawrence John added. (Attachments: # 1 Proposed Order, # 2 Updated Corporate Disclosure, # 3 Proposed Amici Curiae Brief)(Joseph, Lawrence) Modified on 6/11/2018 (Donati, J). (Entered: 06/08/2018)
169 [WITHDRAWN pursuant to 172 Notice] Request Judicial Notice by United States of America. Motion Hearing set for 6/20/2018 at 10:00 AM before District Judge John A. Mendez. (Attachments: # 1 Proposed Order)(Genova, Francesca) Modified on 6/11/2018 (Donati, J). (Entered: 06/08/2018)
170 WITHDRAWAL by United States of America of 167 Reply to Response to Motion. (Reuveni, Erez) Modified on 6/11/2018 (Donati, J). (Entered: 06/08/2018)
171 REPLY by United States of America to RESPONSE to 2 Motion for Preliminary Injunction. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y)(Reuveni, Erez) (Entered: 06/08/2018)
172 WITHDRAWAL by United States of America of 169 Request for Judicial Notice. (Genova, Francesca) Modified on 6/11/2018 (Donati, J). (Entered: 06/08/2018)
173 REQUEST for JUDICIAL NOTICE by United States of America. (Attachments: # 1 Proposed Order, # 2 Exhibit Article, "We Will Prosecute", # 3 Exhibit AB 450 FAQs, # 4 Exhibit Article, "California Becomes Sanctuary State", # 5 Exhibit Press Release, Assemblymember David Chiu, # 6 Exhibit Press Release, Cal. Dep't of Justice)(Genova, Francesca) Modified on 6/11/2018 (Donati, J). (Entered: 06/08/2018)
174 NOTICE of Request to Seal Document(s) pursuant to L.R. 141 by United States of America. (Genova, Francesca) (Entered: 06/08/2018)
175 MINUTE ORDER: The Court has received and reviewed Municipalities and Elected Officials Motion for Leave to File Amici Curiae Brief. ECF No. 168 . The Motion for Leave is DENIED. Apart from those the Court has expressly permitted, no further amicus or amici curiae briefs will be allowed concerning the pending Motion for Preliminary Injunction and Motion to Dismiss. (TEXT ENTRY ONLY) (Vine, H) Modified on 6/11/2018 (Donati, J). (Entered: 06/11/2018)
176 ORDER signed by District Judge John A. Mendez on 6/11/2018 GRANTING 174 Notice of Request to Seal Document(s). (Washington, S) (Main Document 176 replaced on 6/11/2018) (Donati, J). (Entered: 06/11/2018)
177 NOTICE of ERRATA by United States of America re 171 Exhibit O in Reply to Response to Motion. (Attachments: # 1 Corrected Exhibit O)(Bingham, Lauren) Modified on 6/11/2018 (Donati, J). (Entered: 06/11/2018)
178 SEALED EVENT (Donati, J) (Entered: 06/12/2018)
180 MINUTE ORDER: The Court has received and reviewed Pro Se Litigant Vadim S. Miesegaes Motion for Leave to File an Amicus Curiae Brief in Support of Plaintiff. ECF No. 179 . The deadline for amicus curiae briefs in support of Plaintiff was April 6, 2018. ECF No. 34. Miesagaes did not mail his motion until May 16, 2018, well after the Courts deadline. Accordingly, his motion is DENIED. Miesegaes Application to Proceed In Forma Pauperis, ECF No. 179−2, is DENIED as moot. (TEXT ENTRY ONLY) (Vine, H) (Entered: 06/12/2018)
SERVICE BY MAIL: 180 Minute Order served on Vadim Stanley Miesegaes. (Donati, J) (Entered: 06/12/2018)

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 37 of 39

06/12/2018 06/12/2018 06/13/2018 06/15/2018
06/20/2018
06/22/2018 06/22/2018 06/22/2018 06/27/2018 06/28/2018
06/28/2018 06/29/2018 06/29/2018 07/05/2018

181 AMICI CURIAE BRIEF by County of Orange and Sandra Hutchens. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Golden, John) Modified on 6/12/2018 (Donati, J). (Entered: 06/12/2018)
182 AMICI CURIAE BRIEF by California Partnership to End Domestic Violence and Coalition for Humane Immigrant Rights. (Amdur, Spencer) Modified on 6/13/2018 (Donati, J). (Entered: 06/12/2018)
183 REPLY by Xavier Becerra, Edmund Gerald Brown, Jr, State of California re 77 Motion to Dismiss. (Sherman, Lee) (Entered: 06/13/2018)
184 ORDER signed by District Judge John A. Mendez on 6/15/2018 re: Requests for Judicial Notice. The court takes JUDICIAL NOTICE on Plaintiff's exhibits 2, 3, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17. The court takes JUDICIAL NOTICE on Defendants' exhibits A, B, C, D, E, F, G, H, I, J, and K. The court DECLINES to take judicial notice on Plaintiff's exhibits 1, 4, 5 and 7 and Defendants' exhibit L. (Donati, J) (Entered: 06/15/2018)
185 MINUTES (Text Only) for proceedings before District Judge John A. Mendez: MOTION HEARING held on 6/20/2018 re 77 Motion to Dismiss filed by State of California, Xavier Becerra, Edmund Gerald Brown, Jr., 2 Motion for Preliminary Injunction filed by United States of America,After extensive hearing and arguments, the Court ordered the matter submitted. Court to issue order in due course. Plaintiffs Counsel C. Readler; E. Reuveni; D. Shelledy; L. Bingham; F. Genova present. Defendants Counsel L. Sherman; C. Chuang. A. Hakl; C. Melton present. Court Reporter: K. O'Halloran. (Vine, H) (Entered: 06/20/2018)
186 [DISREGARD−SEE 188 TRANSCRIPT REQUEST by United States of America for proceedings held on 6/20/18 before Judge Delaney. Court Reporter Kelly OHalloran. (Shelledy, David) Modified on 6/25/2018 (Hunt, G). (Entered: 06/22/2018)
187 TRANSCRIPT REQUEST by Xavier Becerra, State of California for proceedings held on June 20, 2018 before Judge John A. Mendez. Court Reporter Kelly OHalloran. (Sherman, Lee) (Entered: 06/22/2018)
188 AMENDED TRANSCRIPT REQUEST re 186 by United States of America for proceedings held on 6/20/18 before Judge Hon. John A. Mendez. Court Reporter Kelly OHalloran. (Shelledy, David) (Entered: 06/22/2018)
194 MOTION for relief from default re 180 Minute Order by Vadim Stanley Miesegaes. (Kaminski, H) (Entered: 07/05/2018)
189 TRANSCRIPT of Motion to Dismiss and Motion for Preliminary Injunction held on 6/20/18, before District Judge John A. Mendez, filed by Court Reporter Kelly OHalloran, Phone number 916−448−2712 E−mail kohalloran@comcast.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may also be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 7/19/2018. Redacted Transcript Deadline set for 7/30/2018. Release of Transcript Restriction set for 9/27/2018. (O'Halloran, K) (Entered: 06/28/2018)
190 TRANSCRIPT REQUEST by City and County of San Francisco for proceedings held on June 20, 2018 before Judge John A Mendez. Court Reporter Kelly OHalloran. (Eisenberg, Sara) (Entered: 06/28/2018)
191 TRANSCRIPT REQUEST by PICO California for proceedings held on June 20, 2018 before Judge John A. Mendez. Court Reporter Kelly OHalloran. (Hudson, Esra) (Entered: 06/29/2018)
192 TRANSCRIPT REQUEST by T. Peter Pierce for proceedings held on 6/20/2018 before Judge John A. Mendez. Court Reporter Kelly OHalloran. (Hunt, G) (Entered: 06/29/2018)
193 ORDER signed by District Judge John A. Mendez on 7/4/2018 DENYING−IN−PART and GRANTING−IN−PART 2 Motion for Preliminary Injunction. The Court DENIES Plaintiff's Motion to enjoin California Government Code Sections 12532, 7284.6(a)(1)(C) & (D), and 7284.6(a)(4), and California Labor Code Section 90.2. The

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 38 of 39

07/05/2018 07/09/2018
07/09/2018 07/09/2018
07/23/2018 07/31/2018 08/01/2018
08/07/2018 08/07/2018
08/09/2018 08/27/2018 09/04/2018 09/05/2018

Court GRANTS Plaintiff's Motion and PRELIMINARILY ENJOINS the State of California, Governor Brown, and Attorney General Becerra from enforcing California Government Code Sections 7285.1 and 7285.2 and California Labor Code Section 1019.2(a)&(b) as applied to private employers. (Donati, J) (Entered: 07/05/2018)
195 TRANSCRIPT REQUEST by Stacey Shelton for proceedings held on 6/20/18 before Judge John A. Mendez. Court Reporter Kelly OHalloran. (Kaminski, H) (Entered: 07/06/2018)
196 MINUTE ORDER: The Court has received Vadim S. Miesegaes Motion for Relief from Default. ECF No. 194. The Court has broad discretion in choosing whether to admit and consider amicus briefs. Miesegaes filed his brief well after the Courts deadline and after the point when it might have offered any assistance to the Court. Miesegaes Motion is DENIED. (TEXT ENTRY ONLY) (Vine, H) (Entered: 07/09/2018)
SERVICE BY MAIL: 196 Minute Order served on Vadim Miesegaes. (Donati, J) (Entered: 07/09/2018)
197 ORDER signed by District Judge John A. Mendez on 7/9/2018 GRANTING−IN−PART and DENYING−IN−PART 77 Motion to Dismiss. The Court GRANTS the 77 Motion to Dismiss Plaintiffs Supremacy Clause claims against AB 103, SB 54, and California Labor Code Section 90.2 (added by AB 450) WITHOUT LEAVE TO AMEND. The Court DENIES the 77 Motion to Dismiss Plaintiffs Supremacy Clause claim with respect to California Government Code Sections 7285.1 and 7285.2 and California Labor Code Section 1019.2 (added by AB 450). Amended Joint Status Report due 7/31/2018. The parties should specifically address how they anticipate the case will proceed in this Court and suggest dates for discovery cut−off, expert witness disclosure, filing of dispositive motions, pretrial conference and trial. (Donati, J) (Entered: 07/09/2018)
198 ANSWER by Xavier Becerra, Edmund Gerald Brown, Jr, State of California.(Sherman, Lee) (Entered: 07/23/2018)
199 JOINT STATUS REPORT by United States of America. (Genova, Francesca) (Entered: 07/31/2018)
200 MINUTE ORDER: The Court has received and reviewed the parties Joint Status Report. ECF No. 199. In light of the parties request, the Court will not set any further dates at this time. The parties are ORDERED to file an updated Joint Status Report with suggested dates and/or informing the Court how the parties believe litigation in this matter should proceed no later than September 4, 2018. (TEXT ENTRY ONLY) (Vine, H) (Entered: 08/01/2018)
201 NOTICE of APPEAL by United States of America as to 197 Order, 193 Order. (Genova, Francesca) Modified on 8/7/2018 (Zignago, K.). (Entered: 08/07/2018)
202 APPEAL PROCESSED to Ninth Circuit re 201 Notice of Appeal filed by United States of America. Notice of Appeal filed *8/7/2018*, Complaint filed *3/6/2018* and Appealed Order / Judgment filed *7/9/2018*. Court Reporter: *K. O'Halloran*. *Fee Status: Waived* (Attachments: # 1 Appeal Information) (Zignago, K.) (Entered: 08/07/2018)
203 USCA CASE NUMBER 18−16496 for 201 Notice of Appeal filed by United States of America. (York, M) (Entered: 08/09/2018)
204 NOTICE of Disassociation of Counsel re Mollie M. Lee by City and County of San Francisco. Attorney Eisenberg, Sara added. (Eisenberg, Sara) Modified on 8/29/2018 (Zignago, K.). (Entered: 08/27/2018)
205 JOINT STATUS REPORT by Xavier Becerra, Edmund Gerald Brown, Jr, State of California. (Chuang, Christine) (Entered: 09/04/2018)
206 MINUTE ORDER: Upon review of the parties joint status report 205 the Court orders the following: The United States shall file a motion to stay by September 18, 2018; Opposition shall be due by October 2, 2018; Reply shall be due by October 9, 2018; and Hearing on the motion shall be on October 16, 2018 at 1:30 p.m.(TEXT ENTRY ONLY) (Vine, H) (Entered: 09/05/2018)

Case: 2:18-cv-490 As of: 05/27/2019 11:55 PM PDT 39 of 39

09/18/2018 10/02/2018 10/09/2018 10/10/2018
10/12/2018 10/16/2018
10/18/2018 10/19/2018
12/31/2018 04/19/2019

207 MOTION to STAY by United States of America. Motion Hearing set for 10/16/2018 at 01:30 PM in Courtroom 6 (JAM) before District Judge John A. Mendez. (Attachments: # 1 Memorandum, # 2 Proposed Order)(Genova, Francesca) Modified on 9/19/2018 (Zignago, K.). (Entered: 09/18/2018)
208 OPPOSITION by Xavier Becerra, Edmund Gerald Brown, Jr, State of California to 207 Motion to Stay. (Chuang, Christine) (Entered: 10/02/2018)
209 REPLY by United States of America to RESPONSE to 207 Motion to Stay. (Genova, Francesca) (Entered: 10/09/2018)
210 MINUTE ORDER: The hearing on the motion(s) now calendared for October 16, 2018 is/are ordered submitted without appearance and without argument pursuant to Local Rule 230 (g). If the Court subsequently concludes that oral argument is necessary, a hearing will be set and the parties notified accordingly. (TEXT ENTRY ONLY)(Vine, H) (Entered: 10/10/2018)
211 STIPULATION to UNSEAL DOCUMENTS by Xavier Becerra, Edmund Gerald Brown, Jr, State of California. (Attachments: # 1 Proposed Order)(Melton, Cherokee) Modified on 10/15/2018 (Benson, A.). (Entered: 10/12/2018)
212 ORDER signed by District Judge John A. Mendez on 10/15/18 GRANTING 211 Stipulated Request to Unseal Documents. Defendants to file a Second Amended Declaration of Cherokee Melton in Support of Defendants' Opposition to Plaintiff's Motion for Preliminary Injunction with Exhibits M through S unsealed and redacted consistent with this order. (Kastilahn, A) (Entered: 10/16/2018)
213 NOTICE of filing second amended declaration of Cherokee Melton in opposition to 2 Motion for Preliminary Injunction. (Attachments: # 1 Second Amended Declaration of Cherokee Melton, # 2 Exhibit A−L, # 3 Exhibit M−P, # 4 Exhibit Q−S)(Melton, Cherokee) Modified on 10/22/2018 (Kastilahn, A). (Entered: 10/18/2018)
214 ORDER signed by District Judge John A. Mendez on 10/18/2018 GRANTING 207 Motion to Stay Case; the parties shall file a joint status statement no later than ten days after the appeal to the Ninth Circuit becomes final; the statement shall include specific proposals as to how the parties wish to proceed with the case at bar in light of the Ninth Circuits order. [USCA #18−16496] (Reader, L) (Entered: 10/19/2018)
215 NOTICE of CHANGE of ADDRESS by Monica T. Guizar. (Guizar, Monica) (Entered: 12/31/2018)
216 USCA JUDGMENT as to 201 Notice of Appeal. The denial of a Preliminary Injunction is AFFIRMED; the denial as to those provisions of AB 103 that duplicate preexisting inspection requirements is AFFIRMED; the denial of the United States' motion as to California Government Code section 12532(b)(1)(C) is REVERSED; and the action is REMANDED for further proceedings. (Coll, A) (Entered: 04/19/2019)

 
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1 Vladimir F. Kozina, SBN 95422

2

MAYALL HURLEY, P.C. 2453 Grand Canal Blvd.

3 Stockton, CA 95207 Tel. (209) 477-3833

4 Email: vkozina@mayallaw.com

5 Jay Alan Sekulow*

Stuart J. Roth*

6 Jordan Sekulow*

AMERICAN CENTER FOR LAW AND JUSTICE 7 201 Maryland Avenue, NE

8

Washington, DC 20002 Tel. (202) 546-8890

9 Edward L. White III* 10 Erik M. Zimmerman*
Geoffrey R. Surtees* 11 AMERICAN CENTER FOR LAW AND JUSTICE
3001 Plymouth Rd., Ste. 203 12 Ann Arbor, MI 48105
Tel. (734) 680-8007 13
* Not admitted in this jurisdiction 14

15 Counsel for Amicus Curiae ACLJ

16 UNITED STATES DISTRICT COURT

17

EASTERN DISTRICT OF CALIFORNIA

18 UNITED STATES OF AMERICA,
19 Plaintiff,
20

21

vs.

22 STATE OF CALIFORNIA, et al.,

23

Defendants.

) Case No. 2:18-cv-490-JAM-KJN ) ) ) Amicus Curiae Brief of the American ) Center for Law and Justice in Support ) of Plaintiff’s Motion for a Preliminary ) Injunction ) ) Honorable John A. Mendez

24

25

26

27

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Case 2:18-cv-00490-JAM-KJN Document 43 Filed 03/30/18 Page 2 of 10

1

INTRODUCTION

2

The United States seeks to enjoin the enforcement of certain provisions of California law

3 enacted through Assembly Bill 450, Assembly Bill 103, and Senate Bill 54. Amicus will focus on 4 AB 450,1/ which obstructs the implementation of federal immigration law. The federal

5 government’s motion for a preliminary injunction should be granted in full.

6

STATEMENT OF INTEREST

7

Amicus, the American Center for Law and Justice (“ACLJ”), is an organization dedicated

8 to the defense of constitutional liberties secured by law. Counsel for the ACLJ have presented oral

9 argument, represented parties, and submitted amicus curiae briefs before the Supreme Court of the

10 United States and other courts around the country in cases involving issues of constitutional law

11 and immigration law. See, e.g., Trump v. Hawaii, No. 17-965 (U.S. 2018); Trump v. Int’l Refugee

12 Assistance Project, 137 S. Ct. 2080 (2017); United States v. Texas, 136 S. Ct. 2271 (2016);

13 Pleasant Grove City v. Summum, 555 U.S. 460 (2009); FEC v. Wis. Right to Life, 551 U.S. 449

14 (2007); McConnell v. FEC, 540 U.S. 93 (2003); Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

15 Dist., 508 U.S. 384 (1993); Bd. of Educ. v. Mergens, 496 U.S. 226 (1990); Washington v. Trump,

16 847 F.3d 1151 (9th Cir. 2017).

17

The ACLJ has long advocated for robust protection of national and border security and has

18 fought to ensure government compliance with the Constitution. This brief is supported by more

19 than 65,000 individuals who have joined the ACLJ’s committee opposed to state actions that

20 violate the Constitution. The ACLJ submits this amicus curiae brief in support of Plaintiff’s

21 motion for a preliminary injunction. No party opposed the granting of the motion for leave to file

22 this brief.

23

24

25

26

1/ AB 450 added Sections 7285.1 and 7285.2 to the California Government Code and Sections 90.2 and 1019.2 to the California Labor Code.

27

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1

SUMMARY OF THE ARGUMENT

2

AB 450 violates the Supremacy Clause because it is an obstacle to the enforcement of

3 federal immigration law. AB 450 imposes warrant and subpoena requirements upon federal

4 immigration enforcement agents that are contrary to federal law, which permits voluntary consent.

5 Where, as here, a state law restricts or eliminates discretionary choices that federal law gives to

6 entities or individuals, the state law violates the Supremacy Clause. AB 450 also interferes with an

7 immigration agent’s ability to locate illegal aliens because it requires employers to give their

8 employees notice of any upcoming inspections, which will cause any employee who is in this

9 country illegally to flee before the inspection occurs. Additionally, AB 450 interferes with federal

10 law enforcement efforts because it prevents employers from re-verifying their employee records to

11 determine whether an employee is an alien who may not be legally employed in this country.

12

ARGUMENT

13

The United States correctly notes that California has enacted its new laws “with the express

14 goal of interfering with ‘an expected increase in federal immigration enforcement actions,’

15 California Committee on the Judiciary Report (Assembly), Apr. 22, 2017, at 1, and shielding the

16 ‘more than 2.6 million undocumented immigrant[s]’ residing in California from any ‘increase in

17 workplace immigration enforcement.’ California Committee on the Judiciary Report (Senate), July 18 10, 2017, at 1.” Dkt. Entry 2-1, at ECF Page # 11.2/

19

As the Supreme Court has explained, “[t]he Supremacy Clause provides a clear rule that

20 federal law ‘shall be the supreme Law of the Land; and the Judges in every State shall be bound

21 thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.’”

22 Arizona v. United States, 567 U.S. 387, 399 (2012) (quoting U.S. Const., Art. VI, cl. 2). “Under

23 this principle, Congress has the power to pre-empt state law.” Id. State law is pre-empted where

24 “‘compliance with both federal and state regulations is a physical impossibility,’ and . . . where the

25

26

2/ The Committee Reports are available billAnalysisClient.xhtml?bill_id=201720180AB450.

at

http://leginfo.legislature.ca.gov/faces/

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1 challenged state law ‘stands as an obstacle to the accomplishment and execution of the full

2 purposes and objectives of Congress.’” Id. (citations omitted). Where a state law is inconsistent

3 with federal law, or curtails or interferes with the enforcement of federal law, federal law is

4 obstructed and the Supremacy Clause violated. Geier v. Am. Honda Motor Co., 529 U.S. 861, 873

5 (2000).

6

It is well established that the federal government “has broad, undoubted power over the

7 subject of immigration and the status of aliens.” Arizona, 567 U.S. at 394 (citing Toll v. Moreno,

8 458 U.S. 1, 10 (1982)). In Hines v. Davidowitz, 312 U.S. 52 (1941), the Supreme Court stated:

9

That the supremacy of the national power in the general field of foreign affairs, including

10

power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by the authors of The Federalist in 1787, and has since been given

11

continuous recognition by this Court. . . .

12

[T]he regulation of aliens is so intimately blended and intertwined with responsibilities of

the national government that where it acts, and the state also acts on the same subject, “the

13

act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the

exercise of powers not controverted, must yield to it.” . . . Our primary function is to

14

determine whether, under the circumstances of this particular case, Pennsylvania’s law

stands as an obstacle to the accomplishment and execution of the full purposes and

15

objectives of Congress. And in that determination, it is of importance that this legislation is

16

in a field which affects international relations, the one aspect of our government that from the first has been most generally conceded imperatively to demand broad national

17

authority. Any concurrent state power that may exist is restricted to the narrowest of limits. . . .

18 Id. at 62, 66-68 (emphases added).

19

Moreover, the Supreme Court has held that a public university policy denying instate

20 tuition status to G-4 aliens violated the Supremacy Clause because it frustrated the federal

21 government’s policy of permitting G-4 aliens to establish domicile and receive special tax

22 privileges. Toll, 458 U.S. at 10, 14-17. The Court stated, “[o]ur cases have long recognized the

23 preeminent role of the Federal Government with respect to the regulation of aliens within our

24 borders.” Id. at 10 (citations omitted). AB 450 similarly violates the Supremacy Clause by

25 deliberately frustrating federal law enforcement efforts.

26

27

28

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1

1. Federal Immigration Law

2

Under federal law, an employer may not employ an “unauthorized alien.” 8 U.S.C. §

3 1324a(1)-(2). An “unauthorized alien” is an alien who is not lawfully admitted into this country for

4 permanent residence or is not authorized to be employed under federal law. 8 U.S.C. §

5 1324a(h)(3). An employer is under a good faith obligation to ensure that he has not hired an

6 unauthorized alien. 8 U.S.C. § 1324a(a)(3). The employer must attest, under penalty of perjury,

7 that he has verified that the employee is not an unauthorized alien. 8 U.S.C. § 1324a(a)-(b). The

8 employer must retain the verification form and supporting documentation and make them available

9 for inspection by federal immigration agents. 8 U.S.C. § 1324a(b)(3)-(4). Failure to comply with

10 these federal laws can result in civil and criminal penalties. 8 U.S.C. § 1324a(e)(4)-(5), (f).

11

To verify compliance with federal law, immigration agents may enter nonpublic areas of a

12 business, if the owner or another person with authority consents, to question employees about their

13 immigration status. 8 C.F.R. § 287.8(f)(2); see also 8 U.S.C. § 1357. Voluntary consent by the

14 person whose property is being entered, or by a third party with common authority over the area, is

15 a well-recognized exception to the warrant requirement under the Fourth Amendment to the United

16 States Constitution. E.g., Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Schneckloth v.

17 Bustamonte, 412 U.S. 218, 222 (1973). When an agent enters the area based on consent, the agent

18 must note in his report that consent was given and, if possible, by whom. 8 C.F.R. § 287.8(f)(2). If

19 the agent does not obtain consent, federal law allows a site inspection to take place based on a

20 warrant. Id. Once properly admitted to the area, an agent may arrest an individual on the spot if he

21 reasonably believes that the individual is an alien illegally in this country and is likely to escape

22 before an arrest warrant can be secured. 8 C.F.R. § 287.2(c)(2); see also 8 U.S.C. § 1357. Federal

23 law also allows immigration enforcement agents reasonable access to examine evidence of any

24 alien or entity being investigated. 8 U.S.C. § 1324a(e)(2)(A).

25

2. AB 450 Conflicts with Federal Immigration Law

26

AB 450 imposes several prohibitions and requirements concerning federal immigration

27 worksite enforcement actions that create obstacles to the enforcement of federal law. If an

28

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1 employer fails to comply with AB 450 (and, instead, complies with federal law), he will be subject

2 to significant financial penalties. Cal. Gov’t Code §§ 7285.1(b), 7285.2(b); Cal. Labor Code §§

3 90.2(c), 1019.2(b). The imposition of these penalties is a real threat, as the California Attorney

4 General has vowed to prosecute any employer who violates AB 450. NTK Staff, California AG:

5 Employers Who Cooperate with Federal Immigration Raids Will be Prosecuted, NTK Network

6 (Jan. 18, 2018, 4:37 PM), http://ntknetwork.com/california-ag-employers-who-cooperate-with-

7 federal-immigration-raids-will-be-prosecuted/.

8

AB 450 interferes with federal law enforcement efforts in several distinct ways:

9

• AB 450 prohibits employers (or persons acting on their behalf) from voluntarily

10

consenting to allow an immigration enforcement agent to enter nonpublic areas of a

11

place of labor, unless consent is otherwise required by federal law. Cal. Gov’t Code §

12

7285.1(a), (e). As such, employers are deprived of their federally-provided right to

13

consent, and immigration agents are now required to obtain a judicial warrant

14

(unnecessarily burdening the federal judiciary) to obtain access to those nonpublic

15

areas.

16

• AB 450 prohibits employers (or persons acting on their behalf) from voluntarily

17

consenting to allow an immigration enforcement agent to access, review, or obtain

18

certain employee records. Cal. Gov’t Code § 7285.2(a), (d). Thus, employers are

19

deprived of their federally-provided right to consent, placing a needless burden on the

20

immigration agent to obtain a subpoena or court order to gain access.

21

• AB 450 requires employers to provide current employees (or their authorized

22

representatives) with notice of any upcoming inspection of employee records by federal

23

immigration enforcement agents and the result of the inspection. Cal. Labor Code §

24

90.2(a)-(b). This provision ensures that employees who are in this country illegally will

25

26

27

28

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1

be able to disappear and avoid detection, jeopardizing federal law enforcement efforts

2

(and, in some cases, public safety).3/

3

• AB 450 prohibits employers (or persons acting on their behalf) from re-verifying the

4

employment eligibility of a current employee. Cal. Labor Code § 1019.2(a). Under this

5

provision, employers are prevented from complying with their federally-imposed

6

obligation to ensure they are not knowingly employing unauthorized aliens.

7

In sum, AB 450 prevents employers from exercising their rights and obligations under

8 federal law and imposes requirements and burdens on federal immigration enforcement agents that

9 unnecessarily hinder their ability to implement federal law. Because AB 450 imposes obstacles to

10 the enforcement of federal immigration law, it violates the Supremacy Clause.

11

In numerous cases, the Supreme Court has held that state laws frustrated the purposes of

12 federal law, in violation of the Supremacy Clause, when they diminished or eliminated a

13 discretionary choice provided by federal law. See, e.g., Geier, 529 U.S. at 881-82, 886 (where

14 federal vehicle safety standards gave manufacturers a range of choices for passive restraint

15 devices, a state tort action based upon the lack of an airbag was preempted); Lawrence Cnty. v.

16 Lead-Deadwood Sch. Dist., 469 U.S. 256, 270 (1985) (federal programs that afforded local

17 governments discretion to decide how to distribute federal funds was impermissibly frustrated by

18 South Dakota law that limited the manner in which local governments could spend the funds); Int’l

19 Ass’n of Machinists & Aero. Workers v. Wis. Employment Relations Comm’n, 427 U.S. 132, 148-

20 49 (1976) (Wisconsin law impermissibly foreclosed the use of labor negotiation tactics that were

21

22

3/ For example, last month the Mayor of Oakland, California, warned illegal aliens in the

23 Bay Area about upcoming raids by federal immigration agents. Hundreds of illegal aliens avoided arrest as a result. Three of the aliens who were targeted in those raids, but who avoided

24 apprehension, have since been arrested for the following offenses: robbery and gun crimes, drunk

driving, and spousal abuse. Adam Shaw, “Illegal immigrants, Who Dodged California ICE Raid 25 After Dem Mayor’s Tip-Off, Re-Arrested for New Crimes,” Fox News (Mar. 20, 2018)

26

http://www.foxnews.com/politics/2018/03/20/illegal-immigrants-who-dodged-california-ice-raidafter-dem-mayors-tip-off-re-arrested-for-new-crimes.html.

27

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Case 2:18-cv-00490-JAM-KJN Document 43 Filed 03/30/18 Page 8 of 10

1 allowed under federal law). Likewise, AB 450 is invalid because it eliminates the discretion of

2 employers, provided for by federal law, to consent to immigration agents reviewing employee

3 records and entering nonpublic areas of their business.

4

Importantly, state laws, such as AB 450, that have the effect of hindering federal objectives

5 violate the Supremacy Clause even if the state’s purposes or goals are consistent with federal law.

6 In Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), a Massachusetts law

7 restricting the authority of state agencies to purchase goods from companies doing business with

8 Burma was preempted by federal law because it was “an obstacle to the accomplishment of

9 Congress’s full objectives under the federal Act” and “undermine[d] the intended purpose and

10 ‘natural effect’” of the federal law. Id. at 366, 373-74. The Court rejected the argument that no

11 conflict could exist because the federal and state statutes shared the same goals, explaining:

12

The fact of a common end hardly neutralizes conflicting means . . . and the fact that some

13

companies may be able to comply with both sets of sanctions does not mean that the state Act is not at odds with achievement of the federal decision about the right degree of

14

pressure to employ. . . . “‘Conflict is imminent’” when “‘two separate remedies are brought

to bear on the same activity.’”

15

16 Id. at 379-80 (citations omitted); see also Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288,

17 1298 (2016) (“States may not seek to achieve ends, however legitimate, through regulatory means

18 that intrude on [federal] authority. . . .”); Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88,

19 103 (1992) (“‘[I]t is not enough to say that the ultimate goal of both federal and state law’ is the

20 same. . . . ‘A state law also is pre-empted if it interferes with the methods by which the federal

21 statute was designed to reach that goal.’”).

22

Indeed, in the very context at issue here—immigration—the Supreme Court recently struck

23 down provisions of the Arizona law that “attempt[ed] to achieve one of the same goals as federal

24 law,” but used a conflicting method of enforcement to do so. Arizona, 567 U.S. at 406; id. at 402

25 (explaining that states may not prosecute individuals under state law “in circumstances where

26 federal officials in charge of the comprehensive [immigration] scheme determine that prosecution

27 would frustrate federal policies”). If Arizona could not further the goals of federal immigration law

28

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Case 2:18-cv-00490-JAM-KJN Document 43 Filed 03/30/18 Page 9 of 10

1 through means objected to by federal immigration authorities, California certainly may not

2 intentionally obstruct the achievement of federal immigration goals. Even if California’s goal were

3 something other than to interfere with federal law enforcement efforts, AB 450’s substantial 4 hindering effect upon such efforts is unmistakable and renders the law unconstitutional.4/

5

3. AB 450 Violates Federal Public Policy

6

Moreover, through its assured imposition of stiff financial penalties for violation of AB

7 450, California has prevented employers (and those acting on their behalf) from voluntarily

8 cooperating with federal immigration enforcement agents even when they wish to do so. This is

9 contrary to well-established federal public policy, which ensures that people may report criminal

10 activities or otherwise voluntarily cooperate with law enforcement. E.g., Sure-Tan, Inc. v. NLRB,

11 467 U.S. 883, 895 (1984) (“The reporting of any violation of the criminal laws is conduct which

12 ordinarily should be encouraged, not penalized. . . .”); Roberts v. United States, 445 U.S. 552, 557-

13 58 (1980) (“Concealment of crime has been condemned throughout our history. . . . [G]ross

14 indifference to the duty to report known criminal behavior remains a badge of irresponsible

15 citizenship.”); In re Quarles, 158 U.S. 532, 535 (1895) (explaining that it is “the right, as well as

16 the duty, of every citizen . . . to communicate to the executive officers any information which he 17 has of the commission of an offence against [the laws of his country]”).5/

18

19

20

4/ This is not the first time that a California law concerning immigration, or other subjects,

violated the Supremacy Clause. See, e.g., DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015)

21 (California rule for class arbitration was preempted); Chamber of Commerce of the United States v.

Brown, 554 U.S. 60 (2008) (California law prohibiting employers from using state funds to 22 promote or deter union organizing was preempted); Takahashi v. Fish & Game Comm’n, 334 U.S.

23 410 (1948) (California law prohibiting aliens who were not eligible for federal citizenship from obtaining commercial fishing licenses was preempted).

24 5/ AB 450 puts employers and those acting on their behalf in a tough spot by prohibiting
25 their voluntary cooperation with federal immigration agents. A person who shields, attempts to

26

shield, or aids and abets in the shielding of an illegal alien from being detected by federal agents faces the possibility of serving time in federal prison. See 8 U.S.C. § 1324(a)(iii), (a)(v)(II), (a)(B).

27

28

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1

CONCLUSION

2

Although our constitutional system grants states significant authority, the Supremacy

3 Clause clearly forecloses state efforts—like California’s here—to nullify federal laws or impede

4 their enforcement. This is especially true when the federal law at issue deals with a subject matter,

5 such as immigration, over which the federal government has extensive constitutional authority.

6 Just as the United States Constitution forecloses states from issuing their own currency or

7 declaring war, it also forecloses states from attempting to usurp the federal government’s authority

8 over immigration by hindering federal immigration law enforcement efforts. California has

9 intentionally obstructed federal law enforcement efforts by shielding unauthorized aliens from

10 lawful federal workplace immigration enforcement actions. Amicus urges this Court to grant the

11 federal government’s motion for a preliminary injunction in full.

12 13 14 Dated: March 26, 2018 15 16 17

Respectfully submitted,
/s/ Vladimir F. Kozina Vladimir F. Kozina, SBN 95422 MAYALL HURLEY, P.C. 2453 Grand Canal Blvd. Stockton, CA 95207 Tel. (209) 477-3833 Email: vkozina@mayallaw.com

18

Jay Alan Sekulow*

Stuart J. Roth*

19

Jordan Sekulow*

20

AMERICAN CENTER FOR LAW AND JUSTICE 201 Maryland Avenue, NE

21

Washington, DC 20002

22

Edward L. White III*

Erik M. Zimmerman*

23

Geoffrey R. Surtees*

24

AMERICAN CENTER FOR LAW AND JUSTICE 3001 Plymouth Rd., Ste. 203

25

Ann Arbor, MI 48105

26

* Not admitted in this jurisdiction

27

Counsel for Amicus Curiae ACLJ

28

9

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 Case 2:18-cv-00490-JAM-KJN Document 44 Filed 03/30/18 Page 1 of 14

1 KEN PAXTON

Attorney General of Texas

2 JEFFERY C. MATEER

First Assistant Attorney General

3 BRANTLEY D. STARR

Deputy First Assistant Attorney General 4 SCOTT A. KELLER

5

Solicitor General JAMES E. DAVIS

6

Deputy Attorney General for Civil Litigation DAVID J. HACKER (CA Bar No. 249272; TX Bar No. 24103323)*

7

Special Counsel for Civil Litigation OFFICE OF THE ATTORNEY GENERAL

8 P.O. Box 12548 (MC 059) Austin, Texas 78711-2548

9 Telephone: (512) 936-1700

Facsimile: (512) 474-2697

10

11

Counsel for Proposed Amici Curiae Texas, Alabama, Arkansas, Florida, Georgia, Indiana,

12 Kansas, Louisiana, Michigan, Missouri, Nebraska, Nevada, Ohio, Oklahoma, South Carolina, West Virginia,
13 Governor Phil Bryant of the State of Mississippi, and

14 Paul R. LePage, Governor of Maine

15

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

16

17 THE UNITED STATES OF AMERICA,

18

Plaintiff,

19

v.

20 STATE OF CALIFORNIA, et al.,
21 Defendants.
22

23

24

25

26

27

28

) Case No.: 2:18-cv-00490-JAM-KJN

)

) BRIEF OF AMICI CURIAE

) THE STATES OF TEXAS, ALABAMA,

) ARKANSAS, FLORIDA, GEORGIA,

) INDIANA, KANSAS, LOUISIANA,

) MICHIGAN, MISSOURI, NEBRASKA,

) NEVADA, OHIO, OKLAHOMA,

) SOUTH CAROLINA,

) WEST VIRGINIA, GOVERNOR PHIL

) BRYANT OF THE STATE OF

) MISSISSIPPI, AND PAUL R. LEPAGE,

) GOVERNOR OF MAINE, IN SUPPORT

) OF PLAINTIFFS’ MOTION FOR A

) PRELIMINARY INJUNCTION

)

)

Date: No hearing per Min. Order,

)

ECF No. 17

)

Judge: Hon. John A. Mendez

*Designated Counsel for Service. BRIEF OF AMICI CURIAE TEXAS ET AL.

Case 2:18-cv-00490-JAM-KJN Document 44 Filed 03/30/18 Page 2 of 14

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES............................................................................................................... ii
3
INTEREST OF AMICI CURIAE ........................................................................................................1 4
5 ARGUMENT .......................................................................................................................................1

6 I.
7
8 II. 9
10 III.
11
12

California’s AB450 is preempted, under Arizona v. United States, as an obstacle to the “careful balance struck by Congress with respect to the unauthorized employment of aliens.”.............................................................................2
AB103 is obstacle-preempted under Arizona v. United States, because it seeks to give state officials the “unilateral” power to second guess federal determinations about which aliens warrant removal.. ..................................................3
SB54’s judicial-warrant requirement is also obstacle-preempted under Arizona v. United States, because it undermines Congress’s criminal-alien detention scheme. .....................................................................................................................5

13 CONCLUSION ....................................................................................................................................8

14 PROOF OF SERVICE .......................................................................................................................10

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BRIEF OF AMICI CURIAE TEXAS ET AL. - i

Case 2:18-cv-00490-JAM-KJN Document 44 Filed 03/30/18 Page 3 of 14

1

TABLE OF AUTHORITIES

2

Page(s)

3 Federal Cases

4 Abel v. United States,

5

362 U.S. 217 (1960) ...................................................................................................................5, 6

6 Arizona v. United States, 567 U.S. 387 (2012) ............................................................................................................ passim

7

Demore v. Kim,

8

538 U.S. 510 (2003) .......................................................................................................................7

9 Jennings v. Rodriguez,

10

138 S. Ct. 830 (2018) .....................................................................................................................7

11 Johnson v. Maryland,

12

254 U.S. 51 (1920) .........................................................................................................................4

13 Roy v. Cty. of L.A., No. 2:12-cv-09012, 2017 WL 2559616 (C.D. Cal. June 12, 2017) ...............................................5

14

Sherman v. U.S. Parole Comm’n,

15

502 F.3d 869 (9th Cir. 2007) ..........................................................................................................6

16 United States v. Tejada,

17

255 F.3d 1 (1st Cir. 2001) ..............................................................................................................6

18 Zadvydas v. Davis, 533 U.S. 678 (2001) .......................................................................................................................7
19
20 Federal Statutes

21 8 U.S.C.:

§ 1182(a)(2) ....................................................................................................................................7

22

§ 1182(a)(2)(B)...............................................................................................................................7

23

§ 1226(a).........................................................................................................................................5 § 1226(a)(1) ....................................................................................................................................5

24

§ 1226(c).........................................................................................................................................7

§ 1226(c)(1)(A) ..............................................................................................................................7

25

§ 1227(a)(2) ....................................................................................................................................7

26

§ 1231(a).........................................................................................................................................5 § 1231(g)(1)....................................................................................................................................5

27

§ 1357(a)(1) ....................................................................................................................................3

§ 1357(e).........................................................................................................................................3 28

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1 Federal Regulation 2 8 C.F.R. § 236.6 ...................................................................................................................................5

3 California Statutes

4 Cal. Gov’t Code:

5

§ 7282.5(a)......................................................................................................................................5 § 7282.5(a)(1)-(2) ...........................................................................................................................7

6

§ 7282.5(a)(3) .................................................................................................................................7

§ 7282.5(a)(3)(A)-(AE) ..................................................................................................................7

7

§ 7282.5(a)(4)-(5) ...........................................................................................................................7

8

§ 7284.6(a)(4) .................................................................................................................................5 § 7285.1(a)......................................................................................................................................2

9

§ 7285.2(a)(1) .................................................................................................................................2

§ 12532(a).......................................................................................................................................4

10

§ 12532(b)(1)..................................................................................................................................4

11

§ 12532(c).......................................................................................................................................4

12 Cal. Lab. Code:

§ 90.2(a)(1) .....................................................................................................................................3

13

§ 90.2(b)(1).....................................................................................................................................3

14 Other Authorities
15 Assem. B. 103 ............................................................................................................................ passim
16 Assem. B. 450 ............................................................................................................................ passim
17
Cal. S.B. 54................................................................................................................................. passim 18

19

20

21

22

23

24

25

26

27

28

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1

INTEREST OF AMICI CURIAE

2

Amici are the States of Texas, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana,

3 Michigan, Missouri, Nebraska, Nevada, Ohio, Oklahoma, South Carolina, West Virginia, Governor Phil

4 Bryant of the State of Mississippi, and Paul R. LePage, Governor of Maine. The States “bear[] many of

5 the consequences of unlawful immigration” but must rely on Congress and the INA to regulate which

6 aliens may be present and work in their borders. Arizona v. United States, 567 U.S. 387, 397 (2012).

7 Sanctuary laws and policies can cause harm to neighboring States by making it easier for people who are

8 not lawfully in this country and have committed civil or criminal offenses to evade law enforcement and

9 travel out-of-state. The States thus have an interest in the federal government’s ability to enforce federal

10 immigration law. California, however, has attempted to override that enforcement—by prohibiting

11 private employers from voluntarily giving information to federal immigration officers (AB450), by

12 overseeing through investigations the immigration enforcement activities of federal agents (AB103), and

13 by limiting the scenarios in which State or local law-enforcement agencies may transfer a detained

14 individual to the custody of federal immigration authorities (SB54).

15

California may disagree with federal immigration policy—just as Arizona disagreed with federal

16 immigration policy in Arizona v. United States. But if various Arizona laws designed to enforce federal

17 immigration law were preempted in Arizona (as the Supreme Court held), then California’s laws designed

18 to interfere with or block federal immigration enforcement are equally preempted.

19

ARGUMENT

20

California’s AB450, AB103, and the detainee-transfer provisions of SB54 are preempted under

21 Arizona v. United States. Arizona held that various Arizona laws designed to enforce federal immigration

22 laws were preempted. Under the rationale of Arizona, this is an even easier case as California’s laws

23 designed to interfere with or block federal immigration enforcement must also preempted. Arizona cannot

24 stand for the proposition that state laws are preempted when they seek additional enforcement of federal

25 immigration laws, but state laws are somehow valid when they seek to decrease enforcement of federal

26 immigration laws.

27

In fact, California recognized this when it joined an amicus brief in the Arizona case in the

28 Supreme Court, representing:

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1

“Amici States have a strong interest in recognizing that the singular question of whether

2

and how to remove undocumented immigrants is one that is committed to the federal

3

government.”

4 Br. for the States of New York, California, et al., Arizona, No. 11-182 (U.S.), 2012 WL 1054493, at *1.1

5 The central point of that brief was that the federal government has control over whether and how to

6 remove unlawfully-present aliens. As the amici including California explained:

7

“Congress has carefully regulated not only who may be removed from the United States,

8

but how such individuals should be identified, apprehended, and detained.”

9 Id. at *3 (emphasis in original).

10

With a new presidential administration, however, California has changed its tune. While

11 California no longer agrees with the level of federal enforcement of immigration laws, the preemption

12 principles California advanced in Arizona were adopted by the Supreme Court. California is free to argue

13 that Arizona’s findings of preemption should be overruled. Unless they are overruled, however, Arizona

14 binds the States of California and Arizona alike. And under the principles articulated in Arizona,

15 California cannot now impede the federal government’s enforcement of immigration laws.

16 I. 17

CALIFORNIA’S AB450 IS PREEMPTED, UNDER ARIZONA V. UNITED STATES, AS AN OBSTACLE TO THE “CAREFUL BALANCE STRUCK BY CONGRESS WITH RESPECT TO THE UNAUTHORIZED EMPLOYMENT OF ALIENS.”

18

California’s Assembly Bill 450 (“AB450”) obstructs federal enforcement of the “comprehensive

19 framework for combating the employment of illegal aliens” that Congress enacted in the Immigration

20 Reform and Control Act of 1986. Arizona, 567 U.S. at 404. In fact, the stated purpose of AB450 is to

21 interfere with this comprehensive federal work-authorization framework. Assembly Bill No. 450,

22 Legislative Counsel’s Digest (stating law’s purpose to regulate employers who might be subject to

23 “immigration worksite enforcement actions” by the federal government).

24

AB450 commands that employers cannot give consent to federal immigration enforcement agents

25 entering the employer’s workplace, Cal. Gov’t Code §§ 7285.1(a), 7285.2(a)(1), and that employers must

26

27

28 1 Available at https://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/ briefs/11-182_respondentamcu11states.authcheckdam.pdf

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1 give employees 72-hour notice of any federal immigration inspections that are permitted in the workplace

2 without the employer’s consent, Cal. Lab. Code § 90.2(a)(1), (b)(1).

3

This law is preempted for substantially the same reason that Arizona’s work-authorization law

4 was preempted in Arizona. See 567 U.S. at 403-07. There, Arizona enacted a state criminal prohibition

5 on an alien working in violation of federal law, even though “no federal counterpart exists.” Id. at 403.

6 In finding Arizona’s law preempted despite the absence of a federal criminal prohibition, the Court relied

7 on the “careful balance struck by Congress with respect to unauthorized employment of aliens,” in the

8 Immigration Reform and Control Act of 1986 (“IRCA”). Id. at 406. Arizona recognized that Arizona

9 could have enacted its criminal penalty before IRCA. Id. at 404. But Congress later enacted a

10 comprehensive framework striking a careful balance about methods of enforcement, which the Supreme

11 Court held create a “conflict in technique” with Arizona’s state-law approach to enforcement. Id. at 406

12 (alteration marks omitted).

13

If Arizona’s law tipped the “careful balance” struck by Congress too far in favor of enforcing

14 federal immigration laws, then California’s law tips that balance too far in the other direction of impeding

15 enforcement of federal immigration laws. Congress chose not to require immigration officials to obtain

16 a judicial warrant before entering workplaces to enforce federal immigration law. See 8 U.S.C.

17 § 1357(a)(1), (e). But California law now requires just that. Cal. Gov’t Code § 7285.1(a). Congress and

18 California have therefore each selected a different “method of enforcement.” Arizona, 567 U.S. at 406.

19 Under the Supremacy Clause as interpreted in Arizona, Congress’s commands control. Because

20 California’s law “is an obstacle to the regulatory system Congress chose,” id., it is preempted under

21 Arizona.

22 II. 23 24

AB103 IS OBSTACLE-PREEMPTED UNDER ARIZONA V. UNITED STATES, BECAUSE IT SEEKS TO GIVE STATE OFFICIALS THE “UNILATERAL” POWER TO SECOND GUESS FEDERAL DETERMINATIONS ABOUT WHICH ALIENS WARRANT REMOVAL.

25

Arizona holds that States cannot make “unilateral” determinations about the removability of

26 aliens wholly separate from federal officials, and that any attempt to do so “creates an obstacle to the full

27 purposes and objectives of Congress.” Id. at 410. California’s Assembly Bill 103 (“AB103”) falls within

28 that prohibition for the same reason that § 6 of Arizona’s S.B. 1070 did.

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1

Section 6 of Arizona’s law “attempt[ed] to provide state officers even greater authority to arrest

2 aliens on the basis of possible removability than Congress has given to trained federal immigration

3 officers.” Id. at 408. Specifically, state police who witnessed what they believed was a public offense

4 that made an alien removable could arrest the alien. Id. Hence, “the unilateral decision of state officers”

5 about which aliens were unlawfully present under federal immigration law would, under Arizona’s law,

6 allow detention. The Supreme Court held this law preempted because Congress created a system for state

7 officers to unilaterally make immigration arrests, but that system did not allow state officers the unilateral

8 power conferred by Arizona’s law. Id. at 409-10 (describing the federal program that ensures training

9 and ensures that removability decisions are “made with one voice”).

10

California’s AB103 likewise purports to allow state officers to unilaterally review what federal

11 law makes the exclusive work of federal officials. Specifically, AB103 establishes a heightened

12 inspection scheme for facilities where “noncitizens are being housed or detained for purposes of civil

13 immigration proceedings,” Cal. Gov’t Code § 12532(a), and directs the California Attorney General to

14 examine and report on the “due process provided” to detainees and “the circumstances around their

15 apprehension and transfer to the facility.” Id. § 12532(b)(1).2 This directly parallels section 6 of Arizona’s

16 law, which purported to allow state officials to unilaterally decide that an alien should be held for removal

17 and thus arrest the alien. Likewise, California’s AB103 authorizes state officials to declare that an alien

18 should not be held for removal in a certain facility because of a purported violation of due process or the

19 underlying circumstances of the apprehension and transfer to the detention facility—all determined

20 unilaterally by those state officials. The valence of the respective state laws may be different, but their

21 prohibited mechanism of operation is the same. Just as Arizona’s law was held obstacle-preempted under

22 Arizona, so must California’s SB103 be held preempted. Federal law gives state detention facilities no

23 unilateral role in overriding the federal government’s detention of aliens for civil immigration violations.

24 See, e.g., 8 U.S.C. § 1231(g)(1); 8 C.F.R. § 236.6.

25

26

27 2 To effectuate that immigration-specific scheme, AB103 authorizes the California Attorney General to 28 interrogate federal immigration officials and inspect federal immigration records. Id. § 12532(c). This
likely violates the doctrine of intergovernmental immunity, under which a State cannot regulate federal officers in the performance of their duties. See Johnson v. Maryland, 254 U.S. 51, 56-57 (1920).

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1 III. 2

SB54’S JUDICIAL-WARRANT REQUIREMENT IS ALSO OBSTACLE-PREEMPTED UNDER ARIZONA V. UNITED STATES, BECAUSE IT UNDERMINES CONGRESS’S CRIMINAL-ALIEN-DETENTION SCHEME.

3

Under part of California’s Senate Bill 54 (“SB54”), state and local law enforcement agencies may

4 “[t]ransfer an individual to immigration authorities” only if the United States presents a “judicial warrant

5 or judicial probable cause determination,” or the individual in question has been convicted of one of a

6 limited set of enumerated felonies or other serious crimes. Cal. Gov’t Code §§ 7284.6(a)(4), 7282.5(a).

7 These provisions are preempted because they stand as an obstacle to Congress’s immigration-

8 enforcement scheme.

9

First, SB54’s provision requiring a judicial warrant or judicial finding of probable cause cannot

10 be squared with Congress’s immigration-enforcement scheme. Congress, through the INA, established a

11 system of civil administrative warrants as the basis for immigration arrest and removal, and Congress

12 does not require or contemplate use of a judicial warrant for civil immigration enforcement. See 8 U.S.C.

13 §§ 1226(a), 1231(a). Thus, immigration enforcement arrests based on federal officials’ determinations of

14 removability need not be supported by judicial warrants. See, e.g., Roy v. Cty. of L.A., No. 2:12-cv-09012,

15 2017 WL 2559616, at *6-10 (C.D. Cal. June 12, 2017) (“No court has held to the contrary.”). Rather,

16 “the executive and the Legislature have the authority to permit executive—rather than judicial—officers

17 to make probable cause determinations regarding an individual’s deportability.” Id. at *8. Federal

18 immigration authorities are indeed vested with that power: The INA provides that civil immigration

19 enforcement is premised on administrative “warrant[s] issued by” DHS and that “an alien may be arrested

20 and detained” based on such a warrant “pending a decision on whether the alien is to be removed from

21 the United States.” 8 U.S.C. § 1226(a)(1).

22

That authority was clearly delegated to the Executive by Congress in the INA. See Abel v. United

23 States, 362 U.S. 217, 232 (1960) (noting that the INA gave “authority to the Attorney General or his

24 delegate to arrest aliens pending deportation proceedings under an administrative warrant, not a judicial

25 warrant within the scope of the Fourth Amendment.”). And even before Congress passed the INA, there

26 was “impressive historical evidence of acceptance of the validity of statutes providing for administrative

27 deportation arrest from almost the beginning of the Nation.” Id. at 234. Unsurprisingly, multiple courts

28 of appeals have rejected claims that judicial warrants or judicial probable-cause determinations are

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1 required for civil immigration detention. See Sherman v. U.S. Parole Comm’n, 502 F.3d 869, 876–80

2 (9th Cir. 2007) (stating that an executive officer can constitutionally make the necessary probable-cause

3 determination to warrant arrest of an alien “outside the scope of the Fourth Amendment’s Warrant

4 Clause,” without presentment to a judicial officer); United States v. Tejada, 255 F.3d 1, 3 (1st Cir. 2001)

5 (“[T]o comply with the applicable [detention] statute, the arresting authorities needed to bring appellant

6 to an [ICE] examining officer, not a magistrate, ‘without unnecessary delay.’”).

7

To be sure, California may retain prerogatives about when to voluntarily comply with requests to

8 itself detain aliens at the requests of federal officials, as the federal government is subject to limits on

9 commandeering state resources for federal programs. But when federal officials show up at a state

10 detention facility seeking merely to transfer an alien already in state custody into the custody of federal

11 officials, they are not asking the State of California or its political subdivisions to detain the alien. Instead,

12 federal officials are asserting their federal primacy in enforcing immigration law by demanding federal

13 custody of a person already in state detention. This does not commandeer California to take any additional

14 action, as it has already detained the individual before the federal government requested a transfer to

15 federal custody. And Congress has determined that taking federal custody for civil immigration detention

16 requires no more than an administrative warrant. Accordingly, California’s law requiring DHS to go

17 further and procure a judicial warrant upsets the scheme that Congress carefully established and is

18 obstacle-preempted under Arizona. E.g., Arizona, 567 U.S. at 402, 406, 408.

19

SB54’s exception for aliens convicted of certain offenses does not save the statute from

20 preemption, because the statute remains in its other applications an obstacle to Congress’s criminal-alien-

21 detention scheme. Moreover, SB54’s specific exemptions themselves effectively create priorities for

22 federal detention that conflict with Congress’s choices.

23

Section 7284.6 references a narrow list of exceptions on prohibiting the transfer of an individual

24 to immigration authorities. That list reflects instances in which the State of California considers federal

25 detention and removal of an alien to be a priority. These scenarios include where an individual has been

26 convicted of certain “serious or violent” felonies or felonies punishable by imprisonment in California

27 state prison, Cal. Gov’t Code § 7282.5(a)(1)-(2), as well as where an individual has been convicted of

28 one of thirty-one types of offenses within the past five years if a misdemeanor or within the past fifteen

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1 years if a felony, id. § 7282.5(a)(3)(A)-(AE). Inclusion on California’s Sex and Arson Registry and

2 conviction of a federal crime that is an aggravated felony under the INA, as well as being the subject of

3 an outstanding felony arrest warrant by ICE, also trigger the exception. Id. § 7282.5(a)(4)-(5).

4

This limited subset of criminal violations, however, is narrower than those provided by Congress

5 that render an alien inadmissible or removable. See 8 U.S.C. §§ 1182(a)(2), 1227(a)(2). Nor does SB54’s

6 list match the set of criminal offenses that require the federal government to detain such aliens upon their

7 release from state or local custody. Id. § 1226(c). For example, entirely absent from California’s list of

8 exceptions is any provision for aliens who are inadmissible on the grounds that they were convicted of

9 multiple criminal convictions for which the aggregate sentences were five years or more. See id.

10 § 1182(a)(2)(B). Such an alien could be subject to detention under 8 U.S.C. § 1226(c)(1)(A), regardless

11 of whether the convictions were in the past five or fifteen years, see Cal. Gov’t Code § 7282.5(a)(3).

12

Ultimately, immigration enforcement necessarily contemplates removal, and civil removal

13 proceedings contemplate the necessity of detention. See, e.g., Demore v. Kim, 538 U.S. 510, 523 (2003)

14 (stating, regarding no-bail detention: “this Court has recognized detention during deportation proceedings

15 as a constitutionally valid aspect of the deportation process”); Zadvydas v. Davis, 533 U.S. 678, 697

16 (2001) (distinguishing “detention pending a determination of removability” from the question of

17 authority to detain indefinitely). Similarly, the INA contemplates that DHS will be able to take custody

18 of removable criminal aliens; that detention “must continue pending a decision on whether the alien is to

19 be removed from the United States” and “may end prior to the conclusion of removal proceedings ‘only

20 if’ the alien is released for witness-protection purposes.” Jennings v. Rodriguez, 138 S. Ct. 830, 846–47

21 (2018) (some quotation marks and citations omitted). California’s law frustrates that scheme because it

22 readily affords an alien released from state or local custody the opportunity to abscond, not only

23 increasing burdens on officials tasked with tracking down those aliens but also potentially endangering

24 law-enforcement officers or members of the public. Cf. Demore, 538 U.S. at 528 (“[R]elease of aliens

25 pending their removal hearings would lead to large numbers of deportable criminal aliens skipping their

26 hearings and remaining at large in the United States unlawfully”). SB54 impermissibly allows California

27 to “achieve its own immigration policy” by deciding to transfer certain aliens to federal-immigration

28 custody on the theory that some immigration-enforcement cooperation with federal officials should be

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1 ignored in favor of the State’s other policy goals. But that approach reflects the sorts of “unilateral

2 decisions” regarding immigration enforcement that the Supreme Court rejected in Arizona. 567 U.S. at

3 408, 410.

4

* * *

5

If California prefers different immigration policies, it is free to voice those concerns to Congress.

6 But, as California itself said in Arizona, “Amici States may have differing views about precisely what

7 removal priorities and enforcement practices would be optimal, but they agree that, where removal is

8 concerned, Congress and the Executive Branch are the appropriate bodies for determining these national

9 policies.” Br. for the States of New York, California, et al., Arizona, at *2. Under that rationale advanced

10 by California and adopted by the Supreme Court in Arizona, California’s AB450, AB103, and the

11 detainee-transfer provisions of SB54 are preempted.

12

CONCLUSION

13

The Court should grant the Plaintiffs’ motion for a preliminary injunction.

14

15 Dated: March 26, 2018. 16 17 18 19 20

Respectfully submitted,
/s/David J. Hacker David J. Hacker Special Counsel for Civil Litigation CA Bar No. 249273 TX Bar No. 24103323 Attorney for Proposed Amici

21

22

23

24

25

26

27

28

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1 STEVEN T. MARSHALL Attorney General of Alabama
2

3

LESLIE RUTLEDGE Attorney General of Arkansas

4 PAMELA JO BONDI 5 Attorney General of Florida

6 CHRISTOPHER M. CARR Attorney General of Georgia
7 CURTIS T. HILL, JR.
8 Attorney General of Indiana

9 DEREK SCHMIDT Attorney General of Kansas
10
JEFF LANDRY 11 Attorney General of Louisiana

12 BILL SCHUETTE 13 Attorney General of Michigan

14

JOSH HAWLEY Attorney General of Missouri

15 DOUG PETERSON 16 Attorney General of Nebraska

17 ADAM PAUL LAXALT Attorney General of Nevada
18 MICHAEL DEWINE
19 Attorney General of Ohio

20 MIKE HUNTER Attorney General of Oklahoma
21
ALAN WILSON 22 Attorney General of South Carolina

23 PATRICK MORRISEY 24 Attorney General of West Virginia

25

PAUL R. LEPAGE Governor of Maine

26 PHIL BRYANT
27 Governor of Mississippi

28

KEN PAXTON Attorney General of Texas
JEFFERY C. MATEER First Assistant Attorney General
BRANTLEY D. STARR Deputy First Assistant Attorney General
SCOTT A. KELLER Solicitor General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
DAVID J. HACKER (CA Bar No. 249272; TX Bar No. 24103323)*
Special Counsel for Civil Litigation
OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 009) Austin, Texas 78711-2548 Telephone: (512) 936-1700 Facsimile: (512) 474-2697

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1

PROOF OF SERVICE

2

I hereby certify that on March 26, 2018, I filed the foregoing document with the Clerk of the

3 Court via CM/ECF, which automatically sends notice of the filing to all counsel of record. I declare

4 under 28 U.S.C. § 1746 that the above is true and correct.

5

Executed on March 26, 2018 at Austin, Texas.

6

7

/s/David J. Hacker David J. Hacker

8

Special Counsel for Civil Litigation

CA Bar No. 249273

9

TX Bar No. 24103323

10

Attorney for Proposed Amici

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 2:18-cv-00490-JAM-KJN Document 48 Filed 04/06/18 Page 1 of 8

1 KENT S. SCHEIDEGGER (SBN 105178)
KYMBERLEE C. STAPLETON (SBN 213463) 2 CRIMINAL JUSTICE LEGAL FOUNDATION
2131 L Street 3 Sacramento, CA 95816
(916) 446-0345 (Voice) 4 (916) 446-1194 (Fax)
Kent.Scheidegger@cjlf.org 5 Kym.Stapleton@cjlf.org

6 Attorneys for Amici Curiae CJLF & Michael Rushford

7

8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 UNITED STATES OF AMERICA,

Case No. 2:18-CV-00490-JAM-KJN

12

Plaintiff,

13

v.

14
STATE OF CALIFORNIA, et al., 15
Defendants. 16

17

BRIEF AMICI CURIAE OF THE CRIMINAL JUSTICE LEGAL FOUNDATION AND MICHAEL RUSHFORD SUPPORTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Date: June 20, 2018 Time: 10:00 a.m. Judge: The Honorable John A. Mendez

18

The Criminal Justice Legal Foundation (CJLF) and Michael Rushford submit this

19 brief amici curiae in support of the Plaintiff’s motion for a preliminary injunction. The

20 parties have consented to the filing of this brief. Under Federal Rule of Appellate Proce-

21 dure (FRAP) 29(a)(2) and this court’s order of March 27, 2018, adopting FRAP 29(a) for

22 amicus briefs in this case, no motion for leave to file is required.

23

Per FRAP 29(a)(4)(A) and (E), amici certify that CJLF has no parent corporation or

24 stockholders, that this brief was written entirely by counsel for amici and not counsel for

25 any party, and that no person or entity other than CJLF contributed money to fund prepar-

26 ing or submitting of this brief.

27

28

BRIEF AMICI CURIAE SUPPORTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
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1

INTEREST OF AMICI CURIAE

2

Amicus CJLF is a California non-profit corporation dedicated to protecting the

3 interests of victims of crime. It is an employer subject to provisions of 8 U.S.C. § 1324a

4 and California Assembly Bill 450 of 2017 (AB 450). Like any corporate employer, it must

5 operate through its officers and other employees.

6

Amicus Michael Rushford is the President of CJLF and a citizen of the United

7 States. His responsibilities include the employment matters of CJLF, and he is “a person

8 acting on behalf of the employer” within the meaning of sections 1, 2, and 5 of AB 450.

9 CJLF and Mr. Rushford endeavor to assist law enforcement, both state and federal, when

10 their assistance is useful and appropriate. They also endeavor to ensure that CJLF’s

11 operations are in compliance with both federal and state law.

12

AB 450 impairs the ability of amici to assist federal law enforcement and to ensure

13 their own compliance with federal law, as explained further in the body of the brief. Such

14 interference is contrary to the Fourteenth Amendment of the Constitution of the United

15 States.

16

SUMMARY OF ARGUMENT

17

The Privileges or Immunities Clause of the Fourteenth Amendment has been

18 construed very narrowly by the Supreme Court, but it has not been stripped of all meaning.

19 Among the privileges that the Supreme Court has found included is the duty and right of

20 every citizen to assist federal law enforcement and to give information regarding viola-

21 tions.

22

By the same principle, citizens have a right and duty to ensure their own compli-

23 ance with federal law. Because the contours of the law are often uncertain and underlying

24 facts are often unclear, ensuring compliance sometimes means going further than the

25 measures that may, in retrospect, be found to meet the bare minimum for compliance. A

26 state law that punishes citizens for doing anything more than the bare minimum required

27 by federal law therefore, in practice, impairs the ability of the citizens to ensure their own

28 compliance.

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1

ARGUMENT

2 I. AB 450 is a “law which . . . abridge[s] the privilege or immunities of citizens of the

3

United States” in violation of the Fourteenth Amendment.

4

The first clause of the second sentence of section 1 of the Fourteenth Amendment

5 provides, “No State shall make or enforce any law which shall abridge the privileges or

6 immunities of citizens of the United States . . . .” That language was quickly given a

7 narrow construction in the Slaughter-House Cases, 83 U.S. 36 (1873), an interpretation

8 that was disputed at the time, see id. at 96 (Field, J., dissenting), and remains doubtful to

9 this day. See McDonald v. City of Chicago, 561 U.S. 742, 756 (2010). Even so, the

10 narrow interpretation remains binding precedent until the Supreme Court overrules it,

11 which it has not yet done. See id. at 758.

12

Narrow as the Slaughter-House interpretation is, though, it did not strip that clause

13 of all meaning. The privileges and immunities protected by this provision are those that

14 “owe their existence to the Federal government, its national character, its Constitution, or

15 its laws.” Slaughter-House Cases, 83 U.S. at 79. One of the few privileges that the high

16 court has found to meet that description is implicated in this case.

17

In 1894, Henry Worley of Georgia reported a moonshiner to a deputy United States

18 marshal. In re Quarles, 158 U.S. 532, 532 (1895). Shortly afterward, two co-conspirators

19 of the moonshiner, Quarles and Butler, beat and attempted to murder Worley. See id. at

20 533. They were charged with violation of section 5508 of the Revised Statutes, which

21 “provides for the punishment of conspiracies ‘to injure, oppress, threaten, or intimidate any

22 citizen in the free exercise or enjoyment of any right or privilege secured to him by the

23 Constitution or laws of the United States, or because of his having so exercised the 24 same.’ ” Id. at 535.1 After conviction, they moved for arrest of judgment on the ground

25 that Worley had no federally protected right to report the revenue violation to the marshal.

26 See id. at 534.

27

The Supreme Court held that there was indeed a federally protected right involved:

28 1. The current statute is 18 U.S.C. § 241.

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1

“It is the duty and the right, not only of every peace officer of the United

2

States, but of every citizen, to assist in the prosecuting, and in securing the punish-

3

ment of, any breach of the peace of the United States. . . . It is likewise his right

4

and his duty to communicate to the executive officers any information which he has

5

of the commission of an offence against those laws . . . .” Id. at 535.

6

“The right of a citizen informing of a violation of law, like the right of a

7

prisoner in custody . . . to be protected against lawless violence, . . . arises out of the

8

creation and establishment by the Constitution itself of a national government,

9

paramount and supreme within its sphere of action. United States v. Logan, 144

10

U.S. 294. Both are . . . ‘privileges and immunities arising out of the nature and

11

essential character of the national government, and granted or secured by the

12

Constitution of the United States.’ In re Kemmler, 136 U.S. 436, 438.” Id. at 536.

13

“The right of the private citizen who assists in putting in motion the course of

14 justice” exists for both the citizen and the government. Id. at 536. “[I]t is the duty of [the

15 federal] government to see that he may exercise this right freely . . . . This duty does not

16 arise solely from the interest of the party concerned, but from the necessity of the govern-

17 ment itself . . . .” Id. In the present case, the United States correctly invokes federal

18 supremacy for its side of this coin. See Plaintiff’s Motion for Preliminary Injunction 13

19 (“MPI”). The Privileges or Immunities Clause of the Fourteenth Amendment is the

20 citizen’s side of the same coin. A state law against voluntary cooperation with federal law

21 enforcement violates constitutional protections of both the federal government and the

22 private citizen.

23

With this background, it is evident that AB 450 violates the rights of citizens.

24 “Existing federal law already requires immigration agents to obtain a warrant to search a

25 worksite and a subpoena to access employee records, unless the employer grants consent.

26 This bill effectively takes away the employer’s option to grant consent.” Cal. Assem. Com.

27 on Judiciary, Rep. on Assem. Bill No. 450 (2017-2018 Reg. Sess.) April 22, 2017, p. 7.

28

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1

In Quarles, Henry Worley was not subpoenaed to come forward with his informa-

2 tion. He came forward voluntarily. Quarles holds that such voluntary cooperation is a

3 privilege of citizens of the United States. Therefore, the Fourteenth Amendment expressly

4 forbids any state to “make or enforce” any law which abridges that privilege. AB 450 is

5 unconstitutional.

6

II. AB 450 impairs employers’ ability to confirm their own compliance

7

with federal law.

8

If citizens have a right to inform federal authorities of violations of federal law by

9 others, as discussed in Part I, supra, it stands to reason that they have a right to take the

10 steps needed to confirm their own compliance with the law. Amici have not found any

11 precedent on this point, probably because federal-state law conflicts are typically analyzed

12 under the Supremacy Clause. Even so, the Fourteenth Amendment is an independent

13 provision granting protection directly to the citizen.

14

At several points, AB 450 by its terms forbids everything that federal law does not

15 require, leaving no cushion at all to allow for any uncertainties in the law or difficulties in

16 proof. Government Code section 7285.1(a) prohibits consent to entry of immigration

17 agents right up to the limit that federal law requires allowing entry. Section 7285.2(a) does

18 the same for inspection of records.

19

Federal law forbids knowingly hiring an unauthorized alien. See 8 U.S.C.

20 § 1324a(a)(1)(A). A person who does not knowingly hire unauthorized aliens would be

21 very ill-advised to rely on the “knowingly” element and fail to take steps to avoid hiring

22 unauthorized aliens at all. Not knowing and proving one did not know are two very

23 different things, and innocent people can be ruined by the difficulty of defending them-

24 selves when an element is subjective. The section applies to entities as well as individuals,

25 and proving an absence of knowledge entity-wide could well be impossible.

26

Paragraph (a)(1)(B) of the same section forbids hiring without complying with the

27 verification requirements. While in theory a renewed verification would not be necessary

28

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1 if one could be certain that the initial verification was done and done correctly, in the real

2 world incomplete documentation and uncertainty about past compliance are not unusual.

3

Labor Code section 1019.2(a) forbids all reverification of “the employment

4 eligibility of a current employee at a time or in a manner not required by” 8 U.S.C.

5 § 1324a(b). That federal law includes vague standards such as whether a document

6 “reasonably appears on its face to be genuine,” § 1324a(b)(1)(A), and whether the em-

7 ployer made “a good faith attempt to comply.” § 1324a(b)(6)(A). If the initial verification

8 was done by an employee who is no longer with the company, reasonableness and good

9 faith may be impossible to determine.

10

An employer who is justifiably uncertain whether initial verifications were done

11 correctly can only be sure of compliance with federal law by redoing them. Yet if the do-

12 over is not required by federal law then it is a violation of state law. One approach an

13 employer might reasonably use is to cooperatively allow immigration agents to check its

14 records and then work with them to return to compliance. Yet that, too, is forbidden by AB

15 450. See Cal. Gov’t Code § 7285.2.

16

In other areas of law, rules have developed in recognition of the need to accommo-

17 date people’s inability to be certain which side of a fuzzy line they are on. Thus it is said

18 that freedom of speech needs “breathing space,” see NAACP v. Button, 371 U.S. 415, 432-

19 433 (1963), so that vague laws are struck down even if the complaining party’s own speech

20 is not found to be within the First Amendment’s protection. Qualified immunity protects

21 peace officers who reasonably believe their actions to be legal even if it is ultimately held

22 that they were not. See Pearson v. Callahan, 555 U.S. 223, 231 (2009). AB 450 makes no

23 such allowance. Actions of employers are forbidden by state law right up to the vaguely

24 defined limit of what is required by federal law.

25

The privileges and immunities of citizens of the United States include those that

26 arise from the existence of the federal government, see supra at 3, and those surely include

27 compliance with federal law. A state law which does not allow voluntary actions on the

28 part of a citizen to ensure his own or his organization’s compliance with federal law is

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1 inconsistent with those privileges and immunities. As with the prohibition on reporting

2 violations, the Fourteenth Amendment forbids any State to “make or enforce” such a law.

3

CONCLUSION

4

Sections 1, 2, and 5 of AB 450, Cal. Gov’t Code §§ 7285.1 and 7285.2, and Cal.

5 Labor Code § 1019.2, should be declared unconstitutional, and defendants should be

6 enjoined from enforcing them. Given the Plaintiff’s high probability of success on the

7 merits, Defendants should be preliminarily enjoined from enforcing these provisions.

8

9 Respectfully submitted this 6th day of April, 2018:

10

11

By: /s/ Kent S. Scheidegger

Attorney for Amici Curiae

12

Criminal Justice Legal Foundation &

Michael Rushford

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on April 6, 2018, I electronically transmitted the foregoing

3 document to the Clerk’s Office using the U.S. District Court for the Eastern District of

4 California’s Electronic Document Filing System (ECF), which will serve a copy of this

5 document upon all counsel of record.

6

7

By: /s/ Kent S. Scheidegger

Attorney for Amici Curiae

8

Criminal Justice Legal Foundation &

Michael Rushford

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 2:18-cv-00490-JAM-KJN Document 55 Filed 04/12/18 Page 1 of 16

1 Julie B. Axelrod
California Bar No. 250165 2 Christopher J. Hajec
3 Mark S. Venezia Immigration Reform Law Institute
4 25 Massachusetts Ave, Suite 335
Washington, DC 20001 5 (202) 232-5590 (Tel)
6 (202) 464-3590 (Fax) jaxelrod@irli.org
7 chajec@irli.org
mvenezia@irli.org
8

9 Counsel for Prospective Amici Curiae National Sheriffs’ Association, Advocates for Victims of Illegal Alien Crime, and Fight Sanctuary State
10

11

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA
12

13 UNITED STATES OF AMERICA,

)

Plaintiff,

)

14

)

)

15
v.

)

16

)

)

17

)

)

18 STATE OF CALIFORNIA, et al.,

)

19

Defendants.

)

)

20

)

) 21 ______________________________________

No. 2:18-cv-00490-JAM-KJN
AMICI CURIAE BRIEF OF NATIONAL SHERIFFS’ ASSOCIATION AND VICTIMS’ ORGANIZATIONS IN SUPPORT OF PLAINTIFF
Judge: Hon. John A. Mendez
NO HEARING NOTICED

22

23

24

25

26

27

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1
SUMMARY OF THE ARGUMENT
2
In numerous ways, provisions of California law challenged in this action violate both the
3
U.S. Constitution and federal statutory law.
4
First, by requiring Immigration and Customs Enforcement (“ICE”) agents to obtain a
5
warrant to enter employers’ nonpublic areas, California’s Assembly Bill 450 (“AB 450”)
6
intentionally frustrates the congressional purpose that immigration laws be enforced, and thus
7
violates the Supremacy Clause of the Constitution. Senate Bill 54 (“SB 54”) does the same in
8
9 provisions that both prohibit the sharing of release dates of aliens, and their personal information,
10 with ICE, and forbid transfers of custody of aliens to ICE. These provisions of SB 54 also
11 frustrate the central congressional purpose of fostering cooperation between state or local and
12 federal officials in the enforcement of immigration law. In these provisions, SB 54 also violates
13 the Supremacy Clause quite directly, by mandating interference with federal immigration
14 officers in the performance of their duty—even to the point of creating the potential for armed

15 confrontation between local and federal officers.

16

None of these challenged provisions is within the powers reserved to the states in the

17 Tenth Amendment. The power to impede, much less directly interfere with, the enforcement of

18 federal law obviously is not so included; moreover, many of these provisions involve

19 information sharing, an area in which federal requirements on states have never been held by the

20 Supreme Court to constitute commandeering.

21

In addition, the purpose and effect of SB 54 is to release back on the streets of California

22 categories of aliens that federal law requires to be placed in removal proceedings. By thus

23
enacting its own policy preferences, at variance with federal policy, about which aliens should
24
remain in the United States, California usurps the exclusive federal authority over foreign policy.
25
Finally, the challenged provisions impact rights or interests of third parties that the
26
federal government has standing to assert: SB 54 compels cities to commit harboring, in
27

28
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1
violation of federal statutory law, and AB 450 violates the First Amendment right of employers

2
to petition the government for the redress of grievances by influencing law enforcement.
3
ARGUMENT
4

I.
5 6

BECAUSE THE CHALLENGED PROVISIONS INTENTIONALLY STAND AS OBSTACLES TO CONGRESSIONAL PURPOSES BEHIND IMMIGRATION LAW, AND DIRECTLY INTERFERE WITH FEDERAL ENFORCEMENT OF IMMIGRATION LAW, THEY VIOLATE THE SUPREMACY CLAUSE.

7

Both AB 450 and SB 54 were enacted to “counterbalance” federal immigration

8
enforcement efforts in California. Hearing on SB 54 before the Senate Standing Comm. on
9
Public Safety (Jan. 31, 2017) (statement of Sen. Scott Wiener); California Committee on the
10
Judiciary Report (Assembly), Apr. 22, 2017, at 1; Committee on the Judiciary Report (Senate),
11
July 10, 2017, at 1. The challenged provisions of these laws go far in fulfilling that purpose, and
12
in frustrating congressional ones. For this reason, they are preempted by the Immigration and
13
Nationality Act (“INA”).
14
SB 54 prohibits state and local law enforcement from “[p]roviding information regarding
15
a person’s release date or responding to requests for notification by providing release dates or
16

17 other information” to immigration authorities, unless that information is already publicly

18 available or the individual has been convicted of certain enumerated crimes. Cal. Gov’t Code §§

19 7284.6(a)(1)(C), 7282.5(a). SB 54 further prohibits state and local law enforcement from

20 providing “personal information” about aliens, such as a work or home address, to federal

21 immigration authorities, unless such information is already publicly available. Cal. Gov’t Code

22 § 7284.6(a)(1)(D). Also, under SB 54, state and local law enforcement may “[t]ransfer an

23 individual to immigration authorities” only if the United States presents a “judicial warrant or

24 judicial probable cause determination” or if the individual has been convicted of certain

25 enumerated crimes. Cal. Gov’t Code §§ 7284.6(a)(4), 7282.5(a). And, for its part, § 1 of AB

26 450, which added § 7285.1(a) to the Government Code, provides that “except as otherwise
27 required by federal law, an employer [or agent thereof] shall not provide voluntary consent to an
28 2
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1
immigration enforcement agent to enter any nonpublic areas of a place of labor . . . [unless] the
2
immigration enforcement agent provides a judicial warrant.” Cal. Gov’t Code § 7285.1(a).
3
By standing as obstacles to the accomplishment of congressional purposes behind the
4
INA, and by commanding that local officials impede or interfere with federal officers in the
5
pursuance of their official business—namely, the enforcement of federal immigration law—these
6
provisions violate the Supremacy Clause.
7

8

A. The challenged provisions stand as obstacles to the purposes of Congress.

9

The Supremacy Clause provides that federal law “shall be the supreme Law of the Land;

10 and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of

11 any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Under this clause,

12 Congress has the power to preempt state and local laws. Arizona v. United States, 567 U.S. 387,

13 399 (2012) (citing Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000)).

14

Preemption may be either express or implied, and implied preemption includes both field

15 preemption and conflict preemption. Lozano v. City of Hazleton, 724 F.3d 297, 302 (3d Cir.

16 2013) (citing Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992)). Conflict

17 preemption can occur in one of two ways: where “compliance with both federal and state
18 regulations is a physical impossibility,” or “where the challenged state law stands as an obstacle
19 to the accomplishment and execution of the full purposes and objectives of Congress.” Lozano,
20 724 F.3d at 303 (citing Arizona, 567 U.S. at 399) (internal quotation marks and citations
21 omitted). “If the purpose of the act cannot otherwise be accomplished—if its operation within its
22
chosen field else must be frustrated and its provisions be refused their natural effect—the state
23
law must yield to the regulation of Congress within the sphere of its delegated power.” Savage
24
v. Jones, 225 U.S. 501, 533 (1912), quoted in Hines v. Davidowitz, 312 U.S. 52, 67 n.20 (1941).
25
The judgment of courts about what constitutes an unconstitutional impediment to federal law is
26
“informed by examining the federal statute as a whole and identifying its purpose and intended
27
effects.” Crosby, 530 U.S. at 373.
28
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1
Underlying the doctrine of obstacle preemption is the necessity of cooperation between

2
state and federal sovereignties for our federal system to function properly. As the Second Circuit
3
has explained:
4

A system of dual sovereignties cannot work without informed, extensive, and

5

cooperative interaction of a voluntary nature between sovereign systems for the

6

mutual benefit of each system. The operation of dual sovereigns thus involves

mutual dependencies as well as differing political and policy goals. Without the

7

Constitution, each sovereign could, to a degree, hold the other hostage by

selectively withholding voluntary cooperation as to a particular program(s). The

8

potential for deadlock thus inheres in dual sovereignties, but the Constitution has

resolved that problem in the Supremacy Clause, which bars states from taking

9

actions that frustrate federal laws and regulatory schemes.

10 City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999) (internal citations omitted)

11 (holding 8 U.S.C. § 1373 constitutional).

12

By design, the challenged provisions frustrate the INA in two of its central purposes—not

13 only the obvious purpose that immigration law be enforced, but the federal-state cooperation
14
Congress intended to foster in that enforcement. As the Supreme Court has recognized,
15
“consultation between federal and state officials is an important feature of the immigration
16
system.” Arizona, 567 U.S. at 411. For example, in passing the Illegal Immigration Reform and
17
Immigrant Responsibility Act (“IIRAIRA”), which includes 8 U.S.C. § 1373, Congress intended
18
unimpeded communication among federal, state, and local governments in sharing immigration
19
status information, as well as unobstructed cooperation in ascertaining the whereabouts of illegal
20
aliens. The Senate Judiciary Committee Report accompanying IIRAIRA makes this general
21
intent clear:
22

23

Effective immigration law enforcement requires a cooperative effort between all

levels of government. The acquisition, maintenance, and exchange of immigration-

24

related information by State and Local agencies is consistent with, and potentially

of considerable assistance to, the Federal regulation of immigration and the

25

achieving of the purposes and objectives of the Immigration and Nationality Act.

26 S. Rep. No. 104-249, at 19-20 (1996) (emphasis added), quoted in City of New York, 179 F.3d at

27 32-33. Thus, in drafting § 1373, Congress intended a cooperative effort among local, state, and

28 federal law enforcement to enforce immigration law.
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1
A review of additional federal immigration provisions further underscores this intent.
2
Shortly before enacting IIRAIRA, Congress enacted the Personal Responsibility and Work
3
Opportunity Reconciliation Act of 1996 (PRWORA). Entitled “Communication between State
4
and local government agencies and Immigration and Naturalization Service,” Section 434 of this
5
law, now 8 U.S.C. § 1644, is nearly identical to § 1373. This provision of PRWORA forbids any
6
prohibitions or restrictions on the ability of state or local governments to send to or receive from
7
the federal government information about the immigration status, lawful or unlawful, of an alien
8
9 in the United States. Going further than the Senate Judiciary Committee Report accompanying
10 IIRAIRA, in the Conference Report accompanying PRWORA, Congress made clear its intent in
11 passing Section 434: to bar any restriction on local police in their communications with ICE.
12 The scope includes the whereabouts of illegal aliens, which obviously includes notice of their
13 release from detention.

14

The conference agreement provides that no State or local government entity shall

prohibit, or in any way restrict, any entity or official from sending to or receiving

15

from the INS information regarding the immigration status of an alien or the

16

presence, whereabouts, or activities of illegal aliens. It does not require, in and of

itself, any government agency or law enforcement official to communicate with the

17

INS.

The conferees intend to give State and local officials the authority to

18

communicate with the INS regarding the presence, whereabouts, or activities of

illegal aliens. This provision is designed to prevent any State or local law,

19

ordinance, executive order, policy, constitutional provision, or decision of any

20

Federal or State court that prohibits or in any way restricts any communication between State and local officials and the INS. The conferees believe that

21

immigration law enforcement is as high a priority as other aspects of Federal law

enforcement, and that illegal aliens do not have the right to remain in the United

22

States undetected and unapprehended.

23 H.R. Rep. No. 104-725, at 383 (1996) (Conf. Rep.) , quoted in City of New York, 179 F.3d at 32

24 (emphases added).

25

Another federal statute also has the purpose of fostering cooperation in immigration

26 enforcement. In 8 U.S.C. § 1357(g), Congress made clear that no agreement is needed for state

27 and local officers or employees “to communicate with [federal immigration authorities]
28
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1
regarding the immigration status of any individual, including reporting knowledge that a
2
particular alien is not lawfully present in the United States.” § 1357(g)(10)(A). Likewise,
3
Congress has refused to require any formal agreement for state and local officers or employees to
4
“cooperate with [federal immigration authorities] in the identification, apprehension, detention,
5
or removal of aliens not lawfully present in the United States.” § 1357(g)(10)(B).
6
All of the challenged provisions frustrate, and are intended to frustrate, federal
7
enforcement of immigration law. AB 540 forbids employers to give voluntary consent to ICE to
8
9 enter nonpublic areas of their premises without a judicial warrant, and thus increases the
10 difficulty of ICE’s mission by forcing it to obtain a warrant every time it wishes to enter such
11 premises. And SB 54, by design, keeps ICE in the dark about aliens’ release dates and home and
12 work addresses, sharply increasing the difficulty ICE has in locating removable aliens and taking
13 them into custody. Furthermore, because SB 54, by its terms, mandates noncooperation with

14 federal enforcement of immigration laws, it thwarts the congressional purpose of fostering such

15 cooperation. By thus standing as obstacles to central purposes of the INA, the challenged

16 provisions of both AB 450 and SB 54 violate the Supremacy Clause.

17

B. SB 54 mandates interference with federal officers in the performance of their

18

duties.

19

Under SB 54, in many cases, if a federal immigration officers asks when an alien in local

20 custody will be released, or that alien’s home or work address, local officials may not tell him.

21 In many cases, if a federal immigration officer seeks to assume custody of an alien from local

22 officials, local officials may not transfer custody to him. By thus forbidding the transfer of

23 custody and refusing to provide information very germane to the federal enforcement mission,

24 SB 54 patently interferes with federal officers in their enforcement of federal immigration law,

25 and was designed to do just that.

26

Such interference violates the Supremacy Clause at a very basic level; the supremacy of

27 federal law would be meaningless if states could block its enforcement within their territories.

28 Especially egregious is the ban on transferring custody, as if the federal government were a
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1
hostile foreign power. One wonders if local officials would feel compelled to attempt to prevent
2
such transfers by force, or to arrest federal officers who attempted to assume custody. Such a
3
shocking course would, of course, violate the Supremacy Clause, as the Supreme Court decided
4
well over a century ago in a case in which California arrested a federal marshal for an act in the
5
performance of his duty to protect a U.S. Supreme Court justice:
6

7

“If, when thus acting, and within the scope of their authority, [federal] officers can

be arrested and brought to trial in a state court, for an alleged offence against the law

8

of the State, yet warranted by the federal authority they possess, and if the general

government is powerless to interfere at once for their protection—if their

9

protection must be left to the action of the state court—the operations of the general

government may at any time be arrested at the will of one of its members. The

10

legislation of a State may be unfriendly. It may affix penalties to acts done under the

11

immediate direction of the national government, and in obedience to its laws. It may deny the authority conferred by those laws. The state court may administer not only

12

the laws of the State, but equally federal law, in such a manner as to paralyze the

operations of the government. And even if, after trial and final judgment in the state

13

court, the case can be brought into the United States court for review, the officer is

withdrawn from the discharge of his duty during the pendency of the prosecution,

14

and the exercise of acknowledged federal power arrested. We do not think such an

element of weakness is to be found in the Constitution. The United States is a

15

government with authority extending over the whole territory of the Union, acting

16

upon the States and the people of the States. While it is limited in the number of its

powers, so far as its sovereignty extends it is supreme. No state government can

17

exclude it from the exercise of any authority conferred upon it by the Constitution;

obstruct its authorized officers against its will; or withhold from it, for a moment, the

18

cognizance of any subject which that instrument has committed to it.”

19 In re Neagle, 135 U.S. 1, 61-62 (1890) (quoting Tennessee v. Davis, 100 U.S. 257, 263 (1879))

20 (emphases added). See generally Seth P. Waxman & Trevor W. Morrison, What Kind of

21 Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L.J.

22 2195, 2236-37 (2003) (discussing Neagle).

23

But if, under the Supremacy Clause, local officials may not use force or legal process to

24 block federal officers from performing their federal law enforcement duties by assuming custody
25 of removable aliens, California has no legitimate authority, under that clause, to forbid local
26
officials to transfer custody to them. In this very basic way, SB 54 violates the Supremacy
27
Clause.
28
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1 II. AUTHORITY TO ENACT THE CHALLENGED PROVISIONS IS NOT AMONG THE POWERS RESERVED TO THE STATES IN THE TENTH AMENDMENT.
2
It is not as though California were within its rights, under the Tenth Amendment, to deny
3
its cooperation in the ways it has. The seminal cases delimiting states’ Tenth Amendment rights
4
are New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898
5
(1997). In New York, the Court took up a statute that required states to enact legislation to take
6
7 possession and dispose of nuclear waste produced in their state. In Printz, the Court considered
8 the Brady Act, which required state employees to do background checks of firearm purchasers.

9 The Court ruled that both of these two kinds of federal imperatives constituted commandeering

10 in violation of the Tenth Amendment. New York, 505 U.S. at 158; Printz, 521 U.S. at 935.

11

Obviously, California has no power reserved under the Tenth Amendment to frustrate or

12 directly interfere with the enforcement of federal law. Relevantly here, moreover, the Supreme

13 Court has carved out a safe harbor for federal law controlling state activity when such law

14 regulates information flow in or affecting a domain of federal authority. In this realm, the Court

15 has ruled favorably for federal law both mandating state actions and prohibiting state actions.

16

In Reno v. Condon, 528 U.S. 141 (2000), the Court considered a suit by the State of

17 South Carolina enjoining enforcement of the Driver’s Privacy Protection Act of 1994 (“the

18 DPPA”), 18 U.S.C. §§ 2721-25. The DPPA forbade state department of motor vehicles
19 personnel from disclosing the personal information of drivers for most purposes, though in some
20 circumstances it mandated such disclosure. 18 U.S.C. § 2721. In a unanimous decision, the
21
Court held that the DPPA was consistent with the federalism required by the Tenth Amendment,
22
despite the heavy resource expenditure states needed to make to enforce the Act, and even states’
23
need to pass laws to comply with it. Condon, 528 U.S. at 150-151.
24
The Court distinguished the federal legislation in Condon from that in Printz and New
25
York. The statute in Condon regulated state activities, and the legislation required and man hours
26
employed were a byproduct. Condon, 528 U.S. at 150-151. By contrast, the statute in Printz
27
directly required state employers to fulfill a federal law enforcement function, and the statute in
28
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1
New York directly commanded state legislative initiatives and expenditures to dispose of

2
property (waste). As the Court held:

3

[T]he DPPA does not require the States in their sovereign capacity to regulate their

4

own citizens. The DPPA regulates the States as the owners of databases. It does

5

not require the South Carolina Legislature to enact any laws or regulations, and it

does not require state officials to assist in the enforcement of federal statutes

6

regulating private individuals. We accordingly conclude that the DPPA is

consistent with the constitutional principles enunciated in New York and Printz.

7
Id. at 151.

8
In affirming the validity of the DPPA, the Court noted that the statute requires the

9
disclosure of certain information:
10

The DPPA’s prohibition of nonconsensual disclosures is also subject to a number

11

of statutory exceptions. For example, the DPPA requires disclosure of personal

12

information for use in connection with matters of motor vehicle or driver safety and

theft, to carry out the purposes of [federal statutes].

13 Id. at 145 (internal quotation marks and ellipses omitted). The Court explained: “‘That a

14
State wishing to engage in certain activity must take administrative and sometimes legislative
15
action to comply with federal standards regulating that activity is a commonplace that presents
16
no constitutional defect.’” Id. at 150-51 (quoting South Carolina v. Baker, 485 U.S. 505, 514-15
17
(1988)). Cf. Arizona, 567 U.S. at 412-13 (holding that an Arizona law making verification of
18
immigration status by local officials mandatory was not preempted by federal immigration law
19
because 8 U.S.C. § 1644 (a provision with wording almost identical to that of § 1373), the
20
constitutionality of which the Court did not question, encouraged the sharing of such
21

information).
22

23

Accordingly, insofar as the challenged provisions of SB 54 mandate the withholding of

24 information relevant to the enforcement of immigration law from federal authorities, they are not

25 within powers reserved to California under the Tenth Amendment. See also City of New York,

26 179 F.3d at 33-35 (distinguishing New York and Printz and rejecting a Tenth Amendment

27 challenge to § 1373).

28
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1 III. SB 54 URSURPS THE FEDERAL GOVERNMENT’S EXCLUSIVE AUTHORITY OVER FOREIGN RELATIONS.
2
The federal government “has broad, undoubted power over the subject of immigration
3
and the status of aliens.” Arizona, 567 U.S. at 394 (citing Toll v. Moreno, 458 U.S. 1, 10
4
(1982)). This power derives not only from the federal government’s constitutional authority to
5
“establish an uniform Rule of Naturalization,” U.S. Const. art. I, § 8, cl. 4, but from its inherent,
6
7 sovereign power to conduct relations with foreign nations. Arizona, 567 U.S. at 394-395 (citing
8 Toll, 458 U.S. at 10 (citing United States v. Curtis-Wright Export Corp., 299 U.S. 304, 318
9 (1936)). Thus, the power to set immigration policy is a component of the federal government’s
10 foreign relations authority. Arizona, 567 U.S. at 395. “Immigration policy can affect trade,
11 investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions
12 and expectations of aliens in this country who seek the full protection of its laws.” Id.; see also

13 Hines, 312 U.S. at 68 (“[alien registration] legislation is in a field which affects international

14 relations, the one aspect of our government that from the first has been most generally conceded

15 imperatively to demand broad national authority.”).

16

“No State can rewrite our foreign policy to conform to its own domestic policies.”

17 United States v. Pink, 315 U.S. 203, 233 (1942). As is crucial here, decisions regarding the

18 removal process “touch on foreign relations and must be made with one voice.” Arizona, 567
19 U.S. at 409; see Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-484
20 (1999); Jama v. Immigration and Customs Enf’t, 543 U.S. 335, 348 (2005) (“Removal decisions
21
. . . may implicate [the Nation’s] relations with foreign powers . . . .” (internal quotation marks
22
omitted)); Galvan v. Press, 347 U.S. 522, 531 (1954) (“Policies pertaining to the entry of aliens
23
and their right to remain here are . . . entrusted exclusively to Congress . . . .”); Harisiades v.
24
Shaughnessy, 342 U.S. 580, 588-589 (1952) (“[A]ny policy toward aliens is vitally and
25
intricately interwoven with contemporaneous policies in regard to the conduct of foreign
26
relations . . . .”). A decision on removability involves a determination of whether it is
27

28
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1
appropriate to allow a foreign national to continue living in the United States. Arizona, 567
2
U.S. at 409.
3
By restricting cooperation and communication with ICE concerning some categories of
4
aliens but not others, the State of California, in SB 54, has enacted its own policy preferences
5
about which foreign nationals should stay within the nation’s borders and which should be
6
removed. Thus, for example, when California restricts certain types of cooperation to a subset
7
of aliens convicted of crimes listed in Cal. Gov’t Code § 7282.5(a), the state creates its own
8
9 categories of immigration enforcement, and enacts its own removal priorities, at variance with
10 federal ones. Such state policies “violate[] the principle that the removal process is entrusted to

11 the discretion of the federal government” and “must be made with one voice.” Arizona, 567

12 U.S. at 409.

13

The federal government already has its own removal priorities, which include certain

14 categories of inadmissible and deportable aliens outlined by Congress, and no longer exempts

15 any class or category of removable aliens from potential enforcement. See Memorandum from

16 John Kelly, Sec’y of Homeland Sec. to Kevin McAleenan, Acting Comm’r of U.S. Customs and

17 Border Patrol et al. on Enf’t of the Immigration Laws to Serve the Nat’l Interest (Feb. 20, 2017).

18 Thus, the federal government already has its own voice when it comes to which categories of

19 aliens should depart from the United States, and it differs markedly from California’s. Because,

20 in both intent and effect, California has taken removal policy out of the hands of the federal

21 government and into its own, this Court should find that SB 54 is an invalid usurpation of the

22 national government’s exclusive authority over foreign affairs.

23
IV.
24

THE CHALLENGED PROVISIONS INFRINGE RIGHTS AND INTERESTS OF THIRD PARTIES THAT PLAINTIFF HAS STANDING TO ASSERT.

25

In this case, the United States has standing to assert the right and interests of third parties

26 with which its activities are inextricably connected. See Singleton v. Wulff, 428 U.S. 106, 114-16

27 (1976) (holding that third-party standing is present when the third party’s interests are

28 “inextricably bound up with the activity the litigant wishes to pursue”), cited in Washington v.
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1
Trump, 847 F.3d 1151, 1160 (9th Cir. 2017). Here, the United States wishes to pursue
2
immigration enforcement with the cooperation of local jurisdictions, and also employers, in
3
California, and its activities in that regard necessarily involve the rights and interests of those
4
parties. It therefore has standing to vindicate those rights and interests.
5
These rights and interests are infringed by the challenged provisions. SB 54 compels
6
local jurisdictions to commit harboring in violation of federal law, and AB 450 violates
7
employers’ right to petition protected in the First Amendment.
8

9

A. SB 54 compels local law enforcement to violate federal law by concealing,

harboring, or shielding illegal aliens.

10
What are generally referred to as the “anti-harboring” provisions of the INA—located at

11
Title II, Chapter 8, § 274 and codified at 8 U.S.C. § 1324—read in pertinent part:

12

Bringing in and Harboring Certain Aliens

13

(a) Criminal penalties.—

14

(1) (A) Any person who—

(iii) knowing or in reckless disregard of the fact that an alien has come to, entered,

15

or remains in the United States in violation of law, conceals, harbors, or shields

from detection, or attempts to conceal, harbor, or shield from detection, such alien

16

in any place, including any building or any means of transportation; . . .

(v) (I) engages in any conspiracy to commit any of the preceding acts, or (II) aids

17

or abets the commission of any of the preceding acts, shall be punished as provided

18

in subparagraph (B). (B) A person who violates subparagraph (A) shall, for each alien in respect to whom

19

such a violation occurs—

(ii) in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II), be fined

20

under title 18, United States Code, imprisoned not more than 5 years, or both . . . .

21

The INA defines “person” when used in Title II as “an individual or an organization.” 8

22 U.S.C. § 1101(b)(3). “The term ‘organization’ means, but is not limited to, an organization,

23 corporation, company, partnership, association, trust, foundation or fund; and includes a group

24 of persons, whether or not incorporated, permanently or temporarily associated together with

25 joint action on any subject or subjects.” 8 U.S.C. § 1101(a)(28). Thus, § 1324 applies to
26 municipal corporations and unincorporated areas alike, which, under the INA’s sweeping
27 definition, are organizations, and thus persons.
28 12
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1
By preventing state and local law enforcement from providing the information or
2
cooperation that ICE requests in the course of enforcing federal immigration laws, SB 54
3
compels local law enforcement to “conceal[], harbor[], or shield[] from detection” aliens in “any
4
place, including any building” (or to attempt to do so) in violation of 8 U.S.C. §
5
1324(a)(1)(a)(iii). For example, when ICE requests the release date of an illegal alien from a
6
local jail, and local authorities refuse to give that information to it, the local authorities are
7
thereafter, at any given moment during the remainder of the alien’s confinement, concealing
8
9 from ICE whether the alien is inside or outside of the jail, and thus “conceal[ing]” the alien’s
10 presence “in . . . a[] building.” More drastically, if ICE agents arrive at or enter a local jail to
11 assume custody of an illegal alien, and local authorities either refuse them entry or refuse to
12 allow them to assume custody, as mandated by SB 54, the local officials are preventing the alien
13 from being taken out of the jail, and thus “harbor[ing]” the alien “in . . . a[] building.” Even if

14 local law enforcement claims that receiving a Form I-247A from ICE does not give it the

15 requisite knowledge of an alien’s unlawful presence, the form includes a probable cause

16 determination by the U.S. Department of Homeland Security that the alien is removable, thus at

17 the very least making law enforcement’s noncompliance in “reckless disregard” of the alien’s

18 unlawful presence. Accordingly, SB 54 coerces local law enforcement to violate the federal anti-

19 harboring statute.

20

B. AB 450 violates employers’ petitioning rights.

21

Lastly, by prohibiting employers from giving voluntary consent to ICE to enter nonpublic

22 areas of their premises, AB 450 violates the petitioning rights of employers.

23
The right to petition is “among the most precious of the liberties safeguarded by the Bill
24
of Rights.” United Mine Workers, Dist. 12 v. Ill. State Bar Ass'n, 389 U.S. 217, 222 (1967). It is
25
“intimately connected, both in origin and in purpose, with the other First Amendment rights of
26
free speech and free press,” id., and is “an assurance of a particular freedom of expression.”
27
McDonald v. Smith, 472 U.S. 479, 482 (1985). The right to petition “extends to all departments
28

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1
of the government, including the executive.” White v. Lee, 227 F.3d 1214, 1231 (9th Cir. 2000)
2
(citing Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972)).
3
Here, when employers give voluntary consent to ICE to enter their nonpublic premises,
4
often they do so to influence ICE not to arrest them for violating federal work authorization laws.
5
See 8 U.S.C. § 1324a (providing criminal penalties for violations of such laws). Such attempts to
6
influence government officials clearly constitute petitioning protected in the First Amendment.
7
See, e.g., E. R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961)
8
9 (holding that an “effort to influence . . . law enforcement practices” was immune from antitrust
10 liability because it was petitioning); Mirabella v. Villard, 853 F.3d 641, 656-57 (3d Cir. 2017)
11 (holding that banning a litigation adversary of a township from contacting officials of that
12 township violated the Petition Clause); Holzemer v. City of Memphis, 621 F.3d 512, 519 (6th Cir.
13 2010) (“We find that requesting assistance from a city councilman—whether in writing or in
14 person—constitutes petitioning activity entitled to the protection of the Petition Clause of the

15 First Amendment.”); Van Deelen v. Johnson, 497 F.3d 1151, 1159 (10th Cir. 2007) (finding it

16 clearly established “that physical and verbal intimidation intended to deter a citizen from

17 pursuing a private tax complaint violates that citizen’s First Amendment right to petition for the

18 redress of grievances”).

19

By flatly prohibiting employers from petitioning government authorities, AB 450 violates

20 their rights under the First Amendment.

21

CONCLUSION

22

For the foregoing reasons, plaintiff’s motion for a preliminary injunction should be

23
granted.
24

25

26

27

28
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1 Dated: April 6, 2018

Respectfully submitted,

2

/s/ Julie B. Axelrod

3

Julie B. Axelrod California Bar No. 250165

4

Christopher J. Hajec

Mark S. Venezia

5

IMMIGRATION REFORM LAW

INSTITUTE

6

25 Massachusetts Avenue, NW

7

Suite 335 Washington, DC 20001

8

(202) 232-5590

jaxelrod@irli.org

9

chajec@irli.org

mvenezia@irli.org

10

Attorneys for Amici Curiae
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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 Case 2:18-cv-00490-JAM-KJN Document 56 Filed 04/12/18 Page 1 of 8

1 BENBROOK LAW GROUP, PC
BRADLEY A. BENBROOK (SBN 177786) 2 STEPHEN M. DUVERNAY (SBN 250957)
400 Capitol Mall, Suite 1610 3 Sacramento, CA 95814
Telephone: (916) 447-4900 4 Facsimile: (916) 447-4904
brad@benbrooklawgroup.com 5 steve@benbrooklawgroup.com

6
Attorneys for Proposed Amici Curiae 7 Federal Law Enforcement Officers Association and
National Border Patrol Council 8

9

UNITED STATES DISTRICT COURT

10
EASTERN DISTRICT OF CALIFORNIA 11

12
THE UNITED STATES OF AMERICA, 13
Plaintiff, 14
v. 15
STATE OF CALIFORNIA, et al., 16

17

Defendants.

18

19

Case No.: 2:18-cv-00490-JAM-KJN
MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF AND PROPOSED AMICI CURIAE BRIEF OF FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION AND NATIONAL BORDER PATROL COUNCIL IN SUPPORT OF PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
Judge: Hon. John A. Mendez

20

21

22

23

24

25

26

27

28

MOTION FOR LEAVE TO FILE & PROPOSED BRIEF OF AMICI CURIAE FLEOA AND NBPC

Case 2:18-cv-00490-JAM-KJN Document 56 Filed 04/12/18 Page 2 of 8

1

PROPOSED AMICI CURIAE BRIEF

2

ARGUMENT

3

California’s AB 450, AB 103, and the detainee-transfer provisions of SB 54 are preempted

4 under Arizona v. United States, 567 U.S. 387, 397 (2012). If Arizona didn’t have the leeway to

5 pursue policies that it believed would assist in the vindication of federal immigration enforcement

6 when the federal government thought it was going too far, it should go without saying that

7 California doesn’t have the leeway to pursue policies that are expressly designed to impede federal

8 immigration enforcement. FLEOA’s and NBPC’s members are on the ground throughout the

9 United States enforcing the immigration laws. In no small part because of the laws passed by

10 California and several of its cities and counties actively promoting the violation of those laws—the

11 essence of “sanctuary” laws—California is a magnet for unlawful immigration.

12

Amici’s members interact daily with local law enforcement officers and large and small

13 private employers in California, many of whom are bewildered by the pro-illegal-immigration

14 laws passed by the State and some California local governments. Yet they are afraid of speaking

15 out against these laws for fear of retribution, or, as in the case of AB 450, being targeted for fines.

16 See, e.g., California Attorney General Threatens $10,000 Fine for Businesses that Share

17 Information with Immigration Agents, L.A. Times (Jan. 18, 2018), available at

18 https://lat.ms/2E2EOTJ.

19

FLEOA’s and NBPC’s members are not so constrained, however, so amici offer this brief

20 to provide perspective on the laws being challenged here:

21 1.
22

SB 54 Radically Alters Federal Enforcement Programs And Places Federal Law Enforcement Officers At Risk.

23

As detailed in the Declaration of Thomas Homan, one of ICE’s core missions is identifying

24 aliens who are “removable” under federal law. See Homan Decl., ¶¶ 13–19; see also Arizona v.

25 United States, 567 U.S. at 397 (ICE “conducts criminal investigations involving the enforcement

26 of immigration-related statutes,” and ICE officers are responsible “for the identification,

27 apprehension, and removal of illegal aliens from the United States.”). ICE has established the

28 Enforcement and Removal Operations (“ERO”) agency to achieve this objective. ICE and ERO

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1 work to identify such aliens who are incarcerated within state and local prisons and jails, among

2 other places.

3

As the Homan Declaration demonstrates, ICE makes these determinations in a variety of

4 different contexts. Often, ICE has received electronic transmissions of booking information

5 (including fingerprints) as California jurisdictions process arrestees. ICE computers can then

6 check this information against ICE’s various databases to confirm whether, for example, the

7 arrestees have overstayed their visa, are fugitive aliens, or are otherwise unauthorized residents.

8 Then, if that cross-checking process identifies a California arrestee as a removable alien, ICE has

9 historically issued a detainer to the state or local jurisdiction. This detainer instructs the state or

10 local law enforcement agency to inform ICE when the alien will be released. See Homan Decl., ¶

11 18 (ICE immigration detainers request that law enforcement agencies “provide advanced

12 notification of the alien’s release to allow for an orderly transfer of the individual into ICE

13 custody,” and maintain custody of the alien for up to 48 hours “so that ICE may respond to the

14 prison or jail and assume custody”).

15

Previously, state and local authorities routinely complied with ICE detainers and provided,

16 among other things, the release dates of removable individuals in their custody. See, e.g., Homan

17 Decl. ¶¶ 23–29. Now, with the passage of SB 54, this information is no longer shared. Id., ¶¶ 29–

18 30.

19

When California jurisdictions used to press their computer buttons to inform ICE when

20 releases were occurring, ICE agents could simply arrive at the state or local facility to usher the

21 removable person into federal custody. This orderly process minimized the risk of altercation.

22 Now that California facilities are no longer pressing their computer buttons to inform ICE about

23 release dates as a result of SB 54, removable persons are being released into the population at

24 large. Id., ¶ 36.

25

Separate and apart from being concerned about the interference SB 54 poses on the

26 effective enforcement of the immigration laws and the risks imposed on California civilians by this

27 change of course, amici are alarmed at the grave risks SB 54 poses for the safety of its members

28 located in California. To the extent ICE is even able to determine that a removable person has

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1 been released into the general population, its agents must apprehend them wherever they can be

2 found. This obviously increases the operational risks exponentially. The removable persons now

3 have access to firearms and confederates, among other things. Id., ¶ 37.

4

Under SB 54 moreover, local jurisdictions no longer participate in—or even respond to a

5 simple phone call asking for information in advance of—these at-large operations, which further

6 increases the risk to amici’s members and the general population. Local law enforcement knows

7 the local scene better than federal agents and historically provided valuable information (such as

8 information about location, identification, and confederates, among other things) to aid these sorts

9 of missions. After SB 54, federal agents proceed with far less information than they did before.

10 Even such mundane matters as traffic control are no longer provided. Id., ¶¶ 36–37 (discussing

11 dangers, safety risks, and practical difficulties encountered by federal law enforcement officers

12 when conducting at-large arrests); see id., ¶ 38 (detailing at-large arrest of a confirmed gang

13 member who “had to be extracted from his vehicle at gun-point,” and “was found with a loaded

14 firearm on his person”). This local overreach needs to be corrected.

15 2.
16

SB 54 Impairs The Ability Of U.S. Customs And Border Protection To Effectively Enforce Federal Immigration Laws.

17

SB 54’s restriction on information sharing and cooperation also impairs the work of U.S.

18 Customs and Border Protection enforcing federal immigration laws and securing the border. As

19 the declaration of Chief Border Patrol Agent Rodney Scott explains, the bill’s prohibition against

20 complying with immigration detainers and hold requests compromises Border Patrol’s ability to

21 complete immigration processing and removal proceedings. Scott Decl., ¶¶ 8–12. The Scott

22 Declaration identifies instances where, for example, the Border Patrol identifies a person as

23 removable, but the state or local jurisdiction affirmatively wants to prosecute the individuals for

24 state crimes. Id., ¶¶ 6–8. In these cases, Border Patrol would turn over aliens to state and local

25 law enforcement temporarily, with the clear expectation that the aliens would be returned to

26 immigration custody once the state or local issue had been resolved. Id.

27

But because state and local law enforcement agencies are prohibited from complying with

28 a detainer, SB 54 has affected Border Patrol’s ability to assist with the prosecution of aliens for

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1 serious state criminal offenses. Just as described above, the local agencies’ refusal to

2 communicate has led to multiple instances of removable individuals being released into the general

3 population after being delivered to local custody by Border Patrol. Id., ¶¶ 23–24. Furthermore, in

4 several instances Border Patrol Agents have determined that, due to their responsibility to enforce

5 federal immigration law, they could not release a criminal alien to state or local law enforcement

6 because there was no assurance that they would be returned to federal custody—a concern borne

7 out by experience. Id., ¶ 22 (detailing incidents where Border Patrol agents did not release a

8 suspect to California law enforcement agencies). To be sure, the local authorities’ refusal to

9 communicate endangers the public: the Scott Declaration identifies instances where a suspect may

10 not have committed a federal crime but has obviously committed a state crime (like drunk driving),

11 but is released into the general population due to the local authorities’ refusal to engage. Id., ¶¶

12 16–17. By erecting a wall between federal authorities and state law enforcement, SB 54 has

13 already strained critical law enforcement partnerships, including the Border Patrol’s relationship

14 with the California Highway Patrol, county sheriffs’ departments, and local police departments.

15 See id., ¶¶ 18–21, 23–26.

16 3.
17

SB 54 Compromises National Security By Restricting State And Local Cooperation With ICE Investigations.

18

SB 54 also compromises federal law enforcement officers’ ability to conduct national-

19 security-related criminal investigations. The bill restricts state and local authorities from releasing

20 a removable alien unless ICE obtains a judicial warrant for a criminal violation of federal

21 immigration law. Cal. Gov. Code § 7284.6(a)(4). This frustrates the scope of ICE’s enforcement

22 authority, which includes the authority to make civil immigration arrests. Homan Decl., ¶ 70; see

23 Cal. Gov. Code § 7284.6(a)(1)(E) (prohibiting California law enforcement agencies from using

24 resources to “[m]ak[e] or intentionally participat[e] in arrests based on civil immigration

25 warrants.”). SB 54’s information-sharing restrictions likewise compromise ICE’s ability to

26 conduct homeland security investigations because it limits the agency’s access to critical

27 witnesses, and constrains its ability to manage aliens who are cooperating with criminal

28 investigations and prosecutions. Homan Decl., ¶¶ 73, 75–78 (discussing SB 54’s effect on

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1 potential confidential informants and witnesses, and the “significant benefit parole program”).

2

Restricting information sharing with federal law enforcement agencies threatens their

3 ability to effectively conduct counter-terrorism work in the event of a terrorist attack or other

4 national security emergency. As Homan explains, cooperation between state and local law

5 enforcement and ICE was critical in the aftermath of the December 2, 2015 terrorist attack in San

6 Bernardino. “[I]nformation-sharing between the San Bernardino Police Department and HSI

7 agents . . . allowed for real-time sharing of essential DHS-held information, including information

8 from alien files, and international travel histories of several subjects of interest in the investigation.

9 . . . Within the first 72 hours post-attack, the ease of information-sharing between ICE and SBPD

10 resulted in the identification of accomplices and the discovery of a marriage fraud conspiracy

11 among the accomplices.” Homan Decl., ¶ 72. This is but one example of how SB 54 poses an all-

12 too-real threat to effective law enforcement in a time of crisis, when time is of the essence and

13 access to information is paramount.

14

Indeed, SB 54’s restrictions run counter to the post-9/11 federal policy of broader

15 information sharing and cooperation among law enforcement agencies nationwide. As the 9/11

16 Commission Report concluded, “[t]he biggest impediment to all-source analysis—to a greater

17 likelihood of connecting the dots—is the human or systemic resistance to sharing information.”

18 The Nat’l Comm’n on Terrorist Attacks Upon the U.S., The 9/11 Commission Report 416 (2004).

19 To address this issue, the Federal government implemented intelligence reforms designed to foster

20 cooperation and information sharing between law enforcement agencies, and adopted a national

21 strategy for sharing and safeguarding information in the national security sphere. See, e.g., Office

22 of the Director of National Intelligence, Information Sharing Environment Implementation Plan

23 (Nov. 2006), online at https://www.hsdl.org/?abstract&did=467681; The White House, The

24 National Strategy for Information Sharing: Successes and Challenges In Improving Terrorism-

25 Related Information Sharing (Oct. 2007), available at https://bit.ly/2uLPkh4; The White House,

26 National Strategy for Information Sharing and Safeguarding (Dec. 2012), available at

27 https://bit.ly/2Eksa0V. SB 54 discourages—and outright forbids—state and local law enforcement

28 from actively sharing information with federal law enforcement officials, even though such

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1 information could prove critical in a national security investigation.

2

FLEOA and NBPC, and their members, oppose California’s effort to undermine this

3 important pillar of the national government’s national security policy.

4

CONCLUSION

5

The Court should grant the Plaintiff’s motion for a preliminary injunction.

6 Dated: April 6, 2018 7 8 9 10

BENBROOK LAW GROUP, PC
By /s Bradley A. Benbrook BRADLEY A. BENBROOK Attorneys for Amici Curiae Federal Law Enforcement Officers Association National Border Patrol Council

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13

14

15

16

17

18

19

20

21

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23

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25

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27

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CERTIFICATE OF SERVICE
Case No. 2:18-cv-00490-JAM-KJN
I hereby certify that on April 06, 2018, I electronically filed the following documents with the Clerk of the Court for the United States District Court, Eastern District of California by using the CM/ECF system: MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF AND PROPOSED AMICI CURIAE BRIEF OF FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION AND NATIONAL BORDER PATROL COUNCIL IN SUPPORT OF PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Kelly Rhodes

 
 Case 2:18-cv-00490-JAM-KJN Document 57 Filed 04/12/18 Page 1 of 22

Lawrence J. Joseph (SBN 154908) 1 Law Office of Lawrence J. Joseph
2 1250 Connecticut Ave, NW, Suite 200 Washington, DC 20036
3 Tel: 202-355-9452 Fax: 202-318-2254
4 Email: ljoseph@larryjoseph.com

5 Dale L. Wilcox*

6

Sarah R. Rehberg* Immigration Reform Law Institute

7 25 Massachusetts Avenue, NW, Suite 335 Washington, DC 20001

8 Tel: 202-232-5590

Fax: 202-464-3590 9 Email: dwilcox@irli.org

Email: srehberg@irli.org 10

* Not admitted in this jurisdiction

11 Counsel for Prospective Amici Curiae: MUNICIPALITIES AND ELECTED OFFICIALS

12

13

14

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

15

UNITED STATES OF AMERICA,

)

16

Plaintiff,

) CASE No. 2:18-cv-00490-JAM-KJN

17

v.

) ) MUNICIPALITIES & ELECTED

18 STATE OF CALIFORNIA, et al.,

) OFFICIALS’ AMICI CURIAE BRIEF

19

Defendants.

) )

_____________________________________ )

Complaint filed: March 6, 2018 Honorable John A. Mendez

20

21

22

23

24

25

26

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TABLE OF CONTENTS 1

2 Table of Contents............................................................................................................................. i Table of Authorities ........................................................................................................................ ii
3 Identity and Interest of Amici Curiae.............................................................................................. 1

4 Constitutional Background ............................................................................................................. 1

5 Statutory Background ..................................................................................................................... 2

Immigration and Naturalization Act ........................................................................................ 2

6

Immigrant Worker Protection Act ........................................................................................... 3

7

Inspection and Review of Facilities Housing Federal Detainees under

GOV’T CODE §12532 ........................................................................................................ 3 8
California Values Act .............................................................................................................. 4

9 Argument ........................................................................................................................................ 5

10 I. California’s attempts to protect illegal aliens impermissibly conflict with federal

immigration law. ...................................................................................................................... 5

11

A. AB450 — the Immigrant Worker Protection Act — is conflict and field

12

preempted. ........................................................................................................................ 5

B. AB103 §12 — enacting GOV’T CODE §12532 for state inspection of federal

13

detention of non-citizens — is conflict preempted........................................................... 7

14

C. SB54 — the California Values Act — is conflict preempted. ......................................... 8

15

D. The United States — not California and not municipal government — has the exclusive authority to litigate as parens patriae for the people of California.................. 8

16 II. By restricting private employers’ and municipal government’s cooperation with

federal immigration officials, AB450 and SB54 criminally conceal, harbor, or

17

shield illegal aliens from detection. ......................................................................................... 9

18 III. 8 U.S.C. §1373 is a valid exercise of congressional power................................................... 11

19

A. 8 U.S.C. §1373 does not commandeer the states. .......................................................... 12

B. 8 U.S.C. §1373 is a “necessary and proper” exercise of federal power over

20

immigration. ................................................................................................................... 14

21 Conclusion .................................................................................................................................... 15

22

23

24

25

26

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TABLE OF AUTHORITIES 1

2

CASES

3

Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982) ............................................................................................................ 8-9

4 Arizona v. United States,

5

567 U.S. 387 (2012) ................................................................................................. 1-2, 5-6, 8

Boeing Co. v. Movassaghi,

6

768 F.3d 832 (9th Cir. 2014)...................................................................................................8

7 Cipollone v. Liggett Grp., 505 U.S. 504 (1992) ................................................................................................................1

8 DeCanas v. Bica,

9

424 U.S. 351 (1976) ........................................................................................................ 1, 7-8

Diamond v. Charles,

10

476 U.S. 54 (1986) ..................................................................................................................9

11 English v. Gen. Elec. Co.,

496 U.S. 72 (1990) ..................................................................................................................1 12
FERC v. Mississippi,

13

456 U.S. 742 (1982) ..............................................................................................................12

14

Garcetti v. Ceballos, 547 U.S. 410 (2006) ................................................................................................................6

15 Gonzales v. City of Peoria,

16

722 F.2d 468 (9th Cir. 1983)...................................................................................................2

Gonzales v. Raich,

17

545 U.S. 1 (2005) ............................................................................................................ 14-15

18 Hutchinson v. Bear Valley Cmty. Servs. Dist., 191 F. Supp. 3d 1117 (E.D. Cal. 2016) ...................................................................................6

19 Kenne v. Stennis,

20

230 Cal. App. 4th 953 (Cal Ct. App. 2014) ............................................................................6

McCulloch v. Maryland,

21

17 U.S. (4 Wheat.) 316 (1819) ............................................................................. 11-12, 14-15

22 Moran v. Washington,

147 F.3d 839 (9th Cir. 1998)...................................................................................................6 23
Nat’l Fed’n of Indep. Businesses v. Sebelius,

24

567 U.S. 519 (2012) ..............................................................................................................12

25

New York v. FERC, 535 U.S. 1 (2002) ....................................................................................................................7

26

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New York v. United States,

1

505 U.S. 144 (1992) ........................................................................................................ 12-14

2 Printz v. United States,

521 U.S. 898 (1997) ........................................................................................................ 12-14 3
Raich v. Gonzales,

4

500 F.3d 850 (9th Cir. 2007).................................................................................................12

5 Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir. 1997).................................................................................................6

6 Reno v. Condon,

7

528 U.S. 141 (2000) ..............................................................................................................12

Rosemond v. United States,

8

134 S.Ct. 1240 (2014) ..................................................................................................... 10-11

9 South Carolina v. Baker, 485 U.S. 505 (1988) ..............................................................................................................12

10 S. Cal. Edison Co. v. Lynch,

11

307 F.3d 794 (9th Cir. 2002).................................................................................................12

Tafflin v. Levitt,

12

493 U.S. 455 (1990) ................................................................................................................2

13 United States v. Acosta de Evans,

531 F.2d 428 (9th Cir. 1976)...................................................................................................9 14
United States v. Aguilar,

15

883 F.2d 662 (9th Cir. 1989)............................................................................................. 9-10

16

United States v. Bunker, 532 F.2d 1262 (9th Cir. 1976)...............................................................................................10

17 United States v. City of Arcata,

18

629 F.3d 986 (9th Cir. 2010)...................................................................................................8

United States v. Comstock,

19

560 U.S. 126 (2010) .................................................................................................. 12, 14-15

20 United States v. County of Fresno, 429 U.S. 452 (1977) ................................................................................................................8

21 United States v. Hernandez,

22

84 F.3d 931 (7th Cir. 1996).....................................................................................................6

United States v. Ramos-Rascon,

23

8 F.3d 704 (9th Cir. 1993).....................................................................................................11

24 United States v. Smith,

832 F.2d 1167 (9th Cir. 1987)...............................................................................................11 25
United States v. Wrightwood Dairy Co.,

26

315 U.S. 110 (1942) ..............................................................................................................14

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United States v. You,

1

382 F.3d 958 (9th Cir. 2004).................................................................................................10

2 Valle del Sol Inc. v. Whiting,

732 F.3d 1006 (9th Cir. 2013)............................................................................................. 6-7 3
Wheaton v. Peters,

4

33 U.S. (8 Pet.) 591 (1834) ...................................................................................................10

5

STATUTES

6 U.S. CONST. art. I, §8, cl. 3 ..............................................................................................................3
U.S. CONST. art. I, §8, cl. 4 ..............................................................................................................1 7
U.S. CONST, art. I, §8, cl. 18 .................................................................................................... 13-15 8 U.S. CONST. art. VI, cl. 2 .......................................................................................................1, 8, 14

9 U.S. CONST. amend. I...........................................................................................................6, 12, 15

10 Immigration and Naturalization Act, 8 U.S.C. §§1101-1537................................................................................................... passim
11 8 U.S.C. §1103(a)(11)......................................................................................................................7

12 8 U.S.C. §1231(g)(1)-(2) .................................................................................................................7

13 8 U.S.C. §1324....................................................................................................................2, 6-7, 9-
8 U.S.C. §1324(a)(1)(A) ............................................................................................................9, 15 14
8 U.S.C. §1324(a)(1)(A)(iii) ........................................................................................................2, 9 15 8 U.S.C. §1324(a)(1)(A)(v) .........................................................................................................2, 9
16 8 U.S.C. §1324(c) .................................................................................................................... 2, 5-6

17 8 U.S.C. §1357(g) ........................................................................................................................3, 5

18 8 U.S.C. §1357(g)(10) .....................................................................................................................3
8 U.S.C. §1373(a) ..................................................................................................... 2-3, 5, 8, 12-15 19
18 U.S.C. §2(a) ..............................................................................................................................10

20 Racketeer Influenced and Corrupt Organization Act,

21

18 U.S.C. §§1961-1968.....................................................................................................2, 10

18 U.S.C. §1961(1)(F) ...............................................................................................................2, 10

22 18 U.S.C. §1964(c) ..........................................................................................................................2

23 CAL. GOV’T CODE §7284.6(a)(1)(A)-(E) .........................................................................................4

24 CAL. GOV’T CODE §7285.1 ..............................................................................................................3

25 CAL. GOV’T CODE §7285.1(a)..........................................................................................................3 CAL. GOV’T CODE §7285.2 ..............................................................................................................3
26 CAL. GOV’T CODE §7285.2(a)..........................................................................................................3

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CAL. GOV’T CODE §7310-7311........................................................................................................4 1
CAL. GOV’T CODE §12532 ....................................................................................................... 3, 7-8
2 CAL. GOV’T CODE §12532(a)...........................................................................................................4

3 CAL. GOV’T CODE §12532(b)(1)......................................................................................................4

4 CAL. LABOR CODE §90.2(a)(1).........................................................................................................3

5

PUB. L. NO. 104-132, Title IV, §433, 110 Stat. 1214, 1274 (1996) ....................................................................................................2

6 2017 Cal. Stat. c. 17 (Assembly Bill 103) ......................................................................3-4, 7-8, 15

7 2017 Cal. Stat. c. 17, §6 (Assembly Bill 103) .................................................................................3
8 2017 Cal. Stat. c. 17, §12 (Assembly Bill 103) ...............................................................................3 2017 Cal. Stat. c. 492 (Assembly Bill 450) ............................................................. 3, 5-6, 9=12, 15
9 2017 Cal. Stat. c. 495 (Senate Bill 54)............................................................................. 4, 8-11, 15
10 2017 Cal. Stat. c. 495, §3 (Senate Bill 54).......................................................................................4

11

LEGISLATIVE HISTORY

12 Senate Floor Analysis, Assembly Bill 103,

(Cal. June 14, 2017) ................................................................................................................4 13
Assembly Floor Analysis, Assembly Bill 450,

14

(Cal. Sept. 13, 2017) ...............................................................................................................3

15

Assembly Floor Analysis, Senate Bill 54, (Cal. Sept. 15, 2017) ........................................................................................................... 4-5

16

REGULATIONS AND RULES

17 8 C.F.R. §236.6 ................................................................................................................................7

18

OTHER AUTHORITIES

19 Church Sanctuary for Illegal Aliens,

7 Op. O.L.C. 168 (1983) ....................................................................................................10 20
VICTOR HUGO, THE HUNCHBACK OF NOTRE-DAME

21

(Lowell Bair ed. & trans., Bantam Books 1956) ...............................................................10

22 Mark 12:17 (King James) ..............................................................................................................10

23

24

25

26

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IDENTITY AND INTEREST OF AMICI CURIAE 1

2

As set forth in more detail in the accompanying motion for leave to file, the amici curiae

3 identified in the Addendum to this brief are the California municipalities and elected officials. In

4 that capacity, amici are or represent political subdivisions of not only plaintiff United States but

5 also defendant California. To ensure the liberties guaranteed to them and to their constituents by

6 both the U.S. Constitution and the California Constitution, amici feel compelled to support the
7 federal sovereign over the state sovereign in this dispute over the state’s attempt not only to usurp
8 the federal government’s exclusive and plenary power over immigration, but also to restrict amici
9 and their constituents from supporting the federal government in the exercise of that power. For
10
11 these reasons, amici have direct and vital interests in the issues before this Court and thus submit
12 this amici curiae brief in support of the federal government’s motion for a preliminary injunction

13 and the accompanying memorandum of law (Fed. Memo., ECF #2-1).

14

CONSTITUTIONAL BACKGROUND

15

Under the Supremacy Clause, federal law preempts state law whenever they conflict. U.S.

16 CONST. art. VI, cl. 2. Courts have identified three forms of federal preemption: express, field, and
17 conflict preemption. Cipollone v. Liggett Grp., 505 U.S. 504, 516 (1992). The latter two are species
18 of implied preemption, where: “field pre-emption may be understood as a species of conflict pre-
19
20 emption.” English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5 (1990).

21

Under U.S. CONST. art. I, §8, cl. 4, Congress has plenary power over immigration: the

22 “[p]ower to regulate immigration is unquestionably exclusively a federal power.” DeCanas v.

23 Bica, 424 U.S. 351, 354 (1976). Although not every “state enactment which in any way deals with

24 aliens” constitutes “a regulation of immigration and thus [is] per se pre-empted by this
25 constitutional power,” id. at 355, state law is conflict-preempted when “it stands as an obstacle to
26 the accomplishment and execution of the full purposes and objectives of Congress.” Arizona v.

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United States, 567 U.S. 387, 406 (2012) (interior quotations omitted). 1

2

STATUTORY BACKGROUND

3

This litigation involves the interplay between the constitutional roles of federal and state

4 government generally and the interplay between federal immigration law and California’s recent

5 attempt to affect federal immigration enforcement under three California laws.

6 Immigration and Naturalization Act

7

Congress has set federal immigration policy in the Immigration and Naturalization Act, 8

8 U.S.C. §§1101-1537 (“INA”). As relevant here, two provisions bear special emphasis: the
9 prohibition against concealing, harboring, and shielding from detection illegal aliens, 8 U.S.C.
10
§1324(a)(1)(A), and the prohibition against restricting intergovernmental communication with 11

12 federal immigration officials, 8 U.S.C. §1373(a).

13

First, INA’s §274 prohibits knowingly or recklessly concealing, harboring, and shielding

14 from detection illegal aliens in furtherance of their continued violation of immigration laws, which

15 includes conspiracy and aiding-and-abetting liability. 8 U.S.C. §1324(a)(1)(A)(iii), (v). Under
16 §274(c), not only federal immigration agents but also “all other officers whose duty it is to enforce 17
criminal laws” may enforce §274. 8 U.S.C. §1324(c). The Senate version of §274(c) provided that 18
“all other officers of the United States whose duty it is to enforce criminal laws” could enforce 19 20 §274, but the Conference Committee struck “of the United States” to enable non-federal
21 enforcement. Gonzales v. City of Peoria, 722 F.2d 468, 475 (9th Cir. 1983) (citing H.R. REP. NO.

22 82-1505 (Conf. Rep.), as reprinted in 1952 U.S.C.C.A.N. 1360, 1361) (emphasis added). In 1996,

23 Congress amended the Racketeer Influenced and Corrupt Organization Act (“RICO”) to add INA

24 §274 as a predicate offense, PUB. L. NO. 104-132, Title IV, §433, 110 Stat. 1214, 1274 (1996)
25 (enacting 18 U.S.C. §1961(1)(F)), thereby allowing enforcement not only by private parties but
26 also in state court. 18 U.S.C. §1964(c); Tafflin v. Levitt, 493 U.S. 455, 458 (1990).

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Section 1373 prohibits governmental interference with voluntary governmental reporting 1 2 to federal immigration officials regarding the citizenship or immigration status, lawful or unlawful, 3 of any individual, notwithstanding any other provision of federal, state, or local law. 8 U.S.C.

4 §1373(a). In addition to leaving a clear channel of intergovernmental communication open in

5 §1373(a), INA provides state and local roles in immigration enforcement in a variety of ways. For

6 example, under 8 U.S.C. §1357(g)(10)’s savings clause, the absence of state-federal enforcement
7 agreements under §1357(g) does not preclude state and local government’s involving themselves
8 with immigration-related enforcement, including “otherwise to cooperate … in the identification,
9
apprehension, detention or removal” of illegal aliens. 10

11 Immigrant Worker Protection Act

12

The Immigrant Worker Protection Act (“AB450”) prohibits employers from voluntarily

13 cooperating with federal immigration officials. 2017 Cal. Stat. c. 492. Among other things, AB450

14 added §§7285.1 to .2 to Government Code to prohibit employers’ “voluntary consent to an
15 immigration enforcement agent … enter[ing] any nonpublic areas of a place of labor” without a 16
warrant, CAL. GOV’T CODE §7285.1(a), and “voluntary consent to an immigration enforcement 17
agent to access, review, or obtain the employer’s employee records without a subpoena or judicial 18
warrant” or notice of inspection. CAL. GOV’T CODE §7285.2(a). AB450 also added §90.2 to the 19
20 Labor Code to require posting notice of any immigration-related inspections of I-9 forms or other
21 employment records within 72 hours of receiving a notice of the inspection. CAL. LABOR CODE

22 §90.2(a)(1). AB450’s legislative history confirms that the bill was intended to reduce the risk of

23 deportation. Assembly Floor Analysis, Assembly Bill 450, at 3 (Cal. Sept. 13, 2017).
24 Inspection and Review of Facilities Housing Federal Detainees under GOV’T CODE §12532 25
Sections 6 and 12 of Assembly Bill 103 (“AB103”) added Chapter 17.8 and §12532 to the 26
Government Code, respectively. 2017 Cal. Stat. c. 17, §§6, 12. Under §12532, state governmental

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officials must review “detention facilities in which noncitizens are being housed or detained for 1 2 purposes of civil immigration proceedings in California,” CAL. GOV’T CODE §12532(a), and report
3 on the conditions of confinement, the standard of care and due process provided to detainees, and
4 the circumstances of the detainees’ apprehension and transfer to the facility. Id. §12532(b)(1).
5 Under Chapter 17.8, municipal government or law-enforcement agencies with no contract to house
6 adult or minor noncitizen detainees for civil-immigration purposes may not enter such contracts, 7
and municipal government or law-enforcement agencies with such contracts may not renew or 8
modify those contracts to expand the number of contract beds used in locked detention facilities. 9
CAL. GOV’T CODE §§7310-7311. AB103’s legislative history acknowledges its dual purposes to 10 11 provide state “oversight of locked facilities throughout the state that detain immigrants who may
12 be in the country without the proper documentation” and to “[establish] a moratorium on counties
13 entering into new contracts or expanding existing contracts to detain adult and child immigrants
14 in locked county facilities.” Senate Floor Analysis, Assembly Bill 103, at 1 (Cal. June 14, 2017). 15
California Values Act 16
Section 3 of Senate Bill 54 (“SB54”) added the “California Values Act” as Chapter 17.25 17
of the Government Code. 2017 Cal. Stat. c. 495, §3. This new law purports to restrict state and 18
local law enforcement from voluntarily cooperating with federal immigration efforts, such as 19 20 providing release dates or transferring detained individuals to immigration officials, detaining
21 individuals based on federal hold requests, providing individuals’ home or work addresses to
22 immigration officials, and making or intentionally participating in arrests based on civil
23 immigration warrants. CAL. GOV’T CODE §7284.6(a)(1)(A)-(E). SB54’s legislative history
24 acknowledges that the federal government relies on state and local police as “force multipliers” in 25
enforcing federal immigration law and that “the California Values Act … will prevent state and 26
local law enforcement agencies from acting as agents of Immigration and Customs Enforcement.”

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Assembly Floor Analysis, Senate Bill 54, at 8 (Cal. Sept. 15, 2017). 1

2

ARGUMENT

3 I.

CALIFORNIA’S ATTEMPTS TO PROTECT ILLEGAL ALIENS IMPERMISSIBLY CONFLICT WITH FEDERAL IMMIGRATION LAW.

4 As indicated, INA creates an elaborate scheme of state-federal cooperation for enforcing

5

immigration laws. See, e.g., 8 U.S.C. §§1324(c), 1357(g), 1373(a). According to the Arizona 6

7 court — which was citing examples from the Department of Homeland Security in the prior

8 administration — state-federal cooperation under immigration law includes “situations where

9 States participate in a joint task force with federal officers, provide operational support in

10 executing a warrant, or allow federal immigration officials to gain access to detainees held in state

11 facilities,” as well as “by responding to [federal] requests for information about when an alien

12 will be released from [state or local] custody.” Arizona, 567 U.S. at 410 (emphasis added). When
13 a state deviates from the carefully calibrated state-federal enforcement scheme, the state poses “an
14 obstacle to the full purposes and objectives of Congress,” id., triggering conflict preemption.
15

16

On the other hand, if the federal statutory scheme is elaborate enough, that scheme can

17 evidence a congressional intent to displace states from the entire field:

18

The intent to displace state law altogether can be inferred from a

framework of regulation so pervasive that Congress left no room for

19

the States to supplement it or where there is a federal interest so

20

dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.

21 Id. at 399. As indicated, in Arizona and this Court’s precedents, INA is both conflict- and field-

22 preemptive of inconsistent state laws in the immigration area.

23

A. AB450 — the Immigrant Worker Protection Act — is conflict and field

24

preempted.

25

In purporting to prevent California employers from voluntarily working with federal

26 immigration officials (e.g., without a warrant), AB450 runs afoul of not only INA but also the First

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Amendment. Thus, AB450 is both preempted and unconstitutional. 1

2

Contacting and working with governmental enforcement authorities is protected First-

3 Amendment activity, Hutchinson v. Bear Valley Cmty. Servs. Dist., 191 F. Supp. 3d 1117, 1125-

4 26 (E.D. Cal. 2016); Kenne v. Stennis, 230 Cal. App. 4th 953, 967 (Cal Ct. App. 2014) (collecting

5 cases), although public employees must meet the additional threshold that their petition or speech
6 activity implicates a “matter of public concern.” Rendish v. City of Tacoma, 123 F.3d 1216, 1221 7
(9th Cir. 1997); Garcetti v. Ceballos, 547 U.S. 410, 415-16 (2006). Here, the public-concern test 8
is readily met as to any public entities covered by AB450: “government employers have no 9
legitimate interest in covering up wrongdoing.” Moran v. Washington, 147 F.3d 839, 849 n.6 (9th 10
11 Cir. 1998) (citing Johnson v. Multnomah Cty., 48 F.3d 420, 424-25 (9th Cir. 1995)). Quite simply,
12 California cannot constitutionally prohibit employers — whether public or private — from

13 cooperating with federal immigration officials about illegal aliens.

14

With respect to statutory conflict preemption, AB450 constitutes criminal concealing,

15 harboring, and shielding of illegal aliens, see Section II, infra, which makes the conflict-
16 preemption argument what golfers and the Seventh Circuit call a “gimme.” United States v.
17 Hernandez, 84 F.3d 931, 935 (7th Cir. 1996). Clearly, a state law that violates federal criminal law
18
19 is civilly preempted as “an obstacle to the full purposes and objectives of Congress.” Arizona, 567

20 U.S. at 410; see also Fed. Memo. at 11-12 (ECF #2-1) (1986 INA amendments intended to remove

21 unlawful employment as a magnet attracting illegal aliens to the United States). But that is not all.

22

On field preemption, this Circuit has gone further than the Arizona court in the particular

23 field of concealing, harboring, and shielding under §274: “in developing the scheme for prohibiting
24 and penalizing the harboring of aliens, Congress specifically considered the appropriate level of
25 involvement for the states,” and thus “[§274(c)] allows state and local law enforcement officials
26

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to make arrests for violations.” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1025 (9th Cir. 2013). 1 2 Based on the carefully calibrated evolutionary path of §274 over time and the detailed federal-state 3 enforcement relationship that §274 contemplates, this Circuit concluded that §274 preempts the

4 entire field of illegal-alien concealment, harboring, and shielding from detection. Id. at 1023-26.

5 Accordingly, INA leaves no room for California to withhold the INA-contemplated voluntary

6 participation of state and local law-enforcement officers with federal immigration authorities.

7 B. AB103 §12 — enacting GOV’T CODE §12532 for state inspection of federal

8

detention of non-citizens — is conflict preempted.

9

GOV’T CODE §12532 requires intrusive state oversight of federal immigration enforcement

10 and restricts the federal government’s access to detention facilities in California. A state lacks
11 authority for either action, given the exclusively federal nature of immigration enforcement under 12
the Constitution. DeCanas, 424 U.S.at 354. Thus, GOV’T CODE §12532 is conflict preempted. 13
As the United States explains (Fed. Memo. at 18-19, 22-23 (ECF #2-1)), INA contemplates 14 15 renting or leasing detention space, 8 U.S.C. §§1103(a)(11), 1231(g)(1)-(2), and federal regulations
16 prohibit the disclosure of information about federal detainees to California’s investigators:

17

No person, including any state or local government entity or any

privately operated detention facility, that houses, maintains,

18

provides services to, or otherwise holds any detainee on behalf of

the Service (whether by contract or otherwise), and no other person

19

who by virtue of any official or contractual relationship with such

20

person obtains information relating to any detainee, shall disclose or otherwise permit to be made public the name of, or other

21

information relating to, such detainee.

22 8 C.F.R. §236.6. Insofar as the “[p]ower to regulate immigration is unquestionably exclusively a

23 federal power,” DeCanas, 424 U.S.at 354, these regulations were within the Attorney General’s

24 delegated authority and, as such, are just as preemptive as an act of Congress vis-à-vis an
25 inconsistent state law. New York v. FERC, 535 U.S. 1, 17-18 (2002). Because the regulation bars
26 disclosing information required by GOV’T CODE §12532, GOV’T CODE §12532 is preempted.

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Similarly, AB103’s interference with the federal government’s access to detention 1 2 facilities in California not only constitutes “an obstacle to the full purposes and objectives of 3 Congress,” Arizona, 567 U.S. at 410, but also impermissibly discriminates against federal interests.

4 United States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2010) (“state … law is invalid … if it

5 regulates the United States directly or discriminates against the Federal Government or those with
6 whom it deals) (internal quotations omitted); Boeing Co. v. Movassaghi, 768 F.3d 832, 842-43 7
(9th Cir. 2014) (“state … law discriminates against the federal government if it treats someone 8
else better than it treats the government”) (internal quotations omitted); United States v. County of 9
Fresno, 429 U.S. 452, 462-64 (1977) (burdens imposed on federal interests must be imposed 10
11 equally on similarly situated constituents). GOV’T CODE §12532 fails these preemption tests.

12

C. SB54 — the California Values Act — is conflict preempted.

13

In seeking to restrict state and local law-enforcement officers from voluntarily contacting

14 federal immigration authorities, SB54 directly conflicts with — and is superseded by — §1373,

15 which allows such contact “[n]otwithstanding any other provision of Federal, State, or local law.”
16 8 U.S.C. §1373(a). Given the express congressional override of inconsistent state laws, this Court
17 need not inquire into the degree or extent of SB54’s obstruction of federal law. The only
18 question — answered in Section III, infra — is whether Congress had the authority to enact §1373
19
20 in the first place. If §1373 is valid, SB54 falls under direct application of the Supremacy Clause.

21

D. The United States — not California and not municipal government — has the

exclusive authority to litigate as parens patriae for the people of California.

22 As California municipalities and elected officials, amici are caught in the middle of this
23

state-federal battle over immigration policy. In this battle, the federal government has not only 24

25 plenary authority to set immigration policy, DeCanas, 424 U.S. at 354, but also exclusive authority

26 to litigate as parens patriae for amici and their constituents. Alfred L. Snapp & Son v. Puerto Rico

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Case 2:18-cv-00490-JAM-KJN Document 57 Filed 04/12/18 Page 15 of 22

ex rel. Barez, 458 U.S. 592, 610 n.16 (1982). The California Legislature and elected state officials 1 2 are free to name their bills the “California Values Act” and the like, but the national government 3 and federal Constitution speak for Californians on matters of immigration. Amici do not question

4 defendants’ standing to defend state law, Diamond v. Charles, 476 U.S. 54, 62-63 (1986), but

5 defendants do not speak for the People of California in this litigation.

6 II. 7
8

BY RESTRICTING PRIVATE EMPLOYERS’ AND MUNICIPAL GOVERNMENT’S COOPERATION WITH FEDERAL IMMIGRATION OFFICIALS, AB450 AND SB54 CRIMINALLY CONCEAL, HARBOR, OR SHIELD ILLEGAL ALIENS FROM DETECTION.

9

Beyond conflict preemption, the avowed purpose of AB450 and SB54 to make it more

10 difficult for the federal government to deport illegal aliens, which constitutes criminal concealing,
11 harboring, or shielding from detection under INA §274(a)(1)(A).4 As this Circuit has made clear,
12 “[t]he purpose of [§274] is to keep unauthorized aliens from entering or remaining in the country.”
13 United States v. Acosta de Evans, 531 F.2d 428, 430 (9th Cir. 1976) (emphasis in original). AB450
14 15 and SB54 put municipalities in an untenable position between the demands of state law and federal
16 law. The requested injunction is needed to protect Californians from their own state government.

17

As the Ninth Circuit explained in Acosta de Evans, 531 F.2d at 430 & n.3, Congress added

18 the “shield from detection” prong as “an independent addition” in 1952, whereas “harbor” simply

19 means “afford shelter to” (i.e., without the evasion inherent in §274’s other two prongs). In United
20 States v. Aguilar, 883 F.2d 662, 689 (9th Cir. 1989) (interior quotations omitted), abrogated in
21 part on other grounds, United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002), this Circuit
22 upheld a jury instruction classifying concealing or shielding as “conduct tending to directly or
23
24 substantially facilitate an alien’s remaining in the United States unlawfully with the intent to

25

4

As indicated, the crime includes not only concealing, harboring, and shielding from

26 detection, but also attempts, conspiracy, and aiding and abetting. 8 U.S.C. §1324(a)(1)(A)(iii), (v).

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prevent detection by the Immigration and Naturalization Service.” Because the Legislature was 1 2 acting to shield over 2 million illegal aliens at once, the Legislature had the required knowledge 3 of the illegal aliens’ immigration status. United States v. Bunker, 532 F.2d 1262, 1264 (9th Cir.

4 1976). The laws’ stated “purpose of avoiding the aliens’ detection by immigration authorities …

5 is synonymous with having acted with necessary intent.” United States v. You, 382 F.3d 958, 966
6 (9th Cir. 2004) (interior quotations and alterations omitted, emphasis in original). In sum, AB450 7
and SB54 criminally shield illegal aliens from detection in violation of §274. 8
Even if one supports the Legislature’s charitable goals toward illegal aliens, the laws still 9
are illegal because charitable ends do not excuse unlawful means: “The government’s interest in 10
11 controlling immigration outweighs [the] purported religious interest” of religiously motivated

12 sanctuary workers.5 Aguilar, 883 F.2d at 696. Just as the Aguilar sanctuary workers’ Bible

13 counseled to “Render to Caesar the things that are Caesar’s,” Mark 12:17 (King James), our secular

14 bible — the Constitution — counsels the Legislature to render to the federal Government the
15 things — such as immigration policy — that are the federal Government’s.6
16 Under §274’s plain terms, aiding and abetting is punished as the principal crime. 8 U.S.C.
17 §1324(a)(1)(A)(v); accord 18 U.S.C. §2(a). To meet that standard, “a defendant must not just in
18

19 5

The word “sanctuary” is historically inaccurate, based more on fiction and other countries’

20 traditions, see, e.g., VICTOR HUGO, THE HUNCHBACK OF NOTRE-DAME 189 (Lowell Bair ed. &

trans., Bantam Books 1956), than on legal doctrine. In a country, such as ours, that derives its

21 common law from English common law, Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 654 (1834),

sanctuary would not suffice for what California seeks to accomplish, and — in any event — 22 England ended sanctuary for criminal and civil process in 1623 and 1723, respectively, before

23 English common law feed into our common law. Church Sanctuary for Illegal Aliens, 7 Op. O.L.C. 168, 168-69 & n.8 (1983). Significantly, even prior to its revocation, English common law allowed

24 seeking sanctuary in a church, but only to choose between submitting to trial or confessing and leaving the country. Id. at 169 (citing 4 WILLIAM BLACKSTONE, COMMENTARIES *332-33).

25

6

By adding §274 to RICO’s list of predicate offenses, 18 U.S.C. §1961(1)(F), Congress

26 signaled that it does not consider California’s actions here benign.

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some sort associate himself with the venture … but also participate in it as in something that he 1 2 wishes to bring about and seek by his action to make it succeed.” Rosemond v. United States, 134 3 S.Ct. 1240, 1251 n.10 (2014) (internal quotations omitted). By purporting to compel otherwise-

4 willing law-enforcement officers and employers to desist from aiding federal enforcement efforts,

5 both AB450 and SB54 seek to make illegal aliens’ evasion of federal authorities succeed. Aiding-
6 and-abetting liability requires neither “that the defendant was aware of every detail of the 7
impending crime … nor that [the defendant] be present at, or personally participate in, committing 8
the substantive crime.” United States v. Smith, 832 F.2d 1167, 1170 (9th Cir. 1987). While “[m]ere 9
participation … is not enough,” the Legislature that enacted AB450 and SB54 affirmatively 10
11 intended to thwart federal immigration efforts by shielding illegal aliens from the federal
12 government. United States v. Ramos-Rascon, 8 F.3d 704, 711 (9th Cir. 1993) (aiding-and-abetting

13 liability requires “that the defendant intentionally assisted in the venture’s illegal purpose”)

14 (internal quotations omitted). The Legislature here fully acknowledged its purpose to thwart

15 immigration enforcement and to reduce deportations. See Assembly Floor Analysis, SB54, at 8

16 (Cal. Sept. 15, 2017); Assembly Floor Analysis, AB450, at 3 (Cal. Sept. 13, 2017). That is more
17
than enough for aiding-and-abetting liability. 18

19 III. 8 U.S.C. §1373 IS A VALID EXERCISE OF CONGRESSIONAL POWER.

20

As indicated in Sections I.A and I.C, supra, AB450 and SB54 conflict with federal

21 immigration policy, including 8 U.S.C. §1373. For that section to preempt AB450 and SB54,

22 however, it must be a valid exercise of federal power. The Supreme Court has recognized two

23 distinct types of unconstitutionality: “laws for the accomplishment of objects not entrusted to the
24 government” and those “which are prohibited by the constitution.” McCulloch v. Maryland, 17 25
U.S. (4 Wheat.) 316, 423 (1819). Put another way, “a federal statute, in addition to being 26
authorized by Art. I, § 8, must also ‘not [be] prohibited’ by the Constitution.” United States v.

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Comstock, 560 U.S. 126, 135 (2010) (quoting McCulloch, 17 U.S. (4 Wheat.) at 421) (alterations 1 2 in Comstock, emphasis added). Anticipating the state’s argument that §1373 exceeds federal 3 power, amici now endeavor to show that it does not.

4

A. 8 U.S.C. §1373 does not commandeer the states.

5

California might attempt to challenge 8 U.S.C. §1373(a) as “commandeering” under

6 precedents that “involve attempts by Congress to direct states to perform certain functions,
7 command state officers to administer federal regulatory programs, or to compel states to adopt
8 specific legislation.” Raich v. Gonzales, 500 F.3d 850, 867 n.17 (9th Cir. 2007) (citing Printz v.
9 United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 166 (1992)).7
10
11 As explained in this section, federal immigration law’s allowance for a joint state and local role in
12 immigration enforcement does not commandeer anyone.

13

At the outset, commandeering analysis “begin[s] with the time-honored presumption that

14 the [statute] is a constitutional exercise of legislative power.” Reno v. Condon, 528 U.S. 141, 148
15 (2000) (internal quotations omitted). Further, commandeering analysis does not extend to federal
16 regulation of private parties, such as private employers subject to AB450. FERC v. Mississippi,
17 456 U.S. 742, 764 (1982); South Carolina v. Baker, 485 U.S. 505, 514-15 (1988).8 Finally, as its
18 name suggests, commandeering analysis does not apply to consensual actions. S. Cal. Edison Co.
19 20 v. Lynch, 307 F.3d 794, 808-09 (9th Cir. 2002). Thus, if amici or their law-enforcement agencies
21 wish to cooperate with federal immigration efforts, federal immigration law does not

22 “commandeer” that cooperation. Instead, it simply allows and protects that cooperation.

23

24 7

Commandeering can occur under the Spending Clause, Nat’l Fed’n of Indep. Businesses v.

Sebelius, 567 U.S. 519, 577-78 (2012), but this litigation does not concern funding conditions.

25

8

As discussed in Section III.B, infra, purporting to restrict private parties’ ability to work

26 with federal immigration violates the First Amendment right of petition.

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With private and consensual cooperation with federal immigration authorities thus outside 1 2 the state’s potential “commandeering” claim, all that remains as potentially impermissible federal 3 commandeering is the allowance for state officers — i.e., actual state employees — to work

4 voluntarily with federal immigration authorities, notwithstanding state law to the contrary. See 8

5 U.S.C. §1373(a) (applying “[n]otwithstanding any other provision of Federal, State, or local law”).
6 While amici respectfully submit that that question properly lies under the Necessary and Proper 7
Clause, see Section III.B, infra, it is clear that nothing in 8 U.S.C. §1373(a) violates the anti8
commandeering principles laid down in the Printz-New York line of cases. 9
In New York, the Supreme Court invalidated a federal law that required states to choose 10
11 either to regulate the disposal of radioactive waste by private parties according to federal guidelines
12 or to take title to the waste. See New York, 505 U.S. at 174-75. The Supreme Court rejected the

13 ability of Congress to direct the workings of state legislatures:

14

While Congress has substantial powers to govern … directly,

15

including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to

16

require the States to govern according to Congress’ instructions.

17 Id. at 162. Nothing in §1373(a) directs California’s Legislature to enact anything.

18

Coming closer to this case — but not close enough to aid the state — Printz invalidated a

19 provision of federal law that required state and local law enforcement officers to conduct

20 background searches of prospective gun purchasers, something the court considered a backdoor
21 attempt to compel states to enact or enforce a federal regulatory program. See Printz, 521 U.S. at
22 904. In essence, Printz applied New York to a federal statute that directed state officers, in lieu of
23
24 directing the state legislature, which the Supreme Court found equally impermissible:

25

Congress cannot circumvent [New York] by conscripting the States’

officers directly. The Federal Government may neither issue

26

directives requiring the States to address particular problems, nor

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command the States’ officers, or those of their political

1

subdivisions, to administer or enforce a federal regulatory program.

2 Id. at 935. Again, nothing in §1373(a) directs state or local officers to do anything affirmatively.

3 In both New York and Printz, the challenged federal law impermissibly compelled state
4 action, on pain of a dire-enough consequence to constitute the commandeering of states or state
5
officers. With 8 U.S.C. §1373(a), INA does not compel California to do anything. Instead, INA 6

7 merely prohibits California from preventing state and local law-enforcement officers and public

8 and private employers from voluntarily cooperating with federal immigration authorities. To the

9 extent that that federal prohibition is inconsistent with state law, the Supremacy Clause makes

10 clear that the federal law prevails, U.S. CONST., art. VI, cl. 2, unless the federal law falls outside

11 the power of Congress to enact. See Section III.B, infra.

12 B. 8 U.S.C. §1373 is a “necessary and proper” exercise of federal power over

13

immigration.

14

In addition to its enumerated powers, Congress also has “broad authority," Comstock, 560

15 U.S. at 136, under the Necessary and Proper Clause to “make all Laws which shall be necessary
16 and proper for carrying into Execution” Congress’s enumerated powers. U.S. CONST, art. I, §8, cl. 17
18. In addition to its enumerated powers, Congress “must also be entrusted with ample means for 18
their execution.” McCulloch, 17 U.S. (4 Wheat.) at 408. Under the Necessary and Proper Clause, 19 20 the question is “whether the statute constitutes a means that is rationally related to the
21 implementation of a constitutionally enumerated power.” Comstock, 560 U.S. at 134. Section 1373

22 falls comfortably within Congress’s necessary-and-proper authority, even assuming arguendo that

23 it is not within Congress’s plenary Article I power over immigration.

24

When Congress regulates pursuant to its enumerated powers, Congress — through the

25 Necessary and Proper Clause — “possesses every power needed to make that regulation effective.”
26 United States v. Wrightwood Dairy Co., 315 U.S. 110, 118-19 (1942). The Clause “empowers

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Congress to enact laws in effectuation of its enumerated powers that are not within its authority to 1 2 enact in isolation.” Gonzales v. Raich, 545 U.S. 1, 39 (2005) (Scalia, J., concurring in the
3 judgment). Thus, although the Constitution speaks of only a few crimes, and “nowhere speaks
4 explicitly about the creation of federal crimes beyond those” few, “Congress [has] broad authority
5 to create … crimes” in support of its enumerated powers. Comstock, 560 U.S. at 135-36. California
6 cannot seriously dispute the federal authority to create the crime of concealing, harboring, and 7
shielding from detection illegal aliens as necessary and proper to federal control of immigration, 8
8 U.S.C. §1324(a)(1)(A), but the question of §1373’s necessity and propriety might arise. 9
As indicated, §1373 preempts state and local law that either prohibits or restricts inter10 11 governmental communication on any individual’s immigration status. 8 U.S.C. §1373(a). As
12 signaled in Section I.A, supra, §1373 protects the First Amendment right of petition with respect
13 to immigration issues; as signaled in Section II, supra, §1373 guards against criminal concealing,
14 harboring, and shielding from detection illegal aliens in violation of INA §274(a)(1)(A). Under the 15 circumstances, §1373 is rationally related to the enumerated powers of Congress over immigration. 16
Courts are deferential to Congress under the Necessary and Proper Clause on issues such 17
as necessity, efficacy, and the fit between the means chosen and the constitutional end. Comstock, 18 19 560 U.S. at 135 (Court’s alterations and interior quotations omitted). It suffices for a statute to be 20 “convenient … or useful” or “conducive” to the exercise of an enumerated power. McCulloch, 17
21 U.S. (4 Wheat.) at 418; accord Raich, 545 U.S. at 33 (Scalia, J., concurring in the judgment). For
22 that reason, the United States is likely to prevail if California argues that Congress lacked authority
23 to enact §1373 under the Necessary and Proper Clause. 24
CONCLUSION 25
For the foregoing reasons, amici respectfully submit that this Court urgently should enjoin 26
the challenged provisions of AB450, AB103, and SB54.

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Case 2:18-cv-00490-JAM-KJN Document 57 Filed 04/12/18 Page 22 of 22

Dated: April 6, 2018 1

2

3 Dale L. Wilcox Sarah R. Rehberg

4 Immigration Reform Law Institute

25 Massachusetts Avenue, NW, Suite 335 5 Washington, DC 20001

6

Tel: 202-232-5590 Fax: 202-464-3590

7 Email: dwilcox@irli.org Email: srehberg@irli.org

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Respectfully submitted,
/s/ Lawrence J. Joseph Lawrence J. Joseph (SBN 154908)
Law Office of Lawrence J. Joseph 1250 Connecticut Ave, NW, Suite 200 Washington, DC 20036 Tel: 202-355-9452 Fax: 202-318-2254 Email: ljoseph@larryjoseph.com
Counsel for Amici Curiae

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 Case 2:18-cv-00490-JAM-KJN Document 104 Filed 05/18/18 Page 1 of 18

1 ABIGAIL K. COURSOLLE (Bar # 266646)

coursolle@healthlaw.org 2 Counsel of Record

3

MARTHA JANE PERKINS (Bar # 104784) perkins@healthlaw.org

4 SARAH GRUSIN* grusin@healthlaw.org

5 JOSEPH MCLEAN*

mclean@healthlaw.org 6 NATIONAL HEALTH LAW PROGRAM

7

3701 Wilshire Blvd, Suite 750 Los Angeles, CA 90010

8 Telephone: (310) 204-6010 Facsimile: (213) 368-0774

9 Attorneys for Amici Curiae

NHeLP et al. 10

11 *Not admitted in this jurisdiction

12

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA 13

14

15 THE UNITED STATES OF AMERICA, Plaintiff,

16 V.
17

18

THE STATE OF CALIFORNIA; EDMUND GERALD BROWN JR.,

19 Governor of California, in his Official Capacity; and XAVIER BECERRA,

20 Attorney General of California, in his

Official Capacity,

21

Defendants.

22

23

24

25

Case No: 2:18-cv-00490-JAM-KJN BRIEF OF AMICI CURIAE NHELP ET AL. IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
Hearing Date: June 5, 2018
Time: 1:30 p.m.
Location: Courtroom 6, 14th floor United States District Court, Robert T. Matsui Courthouse 501 I Street Sacramento, CA 95814

26

27

28

Case 2:18-cv-00490-JAM-KJN Document 104 Filed 05/18/18 Page 2 of 18

1 CORPORATE DISCLOSURE STATEMENT
2 The undersigned counsel certifies that the amici curiae National Health Law Program
3
4 (NHeLP); African Services Committee; American Federation of Teachers, AFL-CIO; Asian Law

5 Alliance; Association of Reproductive Health Professionals (ARHP); California Center for Rural

6 Policy; California Food Policy Advocates; California National Organization for Women;
7 California Pan-Ethnic Health Network; Center for Law and Social Policy (CLASP); Community 8 Catalyst; Congregation of Our Lady of Charity of the Good Shepherd, US Provinces; Disability 9
Rights Education and Defense Fund (DREDF); Disability Rights Legal Center; Equality 10
California; Human Impact Partners; Illinois Coalition for Immigrant and Refugee Rights; In Our 11 12 Own Voice: National Black Women's Reproductive Justice Agenda; Legal Aid Society of San
13 Mateo County; Legal Services of Southern Piedmont; Maternal and Child Health Access;

14 Medical Students for Choice; National Asian Pacific American Families Against Substance

15 Abuse (NAPAFASA); National Center for Law and Economic Justice; National Hispanic
16 Medical Association; National Institute for Reproductive Health; National Latina Institute for 17
Reproductive Health; National Network of Abortion Funds; National Organization for Women 18
Foundation; Nevada County Citizens for Choice; Northwest Health Law Advocates (NoHLA); 19 20 Physicians for Reproductive Health; Planned Parenthood Affiliates of California; Positive
21 Women's Network – USA; Public Justice Center; Sargent Shriver National Center on Poverty

22 Law; Service Employees International Union (SEIU); The National Viral Hepatitis Roundtable;

23 The New York Immigration Coalition; The Praxis Project; Western Center on Law & Poverty;

24 Young Women United; and YWCA San Francisco & Marin (collectively, “NHeLP et al.”), are not
25 subsidiaries of any other corporation and no publicly held corporation owns 10 percent or more
26
27 of any amici curiae organization’s stock.

28

/s/ Abigail K. Coursolle

Abigail K. Coursolle

i

BRIEF OF AMIC1 CURIAE

2:18-cv-00490-JAM-KJN

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1

STATEMENT OF INTEREST1

2

The amici curiae are National Health Law Program (NHeLP); African Services Committee;

3 American Federation of Teachers, AFL-CIO; Asian Law Alliance; Association of Reproductive
4 Health Professionals (ARHP); California Center for Rural Policy; California Food Policy
5
6 Advocates; California National Organization for Women; California Pan-Ethnic Health

7 Network; Center for Law and Social Policy (CLASP); Community Catalyst; Congregation of Our

8 Lady of Charity of the Good Shepherd, US Provinces; Disability Rights Education and Defense

9 Fund (DREDF); Disability Rights Legal Center; Equality California; Human Impact Partners;

10 Illinois Coalition for Immigrant and Refugee Rights; In Our Own Voice: National Black
11 Women's Reproductive Justice Agenda; Legal Aid Society of San Mateo County; Legal Services 12
of Southern Piedmont; Maternal and Child Health Access; Medical Students for Choice; 13
National Asian Pacific American Families Against Substance Abuse (NAPAFASA); National 14 15 Center for Law and Economic Justice; National Hispanic Medical Association; National
16 Institute for Reproductive Health; National Latina Institute for Reproductive Health; National

17 Network of Abortion Funds; National Organization for Women Foundation; Nevada County

18 Citizens for Choice; Northwest Health Law Advocates (NoHLA); Physicians for Reproductive
19 Health; Planned Parenthood Affiliates of California; Positive Women's Network – USA; Public 20
Justice Center; Sargent Shriver National Center on Poverty Law; Service Employees 21
International Union (SEIU); The National Viral Hepatitis Roundtable; The New York 22 23 Immigration Coalition; The Praxis Project; Western Center on Law & Poverty; Young Women
24 United; and YWCA San Francisco & Marin (collectively, “NHeLP et al.”).

25

26 1 No party’s counsel authored this brief in whole or in part. No party or party’s counsel contributed
27 money to fund preparation or submission of this brief. No person, other than amici and amici’s counsel, contributed money to fund preparation or submission of this brief.
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1

While each amicus has particular interests, together they share the mission of advancing

2 public health and removing barriers to health care for all people, including immigrants and their
3 families. Amici NHeLP et al. work on behalf of low-income populations and immigrants in
4 California and throughout the country to remove barriers to health care using various tools such
5
6 as direct legal and health services, policy advocacy, education, and litigation. Amici submit this

7 brief to provide the Court with additional information about the important public health

8 protections that SB 54, AB 450, and AB 103 provide to California residents.

9

Amici submit this brief pursuant to the Court’s March 27 and March 29, 2018 Orders

10 (ECF Nos. 37, 41). Amici NHeLP et al. obtained consent of both parties to file an amicus brief in
11

12 this matter. Under Federal Rule of Appellate Procedure (FRAP) 29(a)(2) and this court’s order

13 of March 27, 2018, adopting FRAP 29(a), no motion for leave to file is required.

14

15

INTRODUCTION^

16

Fear of detention and deportation is a nearly ubiquitous experience for immigrants and

17 their families living in the United States.2 Immigrants and their families are highly sensitive to
18 changes in immigration policies, and awareness that state and local entities cooperate with
19

20

21

22

^ The authors of this brief thank Brian Brooks of the National Health Law Program for his invaluable

23 research assistance.

2 See, e.g., Alexia Elejalde-Ruiz, Fear, anxiety, apprehension: Immigrants fear doctor visits could leave them vulnerable 24 to deportation, Chicago Trib., Feb. 22, 2018, http://www.chicagotribune.com/business/ct-biz-immigration-

25

fears-hurt-health-care-access-0225-story.html; Alameda Cty. Pub. Health Dep’t, Immigration and Public Health 3-5 (2017), http://www.acphd.org/media/470384/immigration.pdf; Lilli Mann et al., Reducing the

26 Impact of Immigration Enforcement Policies to Ensure the Health of North Carolinians, 77 N. Carolina Med. J. 240, 240-41 (2016), http://www.ncmedicaljournal.com/content/77/4/240.full; Consuelo Arbona et al.,

27 Acculturative Stress Among Documented and Undocumented Latino Immigrants in the United States, 32 Hisp. J. Behav. Sci. 362, *13 (2010), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4254683/pdf/nihms609057.pdf.

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1 federal immigration officials greatly exacerbates these fears.3 The negative consequences of

2 living with such chronic stress, anxiety, and fear on the health and well-being of immigrants and
3 their families have been well documented.4 4
In California, where 27 percent of the population are immigrants, changes in immigration 5
enforcement policies, therefore, have sweeping public health consequences.5 The consequences 6 7 are not limited to the immigrant population. More than 4.6 million California residents
8 (approximately 12 percent of the total population) live with at least one undocumented family

9 member.6 The numbers are especially high for children: Approximately 2 million (close to one in

10 five) live with at least one undocumented family member, and nearly half of all children in the 11

12

13

14 3 See, e.g., Elisabeth Poorman, Houston Lesson: Anti-Immigrant Moves Put Public Health at Greater Risk, WBUR

15 CommonHealth Blog (Sep. 7, 2017), http://www.wbur.org/commonhealth/2017/09/07/houstonimmigrant-public-health; Alameda Cty. Pub. Health Dep’t, supra, note 2, at 3-5; Mark L. Hatzenbuehler et

16 al., Immigration Policies and Mental Health Morbidity Among Latinos: A State-Level Analysis 174 J. Soc. Sci. Med. 169, *4, *9-10 (2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5258771/pdf/nihms840324.pdf;

17 Russell B. Toomey et al., Impact of Arizona’s SB 1070 Immigration Law on Utilization of Health Care and Public

Assistance Among Mexican-Origin Adolescent Mothers and Their Mother Figures, 104 Am. J. Pub. Health S28, S31 18 (2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3924594/pdf/AJPH.2013.301655.pdf; Angela S.

19

Garcia & David G. Keyes, Ctr. Am. Prog., Life as an Undocumented Immigrant 2-3 (2012), https://cdn.americanprogress.org/wp-content/uploads/issues/2012/03/pdf/life_as_undocumented.pdf;

20

U.S. Dep’t Health & Hum. Servs., Barriers to Immigrants’ Access to Health and Human Services Programs 12 (2012), https://aspe.hhs.gov/system/files/pdf/76471/rb.pdf; Karen Hacker et al., The Impact of Immigration and

21 Customs Enforcement on Immigrant Health: Perceptions of Immigrants in Everett, Massachusetts, USA 73 Soc. Sci. Med. 586, *7 (2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3159749/pdf/nihms308839.pdf; Tara

22 Watson, Nat’l Bureau of Econ. Res., Inside the Refrigerator: Immigration Enforcement and Chilling Effects in

Medicaid Participation 16 (2010), http://www.nber.org/papers/w16278. 23 4See infra, Section II.

24

5 See U.S. Census Bureau, Quick Facts: California, https://www.census.gov/quickfacts/CA; Hans Johnson & Sergio Sanchez, Public Pol’y Inst. Cal., Immigrants in California 1 (2018), http://www.ppic.org/wp-

25

content/uploads/jtf-immigrants-in-california.pdf. 6 See Silva Mathema, Ctr. Am. Prog., State-by-State Estimates of the Family Members of Unauthorized Immigrants

26 (2017) (California “Total Population”), https://www.americanprogress.org/issues/immigration/news/2017/03/16/427868/state-state-estimates-

27 family-members-unauthorized-immigrants; Am. Imm. Council, Immigrants in California 1 (2017), https://www.americanimmigrationcouncil.org/sites/default/files/research/immigrants_in_california.pdf.

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1 state (roughly 4.5 million) live in immigrant families.7 The vast majority of these children are

2 U.S. citizens.8 But they too suffer health consequences from hostile immigration policies.

3

California has a strong interest in protecting the health and well-being of all of its

4 residents, and that interest tips strongly against an injunction in this case. See Alfred L. Snapp &
5

6 Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 607 (1982) (“[A] State has a quasi-sovereign

7 interest in the health and well-being-both physical and economic-of its residents.”); City

8 of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 613, 655-56 (E.D. Pa. 2017) (noting that public health
9 goals of city policies supported enjoining DOJ policy barring such “sanctuary city” policies for 10
grant recipients). These widespread and evidence-based harms to a huge swath of California 11
residents are not counterbalanced by any of the purported, and speculative, harms that the 12
13 federal government asserts. In short, the balance of harms and the public interest both tip

14 strongly in favor of California, and amici urge the Court to deny the Plaintiff’s motion for a

15 preliminary injunction. 16

17 I. Enjoining SB 54 Will Increase Fear of Interactions with Local Law Enforcement,

18

Causing Immigrants to Forgo Treatment, Thereby Jeopardizing the Health of All

Californians. 19

20

Coordination between local law enforcement and federal immigration authorities means

21 that even low-stakes interactions with police—like traffic stops—can result in deportation.9

22 When cooperation is prevalent, immigrants are reluctant to drive, causing them to delay or forgo

23

24 7 See Mathema, supra, note 6 (California “Total Population”); Am. Imm. Council, supra, note 6 at 1.

25

8 Mathema, supra, note 6 (compare California’s “Total Population” number of children with at least one unauthorized family member (1,967,756), with California’s “U.S.-born Population,” number of children

26 with at least one unauthorized family member (1,658,456)). 9 E.g., Urban Institute, State Immigration Enforcement Policies: How They Impact Low-Income Households 2 (2017),

27 https://www.urban.org/sites/default/files/publication/90091/state-immigration-enforcementpolicies.pdf.

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1 all kinds of health appointments, including “regular doctor visits, diabetes education, vaccines,

2 prenatal care, HIV education, and procurement of medications.”10 This problem has been well
3 documented nationally,11 in surveys of providers,12 and locally in immigrant communities in 4
Massachusetts,13 North Carolina,14 and Arizona.15 Because deportation is such a serious 5
consequence, some immigrant communities become extremely cautious about going out in 6 7 public, even where there is no risk of deportation.16 Some immigrants have stated that the fear of
8 deportation means they would not seek care or drive even to obtain necessary health care.17

9

Immigrants’ reluctance to seek treatment has a negative impact on their personal health.

10 But it also has consequences for the health of Californians as a whole. Infectious diseases pay no
11 regard to immigration status. The prevention plan for many highly contagious diseases relies on
12 the concept of “population immunity”—if enough of the population is vaccinated, the entire 13
population becomes protected. However, if not enough people receive the vaccine, the 14
community is at risk. For example, the population is at risk of a measles outbreak if the vaccine 15
16 reaches less than 92 to 95 percent of the population.18 Similarly, for HIV, prevention and

17

18

10 Lisa J. Hardy et al., A Call for Further Research on the Impact of State-Level Immigration Policies on Public Health, 19 102 Am. J. of Public Health 1250, 1252 (2012),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3477996/pdf/AJPH.2011.300541.pdf. 20 11 Id.

21 12 Karen Hacker et al., Provider’s Perspectives on the Impact of Immigration and Customs Enforcement (ICE) Activity on Immigrant Health, 23 J. Health Care Poor & Underserved 651, *5-6 (2012),

22 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3753075. 13 Hacker et al., supra note 3, at *3.

23 14 Mann et al., supra note 2, at 240-41 (2016), available at

http://www.ncmedicaljournal.com/content/77/4/240.full; Scott D. Rhodes et al., The Impact of Local 24 Immigration Enforcement Policies on the Health of Immigrant Hispanics/Latinos in the United States, 105 Am. J. Pub.

25

Health 329, 322-36 (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4318326/. 15 Hardy et al., supra note 10, at 1251.

26 16 Hacker et al, supra note 3, at *7. 17 Mann, supra note 2, at 241.

27 18 Kimberly Gittings & Kelly L. Matson, Establishing Herd Immunity Against Ebola Through Vaccination, 34 Vaccine 2664, 2664 (2016), attached as Exhibit A.

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1 adherence to regular treatment are important not just for an individual’s health, but for the

2 population as a whole.19

3

The cure for these avoidance behaviors is a broad, public assurance to immigrants that

4 trivial interactions with law enforcement will not lead to detention or deportation.20 Sanctuary
5 cities have used similar policies to reduce health disparities between non-citizens and citizens.21
6

7 They have also created an understanding among undocumented immigrants that it is safe to take

8 care of their health.22 However, the efforts of sanctuary cities are “imperfect substitutes,” and

9 eventually run up against barriers created by state and federal law.23

10

11

12

13 19 World Health Organization, Consolidated Guidelines on the Use of Antiretroviral Drugs for Treating and Preventing HIV Infection 255 (2d ed. 2016), https://www.ncbi.nlm.nih.gov/books/NBK374294; Jared M.

14 Baeten, Amplifying the Population Health Benefits of PrEP for HIV Prevention, 217 J. of Infectious Diseases 1509,

1510 (2018), attached as Exhibit B (“HIV prevention is about a best prevention plan for an individual, but 15 must also be about prevention for … the population more generally.”).

20 Much of the research cited in this brief recommends such a solution, see Hacker et al., supra note 3, at 16 *10; Mann et al., supra note 2, at 244. A global survey of anti-immigrant laws reached the same conclusion:

17

“[I]mmigration policy should recognize the public health risks associated with undocumented persons not receiving medical care [and] should encourage all residents to obtain clinically effective vaccinations

18 and screening for prevalent infectious diseases.” Omar Martinez et al., Evaluating the Impact of Immigration Policies on Health Status Among Undocumented Immigrants: A Systematic Review, 17 J. Immigr. Minority Health

19 947, *13 (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4074451/. 21 A. Elizabeth Iten et al., Undocumented Immigration Status and Diabetes Care Among Mexican Immigrants in Two

20 Immigration “Sanctuary” Areas, 16 J. Immigr. Minority Health 229, 232-34 (2014), attached as Exhibit C

(finding that in San Francisco and Chicago, two self-designated sanctuary cities, there was no significant 21 difference in clinical outcomes of diabetic Mexican-Americans, whether they were undocumented

immigrants, documented immigrants, or citizens). 22 22 Sheyada M. Aboii, Undocumented Immigrants and the Inclusive Health Policies of Sanctuary Cities, Harv. Pub.

23

Health Rev, Apr. 2016, http://harvardpublichealthreview.org/undocumented-immigrants-and-theinclusive-health-policies-of-sanctuary-cities/ (finding based on dozens of interviews at an immigrant

24

shelter in a sanctuary city in Texas: “[T]he self-understanding of undocumented immigrants is impacted by the tone of public policy and rhetoric addressing their presence. Whether they view themselves to be

25

members; to be worthy of due consideration; to have a claim to the community or its resources; or to have a say regarding their own health and well-being is influenced by the character of their surroundings.”).

26 23 Helen B. Marrow, The Power Of Local Autonomy: Expanding Health Care To Unauthorized Immigrants In San Francisco, 35 Ethnic & Racial Studies 72, 86 (2012), attached as Exhibit D (noting that providers’ efforts

27 to treat the public regardless of immigration status would “break down” when forced to deal directly with “a more restrictive federal and state policy climate”).

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1

SB 54 represents an important effort by California to mimic the success of these

2 sanctuary cities. By declaring that information about individuals held in local or state custody
3 will not be turned over to federal immigration enforcement, California is proclaiming to 4
immigrants that a routine traffic stop is not likely to end in deportation. As seen in sanctuary 5
cities, this makes immigrants feel safe to participate in the community, including to access 6 7 health services. The public health of Californians, and the public interest, therefore favors
8 sustaining the existing law.

9

10

II. The Balance of Harms and Public Interest Counsel the Court Against Enjoining

11

AB 450, Since it Protects California Residents from Chronic Fear of Deportation and Employer Raids.

12 AB 450, which protects employees in the workplace and vindicates the Fourth
13 Amendment rights of employers by requiring judicial warrants, likewise helps immigrants feel
14
15 safe in their daily lives. The law was enacted to “assert[] the state's right and obligation to

16 protect all California residents who call California home, raise families here, and work and

17 contribute mightily to the state's economic prosperity and rich cultural tapestry.”24 The

18 legislature has a particular interest in protecting the rights of immigrant workers since 64

19 percent of California’s 10 million immigrants are in the labor force.25 The balance of harms and
20 the public interest both favor allowing AB 450 to stand. 21
AB 450 protects California residents by reducing the stress caused by fear of immigration 22
raids and deportation. Raids are often surprising, invasive, and violent. The after-shocks of these 23

24

25

26 24 Assemb. Comm. Jud., AB 450 (Chiu) – As Amended March 23, 2017, As Proposed to be Amended 1-2 (2017),
27 http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201720180AB450. 25 Johnson & Sanchez, supra note 5, at 1.
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1 types of traumatic experience have lasting negative impacts for the health of workers.26

2 Numerous studies establish that fear of raids and deportation is associated with chronic stress.27
3 Moreover, the research establishes that this stress not only affects undocumented immigrants, 4
but also documented immigrants, citizen family members, and citizens in their communities 5
more broadly.28 Chronic stress is associated with long-term poor health outcomes among 6 7 immigrants and their families.29 It can exacerbate their existing health conditions.30 Immigrants
8 who experience chronic stress are also more likely to have depression and other mental health

9

10

11

12 26 Nicole L Novak et al., Change in Birth Outcomes Among Infants Born to Latina Mothers After a Major Immigration

13

Raid, 17 Int’l J. Epidemiology 1, 8 (2017), attached as Exhibit E (finding that infants born to Latina mothers (immigrant and US-born) were more likely to be born with low birth weights—which can be

14

caused by maternal stress—in the nine-month period following a nearby immigration raid, compared to a comparable period in which there was no raid).

15 27 See, e.g., William D. Lopez et al., Health Implications of an Immigration Raid: Findings from a Latino Community in the Midwestern United States, 19 J. Immigr. Minority Health 702, 705 (2017),

16 http://psycnet.apa.org/record/2017-18207-023; Martinez et al., supra note 19, at *7-9; Hacker et al, supra,

note 3, at *3. 17 28 Hacker et al, supra note 3, at *3; Am. Imm. Council, U.S. Citizen Children Impacted by Immigration Enforcement

2 (2017), 18 https://www.americanimmigrationcouncil.org/sites/default/files/research/us_citizen_children_impacted_

19

by_immigration_enforcement.pdf; Randy Capps et al., Nat’l Council of La Raza, Paying the Price: The Impact of Immigration Raids on America’s Children, 35-36 (2007) [hereinafter Capps et al., Paying the Price],

20 https://www.urban.org/sites/default/files/publication/46811/411566-Paying-the-Price-The-Impact-ofImmigration-Raids-on-America-s-Children.PDF; Randy Capps et al., Urban Inst., Implications of

21 Immigration Enforcement Activities for the Well-Being of Children in Immigrant Families 8 (2015) [hereinafter Capps et al., Implications], https://www.migrationpolicy.org/research/implications-immigration-enforcement-

22 activities-well-being-children-immigrant-families.

29 Hacker et al, supra note 3, at *7, *9; Rhodes et al., supra note 14, 331. The literature on the impact of 23 chronic stress on immigrants is consistent with the larger body of research on the health effects of

chronic stress. See, e.g., Ronald Glaser & Janice K. Kiecolt-Glaser, Stress-Induced Immune Dysfunction: 24 Implications for Health, 5 IMMUNOLOGY 243, 244-49 (2005), attached as Exhibit F (chronic stress

25

associated with lower immunity, increased susceptibility to infectious disease, slower wound healing, increased inflammation); Vivette Glover, Maternal Stress or Anxiety in Pregnancy and Emotional Development of

26 the Child, 871 British J. Psych. 105, 105 (1997), https://www.cambridge.org/core/journals/the-britishjournal-of-psychiatry/article/maternal-stress-or-anxiety-in-pregnancy-and-emotional-development-of-

27 the-child (maternal stress associated with lower birth weight). 30 Hardy et al., supra note 10, at 1251.

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1 conditions.31 Chronic stress also deteriorates physical health; among immigrants, it is associated

2 with worse maternal and birth outcomes for pregnant women.32 Chronic fear in children is

3 especially harmful. It is associated with an increased risk of developmental delays, emotional

4 and behavioral issues, and mental health disorders, including Post-Traumatic Stress Disorder
5 (PTSD) for children with immigrant parents or caretakers.33
6

7

Raids also routinely result in family separation and detention, even for documented

8 immigrants who are not subject to deportation proceedings.34 These family separations, even

9 when brief, have lasting effects on the mental and behavioral health of the whole family.35 By

10 contrast, where immigrants feel a greater sense of security, health outcomes improve.36 The
11 public interest thus militates towards preserving AB 450, as it provides increased security and 12 eases fear among California residents, reducing their risk of adverse health consequences. 13

14

15

16

17 31 Martinez et al, supra, note 19 at *9; Joshua Breslau et al., Migration from Mexico to the United States and

Subsequent Risk for Depressive and Anxiety Disorders, 68 Arch. Gen. Psych. 428, 431 (2011), 18 https://www.ncbi.nlm.nih.gov/pubmed/21464367.

19

32 Novak et al., supra, note 26, at 8; Rhodes et al, supra, note 14, at 333. 33 Capps et al., Paying the Price, supra note 28, at 51; Lisseth Rojas-Flores et al., Trauma and Psychological

20

Distress in Latino Citizen Children Following Parental Detention and Deportation, 9 Psych. Trauma 352, 358-59 (2017), attached as Exhibit G.

21 34 Capps et al., Paying the Price, supra note 28, at 35-36. 35 Ajay Chaudry et al., Urban Inst., Facing Our Future: Children in the Aftermath of Immigration Enforcement ix, 43-

22 44 (2010), http://www.urban.org/research/publication/facing-our-future

(behavioral changes, such as trouble sleeping or changes in eating habits, were wide-spread in children

23 more than six months after a parent experienced an immigration raid); Sara Satinsky et al., Family Unity,

Family Health: How Family-Focused Immigration Reform Will Mean Better Health for Children and Families, Human 24 Impact Partners, 6-8, 11-12, 36 (2013),

25

https://www.familyunityfamilyhealth.org/uploads/images/FamilyUnityFamilyHealth.pdf. 36 Atheendar S Venkataramani et al., Health Consequences of the US Deferred Action for Childhood Arrivals

26 (DACA) Immigration Programme: A Quasi-Experimental Study, 2 Lancet Pub. Health e175, e178-79 (2017), https://www.sciencedirect.com/science/article/pii/S2468266717300476; Shakeh Momartin et al., A

27 Comparison of the Mental Health of Refugees with Temporary Versus Permanent Protection Visas, 185 Med. J. Aust. 357, 360 (2006), https://www.ncbi.nlm.nih.gov/pubmed/17014402.

28

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1

III. AB 103 Protects California’s Interest in Safeguarding the Health and Safety of its

Residents in Detention Centers. 2

3

Finally, California has a strong interest in ensuring that detention centers in the State

4 protect the health and safety of its residents. It cannot rely on the federal government to do so.

5 Rather, immigration detention centers have proven unwilling or incapable of meeting the most

6 basic needs of the highly vulnerable population of immigrants in detention, exacerbating the
7 threats to health that initially compelled many to depart from their home countries.37 8
The history of health care in U.S. immigration detention facilities is checkered with 9
institutional neglect and harm of migrants and asylum seekers, which has caused fatal health 10 11 outcomes.38 In May of 2017 alone, the most current month for which the U.S. Immigration and
12 Customs Enforcement (ICE) has published data, three migrants died while in ICE custody,

13 including one at California’s Adelanto Correctional Facility, which itself reported three deaths

14 within a two-month period in 2017.39 At least 100 migrants died in ICE detention from 2007 to
15 2017, including 15 deaths in California facilities.40 Many of these deaths were a result of
16 medically treatable conditions, diseases, and infections that went ignored by ICE.41 17
Despite recent assertions from ICE that it has improved its standard of care, evidence 18
suggests otherwise. According to a 2017 Inspector General report, at a facility in Orange, 19

20

21 37 Stacey A. Tovino, The Grapes of Wrath: On the Health of Immigrant Detainees, 57 B.C. L. Rev. 167, 170 (2016).

38 This is a product of ICE officials consistently delaying and refusing medically necessary treatments and

22 denying access to critical mental and physical health care, even for the child asylum seekers being

detained in adult facilities. Tovino, supra note 37, at 174, 176, 181; Det. Watch Network, Expose & Close: Theo 23 Lacy Detention Center 5 (2012),

24

https://www.detentionwatchnetwork.org/sites/default/files/reports/DWN%20Expose%20and%20Close %20Theo%20Lacy.pdf.

25

39 U.S. Imm. Customs Enf’t, List of Deaths in Ice Custody (2018), https://www.ice.gov/doclib/foia/reports/detaineedeaths-2003-2017.pdf.

26 40 Id.; see also Jeanne Kuang, Immigration Detention Deaths Reach Highest Total Since 2009, Houston Chron., Jan. 12, 2018, https://www.houstonchronicle.com/news/houston-texas/houston/article/Immigration-

27 detention-deaths-reach-the-highest-12494624.php 41 Tovino, supra note 37, at 169-170, 179.

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1 California, detained individuals were regularly served expired and moldy meat and were

2 expected to use moldy and mildewed shower stalls, while facility officials failed to properly

3 record grievances from the detained migrants and violated ICE standards by improperly using
4 disciplinary segregation.42 More troubling is that the number of deaths in these facilities has
5 been trending upwards. Fiscal Year 2017 saw the most deaths in detention facilities in nearly a
6
7 decade; 25 percent of these deaths occurred in California.43

8

Moreover, ICE fails to have or enforce health care standards specific to women. Pre- and

9 post-natal care in detention facilities remains inadequate and threatens to cause irreparable

10 harm to the women and their children.44 In 2017, a pregnant woman detained in a California
11 facility miscarried after detention officials repeatedly denied her medical care despite numerous 12 requests for help.45 Even after the miscarriage, facility administrators refused to let her see a 13
doctor despite her persisting health needs.46 In March of 2018, ICE publicly announced the end 14
of its policy that forbade the detention of pregnant women except in “extraordinary 15 16 circumstances” and eliminated reporting requirements that record their treatment of pregnant

17

18 42 Office Inspect. Gen., Management Alert on Issues Requiring Immediate Action at the Theo Lacy Facility in Orange,

19

California 1,3,5,6,9,10 (2017), https://www.oig.dhs.gov/sites/default/files/assets/Mga/2017/oig-mga030617.pdf. Similarly, an investigation of California’s Theo Lacy Detention Center found moldy food and

20

an absence of fruits and vegetables. Det. Watch Network, supra note 38, at 5. 43 U.S. Imm. Customs Enf’t., supra note 39.

21 44 Am. College of Obstets. & Gyn., Committee Opinion: Health Care for Pregnant and Postpartum Incarcerated Women and Adolescent Females, 118 Obstetrics & Gynecology 1198, *2, *3 (2011), https://www.acog.org/-

22 /media/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/co511.pdf; Hum.

Rights Watch, Detained and Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration 23 Detention 4,17,52,53 (2009), https://www.hrw.org/sites/default/files/reports/wrd0309webwcover_1.pdf;

24

Michael T. Kinsella & Catherine Monk, Impact of Maternal Stress, Depression & Anxiety on Fetal Neurobehavioral Development, 52 Clinical Obstetrics & Gynecology 425, *3, *4, *7 (2009),

25

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3710585/. 45 Letter from Am. Civ. Lib. Union et al. to Cameron Quinn & John Roth, Dep’t Homeland Sec. 8, 9 (Nov.

26 13, 2017), https://americanimmigrationcouncil.org/sites/default/files/general_litigation/complaint_increasing_numb

27 ers_of_pregnant_women_facing_harm_in_detention.pdf. 46 Id. at 9.

28

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1 women—actions that will only increase similar occurrences as ICE detains more women during

2 their pregnancies.47

3

For those who acquire care, individual reports recount facility staff superseding doctors’

4 directives by unilaterally denying recommended treatments and seizing vital prescription
5 medications from patients.48 Independent medical doctors have cited this widespread practice
6

7 of patient neglect and “systemic indifference” as an apparent cause of several injuries in

8 California detention facilities, namely the loss of vision, the loss of mobility, and a preventable

9 death.49

10

For migrants, many of whom are fleeing war, conflict, or natural disaster, the immense

11 stress of detention in these facilities can deteriorate their mental health.50 Medical experts
12 report that separation from loved ones, fear of deportation, and general conditions in detention 13
facilities are clear causes of frustration and anxiety, which often progress into lifelong 14
psychological issues, such as clinical depression and PTSD.51 The detrimental effects of 15

16

17 47 U.S. Imm. Customs Enf’t, ICE Directive 11032.3: Identification and Monitoring of Pregnant Detainees (Dec. 14,

2017), https://www.ice.gov/sites/default/files/documents/Document/2018/11032_3_PregnantDetaines.pdf; 18 U.S. Imm. Customs Enf’t, FAQs: Identification and Monitoring of Pregnant Detainees,

19

https://www.ice.gov/faqs-identification-and-monitoring-pregnant-detainees (last visited May 11, 2018) (“ICE has ended the presumption of release for all pregnant detainees.”); see also Letter from

20

18MillionRising.org to Thomas D. Homan, U.S. Imm. Customs Enf’t (Apr. 11, 2018), https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/ICE%20sign-

21 on%20letter%20FINAL%204.11.18.pdf. 48 Hum. Rights First, Ailing Justice: New Jersey Inadequate Healthcare, Indifference, and Indefinite Confinement in

22 Immigration Detention, 6-7 (2018) https://www.humanrightsfirst.org/sites/default/files/Ailing-JusticeNJ.pdf.

23 49 Id. at 2; Hum. Rights Watch, Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration

Detention 1, 27, 38-40, 54-56 (2017), [hereinafter Hum. Rights Watch, Systemic Indifference], 24 https://www.hrw.org/sites/default/files/report_pdf/usimmigration0517_web_0.pdf.

25

50 Kenneth E. Miller & Andrew Rasmussen, War Exposure, Daily Stressors, and Mental Health in Conflict and Post-Conflict Settings, 70 Soc. Sci. Med. 7, 11-12 (2010), attached as Exhibit H.

26 51 Derrick Silove, Zachary Steel & Richard F. Mollica, Detention of Asylum Seekers: Assault on Health, Human Rights, and Social Development, 357 The Lancet 1436, 1436-37 (2001),

27 https://pdfs.semanticscholar.org/00c0/35b22fc12fadb531fe5371c7111342d7eeaa.pdf; Hum. Rights First, supra note 48, at 1, 8; Physicians Hum. Rights et al., From Persecution to Prison: The Health Consequences of

28

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1 detention on the mental health of migrants and asylum seekers intensifies with time.52

2 Detention officials, including those in California, use solitary confinement to quarantine medical
3 patients, as well as to punish, which actually worsens health and can increase the likelihood of 4
patient death.53 In one survey of asylum seekers in U.S. detention, 77 percent had clinically 5
significant symptoms of anxiety, 86 percent had symptoms of depression, and 50 percent had 6 7 symptoms of PTSD, all of which increased in prevalence with the length of detention.54 In a
8 follow-up survey, participants who were no longer detained had reduced psychological

9 symptoms, while individuals still in custody were more distressed than before.55

10

Several investigations have also found inconsistent medical documentation of detained

11 patients and incomplete administrative information on medical costs.56 Among numerous 12

13

14

Detention for Asylum Seekers 55-56, 83-85 (2003), https://s3.amazonaws.com/PHR_Reports/persecution-toprison-US-2003.pdf; Martinez et al, supra note 19, at *9; Etienne V Langlois et al., Refugees: Towards Better

15 Access to Health-Care Services, 387 The Lancet 319, 320 (2017), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(16)00101-X/fulltext; Zachary Steel et

16 al., Impact of Immigration Detention and Temporary Protection on the Mental Health of Refugees, 188 British J. Psychiatry 58, 61, 63 (2006) https://www.cambridge.org/core/journals/the-british-journal-of-

17 psychiatry/article/impact-of-immigration-detention-and-temporary-protection-on-the-mental-health-of-

refugees.

18 52 Hum. Rights First, supra, note 48, at 8. Physicians Hum. Rights et al., supra note 51, at 55-56; Steel et al.,

supra note 51, at 58-60, 63. 19 53 Hum. Rights First, supra note 48, at 5-6; Det. Watch Network, supra note 38, at 5; Hum. Rights Watch,

20

Systemic Indifference, supra note 49, at 40-41, 73-76, 96. A DHS review reported insufficient recording of individual segregation of individuals with mental health conditions and no institutional ability to review

21 the safety of this practice. Office Inspect. Gen., ICE Field Offices Need to Improve Compliance with Oversight Requirements for Segregation of Detainees with Mental Health Conditions, 1, 4-5 (2017),

22 https://www.oig.dhs.gov/sites/default/files/assets/2017-11/OIG-17-119-Sep17.pdf. 54 Allen S. Keller et al., Mental Health of Detained Asylum Seekers, 362 Lancet 1721, 1722 (2003), attached as

23 Exhibit I. Over one-quarter of these detained migrants reported suicidal thoughts while detained, some

having attempted it, a troubling, pervasive issue that is underreported by ICE despite being a leading 24 cause of death in these facilities. Id. at 1722; see also Tovino, supra note 37, at 181-87; Megan Granski et al.,

25

Death Rates among Detained Immigrants in the United States, 12 Int’l J. Env. Res. & Pub. Health 14414, 14416 (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4661656/.

26

55 Keller et al., supra note 54, at 1722. 56 John V. Kelly, Office Inspect. Gen., Dep’t Homeland Sec., Concerns about ICE Detainee Treatment and Care at

27 Detention Facilities 7 (2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32Dec17.pdf; Hum. Rights Watch, Systemic Indifference, supra note 49, at 24; U.S. Gov’t Account. Office,

28

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1 administrative errors, ICE’s refusal to appropriately collect basic information has allowed

2 negative health outcomes to go unseen.57 In one investigation of HIV/AIDS care in ICE-

3 supervised facilities, including a California facility, detention centers did not deliver consistent
4 care, risking a drug resistance that could inflict tremendous harm on the patients and the
5 general public.58 The facilities also improperly handled medical records and failed to protect
6
7 medical confidentiality, exposing patients to harassment due to their health status.59

8

The inadequate health services and conditions in U.S. immigration detention facilities

9 are well documented and are due in large part to the absence of accountability and oversight.60

10 In 2017, the Inspector General reported long waits for medical services, even for urgent or
11 necessary care, in numerous facilities.61 ICE has resisted calls to improve the conditions of its
12 facilities, despite reports of abuse from the Office for Civil Rights and Civil Liberties.62 13
Given the high risk of harm that detention facilities pose to California residents, and the 14
lack of accurate reporting and documentation from ICE itself, California has a compelling 15
16 interest in investigating facilities within its borders to ensure that they are protecting the health

17 and welfare of California residents.

18

19

20

21

22 Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of Detainee Medical Care, ii, 12 (2016), https://www.gao.gov/assets/680/675484.pdf.

23 57 Silove, Steel & Mollica, supra, note 51, at 1437.

58 Hum. Rights Watch, Chronic Indifference: HIV/AIDS Services for Immigrants Detained by the United States, 38-39 24 (2007), https://www.hrw.org/report/2007/12/05/chronic-indifference/hiv/aids-services-immigrants-

detained-united-states. 25 59 Id. at 2, 20, 46, 60.

26

60 Hum. Rights Watch, Systemic Indifference, supra note 49, at 79-92. 61 Kelly, supra note 56, at 7; see also Hum. Rights Watch, Systemic Indifference, supra note 49, at 45.

27 62 See generally, Office Civil Rights & Civil Liberties, Dep’t Homeland Sec., Fiscal Year 2015 Annual Report to Congress (2016), https://www.dhs.gov/sites/default/files/publications/crcl-fy-2015-annual-report.pdf.

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1

CONCLUSION

2

California’s laws help create a safe and inclusive community for immigrants in the State,

3 which protects the immigrant population and the State as a whole against a myriad of
4 detrimental health consequences. In light of these crucial public health concerns, the balance of
5 harms and the public interest advise that the Federal Government’s request for an injunction
6
7 against portions of SB 54, AB 450, and AB 103 be denied.

8

9 DATED: May 18, 2018

10

Respectfully submitted,

11

NATIONAL HEALTH LAW PROGRAM 12

By:_/s/ Abigail K. Coursolle____________

13

ABIGAIL K. COURSOLLE (Bar # 266646)

14

coursolle@healthlaw.org

MARTHA JANE PERKINS (Bar # 104784)

15

perkins@healthlaw.org

SARAH GRUSIN*

16

grusin@healthlaw.org

17

JOSEPH MCLEAN* mclean@healthlaw.org

18

NATIONAL HEALTH LAW PROGRAM 3701 Wilshire Blvd, Suite 750

19

Los Angeles, CA 90010

Telephone: (310) 204-6010

20

Facsimile: (213) 368-0774

21

Attorneys for Amici Curiae National Health Law

22

Program et al.

23

*Not admitted in this jurisdiction

24

25

26

27

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1 CERTIFICATE OF SERVICE
2

3

I hereby certify that the foregoing document was filed on May 18, 2018, through the ECF system, and that it will be sent electronically to the registered participants as identified on the Notice of

4 Electronic Filing.

5

/s/ Abigail K. Coursolle

Abigail K. Coursolle

6

Senior Attorney

7

NATIONAL HEALTH LAW PROGRAM

8

9

10

11

12

13

14

15

16

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 Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 1 of 60

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney

3 *MOLLIE M. LEE, State Bar #251404 SARA J. EISENBERG, State Bar #269303

4 Deputy City Attorneys

1390 Market Street, Sixth Floor

5 San Francisco, California 94102 Telephone: (415) 554-4290

6 Facsimile: (415) 437-4644

E-Mail:

mollie.lee@sfcityatty.org

7

Attorneys for Amicus Curiae

8 CITY AND COUNTY OF SAN FRANCISCO

9 *Counsel for Service

10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE EASTERN DISTRICT OF CALIFORNIA

13

SACRAMENTO DIVISION

14 THE UNITED STATES OF AMERICA,

Case No. 2:18-cv-00490-JAM-KJN

15

Plaintiff,

16

vs.

17 THE STATE OF CALIFORNIA; EDMUND GERALD BROWN JR., Governor of
18 California, in his official capacity; and XAVIER BECERRA, Attorney General of
19 California, in his official capacity,

20

Defendants.

21

BRIEF OF AMICUS CURIAE CITY AND COUNTY OF SAN FRANCISCO IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Hearing Date: Time: Place: Judge:

June 20, 2018 10:00 a.m. 6 The Honorable John A. Mendez

Action Filed: March 6, 2018

Trial Date:

None Set

22

23

24

25

26

27

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1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES .......................................................................................................... ii

3 INTEREST OF AMICUS CURIAE..................................................................................................1 INTRODUCTION AND SUMMARY OF ARGUMENT ..............................................................2
4 ARGUMENT ...................................................................................................................................3

5

I. Section 1373 Imposes Narrow Obligations About Citizenship

6

And Immigration Status Information.......................................................................3

II. The United States Has Advocated An Extraordinarily Broad

7

Interpretation Of Section 1373 That Is Unmoored From Its Text. ..........................4

8

A. This Interpretation Would Extend To Any Information That

Could Help Federal Immigration Authorities. .............................................4

9

B. This Interpretation Would Sweep In Vast Swaths Of

10

Personal Information....................................................................................6

11

III. The United States’ Interpretation Ignores Established Principles Of Statutory Construction, Which Confirm That Section 1373 Must Be

12

Read More Narrowly. ..............................................................................................8

13

A. The Plain Text Of Section 1373 Refers Only To Citizenship And Immigration Status Information...................................................................8

14

B. “Regarding” Does Not Show A Clear Intent To Cover Other

15

Categories Of Information, And Instead Reflects State And Local Governments’ Limited Role In Immigration Enforcement. ........................9

16

C. General Statements Of Purpose In The Legislative History

17

Cannot Override The Text Enacted By Congress......................................11

D. If Congress Had Intended Section 1373 To Apply More

18

Broadly, It Would Have Used Broader Language. ....................................13

19 CONCLUSION..............................................................................................................................14

20

21

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27

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1

TABLE OF AUTHORITIES

2 Federal Cases
3 Arlington Central School District Board of Education v. Murphy
4 548 U.S. 291 (2006)...................................................................................................................12

5 Atascadero State Hosp. v. Scanlon 6 473 U.S. 234 (1985)...................................................................................................................10

7

Bond v. United States 134 S. Ct. 2077 (2014)...............................................................................................................11

8 Campbell v. Allied Van Lines Inc.
9 410 F.3d 618 (9th Cir. 2005) .......................................................................................................8

10 City of New York v. United States 179 F.3d 29 (2d Cir. 1999) ........................................................................................................13
11

12

Gregory v. Ashcroft 501 U.S. 452 (1991)...................................................................................................................10

13 Lawson v. FMR LLC 14 134 S. Ct. 1158 (2014).................................................................................................................8

15 Medtronic, Inc. v. Lohr 518 U.S. 470 (1996)...................................................................................................................11
16

17

Moskal v. United States 498 U.S. 103 (1990).....................................................................................................................8

18 N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. 19 514 U.S. 645 (1995)...................................................................................................................10

20 Rice v. Santa Fe Elevator Corp. 331 U.S. 218 (1947)...................................................................................................................10
21 Roach v. Mail Handlers Benefits Plan
22 298 F.3d 847 (9th Cir. 2002) ...........................................................................................9, 10, 11
23 Steinle v. City and Cty. of San Francisco 24 230 F. Supp. 3d 994 (N.D. Cal. 2017) .........................................................................................8

25 United States v. Bass 404 U.S. 336 (1971)...................................................................................................................10
26 United States v. Morrison
27 529 U.S. 598 (2000)..................................................................................................................11

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1 Constitutional Provisions

2 Cal. Const. 3 art. I, § 1 .......................................................................................................................................7
4 Federal Statutes

5

8 U.S.C. § 1182(a)(1)(A)............................................................................................................................7

6 § 1182(a)(4)(B) ............................................................................................................................7

§ 1184(k)(3)(A)..........................................................................................................................13

7 § 1231(a)(3)(C) ..........................................................................................................................13

8

§ 1360(c)(2) ...............................................................................................................................13 § 1367(2)....................................................................................................................................13

9 § 1373 ................................................................................................................................ passim

10 20 U.S.C. § 1232g ........................................................................................................................................7
11 42 U.S.C.
12 § 290dd-2 .....................................................................................................................................7

13 Rules

14 Federal Rule of Appellate Procedure

15

Rule 29(a) ....................................................................................................................................1 Rule 29(a)(2)................................................................................................................................1

16 Rule 29(a)(4)(A) and (E) .............................................................................................................1

17 Regulations

18 34 C.F.R.

§ 99 ..............................................................................................................................................7 19

20

42 C.F.R. § 2 ................................................................................................................................................7

21 45 C.F.R. 22 § 160 ............................................................................................................................................7
§ 164 ............................................................................................................................................7 23
Executive Order 13,768 24 82 Fed. Reg. 8799 (Jan. 25, 2017) ...............................................................................................2

25 State Cases

26 Bologna v. City & Cty. of San Francisco

27

121 Cal. Rptr. 3d 406 (Cal. Ct. App. 2011) ..............................................................................12

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State Statutes and Codes 1

2

Cal. Civ. Code § 56.05 .........................................................................................................................................7

3 Cal. Ed. Code 4 § 49075 ........................................................................................................................................7

5 Cal. Gov’t Code § 7284.2 .....................................................................................................................................11
6 Cal. Welf. & Inst. Code
7 § 5328 ..........................................................................................................................................7 8 § 10850 ........................................................................................................................................7

9

S.F. Admin. Code § 12.I.1 .......................................................................................................................................11

10 Legislative Materials

11 Illegal Immigration Reform and Immigrant Responsibility Act of 1996

12 Pub. L. 104-208, §§ 384, 642, 110 Stat. 3009-546, 3009-652, 3009-707 .................................13

13 Protecting American Citizens Together Act 14 S. 1764, 114th Cong. (2015)......................................................................................................14

15

State and Local Law Enforcement Act S. 1640, 114th Cong. § 114 (a)(3)(c) (2015) .............................................................................14

16

17

18

19

20

21

22

23

24

25

26

27

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1

The City and County of San Francisco submits this amicus curiae brief in support of

2 Defendants’ opposition to Plaintiff’s motion for a preliminary injunction. The parties have consented

3 to the filing of this brief. Under Federal Rule of Appellate Procedure (“FRAP”) 29(a)(2) and this

4 court’s order of March 27, 2018, adopting FRAP 29(a) for amicus briefs in this case, no motion for

5 leave to file is required.1

6

INTEREST OF AMICUS CURIAE

7

The United States’ overbroad interpretation of 8 U.S.C. § 1373 (“Section 1373”) threatens to

8 preempt state and local laws that limit local involvement with federal immigration enforcement. In its

9 brief, San Francisco argues that the plain meaning and intent of Section 1373 are much narrower than

10 the United States contends. San Francisco agrees with California that the Tenth Amendment limits the

11 reach of Section 1373, and also agrees with other local government amici that there are important

12 public policy reasons to maintain a clear distinction between local law enforcement officers and

13 federal immigration authorities, but it does not repeat those arguments here.

14

San Francisco’s laws—like California’s—limit communications with federal immigration

15 officials in ways that are consistent with Section 1373, as that statute is properly construed, but could

16 be deemed to conflict with an overbroad interpretation of Section 1373. In this case, for instance, the

17 United States argues that Section 1373 covers not only citizenship and immigration status information,

18 but also at least three additional categories of information—home address, work address, and release

19 date. The United States’ assertions in other cases make clear that this list is just the beginning, and

20 that adopting its interpretation of Section 1373 would prevent local governments from maintaining the

21 confidentiality of virtually any information federal immigration officials might request—including

22 health records, personal family information, and financial information.

23

The proper interpretation of Section 1373 is an important, but relatively small, aspect of the

24 present case. Yet this Court’s decision could have implications far beyond this case. San Francisco

25 has been litigating issues related to Section 1373 in City & County of San Francisco v. Trump, 275 F.

26 1 Pursuant to FRAP 29(a)(4)(A) and (E), San Francisco certifies that it has no parent
27 corporation or stockholders, that this brief was written entirely by counsel for amicus and not counsel for any party, and that no person or entity other than San Francisco contributed money to fund
28 preparing or submitting this brief.

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1 Supp. 3d 1196 (N.D. Cal. 2017), appeal argued, No. 17-17480 (9th Cir. Apr. 11, 2018), and City &

2 County of San Francisco v. Sessions, No. 17-cv-4642 (N.D. Cal. filed Aug. 11, 2017), and has closely

3 tracked the United States’ shifting statements about Section 1373 in these and other actions. San

4 Francisco submits this amicus brief to provide the Court with relevant background about the United

5 States’ varied and overbroad interpretation of Section 1373, as well as case law bearing on the correct

6 interpretation of Section 1373.

7

INTRODUCTION AND SUMMARY OF ARGUMENT

8

To coerce state and local governments to assist with federal immigration enforcement, the

9 United States has recently adopted an extraordinarily broad interpretation of Section 1373. The plain

10 text of Section 1373 provides that state and local governments may not restrict their employees from

11 sharing citizenship and immigration status information with federal immigration authorities. Yet the

12 United States has broadly construed this provision to mean, for example, that local governments must

13 allow their employees to share any information that supports federal immigration authorities in

14 performing their duties under the Immigration and Nationality Act. See Exh. A at 39. According to

15 the United States, this includes an individual’s incarceration status, release date, and release time. See

16 Exh. B at 2-3. It also includes age, date of birth, and address. See Exh. C at 22:4-23. And this list is

17 not exhaustive. Indeed, a judge in the Northern District of California recently observed that the United

18 States’ interpretation of Section 1373 could cover “everything in a person’s life.” Exh. D at 23:1-2.

19

This broad interpretation has significant consequences. The United States has threatened to

20 withhold federal funding from jurisdictions that it deems out of compliance with Section 1373. See

21 Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (“Enhancing Public Safety in the Interior of the

22 United States”); City & Cty. of San Francisco v. Trump, 275 F. Supp. 3d at 1203 (invalidating Section

23 9(a) of Executive Order 13,768). It has imposed Section 1373 compliance conditions on an increasing

24 number of federal grants, and it has stated that jurisdictions seeking funds must certify under penalty

25 of perjury that they comply with the United States’ interpretation of Section 1373. See Exh. D at

26 29:16-19. And in the present case, the United States seeks to invalidate laws of the State of California

27 based, in part, on a purported conflict with Section 1373.

28 //

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1

Section 1373 cannot do the work the United States would have it do. By its plain language,

2 Section 1373 is a narrow statute that concerns only how local jurisdictions may regulate

3 communications with Immigration and Customs Enforcement (“ICE”) “regarding [an individual’s]

4 citizenship or immigration status.” 8 U.S.C. § 1373(a). The dispute in this case turns on how to

5 interpret this phrase, and especially the word “regarding.” The United States argues that “regarding”

6 sweeps in any information that could conceivably relate to an individual’s immigration status,

7 including home address, work address, and release date. Pl.’s Mot. Prelim. Inj. & Mem. Law Supp.

8 (“MPI”) 28-29. In other cases, the United States has taken an even broader view. See Section II,

9 infra. The United States’ interpretation is wrong for the many reasons discussed in California’s

10 opposition brief. Defs.’ Opp’n Pl.’s Mot. Prelim. Inj. (“Opp’n Br.”) 10-19. It also contravenes

11 ordinary principles of statutory interpretation, as discussed in Section III, infra.

12

The Court could resolve this case without interpreting Section 1373. As California notes,

13 SB 54 has a savings clause that explicitly requires compliance with Section 1373, removing any

14 possible conflict. Opp’n Br. at 11. If the Court gives effect to this savings clause—as it should—there

15 is no need to further interpret Section 1373. Yet if the Court does construe Section 1373, it should

16 reject the United States’ overly broad interpretation and hold that Section 1373 means what it says,

17 and addresses only citizenship and immigration status information.

18

ARGUMENT

19 I. 20

Section 1373 Imposes Narrow Obligations About Citizenship And Immigration Status Information.

21

The plain text of Section 1373 imposes specific and narrow obligations concerning

22 communications about citizenship and immigration status. Section 1373 states in full:

23

Communication between government agencies and the Immigration and

Naturalization Service

24

(a) In general

25 26 27 28 //

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

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1

(b) Additional authority of government entities

2

Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or

3

local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of

4

any individual:

(1) Sending such information to, or requesting or receiving such

5

information from, the Immigration and Naturalization Service.

6

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local

7

government entity.

8

(c) Obligation to respond to inquiries

The Immigration and Naturalization Service shall respond to an inquiry

9

by a Federal, State, or local government agency, seeking to verify or

ascertain the citizenship or immigration status of any individual within

10

the jurisdiction of the agency for any purpose authorized by law, by

providing the requested verification or status information.

11

12

8 U.S.C. § 1373 (emphasis added).

13

As most relevant here, Section 1373(a) provides that state and local governments cannot

14 prohibit or restrict their employees from sharing with federal immigration officials “information

15 regarding [an individual’s] citizenship or immigration status.” On its face, this prohibition imposes a

16 significant but narrow obligation: State and local governments may not restrict employees from

17 communicating with federal immigration officials about an individual’s citizenship or immigration

18 status, but they may regulate communications about other types of personal information. The United

19 States disagrees, and contorts Section 1373 to encompass vast swaths of information that are far

20 removed from the ordinary meaning of “citizenship or immigration status.”

21 II. 22

The United States Has Advocated An Extraordinarily Broad Interpretation Of Section 1373 That Is Unmoored From Its Text.

23

A. This Interpretation Would Extend To Any Information That Could Help Federal

Immigration Authorities. 24

25

In the past year, the United States has interpreted Section 1373 in a variety of cases, as well as

26 in correspondence with individual jurisdictions about their compliance with Section 1373. These

27 interpretations show that the United States construes Section 1373 to extend far beyond its text—and

28 far beyond the specific categories of information noted in the Motion for Preliminary Injunction filed

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1 in this case. In addition to release date, home address, and work address, see MPI at 28, the United

2 States has argued that Section 1373 encompasses a virtually unlimited set of information that might be

3 of interest to federal immigration officials. The following examples are illustrative.

4

● On October 11, 2017, the United States Department of Justice (“DOJ”) sent “Determination

5 Letters” to several jurisdictions concerning their compliance (or alleged lack thereof) with Section

6 1373. Those letters reflected DOJ’s belief that Section 1373 covers incarceration status, release date,

7 and release time. See, e.g., Letter from U.S. Department of Justice to New York City 2-3 (Oct. 11,

8 2017) (attached hereto as Exhibit B).

9

● On October 12, 2017, DOJ filed an opposition to the City of Philadelphia’s Motion for a

10 Preliminary Injunction in Philadelphia v. Sessions. In the opposition, DOJ stated that Section 1373(a)

11 should be read to include any information that “assists the federal government in carrying out its

12 statutory responsibilities under the [INA].” See Mem. Opp’n Pl.’s Mot. Prelim. Inj. 39 (attached

13 hereto as Exhibit A).

14

● On October 23, 2017, DOJ appeared at a hearing on San Francisco’s Motion for Summary

15 Judgment in San Francisco v. Trump. Acting Assistant Attorney General Chad Readler stated that

16 Section 1373 includes information about age, date of birth, and address because they are “informative

17 on” or “relevant to” immigration status. See Transcript of Hearing at 21-22, San Francisco v. Trump,

18 No. 17-00485 (N.D. Cal. Oct. 23, 2017) (attached hereto as Exhibit C).

19

● On December 13, 2017, DOJ appeared at a hearing on California’s motion for a preliminary

20 injunction in California v. Sessions. There, Mr. Readler stated that Section 1373 covers any

21 “information that allows [ICE] to do its job.” See Transcript of Hearing at 30:9-10,California v.

22 Sessions, No. 17-4701 (N.D. Cal. Dec. 23, 2017) (attached hereto as Exhibit D).

23

● On February 14, 2018, DOJ filed a brief in San Francisco v. Sessions stating that

24 “‘information regarding citizenship or immigration status’ encompasses information that federal

25 authorities need to determine a person’s status and to take the person into custody.” See Reply in

26 Support of Defendants’ Motion to Dismiss at 7, No. 17-4642 (N.D. Cal. Feb. 14, 2018) (attached

27 hereto as Exhibit E); see also id. at 1, 13.

28 //

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1

● On April 27, 2018, DOJ responded to Requests for Admission propounded in San Francisco

2 v. Sessions. DOJ admitted that it contends that a detained alien’s release date, as well as any alien’s

3 residential address, location information, date of birth, familial status, and contact information are all

4 “information regarding . . . immigration status” within the meaning of Section 1373. See Defendants’

5 Response to San Francisco’s Requests for Admission at 5-7 (attached hereto as Exhibit F).

6

● Finally, on May 4, 2018, DOJ provided verified responses to interrogatories propounded in

7 San Francisco v. Sessions and California v. Sessions. San Francisco had asked DOJ to “[i]dentify all

8 information that constitutes ‘information regarding . . . immigration status’ under 8 U.S.C. § 1373,

9 including all types of information [the federal defendants] believe are included in this phrase, [and]

10 types of information not included.” DOJ provided some examples of information it believes falls

11 within the scope of Section 1373—including “an alien’s date and time of release from custody” and

12 “certain . . . personal and identifying information or contact information, such as home address and

13 work address.” See Defendant’s Responses and Objections to First Set of Interrogatories From City

14 and County of San Francisco at 10 (attached hereto as Exhibit G); Defendant’s Responses and

15 Objections to First Set of Interrogatories From State of California at 11-12 (attached hereto as Exhibit

16 H). But DOJ left open that it could include much more. See Exh. G at 10; Exh. H at 11-12

17 (“Depending on the situation, federal immigration authorities may need other categories of

18 information that would also fall within Section 1373.”).

19

Indeed, in discovery responses, DOJ set forth perhaps the broadest articulation yet of the

20 meaning of “information regarding . . . immigration status,” stating that it protects the exchange of

21 information “that supports federal immigration authorities in performing their duties under the INA,

22 including the responsibilities to determine and track the status of aliens in the United States and to take

23 custody of such persons as required.” Exh. H at 18; see also Exh. G at 10 (Section 1373 “covers

24 information that federal immigration authorities need to determine and track the status of aliens in the

25 United States and to take custody of such persons as required.”).

26

B. This Interpretation Would Sweep In Vast Swaths Of Personal Information.

27

When the United States offered its broad interpretation of Section 1373 in proceedings in the

28 Northern District of California, Judge Orrick astutely noted that if “information regarding immigration

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1 status” is read as broadly as DOJ urges—i.e., to extend beyond information about what a person’s

2 immigration status is to cover everything that helps ICE determine what it is—the phrase could cover

3 “everything in a person’s life.” Exh. D at 23:1-2.

4

For example, under the Immigration and Nationality Act, individuals are inadmissible and

5 removable from the country if they have a communicable disease or have not received vaccinations

6 against mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and

7 hepatitis B, or other recommended vaccinations. 8 U.S.C. § 1182(a)(1)(A). Thus, under the United

8 States’ interpretation of Section 1373, state and local governments could not prohibit doctors and other

9 staff at public hospitals from sending immigration officials health records of individuals who come in

10 for treatment. Similarly, state and local governments may not be able to prohibit child protective

11 services from sharing information about an individual’s family status, or to prohibit the treasurer and

12 tax collector from sharing information about an individual’s financial status. Under the INA, the

13 Attorney General is supposed to consider such information in determining whether people are likely to

14 become a “public charge,” rendering them inadmissible. Id. § 1182(a)(4)(B).

15

The United States’ interpretation of Section 1373 conflicts with basic confidentiality provisions

16 of federal and state law that limit disclosure and use of health, education, and welfare information.

17 See, e.g., the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 45 C.F.R. §§ 160,

18 164 (protecting confidentiality and limiting disclosure of health information); the Family Educational

19 Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, 34 C.F.R. § 99 (education records); the

20 Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act

21 (CAAPTR), 42 U.S.C. § 290dd-2; 42 C.F.R. § 2 (information about individuals in certain substance

22 abuse treatment programs); Cal. Const. art. I, § 1 (establishing a state right of privacy); California’s

23 Confidentiality of Medical Information Act (CMIA), Cal. Civ. Code § 56.05 et seq. (health

24 information); California Lanterman-Petris-Short Act (LPS), Cal. Welf. & Inst. Code § 5328 et seq.

25 (information resulting from provision of certain mental health services); Cal. Ed. Code § 49075

26 (student records); Cal. Welf. & Inst. Code § 10850 (records relating to the administration of public

27 social services). As discussed below, there is no evidence that Congress intended the phrase

28

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1 “information regarding citizenship and immigration status” to cover such a wide swath of sensitive

2 personal information.

3 III. 4

The United States’ Interpretation Ignores Established Principles Of Statutory Construction, Which Confirm That Section 1373 Must Be Read More Narrowly.

5

A. The Plain Text Of Section 1373 Refers Only To Citizenship And Immigration

Status Information 6

7

To determine the meaning of a statute, a court must “look first to its language, giving the words

8 used their ordinary meaning.” Lawson v. FMR LLC, 134 S. Ct. 1158, 1165 (2014) (quoting Moskal v.

9 United States, 498 U.S. 103, 108 (1990)). Here, the plain language of Section 1373 refers to

10 information about an individual’s “citizenship or immigration status,” and the ordinary meaning of

11 these words does not include home address, work address, or release date information. Indeed, a

12 recent case interpreting the scope of Section 1373(a) held that “no plausible reading of ‘information

13 regarding . . . citizenship or immigration status’ encompasses the release date of an undocumented

14 inmate.” Steinle v. City & Cty. of San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017), appeal

15 docketed, No. 17-16283 (9th Cir. June 21, 2017). The Steinle court explained:

16

Nothing in 8 U.S.C. § 1373(a) addresses information concerning an inmate’s

17

release date. The statute, by its terms, governs only “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8

18

U.S.C. § 1373(a). If the Congress that enacted the Omnibus Consolidated Appropriations Act of 1997 (which included § 1373(a)) had intended to bar all

19

restriction of communication between local law enforcement and federal immigration authorities, or specifically to bar restrictions of sharing inmates’

20

release dates, it could have included such language in the statute. It did not, and no plausible reading of “information regarding . . . citizenship or immigration

21

status” encompasses the release date of an undocumented inmate. Because the plain language of the statute is clear on this point, the Court has no occasion to

22

consult legislative history.

23 Id. Steinle’s reasoning is correct, and this Court, too, can interpret Section 1373 without looking 24 beyond the text of the statute. See Campbell v. Allied Van Lines Inc., 410 F.3d 618, 620-21 (9th Cir. 25 2005) (where the statutory language is clear, the law should be interpreted and applied according to its

26 plain meaning). But as discussed below, if the Court finds the text ambiguous, well-established tools

27 of statutory construction confirm that Section 1373 is limited to citizenship and immigration status, not

28 other types of information.

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1

B. “Regarding” Does Not Show A Clear Intent To Cover Other Categories Of

Information, And Instead Reflects State And Local Governments’ Limited Role In

2

Immigration Enforcement.

3

Fighting against this plain meaning, the United States argues that Section 1373’s use of the

4 phrase “information regarding . . . immigration status” expands the scope of the statute beyond

5 immigration status itself to include other categories of information that could relate to immigration

6 status. MPI at 28. That is wrong. Section 1373 uses “regarding” to distinguish between unofficial

7 immigration status information that may be in the possession of state or local governments, and the

8 official immigration status information maintained by federal immigration authorities. This is evident

9 in the contrast between Section 1373 subsections (a) and (b), which are addressed primarily to state

10 and local governments and refer to “information regarding . . . immigration status,” and subsection (c),

11 which is addressed to federal immigration authorities and does not use “regarding” but instead speaks

12 directly about “citizenship or immigration status.” The United States argues that this difference

13 supports its broad reading of “regarding.” MPI at 28. But to the contrary, it reflects the unique and

14 paramount role of the federal government with respect to immigration status information.

15

State and local governments are not empowered to make immigration status determinations

16 and cannot vouch for the accuracy of citizenship and immigration status information that may be in

17 their possession. This information might include, for example, an individual’s self-report about

18 immigration status, a third party’s statement about an individual’s immigration status, or copies of

19 immigration or visa documents. This type of information is not official immigration status, but is

20 necessarily information “regarding” immigration status. Put differently, immigration status

21 information held by state and local governments will almost always be “regarding . . . immigration

22 status,” rather than a definitive statement of immigration status. In contrast, subsection (c) applies to

23 information maintained by federal immigration officials, who do know individuals’ actual citizenship

24 and immigration status. The drafters of Section 1373 did not need to use “regarding” in subsection (c)

25 because federal immigration officials possess actual immigration status information, not the unverified

26 information that state and local governments are likely to have in their records.

27

Further, Ninth Circuit precedent squarely forecloses the United States’ broad interpretation of

28 the term “regarding.” In Roach v. Mail Handlers Benefits Plan, 298 F.3d 847 (9th Cir. 2002), the

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1 Ninth Circuit addressed the meaning of the term “relate to,” which DOJ has elsewhere argued is

2 “closely analogous” to “regarding.” See Defendants’ Motion to Dismiss at 16, San Francisco v.

3 Sessions, No. 17-4642 (Dkt. No. 66) (N.D. Cal. Jan. 19, 2018). Roach turned on the proper

4 interpretation of the preemption provision of the Federal Employees Health Benefits Act (FEHBA),

5 which states that the terms of a contract under that act “which relate to the nature, provision, or extent

6 of coverage or benefits” supersede and preempt any state or local law “which relates to health

7 insurance or plans.” 298 F.3d at 849. The Ninth Circuit stated: “[I]n the context of a similarly worded

8 preemption provision in the Employee Retirement Income Security Act (ERISA), the Supreme Court

9 has explained that the words ‘relate to’ cannot be taken too literally.” Id. The court went on to

10 explain: 11 12 13 14 15 16

“If ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course, for ‘really, universally, relations stop nowhere.’” N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995) (quoting H. James, Roderick Hudson xli (New York ed., World’s Classics 1980)). Instead, “relates to” must be read in the context of the presumption that in fields of traditional state regulation “the historic police powers of the States [are] not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress.” Id. at 655 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

17 Id. at 849-50.

18

In Roach, the Ninth Circuit followed the Supreme Court’s directive that federal statutes should

19 not be interpreted to preempt matters of traditional state control unless that intent is “unmistakably

20 clear in the language of the statute.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985).

21 “In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of

22 clear statement assures that the legislature has in fact faced, and intended to bring into issue, the

23 critical matters involved in the judicial decision.” United States v. Bass, 404 U.S. 336, 349 (1971). In

24 Gregory v. Ashcroft, 501 U.S. 452 (1991), for example, the Supreme Court considered whether federal

25 law prohibiting age discrimination preempted a provision of the Missouri Constitution requiring state

26 judges to retire at age seventy. Recognizing States’ sovereign interest in determining judicial

27 qualifications, the Supreme Court invoked the clear statement rule to construe the Age Discrimination

28 //

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1 in Employment Act narrowly. Id. at 467 (“[W]e cannot conclude that the statute plainly covers

2 appointed state judges. Therefore, it does not.”).

3

More recently, in Bond v. United States, 134 S. Ct. 2077 (2014), the Supreme Court invoked

4 this clear statement rule to hold that a federal chemical weapons statute must be narrowly construed to

5 avoid conflicting with “the punishment of local criminal activity,” which is “[p]erhaps the clearest

6 example of traditional state authority.” Id. at 2089. The Court emphasized that “it is incumbent on the

7 federal courts to be certain of Congress’ intent before finding that federal law overrides the usual

8 constitutional balance of federal and state powers.” Id. (internal quotation marks omitted).

9

Applying this precedent here requires limiting Section 1373 to information about citizenship

10 and immigration status, because those are the only categories of information that are “unmistakably

11 clear” in the statute. Like the state concerns in the above cases, state and local sanctuary laws reflect

12 the exercise of core state powers. More specifically, they reflect state and local governments’

13 considered judgment that limiting involvement in federal immigration enforcement promotes public

14 health, public safety, and the general welfare in their communities. See, e.g., Cal. Gov’t Code §

15 7284.2; S.F. Admin. Code § 12.I.1; Brief of Amici Curiae 25 California Counties, Cities, and Local

16 Officials; Brief of Amici Curiae The City Of New York et al. These traditional matters of local

17 concern lie at the heart of a State’s police power. See, e.g., United States v. Morrison, 529 U.S. 598,

18 618 (2000); Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996).

19

A broad reading of Section 1373 would significantly intrude on state power by preventing

20 States from maintaining confidential information about residents’ home addresses, work addresses,

21 and release dates, let alone private health and financial information. Roach is directly on point: The

22 use of “regarding” in Section 1373 cannot be understood to “extend to the furthest stretch of its

23 indeterminacy” without significantly reworking the ordinary balance of power between States and the

24 federal government.

25

C. General Statements Of Purpose In The Legislative History Cannot Override The

26

Text Enacted By Congress.

27

Finally, the United States argues that the legislative history of Section 1373 shows

28 Congressional intent “to prevent any State or local law . . . that prohibits or in any way restricts any

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1 communication between State and local officials and the INS.” MPI at 27 (quoting Bologna v. City &

2 Cty. of San Francisco, 121 Cal. Rptr. 3d 406, 414 (Cal. Ct. App. 2011)). This is wrong, and the

3 authority cited by the United States does not support using the legislative history of Section 1373 to

4 override the plain language of the statute.

5

First and foremost, the United States errs in suggesting that general statements of purpose in

6 the legislative history—or even specific statements of intent—can supplant the actual text ultimately

7 enacted by Congress. The Supreme Court rejected similar arguments in Arlington Central School

8 District Board of Education v. Murphy, 548 U.S. 291 (2006). There, parents argued that the

9 legislative history of the Individuals with Disabilities Education Act (IDEA) showed Congressional

10 intent to authorize recovery of expert fees in IDEA actions. The legislative history of the statute

11 included a Conference Committee Report stating an explicit intent that expert fees would be

12 recoverable as part of attorneys fees. The Court held that this was not sufficiently clear to tell States

13 what would be required to receive IDEA funds. Id. at 304. It also held that the IDEA’s overarching

14 goals of providing free and appropriate public education to children with disabilities, and safeguarding

15 parents’ rights to challenge educational decisions affecting their children, were too general to support

16 the parents’ argument.

17

The IDEA obviously does not seek to promote these goals at the expense of all other considerations, including fiscal considerations. Because the IDEA is not

18

intended in all instances to further the broad goals identified by respondents at the expense of fiscal considerations, the goals cited by respondents do little to

19

bolster their argument on the narrow question presented here.

20 Id. at 303.

21

Second, the cases cited by the United States used the legislative history of Section 1373 to

22 analyze different questions than the one before this Court. In Bologna v. City and County of San

23 Francisco, the California Court of Appeal evaluated whether Section 1373 was intended to protect

24 individuals from violent crime, and concluded that it was not. 121 Cal. Rptr. 3d 406. Bologna found

25 that Section 1373 was instead directed at the exchange of information between local officials and

26 federal immigration authorities. Id. at 438-39. The court did not analyze the specific types of

27 information included in Section 1373’s reference to immigration information.

28 //

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1

City of New York v. United States, 179 F.3d 29 (2d Cir. 1999), provides even less support for

2 the United States. In that case, the Second Circuit stated that the Tenth Amendment does not give

3 cities an “untrammeled right” to refuse to participate in federal programs, in the absence of any

4 countervailing state and local interests. Id. at 35. This language, cited by the United States (MPI at

5 28), does not interpret the text of Section 1373, but instead reflects the Second Circuit’s Tenth

6 Amendment analysis. The court held that since the New York City sanctuary policy at issue was “on

7 its face a mandatory non-cooperation directive,” it “need not locate with precision the line between

8 invalid federal measures that seek to impress state and local governments into the administration of

9 federal programs and valid federal measures that prohibit states from compelling passive resistance to

10 particular federal programs.” Id. In contrast with the New York City Executive Order at issue in City

11 of New York, California’s SB 54 is designed to promote important state interests and is tailored to

12 those interests. And City of New York specifically reserved the question of whether Section 1373

13 “would survive a constitutional challenge in the context of generalized confidentiality policies that are

14 necessary to the performance of legitimate municipal functions.” Id. at 37.

15

D. If Congress Had Intended Section 1373 To Apply More Broadly, It Would Have

16

Used Broader Language.

17

When Congress wants to draft legislation that applies to broad swaths of information, it knows

18 how to do so. For example, the same bill that enacted Section 1373 also enacted a statute prohibiting

19 the disclosure of “any information which relates to an alien who is the beneficiary of an application

20 for relief under [specific provisions] of the Immigration and Nationality Act.” 8 U.S.C. § 1367(a)(2);

21 see also Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, §§

22 384, 642, 110 Stat. 3009-546, 3009-652, 3009-707 (emphasis added). Other provisions of the INA

23 refer to “information regarding the name and address of the alien,” 8 U.S.C. § 1360(c)(2),

24 “information concerning the alien’s whereabouts and activities,” 8 U.S.C. § 1184(k)(3)(A), and

25 information “about the alien’s nationality, circumstances, habits, associations, and activities, and other

26 information the Attorney General considers appropriate,” 8 U.S.C. § 1231(a)(3)(C). If Congress

27 wanted Section 1373 to include these types of information, it easily could have used similar language.

28 The absence of this language in Section 1373, when it appears elsewhere throughout the INA,

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1 confirms that Congress did not intend Section 1373 to cover “address,” “whereabouts,” or “any

2 information which relates to an alien.”

3

Indeed, Congress has failed to act on proposals to expand Section 1373 to cover these broader

4 categories of information. Most notably, then-Senator Jeff Sessions proposed an amendment to

5 Section 1373 that would have included “(1) Notifying the Federal Government regarding the presence

6 of inadmissible and deportable aliens who are encountered by law enforcement personnel of a State or

7 political subdivision of a State,” and “(2) Complying with requests for information from Federal law

8 enforcement.” See Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law

9 Enforcement Act, S. 1640, 114th Cong. § 114 (a)(3)(c) (2015). Mr. Sessions’s bill died in the Senate

10 Judiciary Committee. See also Protecting American Citizens Together Act, S. 1764, 114th Cong.

11 (2015) (failed proposal to amend Section 1373 to require that jurisdictions notify the federal

12 government when they have custody of an undocumented immigrant, or forfeit eligibility for specific

13 federal grants). In short, the United States invites the Court to expand Section 1373 where Congress

14 has chosen not to do so. The Court should decline this invitation.

15

CONCLUSION

16

For the foregoing reasons, the Court should deny Plaintiff’s motion for a preliminary

17 injunction.

18 Dated: May 18, 2018

19

DENNIS J. HERRERA

20

City Attorney RONALD FLYNN

21

Chief Deputy City Attorney MOLLIE M. LEE

22

SARA J. EISENBERG Deputy City Attorneys

23

24

By: /s/ Mollie M. Lee MOLLIE M. LEE

25

Deputy City Attorney

26

Attorneys for Amicus Curiae

CITY AND COUNTY OF SAN FRANCISCO

27

28

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 18, 2018, I electronically transmitted the foregoing amicus

3 curiae brief of the City and County of San Francisco, using the United States District Court for the

4 Eastern District of California’s Electronic Filing System (ECF) and that service on all counsel of

5 record will be accomplished via the ECF system.

6 Respectfully submitted,
7

8

9

/s/ Mollie M. Lee

MOLLIE M. LEE

10

Deputy City Attorney

SAN FRANCISCO CITY ATTORNEY’S OFFICE 11

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EXHIBIT A

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THE CITY OF PHILADELPHIA,
Plaintiff, v.
JEFF SESSIONS, in his official capacity as Attorney General of the United States,
Defendant.

Case No. 2:17-cv-03894-MMB

MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

DATED: October 12, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
LOUIS D. LAPPEN Acting United States Attorney
JOHN R. TYLER Assistant Director
ARJUN GARG Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 Phone: (202) 305-8613 Fax: (202) 616-8470 E-Mail: arjun.garg@usdoj.gov
Counsel for Defendant

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a. Looking only to the face of the City’s policies, the City does not comply with
Section 1373. The statute provides, in part, that a “local government entity or official may not
prohibit, or in any way restrict, any government entity or official from sending to, or receiving
from, [federal immigration officials] information regarding the citizenship or immigration status,
lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). At least two City policies do not
comply with Section 1373, and at least three additional policies may also be non-compliant
depending on how the City interprets and applies them.
First, the City’s Executive Order No. 5-16, which the City’s brief refers to as “Detainer
Order II,” Pl.’s Mem. at 9, states in Section 1 that notice of a person’s “pending release” from City
custody shall not be provided, “unless such person is being released after conviction for a first or
second degree felony involving violence and the detainer is supported by a judicial warrant.” Dkt.
No. 1-6. This section restricts the sharing of “information regarding . . . immigration status” in
violation of 8 U.S.C. § 1373(a).11 Nothing in the statute allows the City to impose a prohibition
that limits information-sharing only to certain circumstances.
11 The INA states that the “immigration status of any individual” specifically “includ[es] . . . that a particular alien is not lawfully present in the United States.” 8 U.S.C. § 1357(g)(10)(a) (emphasis added). “Present” means “being in a certain place and not elsewhere,” Webster’s New International Dictionary (2d ed. 1958), so the fact that an alien is in custody for a specific duration (in a certain place and not elsewhere) fits within the INA’s contemplation of immigration status. Moreover, “information regarding . . . immigration status” is a broader category than “immigration status” itself. Comparison of different subsections within Section 1373 demonstrates that Congress used the broader “information regarding” formulation deliberately. Compare 8 U.S.C. § 1373(a) (concerning “information regarding . . . immigration status”) with 8 U.S.C. § 1373(c) (discussing “immigration status” but omitting the broader “information regarding” formulation). “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Dean v. United States, 556 U.S. 568, 573 (2009) (citation omitted). Indeed, the House Report accompanying the legislation stated that Section 1373 was intended “to give State and local officials the authority to communicate with the INS [Immigration and Naturalization Service] regarding the presence, whereabouts, and activities of illegal aliens.” H.R. Rep. No. 104-469, pt. 1, at 277 (1996) (emphasis added). Custody release (. . . cont’d)
38

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Second, Police Commissioner Memorandum No. 01-06 states at Section III.C that “immigrants who are victims of crimes will not have their status as an immigrant transmitted in any manner.” Dkt. No. 1-3. This Memorandum restricts the sharing of information regarding immigration status in violation of 8 U.S.C. § 1373(a). To be sure, it is not the Department of Justice’s or the Department of Homeland Security’s policy or practice to request information from state and local jurisdictions regarding the immigration status of victims. There are, however, instances where requesting this information could be appropriate, such as where a person is both a perpetrator and a victim. The key point is that, notwithstanding limits that the federal government may prudentially self-impose, nothing in 8 U.S.C. § 1373 allows the City to impose a prohibition that limits information-sharing under these circumstances.
Additionally, three other City policies may violate Section 1373 depending on how the City interprets and applies them. In its preliminary assessment recently transmitted to the City, the Department has invited the City to provide clarification regarding each of these policies. See Hanson Decl. Ex. A at 3.
The City’s Executive Order No. 8-09, which the City’s brief refers to as the “Confidentiality Order,” Pl.’s Mem. at 8, states at Section 2(b) that police officers “shall not . . . inquire about a person’s immigration status,” unless certain limited exceptions apply. Dkt No. 1-
information falls within the sweep of “information regarding . . . immigration status” that Congress intended under Section 1373(a). Indeed, it is relevant to the federal government’s statutory duties, enacted at the same time as Section 1373, to “take into custody any alien who” has committed certain offenses, 8 U.S.C. § 1226(c)(1)(A), and to “take into custody any alien who . . . is inadmissible . . . when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation,” 8 U.S.C. § 1226(c)(1)(D). It is sensible to read section 1373(a) to include information that assists the federal government in carrying out its statutory responsibilities under the same Act. See United Savings Ass’n v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (“A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.”).
39

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EXHIBIT B

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U.S. Department of Justice
Office of Justice Programs
_________________________________________________________________________
Washington, D.C. 20531
October 11, 2017
Elizabeth Glazer Director New York City Mayor’s Office of Criminal Justice 1 Centre Street, Room 1012N New York, NY 10007-1602
Dear Ms. Glazer,
Your FY 2016 Byrne JAG grant award required you to comply with 8 U.S.C. § 1373; to undertake a review to validate your jurisdiction’s compliance with 8 U.S.C. § 1373; and to submit documentation, including an official legal opinion from counsel, adequately supporting the validation. Thank you for your recent submission. The Department of Justice has reviewed your submission, all attached documentation, and your jurisdiction’s laws, policies, and practices relating to compliance with section 1373, to the extent they were provided or are readily available.
This letter is to inform you that, based on a preliminary review, the Department has determined that your jurisdiction appears to have laws, policies, or practices that violate 8 U.S.C. § 1373. These laws, policies, or practices include, but may not be limited to:
 Executive Order No. 41. Section 4 of the Executive Order states that police officers “shall not inquire about a person’s immigration status unless investigating illegal activity other than mere status as an undocumented alien.” Under 8 U.S.C. § 1373(b)(1), however, New York may not “in any way restrict” the “requesting” of “information regarding . . . immigration status” from federal immigration officers. On its face, the Department has determined that the Executive Order appears to bar New York officers from requesting information regarding immigration status from federal immigration officers. In order to comply with 8 U.S.C. § 1373, the Department has determined that New York would need to certify that it interprets and applies this section to not restrict New York officers and employees from requesting information regarding immigration status from federal immigration officers. The Department has also determined that New York would need to certify that it has communicated this interpretation to its officers and employees. If New York cannot provide this certification, the Department has determined that this provision violates section 1373(b).

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 27 of 60
 Executive Order No. 41. Section 2 of the Executive Order states that New York officers and employees “shall [not] disclose confidential information,” which is defined to include “immigration status.” Section 2(b) and (e) contain a few exceptions, including when “disclosure is required by law.” In order to comply with 8 U.S.C. § 1373, the Department has determined that New York would need to certify that it interprets and applies this Order to not restrict New York officers and employees from sharing information regarding immigration status with federal immigration officers. The Department has also determined that New York would need to certify that it has communicated this interpretation to its officers and employees. If New York cannot provide this certification, the Department has determined that this provision violates section 1373(a).
 New York Administrative Code § 9-131. Section 9-131(b) states that New York City Department of Corrections may not “honor a civil immigration detainer . . . by notifying federal immigration authorities of [a] person’s release,” except in certain limited circumstances.1 Section 9-131(d) states that this law shall not be construed to “prohibit any city agency from cooperating with federal immigration authorities when required under federal law.” It also states that this law shall not be construed to “create any . . . duty or obligation in conflict with any federal . . . law.” In order to comply with 8 U.S.C. § 1373, the Department has determined that New York would need to certify that it interprets and applies Section 9-131(b) and (d) to not restrict New York officers from sharing information regarding immigration status with federal immigration officers, including information regarding the date and time of an alien’s release from custody. The Department has also determined that New York would need to certify that it has communicated this interpretation to its officers and employees. If New York cannot provide this certification, the Department has determined that this provision violates section 1373(a).
 New York Administrative Code § 9-131. Section 9-131(h)(1) states that New York City Department of Corrections personnel shall not “expend time while on duty or department resources . . . in response to federal immigration inquiries or in communicating with federal immigration authorities regarding any person’s incarceration status, release dates, court appearance dates, or any other information related to persons in the department’s custody, other than information related to a person’s citizenship or immigration status,” except where certain exceptions apply. As discussed above, section 9-131(d) states that this law shall not be construed to “prohibit any city agency from cooperating with federal immigration authorities when required under federal law.” It also states that this law
1 An ICE detainer form ordinarily requests that a jurisdiction (1) provide advance notice of the alien’s release; and (2) maintain custody of the alien for up to 48 hours beyond the scheduled time of release. The Department is not relying on New York’s restriction of the latter form of cooperation in this preliminary assessment.
2

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shall not be construed to “create any . . . duty or obligation in conflict with any federal . . . law.” In order to comply with 8 U.S.C. § 1373, the Department has determined that New York would need to certify that it interprets and applies Section 9-131(h) and (d) to not restrict New York officers from sharing information regarding immigration status with federal immigration officers, including information regarding an alien’s incarceration status and release date and time. The Department has also determined that New York would need to certify that it has communicated this interpretation to its officers and employees. If New York cannot provide this certification, the Department has determined that this provision violates section 1373(a). Your jurisdiction may submit a response to this preliminary assessment, as well as any additional evidence you would like the Department to consider, before it reaches its final determination. Please submit all additional documentation by October 27, 2017. Once the Department has had an opportunity to review your submission, the Department will notify you of its final determination. This letter reflects the Department’s preliminary assessment of your jurisdiction’s compliance with 8 U.S.C. § 1373. This letter does not constitute final agency action and nothing in this letter creates any right or benefit enforceable at law against the United States. Additionally, as the United States continues to collect information about your jurisdiction, it reserves the right to identify additional bases of potential violations of 8 U.S.C. § 1373.
Sincerely,
Alan Hanson Acting Assistant Attorney General
3

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EXHIBIT C

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 30 of 60

Pages 1 - 37

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Before The Honorable William H. Orrick, Judge

CITY AND COUNTY OF SAN FRANCISCO,
Plaintiff, VS. DONALD J. TRUMP, ET AL.,
Defendants. COUNTY OF SANTA CLARA,
Plaintiff, VS. DONALD J. TRUMP, ET AL.,
Defendants.

) ) ) ) ) ) NO. CV 17-00485-WHO ) ) ) ) ) ) ) ) ) ) NO. CV 17-00574-WHO ) ) ) ) )

San Francisco, California Monday, October 23, 2017

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

For Plaintiff City and County of San Francisco in CV 17-00485-WHO:
OFFICE OF THE CITY ATTORNEY City Hall, Room 234 1 Dr., Carlton B, Goodlett Place San Francisco, CA 94102
BY: DENNIS J. HERRERA, CITY ATTORNEY

(Appearances continued on the next page)

Reported By:

Pamela A. Batalo, CSR No. 3593, RMR, FCRR Official Reporter

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 31 of 60
APPEARANCES CONTINUED:
For Plaintiff City and County of San Francisco in CV 17-00485-WHO:
OFFICE OF THE CITY ATTORNEY 1390 Market Street - 7th Floor San Francisco, CA 94102 BY: MOLLIE LEE, DEPUTY CITY ATTORNEY YVONNE MERE, DEPUTY CITY ATTORNEY AILEEN MCGRATH, DEPUTY CITY ATTORNEY

For Plaintiff County of Santa Clara in CV 17-00574-WHO: KEKER, VAN NEST & PETERS 633 Battery Street San Francisco, CA 94111
BY: CODY S. HARRIS, ESQUIRE

OFFICE OF THE COUNTY COUNSEL County of Santa Clara 70 West Hedding Street 9th Floor, East Wing San Jose, CA 95110 BY: DANIELLE L. GOLDSTEIN,
DEPUTY COUNTY COUNSEL
GRETA S. HANSEN,
CHIEF ASSISTANT COUNTY COUNSEL
JAVIER SERRANO,
DEPUTY COUNTY COUNSEL

For Defendants:

U.S. DEPARTMENT OF JUSTICE United States Attorney's Office 450 Golden Gate Avenue Box 36055 San Francisco, CA 94102 BY: CHAD READLER,
ACTING ASSISTANT ATTORNEY GENERAL
KIMBERLY FRIDAY,
DEPUTY CHIEF, CIVIL DIVISION

21 Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 32 of 60

1 employees about this federal requirement because if they're not

2 that in many ways would be viewed as a restriction in any way

3 on the City employees ability to honor 1373. If they don't

4 know about it, it's awfully hard to think they could be

5 complying with 1373.

6

THE COURT: Are you arguing that the City's ordinance

7 would have to include reference to 1373?

8

MR. READLER: It could. I'm not saying it has to. It

9 certainly could.

10

Also there could be sort of an affirmative sharing of that

11 information. I think the City pointed to one memo that they

12 hand out to individuals that states the face of the statute but

13 does nothing more to explain it or explain why compliance is

14 important.

15

In the Steinle case we know that the City had a policy

16 issued by the sheriff. That was a little different than the

17 policy articulated in the ordinance and so we don't know

18 exactly what the City is doing to enforce these sections, so I

19 think those are important questions that we would want to

20 answer.

21

And then I'm going to close with Section 12I which is a

22 long section. And at 12I.3, Section C -- so 12I.3, Section

23 C -- there is a prohibition on providing the personal

24 information of any inmate to immigration officers. "Law

25 enforcement officials shall not provide any individual's

22 Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 33 of 60

1 personal information to a federal immigration officer." And we

2 believe that personal information in many ways can also be

3 included under 1373, and I will give you a couple of examples.

4

An individual's identity or age may well be relevant to

5 their immigration status. For example, if an individual has an

6 A-number, an Alien Registration Number, that would indicate

7 that they are an alien and may well be deportable.

8

Their date of birth is informative on immigration status

9 because it relates to derivative immigration status so, for

10 example, derivative immigration status is for children of

11 non-immigrants. You need the birth date to understand that.

12

An individual's residence, another piece of personal

13 information. It's relevant to the 1373 consideration. For

14 example, if you are here on a B2 non-immigrant visitor status,

15 you have to maintain a permanent residence outside the

16 United States, and if you disclose you had a permanent

17 residence inside the United States, that would be a violation

18 of your status in the country.

19

And of course, the address is also helpful to the

20 United States because if they can't take someone into custody

21 immediately when they're released from prison, they would want

22 to find their address to do it then, given the change in their

23 immigration status.

24

And I will point out that -- in my reading, there is no

25 savings clause here in Section 12I, so I'm not aware of one of

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EXHIBIT D

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 35 of 60

Pages 1 - 49

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE WILLIAM H. ORRICK, JUDGE

STATE OF CALIFORNIA, ex rel, )

XAVIER BECERRA, in his official)

capacity as Attorney General )

of the State of California, )

)

Plaintiff,

)

)

vs.

)

)

JEFFERSON B. SESSIONS, in his )

official capacity as Attorney )

General of the United States; )

ALAN R. HANSON, in his official)

capacity as Principal Deputy )

Acting Assistant Attorney

)

General; UNITED STATES

)

DEPARTMENT OF JUSTICE; and

)

DOES 1-100,

)

)

Defendants.

)

_______________________________)

NO. C 17-4701 WHO San Francisco, California Wednesday, December 13, 2017

TRANSCRIPT OF PROCEEDINGS

APPEARANCES:

For the Plaintiff: By:

State of California Department of Justice Office of the Attorney General Civil Rights Enforcement Section 300 South Spring Street Los Angeles, California 90013 Lee I. Sherman Deputy Attorney General

(Appearances continued on next page)

Reported By:

Katherine Powell Sullivan, CSR #5812, RPR, CRR Official Reporter - U.S. District Court

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 36 of 60

APPEARANCES (CONTINUED):

For the Plaintiff: By:

State of California Department of Justice Office of the Attorney General 1515 Clay Street, 21st Floor Okaland, California 94612-1492 Lisa Ehrlich Sarah E. Belton Deputy Attorneys General

For Defendants:

United States Department of Justice Civil Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 By: Chad A. Readler Acting Assistant Attorney General

United States Department of Justice Federal Programs Branch 901 E Street, N.W., Room 986 Washington, D.C. 20530 By: W. Scott Simpson Senior Counsel

United States Department of Justice United States Attorney's Office 450 Golden Gate Avenue, 9th Floor San Francisco, California 94102 By: Steven J. Saltiel Assistant United States Attorney

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 37 of 60

23

1

THE COURT: But immigration -- "regarding immigration

2 status" could mean everything in a person's life.

3

MR. SHERMAN: Right.

4

THE COURT: Which seems quite broad to me. But it

5 might be that there's a different definition that I'm going to

6 hear. So why --

7

MR. SHERMAN: Sure. Sure.

8

To that point, Your Honor, because the statute is not

9 unmistakably clear, as the Supreme Court said in Gregory and in

10 Bond, then that -- that 1373 should be narrowly read to

11 encompass the information that this Congress said, and which is

12 immigration and citizenship status information.

13

THE COURT: All right. All right. I think I'm about

14 ready to hear Mr. Readler.

15

MR. SHERMAN: Sure. Thank you.

16

THE COURT: Thank you, Mr. Sherman.

17

MR. READLER: Hi. Good afternoon, Your Honor.

18

THE COURT: Good afternoon.

19

MR. READLER: If it please the Court.

20

THE COURT: It's a pleasure to see you.

21

Now, I want to ask you a few questions before you launch

22 into the things that you want to make sure that I know.

23

And so start with Judge Baylson's observation that

24 criminal law is integral to immigration law; but immigration

25 law has nothing to do with local criminal laws.

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 38 of 60

29

1 won't be because the clock runs out.

2

THE COURT: Does the State have a legitimate concern

3 that this Justice Department is going to go after them because

4 they signed, in good faith, a certification that they're in

5 compliance with 1373?

6

MR. READLER: Well, I'm not aware of any perjury, you

7 know, prosecutions or some of the criminal aspects that the

8 Court referred to earlier. But, certainly, we're being very

9 upfront about our reading of 1373.

10

Of course, last year the Department put the 1373

11 requirement into these grants. And at that point it said that

12 for this year we won't be imposing any penalties; but we're

13 giving you a year, essentially, to get your house in order.

14 And then there have been a number of follow-up communications

15 up until this point.

16

So this year the Government is expecting that the State,

17 if they certify compliance, will be agreeing to the

18 Government's interpretation on the issues that we've raised to

19 them.

20

There's the two issues, the release date and the address.

21 Those are the two specific issues that we have -- we have

22 raised to the State. And we have been going back and forth on

23 our interpretation of those issues.

24

THE COURT: So what is the Government's interpretation

25 of "information regarding status"? Because it seems totally

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 39 of 60

30

1 amorphous to me.

2

MR. READLER: Sure. Well, obviously, Congress chose a

3 broad phrase. It could have said "just immigration status."

4

THE COURT: Or maybe an ambiguous phrase.

5

MR. READLER: Well, it certainly includes more than

6 just immigration status, because they said that in part C, I

7 think of 1373. And part A says "information regarding."

8

What I think that means, at bottom, is that the Congress

9 expected that ICE would have the information that allows it to

10 do its job.

11

And one of the key aspects of ICE is that when an

12 individual is being held by a state or local government, that

13 person is only removable once their sentence ends and they're

14 released.

15

So, surely, Congress had in mind that a release date would

16 be the kind of information that a state or city could not

17 exclusively bar -- not to require, but to exclusively bar from

18 sharing with the federal government. Because, otherwise, that

19 completely frustrates the removable system in ICE's job, which

20 is a significant preference to take someone into custody when

21 they're leaving their state or local penitentiary as opposed to

22 then going out on the streets and finding them later.

23

And I think the history lesson here is important because

24 this law, of course, was passed in 1996. And it's clear to me

25 that at that time there was no doubt that Congress thought that

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EXHIBIT E

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 1 of 20 Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 41 of 60

1 CHAD A. READLER

Acting Assistant Attorney General
2 ALEX G. TSE

3 Acting United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)

5 Senior Trial Counsel

Department of Justice, Room 7210
6 Civil Division, Federal Programs Branch

7 20 Massachusetts Avenue, NW
Washington, D.C. 20530

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10 COUNSEL FOR DEFENDANTS 11 JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
12 HANSON, Principal Deputy Assistant Attorney
General; and U.S. DEPARTMENT OF JUSTICE
13

14

IN THE UNITED STATES DISTRICT COURT

15
FOR THE NORTHERN DISTRICT OF CALIFORNIA
16
SAN FRANCISCO DIVISION
17

18

CITY AND COUNTY OF SAN FRANCISCO,

No. 3:17-cv-04642-WHO

19

Plaintiff,

REPLY IN SUPPORT OF DEFENDANTS’

20

v.

MOTION TO DISMISS

21 JEFFERSON B. SESSIONS III, Attorney 22 General of the United States, et al.,

23

Defendants.

Date: February 28, 2018 Time: 2:00 p.m.

24

25

26

27

28

Reply in Supp. Motion to Dismiss No. 3:17-cv-04642-WHO

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1

INTRODUCTION

2

San Francisco seeks federal funds to support its local law enforcement prerogatives, yet

3 refuses any reciprocal obligation that its law enforcement officials recognize federal law enforce-

4 ment prerogatives by sharing information regarding individuals under local detention. The City

5 also seeks an order that its ordinances prohibiting the provision of that information do not violate

6 federal law.

7

Although the Department of Justice (“DOJ” or “Department”) has expressed concern that

8 Chapters 12H and 12I of the San Francisco Administrative Code may violate 8 U.S.C. § 1373, the

9 parties have not yet completed their discussions on that subject and DOJ’s Office of Justice

10 Programs (“OJP”) has recently requested certain documents from the City to facilitate making that

11 decision administratively. Thus, plaintiff’s claim for a ruling on whether Chapters 12H and 12I

12 violate Section 1373 is constitutionally unripe. In any event, assuming this claim were justiciable,

13 the Court should dismiss the claim on its merits. Section 1373 protects the exchange of “informa-

14 tion regarding the citizenship or immigration status” of individuals with federal immigration

15 authorities – information needed by federal authorities to determine the immigration status of aliens

16 and to take them into custody upon their release from criminal detention – and San Francisco’s

17 ordinances “prohibit” and “restrict” the transmission of that information. 8 U.S.C. § 1373(a).

18

Nor, in any event, is there any legal basis for plaintiff’s objection to complying with grant

19 conditions, a traditional aspect of participation in the Edward Byrne Memorial Justice Assistance

20 Grant Program. To further information-sharing, the Byrne JAG Program requires participants to

21 comply with Section 1373, to give federal immigration authorities access to the City’s detention

22 facilities to meet with aliens, and to give those authorities “as much advance notice as practicable”

23 before releasing an alien. These conditions are consistent not only with the statutes governing the

24 Byrne JAG Program, but also with the Program’s legislative history, which confirms that those

25 statutes empower DOJ and OJP to “place special conditions on all grants and to determine priority

26 purposes for formula grants,” H.R. Rep. No. 109-233, at 101 (2005); see 34 U.S.C. § 10102(a)(6).

27 And these conditions satisfy the Spending Clause: they articulate the required conduct and further

28 the Program’s goals of advancing criminal justice and public safety, easily surpassing the “some

Reply in Supp. Motion to Dismiss No. 3:17-cv-04642-WHO

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1 (Dkt. No. 67 at 12). Consistent with the INA, “information regarding citizenship or immigration

2 status” encompasses information that federal authorities need to determine a person’s status and

3 to take the person into custody. It does not encompass, for example, whether the individual

4 receives City health services or unemployment services, whether the individual pays his or her tax

5 bills or utility bills, whether the individual’s vehicle is properly registered, or a great many other

6 categories of unrelated information that San Francisco may have.

7

In attempting to limit the scope of Section 1373, plaintiff also argues that understanding

8 the statute as encompassing more than “citizenship or immigration status” alone would invade the

9 “heart of the state’s police power” and “supersede San Francisco’s exercise of its core police

10 powers” (Dkt. No. 67 at 13). But the admission, presence, and potential removal of aliens in the

11 United States are quintessentially the responsibility of the Federal Government, and the information

12 protected by Section 1373 is needed to carry out those responsibilities. See Arizona v. United

13 States, 567 U.S. 387, 394 (2012). Protecting the transmission of information regarding the

14 immigration status of such persons to federal immigration authorities, far from invading the

15 “heart of the state’s police power,” merely ensures that federal officers can perform their duties.

16

2. The Court Should Deny Plaintiff’s Request for a Ruling

17

that Chapter 12I Complies with Section 1373

18

In light of that correct understanding of Section 1373, the Court should dismiss plaintiff’s

19 claim for a ruling that its ordinances are consistent with the federal statute. Chapter 12I provides

20 that “[l]aw enforcement officials shall not . . . provide any individual’s personal information to a

21 federal immigration officer, on the basis of an administrative warrant, prior deportation order, or

22 other civil immigration document based solely on alleged violations of the civil provisions of

23 immigration laws.” S.F., CAL., ADMIN. CODE ch. 12I, § 12I.3(e). Personal information is defined

24 broadly as including “any confidential, identifying information . . . including, but not limited to

25 . . . contact information . . . .” Id. § 12I.2. Aside from seeking to limit “information regarding

26 citizenship or immigration status” to nothing but mere immigration status, plaintiff largely

27 ignores defendants’ explanation as to why this provision violates Section 1373. Most notably, the

28 City ignores the fact that “contact information,” including a person’s address, relates to several

Reply in Supp. Motion to Dismiss

7

No. 3:17-cv-04642-WHO

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1 of any limitations on the spending power.

2

1. The Challenged Conditions are Unambiguous

3

Plaintiff’s argument on the clarity of the access and notice conditions is based primarily

4 on the language in the FY 2017 grant solicitations (Dkt. No. 67 at 25; Dkt. No. 61, Ex. B at 30).

5 The purpose of that language, however, was only to inform potential applicants that conditions

6 along those lines would be included in the grant documents. The language of the actual

7 conditions, as contained in the awards that OJP issued before the conditions were enjoined in

8 Chicago v. Sessions, 264 F. Supp. 3d 933, 945 (N.D. Ill. 2017), was thoroughly detailed. See

9 Request for Judicial Notice (“RJN”), Ex. E ¶¶ 53, 55, 56; Ex. F ¶¶ 53, 55, 56 (Dkt. No. 66-1).

10 For example, plaintiff complains that the grant solicitations did not make clear “whether notice

11 must be given only when the scheduled release date and time is known 48 hours in advance . . . or

12 whether jurisdictions must hold inmates in custody for additional time to provide a full period of

13 notice” (Dkt. No. 67 at 25). The actual conditions answer both of those questions, specifying that

14 the notice condition requires “only as much advance notice as practicable” and that nothing in the

15 condition “shall be understood to authorize or require any recipient . . . to maintain (or detain) any

16 individual in custody beyond the date and time the individual would have been released in the

17 absence of this condition.” RJN, Ex. E ¶ 55; Ex. F ¶ 55.

18

As for the condition requiring compliance with Section 1373, defendants’ discussion

19 regarding Chapters 12H and 12I of the San Francisco Administrative Code should obviate any

20 uncertainty about the meaning of this condition. The Department of Justice clearly understands

21 “information regarding . . . citizenship or immigration status” as encompassing information

22 needed by federal immigration authorities to determine as individual’s immigration status and to

23 take custody of the individual upon release criminal detention. And defendants clearly under-

24 stand the Section 1373 condition as barring a grantee from prohibiting its employees from

25 providing an alien’s identifying information or release date to federal authorities.

26

Plaintiff raises other factual questions that may arise in implementing these conditions and

27 argues that the conditions are ambiguous because they fail to address those scenarios (Dkt. No. 67

28 at 26). The Court of Appeals has made clear, however, that the Spending Clause does not require

Reply in Supp. Motion to Dismiss

13

No. 3:17-cv-04642-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 45 of 60
EXHIBIT F

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 46 of 60

1 CHAD A. READLER

Acting Assistant Attorney General
2 ALEX G. TSE

3 Acting United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

LAURA A. HUNT DANIEL D. MAULER

7 Trial Attorneys
Department of Justice, Room 7210

8 Civil Division, Federal Programs Branch

20 Massachusetts Avenue, NW
9 Washington, D.C. 20530

10

Telephone: (202) 514-3495 Facsimile: (202) 616-8470

11 E-mail:

scott.simpson@usdoj.gov

12 COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
13 General of the United States; ALAN R.

14

HANSON, Principal Deputy Assistant Attorney General; and U.S. DEPARTMENT OF JUSTICE

15

16

IN THE UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19
CITY AND COUNTY OF SAN
20 FRANCISCO,

No. 3:17-cv-04642-WHO

21

Plaintiff,

22

v.

23 JEFFERSON B. SESSIONS III, Attorney
General of the United States, et al.,
24
Defendants.
25

DEFENDANTS’ RESPONSE TO SAN FRANCISCO’S REQUESTS FOR ADMISSION

26

Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedures, the defendants

27 respond as follows to Plaintiff City and County of San Francisco’s First Set of Requests for

28 Admissions to Defendants, served on March 28, 2018.

Defs’ Response San Francisco RFAs No. 3:17-cv-04642-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 47 of 60

1

2 REQUEST NO. 7.:

3 Admit that Defendants take the position that “information regarding . . . immigration status”

4 under Section 1373 includes all “information that allows ICE to do its job.” State of California ex

5 rel. Becerra v. Sessions, Case No. 3:17-CV-4701-WHO, Hr’g. Tr. at 30:5-10 (Dec. 13, 2017).

6

Defendants’ Response: Denied.

7

8 REQUEST NO. 8.:

9 Admit that Section 1373 does not require jurisdictions to comply with detainer requests

10 instructing jurisdictions to hold an individual for up to 48 business hours beyond the time the

11 individual would otherwise have been released.

12

Defendants’ Response: Objection. Defendants object that this request calls for a

13 pure conclusion of law and hereby incorporate by reference the same objection lodged as to

14 Request No. 2 above. Subject to the forgoing objection, the defendants’ position is that

15 Section 1373 does not require jurisdictions to detain an individual beyond the time the

16 individual would otherwise have been released.

17

18 REQUEST NO. 9.:

19 Admit that Defendants take the position that a person’s residential address constitutes

20 “information regarding . . . immigration status” under Section 1373.

21

Defendants’ Response: Defendants DENY this request to the extent that

22 “person” refers to a non-alien. To the extent that “person” refers only to an alien, then

23 Defendants ADMIT this Request to that limited extent.

24

25 REQUEST NO. 10.:

26 Admit that Defendants take the position that information regarding a person’s location

27 information constitutes “information regarding . . . immigration status” under Section 1373.

28

5

Defs’ Response San Francisco RFAs

No. 3:17-cv-04642-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 48 of 60

1

Defendants’ Response: Defendants DENY this request to the extent that

2 “person” refers to a non-alien. To the extent that “person” refers only to an alien, then

3 Defendants ADMIT this Request to that limited extent.

4

5 REQUEST NO. 11.:

6 Admit that Defendants take the position that the release date of a detained person constitutes

7 “information regarding . . . immigration status” under Section 1373.

8

Defendants’ Response: Defendants DENY this request to the extent that a

9 “detained person” refers to a non-alien. To the extent that “detained person” refers only to

10 an alien, then Defendants ADMIT this Request to that limited extent.

11

12 REQUEST NO. 12.:

13 Admit that Defendants take the position that a person’s date of birth is “information regarding . . .

14 immigration status” under Section 1373.

15

Defendants’ Response: Defendants DENY this request to the extent that

16 “person” refers to a non-alien. To the extent that “person” refers only to an alien, then

17 Defendants ADMIT this Request to that limited extent.

18

19 REQUEST NO. 13.:

20 Admit that Defendants take the position that information about a person’s familial status—i.e.,

21 information about whether a person is related by blood or marriage to other persons—is

22 “information regarding . . . immigration status” under Section 1373.

23

Defendants’ Response: Defendants DENY this request to the extent that

24 “person” refers to a non-alien. To the extent that “person” refers only to an alien, then

25 Defendants ADMIT this Request to that limited extent.

26

27

28

6

Defs’ Response San Francisco RFAs

No. 3:17-cv-04642-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 49 of 60

1 REQUEST NO. 14.:

2 Admit that Defendants take the position that a person’s contact information is “information

3 regarding . . . immigration status” under Section 1373.

4

Defendants’ Response: Defendants DENY this request to the extent that

5 “person” refers to a non-alien. To the extent that “person” refers only to an alien, then

6 Defendants ADMIT this Request to that limited extent.

7

8 REQUEST NO. 15.:

9 Admit that Defendants take the position that a person’s identity, see Dkt. No. 66 at 15, is

10 “information regarding . . . immigration status” under Section 1373.

11

Defendants’ Response: Defendants DENY this request to the extent that

12 “person” refers to a non-alien. To the extent that “person” refers only to an alien, then

13 Defendants ADMIT this Request to that limited extent.

14

15 REQUEST NO. 16.:

16 Admit that Defendants take the position that the Section 1373 Certification requires jurisdictions

17 to adopt the federal government’s interpretation of what information is “information regarding . . .

18 immigration status” under Section 1373.

19

Defendants’ Response: Admitted.

20

21 REQUEST NO. 17.:

22 Admit that a jurisdiction cannot lawfully execute the Section 1373 Certification if it prohibits

23 employees from sharing information about a person’s release date from custody with the federal

24 government.

25

Defendants’ Response: Objection. Defendants object that this request calls for a

26 pure conclusion of law and hereby incorporate by reference the same objection lodged as to

27 Request No. 2 above.

28

7

Defs’ Response San Francisco RFAs

No. 3:17-cv-04642-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 50 of 60

1 San Francisco’s compliance with Section 1373, see, e.g., Dkt. No. 66 at 12-13 & n. 6; Dkt. No. 72

2 at 2-4, provides no way for San Francisco to dispute the federal government’s interpretation of

3 Section 1373.

4

Defendants’ Response: Denied.

5

6 Dated: April 27, 2018

7

CHAD A. READLER

8

Acting Assistant Attorney General

9

ALEX G. TSE

Acting United States Attorney

10

JOHN R. TYLER

11

Assistant Director

12

/s/ W. Scott Simpson

13

W. SCOTT SIMPSON (Va. Bar #27487)

14

Senior Trial Counsel

15

LAURA A. HUNT

16

DANIEL D. MAULER

Trial Attorneys

17

Attorneys, Department of Justice

18

Civil Division, Room 7210

19

Federal Programs Branch 20 Massachusetts Avenue, NW

20

Washington, D.C. 20530

Telephone: (202) 514-3495

21

Facsimile: (202) 616-8470

E-mail: scott.simpson@usdoj.gov

22

23

COUNSEL FOR DEFENDANTS

24

JEFFERSON B. SESSIONS III, Attorney

General of the United States; ALAN R.

25

HANSON, Principal Deputy Assistant Attorney

General; and U.S. DEPARTMENT OF

26

JUSTICE

27

28

14

Defs’ Response San Francisco RFAs

No. 3:17-cv-04642-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 51 of 60
EXHIBIT G

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 52 of 60

1 CHAD A. READLER

Acting Assistant Attorney General
2 ALEX G. TSE

3 Acting United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

LAURA A. HUNT DANIEL D. MAULER

7 Trial Attorneys
Department of Justice, Room 7210

8 Civil Division, Federal Programs Branch

20 Massachusetts Avenue, NW
9 Washington, D.C. 20530

10

Telephone: (202) 514-3495 Facsimile: (202) 616-8470

11 E-mail:

scott.simpson@usdoj.gov

12 COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
13 General of the United States; ALAN R.

14

HANSON, Principal Deputy Assistant Attorney General; and U.S. DEPARTMENT OF JUSTICE

15

16

IN THE UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19
CITY AND COUNTY OF SAN
20 FRANCISCO,

No. 3:17-cv-04642-WHO

21

Plaintiff,

22

v.

23 JEFFERSON B. SESSIONS III, Attorney
General of the United States, et al.,
24
Defendants.
25

DEFENDANTS’ RESPONSES AND OBJECTIONS TO FIRST SET OF INTERROGATORIES FROM CITY AND COUNTY OF SAN FRANCISCO

26

Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedures, the defendants

27 respond as follows to Plaintiff City and County of San Francisco’s Interrogatories to Defendants,

28 Set One, served on March 28, 2018.

Defs’ Response SF Interrogs. No. 3:17-cv-04642-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 53 of 60

1 sent a letter to Mayor Mark Farrell, requesting documents to assist in the Department of Justice’s

2 review of San Francisco’s compliance with the conditions of its FY 2016 JAG grant, including

3 compliance with Section 1373. City Attorney Dennis J. Herrera responded to that letter on

4 February 23, 2018.

5

The foregoing informal fact-gathering is the first step in reaching a final decision on San

6 Francisco’s compliance. Since the Department of Justice is still in the fact-gathering stage, it

7 cannot anticipate exactly when it will make a final determination. This depends, in part, on how

8 transparent and cooperative San Francisco is during this process.

9

The following documents were part of or arose out this process:

10

• Documents in the Administrative Record filed on March 23, 2018 (Dkt. No. 84)

11

• Email from Karol V. Mason, (former) Assistant Attorney General, Office of Justice

12

Programs, to Michael E. Horowitz, Inspector General, Re: Referral to OIG Re: 18 U.S.C.

13

Section 1373, Apr. 8, 2016 (with attachments)

14

• San Francisco Grant Award Document, Byrne JAG Local, FY 2016, Award Number

15

2016-DJ-BX-0898, Signed by Mayor Edwin Lee, Oct. 7, 2016

16

• Letter from Alan Hanson to Edwin Lee, Mayor, City and County of San Francisco, Nov.

17

15, 2017

18

• Letter from Dennis J. Herrera, City Attorney, to Alan R. Hanson, Acting Assistant

19

Attorney General, Dec. 7, 2017

20

• Letter from Jon Adler, Director, Bureau of Justice Assistance, to Mark Farrell, Mayor,

21

City and County of San Francisco, Jan. 24, 2018

22

• Letter from Dennis J. Herrera, City Attorney, to Jon Adler, Director, Bureau of Justice

23

Assistance, Feb. 23, 2018

24

6. Identify all information that constitutes “information regarding . . . immigration status”

25 under 8 U.S.C. § 1373, including all types of information Defendants believe are included in this

26 phrase, types of information not included, and state all facts and identify all documents forming

27 the basis of that position.

28

9

Defs’ Response SF Interrogs.

No. 3:17-cv-04642-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 54 of 60

1

Response: Subject to the Objections to All Interrogatories set forth above, defendants

2 state the following:

3

Section 1373 protects, among other things, the sharing of “information regarding”

4 citizenship and immigration status. Congress’s use of “information regarding” in Section 1373(a)

5 was intended to broaden the scope of the information covered beyond an individual’s mere

6 technical status, as demonstrated by comparing Section 1373(a) to Section 1373(c), which uses

7 the different phrase “[immigration] status information.” 8 U.S.C. § 1373. Although Section 1373

8 does not cover all information regarding an individual, it covers information that federal immigra-

9 tion authorities need to determine and track the status of aliens in the United States and to take

10 custody of such persons as required.

11

The most common category of information covered by Section 1373 and sought be federal

12 immigration authorities is an alien’s date and time of release from custody. This is “information

13 regarding” immigration status because, among other reasons, it implicates the federal authority to

14 take custody pursuant to the removal statute, 8 U.S.C. § 1231. In other words, release informa-

15 tion bears directly on whether the alien will be able to remain in the United States. Moreover,

16 another provision of the INA, 8 U.S.C. § 1357(g)(10)(A), defines the phrase “immigration status”

17 to include whether “a particular alien is not lawfully present in the United States.” Whether an

18 alien has been released from state or local custody is highly relevant to the alien’s “lawful

19 presence” given that Congress has explicitly provided that unlawfully present aliens are not

20 subject to final orders of removal only when they are serving a criminal sentence in state or local

21 custody. See 8 U.S.C. § 1231(a)(4).

22

Certain of an alien’s personal and identifying information or contact information, such as

23 home address and work address, are also relevant to many immigration status issues, including

24 whether an alien admitted in a particular nonimmigrant status has remained in the United States

25 beyond their authorized period of admission, evidenced an intent not to abandon his or her

26 foreign residence, or otherwise violated the terms and conditions of such admission (e.g., engaged

27 in unauthorized employment), see 8 U.S.C. § 1227(a)(1)(C), 8 C.F.R. § 214.1; whether the alien

28

10

Defs’ Response SF Interrogs.

No. 3:17-cv-04642-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 55 of 60
EXHIBIT H

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 56 of 60

1 CHAD A. READLER

Acting Assistant Attorney General
2 ALEX G. TSE

3 Acting United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

LAURA A. HUNT DANIEL D. MAULER

7 Trial Attorneys
Department of Justice, Room 7210

8 Civil Division, Federal Programs Branch

20 Massachusetts Avenue, NW
9 Washington, D.C. 20530

10

Telephone: (202) 514-3495 Facsimile: (202) 616-8470

11 E-mail:

scott.simpson@usdoj.gov

12 COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
13 General of the United States; ALAN R.

14

HANSON, Principal Deputy Assistant Attorney General; and U.S. DEPARTMENT OF JUSTICE

15

16

IN THE UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19
STATE OF CALIFORNIA, ex rel. XAVIER

20 BECERRA, Attorney General of the State of No. 3:17-cv-04701-WHO

California,
21

DEFENDANTS’ RESPONSES AND

22

Plaintiff, v.

OBJECTIONS TO FIRST SET OF INTERROGATORIES FROM

23
JEFFERSON B. SESSIONS III, Attorney

STATE OF CALIFORNIA

24 General of the United States, et al.,

25

Defendants.

26
Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedures, the defendants
27
respond as follows to Plaintiff State of California’s First Set of Interrogatories to Defendants,
28
served on March 28, 2018.
Defs’ Response CA Interrogs. No. 3:17-cv-04701-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 57 of 60

1

The foregoing informal fact-gathering is the first step in reaching a final decision on

2 California’s compliance. Since the Department of Justice is still in the fact-gathering stage, it

3 cannot anticipate exactly when it will make a final determination. This depends, in part, on how

4 transparent and cooperative California is during this process.

5

The following documents were part of or arose out this process:

6

• Documents in the Administrative Record filed on March 23, 2018 (Dkt. No. 96)

7

• Email from Karol V. Mason, (former) Assistant Attorney General, Office of Justice

8

Programs, to Michael E. Horowitz, Inspector General, Re: Referral to OIG Re: 18 U.S.C.

9

Section 1373, Apr. 8, 2016 (with attachments)

10

• California Grant Award Document, Byrne JAG State, FY 2016, Award Number 2016-DJ-

11

BX-0446, Signed by Kathleen T. Howard, Oct. 27, 2016

12

• Letter from Alan R. Hanson, Acting Assistant Attorney General, to Kathleen Howard,

13

Executive Director, California Board of State and Community Corrections, Apr. 21, 2017

14

• Letter from Aaron R. Maguire, General Counsel, Board of State and Community

15

Corrections, to Tracey Trautman, Acting Director, Bureau of Justice Assistance, June 29,

16

2017

17

• California Senate Bill 54, Oct. 5, 2017

18

• Letter from Alan Hanson, Acting Assistant Attorney General, to Kathleen Howard,

19

Executive Director, California Board of State and Community Corrections, Nov. 1, 2017

20

• Letter from Jon Adler, Director, Bureau of Justice Assistance, to Kathleen Howard,

21

Executive Director, California Board of State and Community Corrections, Jan. 24, 2018

22

• Letter from Aaron R. Maguire, General Counsel, Board of State and Community

23

Corrections, to Chris Casto, Program Specialist, Bureau of Justice Assistance, Feb. 23,

24

2018

25

6. Identify all information that constitutes “information regarding . . . immigration status”

26 under 8 U.S.C. § 1373, including all types of information Defendants believe are included in this

27

28

10

Defs’ Response CA Interrogs.

No. 3:17-cv-04701-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 58 of 60

1 phrase, types of information not included, and state all facts and identify all documents forming

2 the basis of that position.

3

Response: Subject to the Objections to All Interrogatories set forth above, defendants

4 state the following:

5

Section 1373 protects, among other things, the sharing of “information regarding”

6 citizenship and immigration status. Congress’s use of “information regarding” in Section 1373(a)

7 was intended to broaden the scope of the information covered beyond an individual’s mere

8 technical status, as demonstrated by comparing Section 1373(a) to Section 1373(c), which uses

9 the different phrase “[immigration] status information.” 8 U.S.C. § 1373. Although Section 1373

10 does not cover all information regarding an individual, it covers information that federal immigra-

11 tion authorities need to determine and track the status of aliens in the United States and to take

12 custody of such persons as required.

13

The most common category of information covered by Section 1373 and sought by federal

14 immigration authorities is an alien’s date and time of release from custody. This is “information

15 regarding” immigration status because, among other reasons, it implicates the federal authority to

16 take custody pursuant to the removal statute, 8 U.S.C. § 1231. In other words, release informa-

17 tion bears directly on whether the alien will be able to remain in the United States. Moreover,

18 another provision of the INA, 8 U.S.C. § 1357(g)(10)(A), defines the phrase “immigration status”

19 to include whether “a particular alien is not lawfully present in the United States.” Whether an

20 alien has been released from state or local custody is highly relevant to the alien’s “lawful

21 presence” given that Congress has explicitly provided that unlawfully present aliens are not

22 subject to final orders of removal only when they are serving a criminal sentence in state or local

23 custody. See 8 U.S.C. § 1231(a)(4).

24

Certain of an alien’s personal and identifying information or contact information, such as

25 home address and work address, are also relevant to many immigration status issues, including

26 whether an alien admitted in a particular nonimmigrant status has remained in the United States

27 beyond their authorized period of admission, evidenced an intent not to abandon his or her

28

11

Defs’ Response CA Interrogs.

No. 3:17-cv-04701-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 59 of 60

1 foreign residence, or otherwise violated the terms and conditions of such admission (e.g., engaged

2 in unauthorized employment), see 8 U.S.C. § 1227(a)(1)(C), 8 C.F.R. § 214.1; whether the alien

3 has been granted work authorization as a benefit attached to a particular status or form of relief,

4 see 8 C.F.R. § 274a.12; whether the alien has kept federal immigration authorities informed of

5 any change of address as required under 8 U.S.C. § 1305; and whether an alien has accrued the

6 necessary continuous presence to be eligible for relief from removal, id. § 1229b(a)(1), (a)(2),

7 (b)(1)(A).

8

The above categories of information are those that defendants believe are operationally

9 important, clearly fall within the language of Section 1373, and are at issue in this action.

10 Depending on the situation, federal immigration authorities may need other categories of

11 information that would also fall within Section 1373.

12

7. Describe with specificity all steps that jurisdictions must take to comply with Section

13 1373.

14

Response: Subject to the Objections to All Interrogatories set forth above, defendants

15 state the following:

16

To comply with Section 1373, an award recipient must not prohibit, or in any way restrict,

17 any government entity or official from maintaining or from sending to, or receiving from, federal

18 immigration authorities information regarding the citizenship or immigration status, lawful or

19 unlawful, of any individual. If an award recipient has any law, policy, or practice that constitutes

20 such a prohibition or restriction, the jurisdiction must repeal or eliminate the law, policy, or

21 practice. An award recipient also must not prohibit, or in any way restrict, any government entity

22 from sending or receiving such information from federal immigration authorities, maintaining

23 such information, or exchanging such information with government entities. See also response to

24 Interrogatory 6 above.

25

8. State all facts and identify all Documents that support Defendants’ contention that each

26 of the Immigration Enforcement Requirements “were entirely rational,” ECF No. 77 at 18.

27

Objection: This interrogatory quotes defendants’ argument, in their motion to dismiss,

28

12

Defs’ Response CA Interrogs.

No. 3:17-cv-04701-WHO

Case 2:18-cv-00490-JAM-KJN Document 112 Filed 05/18/18 Page 60 of 60

1 personal information, and if so, state all facts and identify all Documents forming the basis for

2 that position.

3

Response: Subject to the Objections to All Interrogatories set forth above, defendants

4 state the following:

5

Defendants’ position is that Section 1373 requires California to allow state and local law

6 enforcement to respond to all inquiries from federal immigration authorities regarding certain of

7 an alien’s personal information. Section 1373 requires California to allow its employees to

8 exchange “information regarding the citizenship or immigration status, lawful or unlawful, of any

9 individual.” This statute, as part of the INA, protects the exchange of information – especially

10 with state and local law enforcement – that supports federal immigration authorities in performing

11 their duties under the INA, including the responsibilities to determine and track the status of

12 aliens in the United States and to take custody of such persons as required. Certain personal

13 information assists federal immigration authorities in safely taking custody of an individual if

14 appropriate under the INA. Certain personal information regarding aliens can be relevant to a

15 number of considerations under the INA, including whether the individual is “lawfully present in

16 the United States.” 8 U.S.C. § 1357(g)(10)(a). See also the response to Interrogatory 6 above.

17

19. Describe with specificity all actions that California must take to monitor compliance

18 with the JAG Section 1373 Requirement.

19

Response: Subject to the Objections to All Interrogatories set forth above, defendants

20 state the following:

21

OJP does not require specific actions with respect to monitoring of compliance with

22 Section 1373. Award recipients are expected to monitor their laws, policies, and procedures to

23 ensure that they are in compliance with all award terms and conditions. To the extent that an

24 award recipient has subrecipients, the award recipient is generally required to monitor its

25 subrecipients for compliance with the terms of the award. The requirements for subrecipient

26 monitoring can be found in 31 U.S.C. § 7502 and in Title 2 C.F.R. Part 200 (including, but not

27

28

18

Defs’ Response CA Interrogs.

No. 3:17-cv-04701-WHO

 
 Case 2:18-cv-00490-JAM-KJN Document 181 Filed 06/12/18 Page 1 of 13

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 LEON J. PAGE, COUNTY COUNSEL JOHN (JACK) W. GOLDEN, Senior Assistant (SBN 092658)
2 WENDY J. PHILLIPS, Senior Deputy (SBN 178452) STEVEN C. MILLER, Senior Deputy (SBN 112951)
3 PATRICK K. BRUSO, Deputy (SBN 272109) BENJAMIN L. BERNARD, Deputy (SBN 314698)
4 OFFICE OF THE COUNTY COUNSEL 333 West Santa Ana Boulevard, Suite 407
5 Post Office Box 1379 Santa Ana, California 92702-1379
6 Telephone: (714) 834-3300 Facsimile: (714) 834-2359
7
8 ASAttoNrDneRyAs foHrUATmCiHciECNuSri,aSehCerOifUf-NCTorYonOeFr fOorRtAheNCGoEunatnydof Orange

9

10

UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF CALIFORNIA

12

UNITED STATES OF AMERICA,

Case No.: 2:18-cv-00490-JAM-KJN

13

Plaintiff,

14 15 16 17

v. STATE OF CALIFORNIA; EDMUND GERALD BROWN JR., Governor of CXCaaAllViiffooIrrEnnRiiaaB,, iiEnnChhEiissROORffAffii,cciiAaatlltoCCraanppeaayccGiitteyyn;, earnadl of

BRIEF OF AMICI CURIAE COUNTY OF ORANGE AND SANDRA HUTCHENS, SHERIFFCORONER FOR THE COUNTY OF ORANGE

18

Defendants.

19

20 //

21 //

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BRIEF OF AMICI CURIAE COUNTY OF ORANGE AND SANDRA HUTCHENS, SHERIFF-CORONER FOR THE COUNTY OF ORANGE

Case 2:18-cv-00490-JAM-KJN Document 181 Filed 06/12/18 Page 2 of 13

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

TABLE OF CONTENTS

2 Contents

Page(s)

3 TABLE OF AUTHORITIES.….…………………………………………………………ii

4 I. IDENTITY AND INTEREST OF AMICI CURIAE ...............................................1

5 II. ARGUMENT............................................................................................................2

6

A. California’s Senate Bill 54 And Assembly Bill 103 Are

7

Preempted By The Exclusive Governance Of The

8

Federal Government In Regard To Immigration. ..........................................2

9

B. The California Values Act Has Impermissibly Interfered

10

With The County’s Voluntary Cooperation With

11

Federal Immigration Officials To The Detriment To Public Safety..............6

12 III. CONCLUSION .........................................................................................................8

13

14

15

16

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21

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24

25

26

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Case 2:18-cv-00490-JAM-KJN Document 181 Filed 06/12/18 Page 3 of 13

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4

Arizona v. United States 567 U.S. 387 (2012)......................................................................................2, 5, 6, 8

5

6 Armstr1o3n5gSv..CEt.xc1e3p7t8io(n2a0l1C5)h.i.l.d...C...e..n..t.e..r.,..I..n..c.........................................................................3

7 Crosby v. National Foreign Trade Council 530 U.S. 363 (2000)..................................................................................................3
8
9 English49v6. GUe.Sn.e7ra2l(E1l9e9c0. )C..o....,...............................................................................................2

10 Florida Lime & Avocado Growers, Inc. v. Paul 373 U.S. 132 (1963)..............................................................................................3, 5
11
12 Freilic3h1v3. FU.3pdpe2r0C5h(e4stahpCeiark.e20H0e2a)l.t.h..,..I.n..c............................................................................5

13 Gade v. National Solid Wastes Management Assn. 505 U.S. 88 (1992)....................................................................................................2
14
15 Hines 3v.1D2 aUv.iSd.o5w2it(z1941)........................................................................................2, 3, 5, 6

16 Murphy v. National Collegiate Athletic Ass’n 138 S.Ct. 1461 (2018)...............................................................................................3
17
18 New Y5o0rk5vU. .USn. i1t4ed4,S1t6a6tes(1992) .........................................................................................3

19

Printz v. United States 521 U.S. 898 (1997)..................................................................................................4

20

Reno v. Condon

21

528 U.S. 141 (2000)..................................................................................................4

22

Rice v. Santa Fe Elevator Corp. 331 U.S. 218 (1947)..................................................................................................2

23

Toll v. Moreno

24

458 U.S. 1 (1982)......................................................................................................2

25

United States v. Brown, No. 07-485, 2007 WL 4372829

26

(S.D.N.Y. Dec. 12, 2007),

aff’d 328 F. App’x 57 (2d Cir. 2009) .......................................................................5

27

28 //

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

Case 2:18-cv-00490-JAM-KJN Document 181 Filed 06/12/18 Page 4 of 13
1 Statutes 2 8 U.S.C. § 1357(g)(10)(A) ..................................................................................................6 3 Constitution(s) 4 U.S. Const. art. VI, cl. 2......................................................................................................2
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Case 2:18-cv-00490-JAM-KJN Document 181 Filed 06/12/18 Page 5 of 13

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 I. IDENTITY AND INTEREST OF AMICI CURIAE

2

Amicus Curiae COUNTY OF ORANGE (“County” and/or “the County”) is a

3 political subdivision of Defendant STATE OF CALIFORNIA. Amicus Curiae

4 SANDRA HUTCHENS, Sheriff-Coroner for the County of Orange (“Sheriff” and/or

5 “the Sheriff”) is a constitutionally elected official for the County sworn to enforce the

6 constitutions of both Plaintiff UNITED STATES OF AMERICA and Defendant STATE

7 OF CALIFORNIA. Since both Amici Curiae have direct and vital interests in the issues

8 before this Court, both Amici Curiae hereby submit this brief in support of Plaintiff’s

9 Motion for Preliminary Injunction and in opposition to California Defendants’ Motion to

10 Dismiss in accordance with this Court’s “Order Denying Motion for Leave to Intervene

11 by County of Orange and Sandra Hutchens” entered on June 4, 2018 (ECF 163), which

12 permits the filing of this brief herein. The undersigned counsel for the Amici Curiae

13 have authored this brief in whole.

14

The California Values Act [a.k.a. Senate Bill 54 (S.B. 54) codified as California

15 Government Code sections 7284, et seq.] is a deliberate effort by Defendants STATE

16 OF CALIFORNIA; EDMUND GERALD BROWN JR., Governor of California, in his

17 Official Capacity; and XAVIER BECERRA, Attorney General of California, in his

18 Official Capacity (collectively “the State” and/or “Defendants” and/or “California

19 Defendants”) to obstruct the federal government’s ability to enforce federal immigration

20 law. The County and the Sheriff have a strong interest in the preemption of the

21 California Values Act under the Supremacy Clause. The California Values Act puts the

22 public safety of Orange County’s local residents at risk by restricting the Sheriff’s

23 communication and cooperation with federal immigration authorities. Moreover, the

24 Sheriff’s discretionary power to disclose information to federal immigration authorities

25 conferred by Congress pursuant to 8 U.S.C. § 1373(a) is being extinguished by the

26 California Values Act. Furthermore, because the Sheriff has taken an oath to support the

27 United States Constitution and believes the California Values Act is unconstitutional,

28 she is in a position of having to choose between violating her oath to the federal
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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 Constitution or refusing to comply with the state law, which could result in her

2 expulsion from office.

3 II. ARGUMENT

4

A. California’s Senate Bill 54 And Assembly Bill 103 Are Preempted By

5

The Exclusive Governance Of The Federal Government In Regard To

6

Immigration.

7

State laws are preempted when they conflict with federal law, including when

8 they stand “as an obstacle to the accomplishment and execution of the full purposes and

9 objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). In the field of

10 immigration, it is clear that “the Government of the United States has broad, undoubted

11 power over the subject of immigration and the status of aliens.” Arizona v. United

12 States, 567 U.S. 387, 394 (2012) (citing Toll v. Moreno, 458 U.S. 1, 10 (1982)). This

13 power is conferred on Congress by the Constitution under Article I, Section 8, Clause 4,

14 and because the United States has the inherent power as sovereign to “control and

15 conduct relations with foreign nations.” See Toll, 458 U.S. at 10. When the National

16 Government is operating under its express constitutional power, the Supremacy Clause

17 provides that federal law “shall be the supreme Law of the Land; and the Judges in every

18 State shall be bound thereby, any Thing in the Constitution or Laws of any state to the

19 Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.

20

One of the ways in which state law must give way to federal law is when

21 Congress, acting within its proper authority, has determined that conduct must be

22 regulated by its exclusive governance. See Gade v. National Solid Wastes Management

23 Assn., 505 U.S. 88, 115 (1992).

24

“The intent to displace state law altogether can be inferred from a framework of

regulation ‘so pervasive… that Congress left no room for the States to supplement

25

it’ or where there is a ‘federal interest… so dominant that the federal system will

be assumed to preclude enforcement of state laws on the same subject.’” Arizona,

26

567 U.S. at 399 (quoting (1947)); see also English

Rice v. Santa Fe v. General Elec.

ECloe.v, a4t9o6r

UCo.Sr.p7.,23,3719U(1.S9.9201).8,

230

27

28

//

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Case 2:18-cv-00490-JAM-KJN Document 181 Filed 06/12/18 Page 7 of 13

OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

A second way in which state law is preempted is when state law conflicts with

2 federal law. Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000). This

3 includes situations such as those present in this case, where “compliance with both

4 federal and state regulations is a physical impossibility,” Florida Lime & Avocado

5 Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), and those instances where the

6 challenged state law “stands as an obstacle to the accomplishment and execution of the

7 full purposes and objectives of Congress,” Hines, 312 U.S. at 67.

8

The Supreme Court states “[p]reemption is based on the Supremacy Clause, and

9 that Clause is not an independent grant of legislative power to Congress. Instead, it

10 simply provides “a rule of decision.” It specifies that federal law is supreme in case of a

11 conflict with state law.” Murphy v. National Collegiate Athletic Ass’n, 138 S.Ct. 1461,

12 1479 (2018) (quoting Armstrong v. Exceptional Child Center, Inc., 135 S.Ct. 1378, 1383

13 (2015). There are two requirements for preemption:

14

“First, it must represent the exercise of a power conferred on Congress by the

Constitution; pointing to the Supremacy Clause will not do. Second, since the

15

Constitution “confers upon Congress the power to regulate individuals, not

States,” the [act’s] provision at issue must be best read as one that regulates

16

private actors.” Murphy, 138 S.Ct. at 1479 (2018) (quoting New York v. United

States, 505 U.S. 144, 166 (1992)).

17

18

Here, 8 U.S.C. § 1373 is the exercise of an essential power to regulate

19 immigration conferred on Congress by the Constitution under Article I, Section 8,

20 Clause 4. Second, the purpose of Section 1373 is to regulate individuals and naturally to

21 have access to information necessary to that regulation. Congress undoubtedly has the

22 authority to access information necessary to effectuate its regulation of individuals in the

23 field of immigration. Congress in its enactment of Section 1373 decided to devise a

24 scheme of cooperative federalism where Congress chose merely to block any

25 interference that would prevent the federal government from receiving necessary

26 regulatory information regarding those individuals. Because Section 1373 represents the

27 exercise of a power conferred upon Congress by the Constitution and because it

28 regulates private actors which naturally includes their information, it preempts S.B. 54
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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 which stands in direct contradiction to federal access of private actor’s information

2 under federal regulation.

3

Not only does Section 1373 meet both prongs for preemption, but its provisions

4 are fundamentally different than the statute at issue in Murphy. First, the United States

5 does not simply point to the Supremacy clause to undergird its authority to enforce a

6 federal statute generally making it unlawful for a State to license sports gambling.

7 Rather, the power that underlies Section 1373 is the exercise of an essential power to

8 regulate immigration conferred on Congress by the Constitution. Second, in Murphy an

9 essential underlying principle for the court, and the second prong of the preemption test,

10 is that the statute cannot be characterized as a power conferred to a private actor or a

11 regulation over a private actor; whereas Section 1373 is a regulatory scheme over private

12 actors. Third, Section 1373 is about information access while Murphy has nothing to do

13 with information access.

14

The State’s interpretation of Murphy to stand for the proposition that if the State

15 had to give access to information of private actors who are within the regulation scheme

16 of federal immigration authorities, then that would be tantamount to commandeering is

17 an untenably expansive interpretation of Murphy. The federal agencies are only seeking

18 to access the private information that they have been authorized by Congress to obtain.

19 Just because that information is in the hands of state and local governments does not

20 mean that federal access now becomes commandeering, and there is nothing in Murphy

21 which would stand for that proposition. To hold otherwise would be to take the

22 prohibition of anticommandeering to the extreme, and is not supported by prior Supreme

23 Court precedent. See Reno v. Condon, 528 U.S. 141, 150 (2000) (holding federal

24 provision as consistent with Tenth Amendment even if the regulation would "require

25 time and effort on the part of state employees"); Printz v. United States, 521 U.S. 898,

26 918 (1997) (statutes "which require provision of information to the Federal Government

27 do not involve ... the forced participation of the States' executive in the actual

28 administration of a federal program"); see, e.g., Freilich v. Upper Chesapeake Health,
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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 Inc., 313 F.3d 205, 214 (4th Cir. 2002); United States v. Brown, No. 07-485, 2007 WL

2 4372829 at *6 (S.D.N.Y. Dec. 12, 2007), aff’d 328 F. App’x 57 (2d Cir. 2009); cf.

3 Arizona, 567 U.S. at 411 (“Consultation between federal and state officials is an

4 important feature of the immigration system”). While there are limits to what the federal

5 government can require the states to do, there is nothing that indicates that a mere

6 request for information would violate the Tenth Amendment, even if it may require time

7 and effort on the part of state employees. Obtaining information regarding regulation of

8 private actors is not the same as actually regulating the party with that information. The

9 state and local governments are merely acting as pass-through entities for information

10 regarding private actors to which federal agencies are properly entitled under federal

11 law. To invalidate any federal provision that may require the states to do something, no

12 matter how minimal, under the anticommandeering doctrine, is not the law.

13

Similarly, A.B. 103 is in direct conflict with the federal scheme involving

14 immigration. Indeed, even regulations that "complement" federal law, or "enforce

15 additional or auxiliary regulations," are preempted by a comprehensive federal scheme.

16 Hines, 312 U.S. at 66-67; Arizona, 567 U.S. at 387. A.B. 103 imposes additional

17 burdens on the federal scheme of immigration, in the form of inspections of facilities

18 housing federal detainees. The state has no authority to enforce these additional and

19 auxiliary regulations on the federal government. The County has contracted with the

20 federal government to house federal detainees, and is thus bound to the dictates of the

21 federal government, and not the whims of the state. Declaration of Robert J. Peterson in

22 Support of Motion by County of Orange and Sandra Hutchens, Sheriff-Coroner for the

23 County of Orange, for Leave to Intervene (“Peterson Decl.”), ¶¶2-3. (ECF 59-3.) (See

24 attached hereto as Exhibit 1 to this brief.) The Sheriff has already been put in the

25 untenable position of having to satisfy both inspections under A.B. 103 and operating

26 under the Intergovernmental Service Agreement with ICE. Peterson Decl., ¶4.

27 Complying with opposite federal and state dictates is an “impossibility” for the County.

28 Florida Lime & Avocado Growers, Inc., 373 U.S. at 142-43.
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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

Because S.B. 54 and A.B. 103 “stand as an obstacle to the accomplishment and

2 execution of the full purposes and objections” of Congressional immigration law,

3 Arizona, 567 U.S. at 406; Hines, 312 U.S. at 67; because Section 1373 satisfies the

4 Supreme Court’s two prong test in Murphy for valid preemption; and since the

5 anticommandeering doctrine is inapplicable, those two state laws are ultimately

6 preempted.

7

B. The California Values Act Has Impermissibly Interfered With The

8

County’s Voluntary Cooperation With Federal Immigration Officials

9

To The Detriment To Public Safety.

10

It is clear that the state and federal laws at issue are in conflict. The California

11 Values Act requires that the Sheriff choose between complying with state law or

12 complying with federal law. Declaration of Sandra Hutchens in Support of Reply by the

13 United States of America in Support of Motion for Preliminary Injunction (“Hutchens

14 Decl.”), ¶4. (ECF 171-6) (See attached hereto as Exhibit 2 to this brief.)

15

As stated in Arizona, 567 U.S. at 411-412:

16

“Consultation between federal and state officials is an important feature of the

immigration system. Congress has made clear that no formal agreement or special

17

training needs to be in place for state officers to “communicate with the [Federal

Government] regarding the immigration status of any individual, including

18

reporting knowledge that a particular alien is not lawfully present in the United

States.” 8 U.S.C. § 1357(g)(10)(A).

19

20

As a practical matter, the California Values Act creates a public safety issue for

21 the citizens of Orange County by restricting the Sheriff’s ability to share information and

22 cooperate with ICE and federal immigration authorities in regards to inmates in the

23 Orange County Jail. Hutchens Decl., ¶4. Specifically, the Sheriff may be required

24 under California law to release an inmate with an ICE detainer without communicating

25 that inmate’s release to ICE. That individual may then go on to commit a terrible crime,

26 which would have been prevented if the Sheriff was allowed to cooperate with ICE

27 under federal law. Id., at ¶5. This scenario is a risk that is already in place. Between

28 January 1, 2018, and April 30, 2018, the Orange County Sheriff’s Department has had
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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 601 inmates with ICE detainers. Id., at ¶6. Of those, 341 inmates were released without

2 notification to ICE, due to the limitations of the California Values Act. Id.

3

The Orange County Sheriff’s Department conducted a random sampling of the

4 charges pending against 89 of the 341 inmates with ICE detainers who were released

5 without informing ICE. Hutchens Decl., ¶7. Forty-two of the 89 records reviewed

6 (47%) were charged with violent or serious crimes that present a public safety concern,

7 including but not limited to: willful infliction of corporal injury, possession of

8 methamphetamine for sale, possession of firearms and a controlled substance, assault

9 with a deadly weapon, lewd or lascivious acts on a minor, possession of a loaded

10 firearm, statutory rape, willful harm or injury to a child, intimidation of witnesses and

11 victims, and threat to commit crime that will result in death or great bodily injury. Id.

12 These are individuals that, but for the state law at issue, would have likely been detained

13 by ICE under their immigration detainers. The only reason they could not be detained

14 by ICE is because state law prevents the Orange County Sheriff from communicating

15 this information with the federal government, despite the fact that the Sheriff wishes to

16 do so. Id. These individuals are now walking the streets of Orange County, where they

17 represent a threat to public safety. Id.

18

Additionally, a review of the records determined that 45 out of the 341 inmates

19 with ICE detainers who were released without informing ICE have been rearrested at

20 least once in Orange County. Id., at ¶8. Out of this 13% recidivism rate, a handful have

21 been arrested more than once during the four-month period. Id. The crimes include, but

22 are not limited to, attempted murder, assault with a deadly weapon, spousal battery,

23 DUI, child abduction and sex crimes on a child, and possession of drugs or

24 paraphernalia. Id. It is difficult to be aware of this information and come to the

25 conclusion the state has reached that the California Values Act was instituted to protect

26 the public.

27

The Orange County Sheriff’s Department has also been forced to decline to

28 provide ICE investigators personal identifying information of two former inmates being
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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1 investigated by ICE, despite the fact that the Sheriff’s Department was willing to

2 voluntarily provide this information. Id., at ¶9. By preventing this voluntary

3 information sharing, the California laws at issue are clearly standing “as an obstacle to”

4 Congressional immigration law, and must be preempted. Arizona, 567 U.S. at 406.

5 III. CONCLUSION

6

For the foregoing reasons Amici Curiae COUNTY OF ORANGE and SANDRA

7 HUTCHENS, Sheriff-Coroner for the County of Orange request that this Court, as to the

8 causes of action concerning S.B. 54 and A.B. 103, grant the Motion for Preliminary

9 Injunction filed by Plaintiff UNITED STATES OF AMERICA and deny the Motion to

10 Dismiss filed by the California Defendants.

11

12 DATED: June 12, 2018

Respectfully submitted,

13

LEON J. PAGE, COUNTY COUNSEL

JOHN (JACK) W. GOLDEN, Senior Assistant

14

WENDY J. PHILLIPS, Senior Deputy

STEVEN C. MILLER, Senior Deputy

15

PATRICK K. BRUSO, Deputy

BENJAMIN L. BERNARD, Deputy

16

17

By: /S/ John (Jack) W. Golden____________

18

John (Jack) W. Golden, Senior Assistant

19 20

ACtOtoUrnNeTysYfoOrFAOmRicAi NCuGrEiaaend SANDRA HUTCHENS, Sheriff-Coroner for the County of Orange

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OFFICE OF THE COUNTY COUNSEL COUNTY OF ORANGE

1

CERTIFICATE OF SERVICE

2

3

I do hereby declare that I am a citizen of the United States employed in the County

4 of Orange, over 18 years old and that my business address is 333 West Santa Ana

5 Boulevard, Suite 407, Santa Ana, California 92701. I am not a party to the within action.

6

7

I hereby certify that on June 12, 2018, I served the foregoing BRIEF OF AMICI

8 CURIAE COUNTY OF ORANGE AND SANDRA HUTCHENS, SHERIFF-

9 CORONER FOR THE COUNTY OF ORANGE on all other parties to this action by

10 serving a true copy of said document in the following manner:

11

12

[X] (BY CM/ECF), I filed the foregoing document with the Clerk of the Court

13 via CM/ECF, which automatically sends notice of the filing to all counsel of record. I

14 declare under 28 U.S.C. § 1746 that the above is true and correct.

15

16

I declare under penalty of perjury under the laws of the United States of America

17 that the foregoing is true and correct.

18

19

Executed on: June 12, 2018 in Santa Ana, California.

20

21

/S/ Simon Perng

22

Simon Perng

23

24

25

26

27

28

G:\LITIGATION\CLIENT MATTERS\Board Of Supervisors\USA V California Anti Sanctuary Litigation\Drafts\USA V California - OC Amicus Brief - SP Redline Edits (PKB) - FINAL.Doc
CERTIFICATE OF SERVICE

 
 Case 2:18-cv-00490-JAM-KJN Document 182 Filed 06/12/18 Page 1 of 23

1 SPENCER E. AMDUR (SBN 320069)

CODY H. WOFSY (SBN 294179) 2 AMERICAN CIVIL LIBERTIES UNION

3 FOUNDATION 39 Drumm Street

4 San Francisco, CA 94111

Tel: (415) 343-0770 5 Fax: (415) 395-0950

6

Email: samdur@aclu.org cwofsy@aclu.org

7 JESSICA KARP BANSAL (SBN 277347)

8 NATIONAL DAY LABORER

9

ORGANIZING NETWORK 674 South LaFayette Park Place

10 Los Angeles, CA 90057 Tel: (213) 380-2214

11 Fax: (213) 380-2787

Email: jbansal@ndlon.org 12

13 Attorneys for Intervenor-Defendants
14 Additional counsel on next page

JULIA HARUMI MASS (SBN 189649) ANGÉLICA H. SALCEDA (SBN 296152) ACLU FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Tel: (415) 621-2493 Fax: (415) 255-8437 Email: jmass@aclunc.org
asalceda@aclunc.org
MICHAEL KAUFMAN (SBN 254575) JENNIFER PASQUARELLA (SBN 263241) ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street Los Angeles, CA 90017 Tel: (213) 977-5232 Fax: (213) 977-5297 Email: mkaufman@aclusocal.org
jpasquarella@aclusocal.org

15

16

IN THE UNITED STATES DISTRICT COURT FOR EASTERN DISTRICT OF CALIFORNIA

17

18 THE UNITED STATES OF AMERICA,

19

Plaintiff,

20 v.
21 THE STATE OF CALIFORNIA; EDMUND
22 GERALD BROWN JR., Governor of 23 California, in his official capacity; and
XAVIER BECERRA, Attorney General of 24 California, in his official capacity,

25

Defendants.

26

Case No. 2:18-cv-00490-JAM-KJN
Hon. John A. Mendez
BRIEF OF AMICI CURIAE THE CALIFORNIA PARTNERSHIP TO END DOMESTIC VIOLENCE AND THE COALITION FOR HUMANE IMMIGRANT RIGHTS
Date: June 5, 2018 Time: 1:30 p.m. Dept: Courtroom 6, 14th Floor

27

28

Case 2:18-cv-00490-JAM-KJN Document 182 Filed 06/12/18 Page 2 of 23

1 OMAR C. JADWAT (pro hac vice)

LEE GELERNT (pro hac vice) 2 AMERICAN CIVIL LIBERTIES UNION

3 FOUNDATION 125 Broad Street, 18th Floor

4 New York, NY 10004

Tel: (212) 549-2660 5 Fax: (212) 549-2654

6

Email: ojadwat@aclu.org lgelernt@aclu.org

7 ANGELA CHAN (SBN 250138)

8 ASIAN AMERICANS ADVANCING JUSTICE -

9

ASIAN LAW CAUCUS 55 Columbus Avenue

10 San Francisco, CA 94404 Tel: (415) 848-7719

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Email: angelac@advancingjustice-alc.org 12

13 BARDIS VAKILI (SBN 247783) ACLU FOUNDATION OF SAN DIEGO &

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P.O. Box 87131 15 San Diego, CA 92138-7131

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Tel: (619) 398-4485 Email: bvakili@aclusandiego.org

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1 TABLE OF CONTENTS
2

3 I. 4

Congress Cannot Preempt California’s Choice Not to Help Administer the Federal Deportation Scheme................................................................................................................. 2

5 II. Even If It Could, Congress Has Not Preempted the Values Act. .......................................... 10

6

A. The United States Barely Defends Its Interpretation of 8 U.S.C. § 1373. ..................... 10

7
B. Implied Preemption Is Foreclosed by Gregory. ............................................................. 10 8

9

C. Even If It Could, Congress Has Not Impliedly Preempted the Values Act. .................. 11

10 III. The Values Act Does Not Violate Intergovernmental Immunity. ......................................... 14

11

12

13

14

15

16 17 18 19 20 21 22 23

24

25

26 27

28

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1

TABLE OF AUTHORITIES

2 Cases

3 Alden v. Maine, 527 U.S. 706 (1999) ............................................................................................. 4

4 Arizona v. United States, 567 U.S. 387 (2012) ....................................................................... 11, 13

5 Atay v. Cty. of Maui, 842 F.3d 688 (9th Cir. 2016) ................................................................ 12, 13

6 Baggett v. Gates, 32 Cal.3d 128 (1982).......................................................................................... 4

7 Bond v. United States, 134 S. Ct. 2077 (2014) ................................................................... 6, 11, 13

8 Chicanos Por La Causa v. Napolitano, 558 F.3d 856 (9th Cir. 2009) ......................................... 12

9 Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136 (9th Cir. 2015) ........................... 13, 14
10 City of Abilene v. FCC, 164 F.3d 49 (D.C. Cir. 1999) ................................................................. 11
11 Clark v. Rameker, 134 S. Ct. 2242 (2014).................................................................................... 12
12 Davis v. Michigan Dep’t of Treasury, 489 U.S. 803 (1989)......................................................... 15 13 DeCanas v. Bica, 424 U.S. 351 (1976)........................................................................................... 6 14 FERC v. Mississippi, 456 U.S. 742 (1982) ................................................................................. 3, 5 15 Freightliner Co. v. Myrick, 514 U.S. 280 (1995) ......................................................................... 12 16 Freilich v. Upper Chesapeake Health, 313 F.3d 205 (4th Cir. 2002) ............................................ 9 17 Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) .......................................................................... 4 18 Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) .................................................................. 12 19 Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) ........................................................................ 9 20 Gregory v. Ashcroft, 501 U.S. 452 (1991) .......................................................................... 1, 10, 11 21 Hodel v. Va. Surface Mining & Recl. Ass’n, 452 U.S. 264 (1981) ............................................. 5, 6 22 In re Tax Liabilities of Does, 2011 WL 6302284 (E.D. Cal. Dec. 15, 2011) ................................. 9 23 Koog v. United States, 79 F.3d 452 (5th Cir. 1996)........................................................................ 4 24 Lamar, Archer & Cofrin, LLP v. Appling, No. 16-1215 (S. Ct. June 4, 2018)............................. 10 25 McDonnell v. United States, 136 S. Ct. 2355 (2016)...................................................................... 6 26 Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018) ...................................... passim 27 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)............................................ 2, 3, 8, 15 28 New York v. United States, 505 U.S. 144 (1992) ................................................................... passim
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1 Nixon v. Missouri Mun. League, 541 U.S. 125 (2004) ................................................................. 10 2 North Dakota v. U.S., 495 U.S. 423 (1990) .................................................................................. 15 3 Oregon Prescription Drug Monitoring Program v. DEA, 860 F.3d 1228 (9th Cir. 2017)............. 9 4 Philadelphia v. Sessions, 2018 WL 2725503 (E.D. Pa. June 6, 2018) ............................. 2, 7, 8, 10 5 Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016)......................................................................... 14 6 Printz v. United States, 521 U.S. 898 (1997)......................................................................... passim 7 Reno v. Condon, 528 U.S. 141 (2000) ........................................................................................ 5, 7 8 Roach v. Mail Handlers Ben. Plan, 298 F.3d 847 (9th Cir. 2002) ............................................... 10 9 South Carolina v. Baker, 485 U.S. 505 (1988) ............................................................................... 5 10 Standley v. Dep't of Justice, 835 F.2d 216 (9th Cir. 1987) ............................................................. 9 11 Steinle v. City & Cty. of San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017).......................... 10 12 United States v. Brown, 2007 WL 4372829 (S.D.N.Y. Dec. 12, 2007) ......................................... 9 13 United States v. Gomez, 911 F.2d 219 (9th Cir. 1990) ................................................................... 3 14 United States v. Lewis Cty., 175 F.3d 671 (9th Cir. 1999) ........................................................... 15 15 United States v. Lopez, 514 U.S. 549 (1995) .................................................................................. 6 16 United States v. Morrison, 529 U.S. 598 (2000) ............................................................................ 6 17 Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247 (2011) ......................................................... 4 18 Wyeth v. Levine, 555 U.S. 555 (2009). ................................................................................... 11, 12 19 Federal Statutes 20 8 U.S.C. § 1103(a)(10).................................................................................................................. 13 21 8 U.S.C. § 1226(c) ............................................................................................................ 12, 13, 14 22 8 U.S.C. § 1231(a) ............................................................................................................ 12, 13, 14 23 8 U.S.C. § 1252c. .......................................................................................................................... 13 24 8 U.S.C. § 1357(d) ............................................................................................................ 12, 13, 15 25 8 U.S.C. § 1373...................................................................................................................... passim 26 15 U.S.C. § 2224............................................................................................................................. 9 27 20 U.S.C. § 4013............................................................................................................................. 8 28 20 U.S.C. § 4014............................................................................................................................. 8
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1 34 U.S.C. § 41307........................................................................................................................... 9 2 42 U.S.C. § 11133(b) ...................................................................................................................... 8 3 42 U.S.C. § 14072(g)(4) ................................................................................................................. 8 4 52 U.S.C. § 20701........................................................................................................................... 9 5 17 Stat. 466 (1873).......................................................................................................................... 8 6 54 Stat. 401 (1940) ......................................................................................................................... 8 7 Pub. L. No. 91-452, § 806............................................................................................................... 8 8 Pub. L. No. 102–559 ....................................................................................................................... 9 9 State Constitution 10 Cal. Const. art. IV ........................................................................................................................... 4 11 State Statutes 12 Cal. Gov’t Code § 7284.2 ......................................................................................................... 8, 15 13 Cal. Gov’t Code § 7282.5 ............................................................................................................. 14 14 Cal. Gov’t Code § 7284.4(a)........................................................................................................... 3 15 Cal. Gov’t Code § 7284.6(a)..................................................................................................... 3, 12 16 Legislative History 17 H.R. 2278, 113 Cong. § 114 (2013).............................................................................................. 12 18 H.R. 2964, 114 Cong. § 5 (2015).................................................................................................. 12 19 Other Authorities 20 Dep't of Justice, Institutional Hearing Program (2018)............................................................... 14 21 Group Rallies Against Deportation in Front of Alameda County Building, 22 Mercury News, Nov. 19, 2015........................................................................................................ 8 23 24 25 26 27 28
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1 Faced with a wall of Supreme Court precedent guaranteeing California the prerogative to

2 decide whether its own agents will assist in federal deportation efforts, the government offers a

3 series of unfounded and outlandish arguments in support of its claims against the Values Act.1
4 PI Reply 10-23, Dkt. 171. It posits, almost in passing, that States can only arrest and prosecute
5 noncitizens for state criminal offenses if Congress decides to allow it—that Congress could
6 essentially outlaw state criminal law enforcement as it has existed throughout our country’s
7 history. That breathtaking claim to unlimited federal dominance is anathema to our system of
8 dual sovereignty. Alternatively, it contends that Congress can issue any commands it wants to
9
the States so long as the commands relate to information. No court has ever accepted that 10
sweeping assertion, which cannot be squared with the Constitution’s prohibition on federal 11
control of state government. At least where, as here, forced “information sharing” is integral to 12

the daily operation of a federal regulatory program, Congress cannot destroy state officials’ 13

accountability to their own electorate and force them to participate. 14

15

Thus, because this case is about California’s clear prerogative to opt out of assisting with

16 deportations, the preemption principles the government invokes have no application.

17

But even if Congress could require States to share release dates and addresses, it has not

18 done so. The government attempts to rewrite the Immigration and Nationality Act (INA),

19 warping provisions that expressly protect States’ choices into supposed commands. But the

20 INA’s consistent, explicit solicitude for States’ independence does not carry some secret

21 intention to conscript their officers. To the contrary, the one narrow provision where Congress

22 did seek to limit States’ choices, 8 U.S.C. § 1373, is powerful evidence that, beyond its terms,

23 Congress intended States to make their own decisions. The government thus falls far short of

24 showing, as it must, that an intent to preempt the Values Act is “unmistakably clear in the

25 language of the statute.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).

26

27 1 Amici the California Partnership to End Domestic Violence and the Coalition for Humane 28 Immigrant Rights submit this brief in defense of the California Values Act pursuant to the
Court’s Order of June 5, Dkt. 164, at 12.
1 Brief of Amici Curiae the Partnership and CHIRLA

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1

I. Congress Cannot Preempt California’s Choice Not to Help Administer the

Federal Deportation Scheme. 2
1. The Constitution gives Congress “the power to regulate individuals, not States.” 3

Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1476 (2018) (quoting New York v. 4

United States, 505 U.S. 144, 166 (1992)). That principle is fatal to both of the federal 5

government’s preemption claims (express and implied). As Murphy held, Congress may not 6

“issue orders directly to the States,” id. at 1475, including orders to “refrain from enacting state 7

8 law,” id. at 1478. That is exactly what 8 U.S.C. § 1373 does: It orders States not to enact

9 policies that withhold their own agents’ enforcement assistance. The government’s obstacle

10 preemption claim suffers the same defect, because if accepted, it would effectively order States

11 to refrain from enacting laws regulating their own agents. “A more direct affront to state

12 sovereignty is not easy to imagine.” Id.; Philadelphia v. Sessions, 2018 WL 2725503, at *31-33

13 (E.D. Pa. 2018) (holding that § 1373 is unconstitutional under Murphy).

14

Murphy is the latest in a long line of Supreme Court cases making absolutely clear that

15 the Constitution guarantees States the ability to “decline to administer [a] federal program.” New

16 York, 505 U.S. at 176-77 ; see Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519, 587

17 (2012) (Tenth Amendment ensures that States “may choose not to participate” in a federal

18 program); Printz v. United States, 521 U.S. 898, 909-10 (1997) (States may “refuse[] to comply

19 with [a] request” to help administer federal law). Congress cannot interfere with this choice:

20 States must retain the “prerogative to reject Congress’s desired policy, not merely in theory but

21 in fact.” NFIB, 567 U.S. at 581. The government’s preemption theories would eliminate this

22 “critical alternative.” New York, 505 U.S. at 176-77.

23

Where, as here, the State exercises its anti-commandeering prerogative, there can be no

24 preemption. Like the law in Murphy, § 1373 “does not confer any federal rights on private

25 actors” or “impose any federal restrictions on private actors.” Id. at 1481. Instead, it regulates

26 only the States’ own agents, by prohibiting them from opting out of the deportation system.

27 Congress has no power to enact such a prohibition, either explicitly or implicitly. Nor does the

28 state law in this case confer rights or impose restrictions on private actors; it too regulates only

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Case 2:18-cv-00490-JAM-KJN Document 182 Filed 06/12/18 Page 9 of 23

1 the States’ own agents. Compare id. at 1480 (valid obstacle preemption where State “impose[s]
2 a duty” on private actors that conflicts with private actors’ federal rights or duties).
3 The government ignores these holdings almost entirely. It complains repeatedly that the
4 Values Act “obstructs” immigration enforcement, Reply Br. 11, 13, 14, 15, 17, 25, but it does not
5 and cannot deny that what it calls “obstruction” is simply the State’s decision to limit its own
6 participation in the federal deportation scheme2—a choice that is “essential” to the
7 “[p]reservation of the States as independent political entities,” Printz, 521 U.S. at 919-19, and a
8 “quintessential attribute of sovereignty,” FERC v. Mississippi, 456 U.S. 742, 761 (1982). The
9 government’s complaint about California’s decision to opt out would have applied equally to the
10 sheriffs in Printz and the States in NFIB.3
11 The government fails to meaningfully grapple with the accountability concerns at the
12
heart of these cases. See NFIB, 567 U.S. at 578; Printz, 521 U.S. at 930; New York, 505 U.S. at 13
169. Accountability requires “elected state officials” to “regulate in accordance with the views 14
15 of the local electorate,” including, crucially, by withdrawing from federal programs when the
16 “State’s citizens view federal policy as sufficiently contrary to local interests”—exactly as
17 California’s citizens have chosen. Id. at 168-69. Yet the government believes it can deny
18 California’s citizens that choice and force them to volunteer their officers’ assistance.4

19

20

21

2 The challenged provisions of the Values Act only apply to “California law enforcement agenc[ies].” Cal. Gov’t Code §§ 7284.4(a), 7284.6(a). Both state and local officers are “state

22

officers” for purposes of the Tenth Amendment. government does not claim otherwise.

Printz, 521 U.S. at 905, 930-31.

The

23 3 The government’s reliance on a 25-year-old California Attorney General opinion is misplaced, PI Reply 1, 16, as it predates Printz (applying anti-commandeering to state and local officers),
24 NFIB, Arizona, and Murphy. And because it interpreted federal as opposed to state law, it is entitled to “no special weight.” United States v. Gomez, 911 F.2d 219, 221 n.2 (9th Cir. 1990).
25 Nor can the government draw any support from the subsequent 2014 “Bulletin,” PI Reply 1, 16, which is cursory, ambiguous, and contained no relevant analysis.
26 4 The government tries to minimize these accountability concerns by claiming that “the Federal 27 Government retains full responsibility and accountability for its [immigration] actions.” PI
Reply 18. But Printz rejected a similar argument, citing major accountability problems even 28 where States were only given “discrete, ministerial tasks” within a program administered
principally by the federal government. 521 U.S. at 929-30.

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1 The government also cannot dispute that this suit seeks to override California’s
2 “distribution of power among its own agents.” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S.
3 247, 263 (2011) (Kennedy, J., concurring). California law places control over state and local
4 police in the hands of the State Legislature, which exercised that power in enacting the Values
5 Act. See Cal. Const. art. IV, § 1; Baggett v. Gates, 32 Cal.3d 128, 139 n.15 (1982). According
6 to the government, however, Congress has displaced that arrangement and instead required the
7 Legislature to delegate immigration enforcement decisions to thousands of line-level officers,
8 who may now choose for themselves whether and when to help DHS deport state residents. But
9 Congress cannot “displace a State’s allocation of governmental power” in this way. Alden v.
10
Maine, 527 U.S. 706, 752 (1999); see also Stewart, 563 U.S. at 263 (Kennedy, J., concurring) 11
(States “need not empower their officers” to participate in a federal scheme); Dkt. 73-2, at 5-6, 9. 12
The government fails to explain why it thinks Congress can make such an extreme “incursion 13
into state sovereignty.” Koog v. United States, 79 F.3d 452, 460 (5th Cir. 1996). 14

15

2. The government’s attempts to distinguish Murphy are deeply unpersuasive.

16

First, it claims Murphy is inapplicable here because the commands the government

17 purports to identify are “part of” a federal “scheme regulating” private parties (the INA), which

18 Murphy lacked. PI Reply 20-21. But Printz forecloses any suggestion that direct orders to States

19 are permissible as “part of” a broader federal scheme. The invalid directive in Printz was

20 attached to a broader federal scheme that regulated private handgun purchases. 521 U.S. at 902-

21 03. The Court still invalidated the provision that dictated how state officers had to participate in

22 the scheme’s information-gathering efforts. Those “same principles” applied in Murphy and

23 apply here. 138 S. Ct. at 1477; see also Galarza v. Szalczyk, 745 F.3d 634, 644 (3d Cir. 2014)

24 (applying anti-commandeering in the INA context).

25

Straining to support this argument, the government suggests that Murphy approved of an

26 earlier preemption provision because it was “part of” a federal scheme “regulating air carriers.”

27 PI Reply 21. But that is not remotely what Murphy said. Murphy explains that the airline

28 provision is valid because it effectively “confers on private entities (i.e., covered carriers) a

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Case 2:18-cv-00490-JAM-KJN Document 182 Filed 06/12/18 Page 11 of 23

1 federal right to engage in certain conduct” free from state regulation. 138 S. Ct. at 1480.
2 Likewise, preemption of state alien registration laws is permissible not because it is “part of” a
3 federal registration scheme, but because it gives private actors “a federal right to be free from
4 any [state] registration requirements.” Id. at 1481. Here, in stark contrast, the government’s
5 preemption theories would impose no private rights or restrictions.
6 Second, the government makes the puzzling assertion that § 1373 is permissible because
7 it “evenhandedly regulates an activity in which both States and private actors engage.” PI Reply
8 21 (quoting Murphy, 138 S. Ct. at 1478). But § 1373 applies only to “a Federal, State, or local
9 government entity or official.” 8 U.S.C. § 1373(a). It imposes no restrictions on private actors at
10 all, including those who know about a person’s citizenship or immigration status. Nor is it
11 somehow rendered generally applicable by the INA’s “registration rules” for noncitizens and
12 employers. PI Reply 21; see Printz, 521 U.S. at 902-03, 932 & n.17 (holding that provision was
13 not generally applicable even though the Brady Act imposed related, but different, requirements
14
15 on handgun buyers and sellers). To the extent “there is no private analog” for Congress to
16 regulate evenhandedly, PI Reply 22, that only confirms the commandeering problem. See Printz,
17 521 U.S. at 932 n.17 (striking down statute where “extension of th[e] statute to private citizens”
18 was “impossible”). By contrast, the law upheld in South Carolina v. Baker, 485 U.S. 505, 514
19 (1988), “treat[ed] state bonds the same as private bonds.” Murphy, 138 S. Ct. at 1478 (emphasis
20 added). And the law upheld in Reno v. Condon, 528 U.S. 141, 151 (2000), “applied equally to
21 state and private actors,” regulating their dissemination of the same driver data. Murphy, 138 S.
22 Ct. at 1479 (emphasis added).

23

Third, grasping at straws in the aftermath of Murphy, the government offers a startling

24 new assertion: that the orders it seeks to issue to the States are just conditions “for continued

25 state activity in an otherwise pre-emptible field.” PI Reply 22-23 (quoting FERC, 456 U.S. at

26 769, and Hodel v. Va. Surface Mining & Recl. Ass’n, 452 U.S. 264, 288 (1981)). Without

27 specifying what “field” it means, the government appears to argue that Congress can demand

28

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Case 2:18-cv-00490-JAM-KJN Document 182 Filed 06/12/18 Page 12 of 23

1 whatever deportation assistance it wants, because it could have simply ordered States not to
2 arrest, prosecute, or imprison noncitizens who violate their criminal laws. MTD Opp. 13.
3 Every facet of this argument—which the government did not make in its opening brief—
4 is wrong. As Murphy explains, under a valid “cooperative federalism” arrangement of this sort,
5 Congress “comprehensively regulate[s]” the activity at issue, and then offers States “the choice
6 of either implementing the federal scheme or else yielding to” federal administration. 138 S. Ct.
7 at 1479 (quoting Hodel, 452 U.S. at 288). Nothing of the sort is even possible here. The
8 government’s premise—that Congress could flatly prohibit States from arresting and prosecuting
9 all (possible) noncitizens—is utterly at odds with our constitutional system, which gives States
10 “primary authority for defining and enforcing the criminal law.” United States v. Lopez, 514
11 U.S. 549, 561 n.3 (1995) (citations omitted); see Bond v. United States, 134 S. Ct. 2077, 2089
12 (2014). Indeed, Congress lacks the power to punish ordinary crimes—much less occupy that
13
field altogether. United States v. Morrison, 529 U.S. 598, 618-19 (2000) (“The Constitution 14
15 withholds from Congress a plenary police power.”) (quotation marks and alteration omitted); see
16 also DeCanas v. Bica, 424 U.S. 351, 355 (1976) (rejecting the notion that “every state enactment
17 which in any way deals with aliens is a regulation of immigration”). Congress simply could not
18 make the “unprecedented incursion into the criminal jurisdiction of the States” of barring the
19 States from enforcing their criminal laws against a large segment their residents. McDonnell v.
20 United States, 136 S. Ct. 2355, 2374 (2016) (citation omitted).5 The government offers no
21 reasoning to support this stunning assertion.

22

In any event, the government is wrong that it can conscript the States simply by

23 imagining a broad hypothetical statute Congress might have passed. New York, for instance,

24 struck down a statute even though “Congress could, if it wished, pre-empt state radioactive waste

25 regulation” altogether. 505 U.S. at 160. And it did so over Justice White’s dissent, which made

26
27 5 The government’s suggestion that Congress could authorize DHS to forcibly pluck inmates out of state prisons, PI Reply 22, is likewise inconsistent with federalism principles. That possibility
28 is also irrelevant, because it would not constitute congressional occupation of any “field,” so Hodel would have no application.
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Case 2:18-cv-00490-JAM-KJN Document 182 Filed 06/12/18 Page 13 of 23

1 the same argument the government presses here. See id. at 204 (White, J., concurring in part and
2 dissenting in part). Likewise, in NFIB, Congress’s ability to preempt state healthcare laws did
3 not allow it to command state participation. By contrast, in Hodel, Congress actually had
4 “comprehensively regulated” the relevant field, and in FERC, Congress simply asked States to
5 “to consider” federal standards, which they were free to disregard. Murphy, 138 S. Ct. at 1479.6
6 3. The government maintains that Congress can compel the States to help administer
7 immigration law, as long as the help involves sharing information. PI Reply 18-20. It claims
8 that it order States to produce any information about their residents, any time, for any purpose, as
9 often as it wants. That is wrong. Printz left open the possibility that some kinds of information
10 sharing might fall outside the anti-commandeering rule—specifically, information that does not
11 entail “the actual administration of a federal program.” Printz, 521 U.S. at 918. The Court thus
12
declined to resolve whether “purely ministerial reporting requirements” are constitutional. Id. at 13
936 (O’Connor, J., concurring). But there is no question that forced information sharing, where 14
15 it facilitates the on-the-ground, day-to-day administration of a federal program, runs afoul of the
16 anti-commandeering rule. Indeed, Printz itself invalidated a law because it required state 17 officers “to provide information that belongs to the State.” Id. at 932 n.17.7

18

Here, the information the government seeks would clearly facilitate the “administration

19 of a federal program.” Printz, 521 U.S. at 918. The challenged provisions address whether state

20 officers can make physical transfers of custody and otherwise help DHS identify, locate, and

21

22 6 The government cites ambiguous language in FERC that Congress can issue commands in a

field that is “pre-emptible.” PI Reply 23. Whatever FERC meant by that, New York made clear

23 that Congress cannot issue direct commands to States simply because it could have, but did not,

regulate private conduct. And Murphy counseled against applying FERC beyond its facts—

24 asking States to “consider” standards—highlighting that “FERC was decided well before our

decisions in New York and Printz.” 138 S. Ct. at 1479.

25 7 The government suggests that Reno v. Condon established a Tenth Amendment carve-out for

26

information mandates. PI Reply 18, 22. It is mistaken. Condon upheld a “generally applicable law,” 518 U.S. at 150-51, because the law “evenhandedly regulate[d] an activity in which both

27 States and private actors engage[d],” Murphy, 138 S. Ct. at 1478-79 (“That principle formed the basis for the Court’s decision . . . .”). The Court did not announce any rule about information

28 mandates, or even identify any mandate to send information to federal agents. See Philadelphia, 2018 WL 2725503, at *32 (rejecting the government’s identical argument about Condon).

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1 arrest noncitizens. The government itself stresses the operational impact of these actions:
2 Transfer, release dates, and addresses help DHS “locate, detain, prosecute, and remove aliens,”
3 PI Mem. 33; they increase its “ability to identify and apprehend removable aliens,” id. at 35; and
4 they facilitate “ICE’s efforts to take these aliens into custody for removal purposes,” id.
5 That kind of conscription simply cannot be squared with anti-commandeering law. The
6 Constitution reflects a “fundamental structural decision” to entirely “withhold from Congress the
7 power to issue orders directly to the States,” a principle that leaves no room for systematic
8 demands for information. Murphy, 138 S. Ct. at 1475. Indeed, when Congress “compels the
9 States” to help administer a program, “it blurs the lines of political accountability” regardless of
10 what form the involvement takes. NFIB, 567 U.S. at 678. Whether state officers are placing the
11
handcuffs or helping DHS do so, residents understand that their government is funneling people 12
to the deportation system. Indeed, California’s experience makes clear that when state officials 13
pave the way for deportations—including by sending information about state residents to DHS— 14
15 they incur serious political and financial costs. See Group Rallies Against Deportation in Front
16 of Alameda County Building, Mercury News, Nov. 19, 2015, https://bayareane.ws/2wbh6o4;

17 Dkt. 73-2, at 7 & n.7, 10; Cal. Gov’t Code 7284.2.

18

The government asserts that Congress “frequently calls on states to share relevant

19 information,” PI Reply 19, but none of its examples remotely resembles a system of state officers

20 performing daily services for immigration agents. Many of the purported requirements it cites 21 impose no obligations at all; States are free to decline to participate.8 Others are in reality

22 funding conditions, not direct orders.9 Yet others serve academic and record-keeping goals.

23 8 See, e.g., 54 Stat. 401 (1940) (directing federal government to collect data, without imposing
24 any state or local obligation); 17 Stat. 466 (1873) (same); 42 U.S.C. § 11133(b) (state medical boards can opt out of reporting and be replaced by another agency); 42 U.S.C. § 14072(g)(4)
25 (repealed sex offender reporting requirement that States could avoid entirely by choosing not to implement a qualifying registration program); Pub. L. No. 91-452, § 806 (“does not require
26 states to provide any information,” Philadelphia, 2018 WL 2725503, at *33 n.10).
27 9 See, e.g., Printz, 521 U.S. at 936 (O’Connor, J., concurring) (explaining that 23 U.S.C. § 402 “condition[s] States’ receipt of federal funds for highway safety program on compliance with
28 federal requirements”); 20 U.S.C. § 4013 (information submitted as part of application for federal funds, see id. § 4014).
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1 These are “purely ministerial” because they do not facilitate the federal government’s on-the-

2 ground implementation of any federal regulatory program. Printz, 521 U.S. at 936 (O’Connor,
3 J., concurring).10 As a result, they do not force state officials to “tak[e] the blame” for the
4 “defects” of any federal program. Id. at 930. The information in this case is clearly different.11
5 Finally, the government suggests that a sweeping exception for information mandates
6 “makes sense,” because subpoenas involve information too. PI Reply 19. That is a nonsequitur.
7 Of course States, like everyone else, must comply with judicial subpoenas and other court orders.
8 See Standley v. DOJ, 835 F.2d 216, 218 (9th Cir. 1987) (“A grand jury is an arm of the judicial
9 branch of government.”). In fact, the Supremacy Clause “presupposes” as much. New York, 505
10
U.S. at 179. But “[t]he Constitution contains no analogous grant of authority to Congress.” Id. 11
The government also suggests that it can issue administrative subpoenas to States, so it must be 12
able to demand systematic information sharing. PI Reply 19-20. But it offers no reason to think 13

an agency could lawfully use subpoenas to conscript States to participate in the ongoing 14 15 administration of a federal program, in a manner analogous to its preemption theories.12

16

The Court should reject the suggestion that information mandates are categorically

17 exempt from the anti-commandeering rule—something no court has ever held.

18 10 See 34 U.S.C. § 41307 (statistical data regarding missing children); 15 U.S.C. § 2224

19

(information collected for FEMA publication). The few cases upholding reporting requirements have all addressed these kinds of purely ministerial duties to “forward[] . . . information to a

20

federal data bank.” Freilich v. Upper Chesapeake Health, 313 F.3d 205, 214 (4th Cir. 2002); see United States v. Brown, 2007 WL 4372829, at *5 (S.D.N.Y. Dec. 12, 2007) (requirement to

21

forward information to “a national database”). In contrast to this case, 52 U.S.C. § 20701 et seq.—which addresses records about federal elections—is an exercise of Congress’s “unique”

22

Elections Clause authority. Gonzalez v. Arizona, 677 F.3d 383, 391 (9th Cir. 2012) (en banc), aff’d, 570 U.S. 1 (2013).

23 11 In any event, all of these statutes were enacted before Printz established that anticommandeering applied to state executive officers. Notably, the statute Murphy struck down
24 was passed in 1992, Pub. L. No. 102–559, during the same period when Congress enacted many of the statutes the government cites here. Congress’s decision to enact a handful of information-
25 sharing statutes in the “few decades” before Printz is simply not “probative” of their constitutionality. Printz, 521 U.S. at 917-18.
26 12 The cursory analysis of In re Tax Liabilities of Does, 2011 WL 6302284, at *4 (E.D. Cal. Dec. 27 15, 2011), issued ex parte, does not address any of the anti-commandeering cases. In any event,
it addressed a one-time enforcement operation rather than an ongoing, indefinite reliance on state 28 officers to effectuate a federal program. And Oregon Prescription Drug Monitoring Program v.
DEA, 860 F.3d 1228, 1236 (9th Cir. 2017), addressed no Tenth Amendment argument at all.

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1 II. Even If It Could, Congress Has Not Preempted the Values Act.
2 Even if Congress could bar states from opting out of the deportation regime, Congress
3 would have to make that intention “unmistakably clear in the language of the statute.” Gregory,
4 501 U.S. at 460. The government does not dispute that Gregory applies to its preemption
5 theories. See Dkt. 73-2, at 16. To satisfy Gregory, the government’s interpretation “must be
6 plain to anyone reading the Act.” Id. at 467. Where Gregory applies, it is typically “fatal.”
7 Nixon v. Missouri Mun. League, 541 U.S. 125, 141 (2004).
8 A. The United States Barely Defends Its Interpretation of 8 U.S.C. § 1373.
9 The government does not explain why its broad reading of § 1373 is not just plausible,
10
but “unmistakably clear in the language of the statute.” 501 U.S. at 460. That omission is 11
striking, but not surprising. As multiple courts have now held, the government’s present 12
interpretation “is simply impossible to square with the statutory text.” Philadelphia, 2018 WL 13
2725503, at *33-35; Steinle v. San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017). 14

15

The government offers little in response. It does not deny that its interpretation of § 1373

16 is virtually limitless, Cal. PI Opp. 13-14; Dkt. 112, at 4-7. It ignores the many statutes showing

17 that Congress knows how to refer to information beyond citizenship and immigration status

18 when it wants to, Cal. PI Opp. 12 & n.11; Dkt. 112, at 13-14. It does not address the many failed

19 efforts to expand § 1373 to reach the information it seeks through this lawsuit, Dkt. 112, at 14.

20 And it has no response to Roach v. Mail Handlers Ben. Plan, 298 F.3d 847, 850 (9th Cir. 2002) 21 (interpreting “relate to” narrowly to preserve “the historic police powers of the States”).13

22

B. Implied Preemption Is Foreclosed by Gregory.

23

Even if Congress could preempt a State from opting out of a federal program, it would

24 have to do so explicitly. This is a dispositive basis to reject the obstacle preemption claim.

25 13 Unlike Roach, Appling did not involve preemption, and it had not occasion to consider the

26

impact of Gregory. PI Reply 16 (citing Lamar, Archer & Cofrin, LLP v. Appling, No. 16-1215 (S. Ct. June 4, 2018)). Appling is also consistent with California’s argument that § 1373 extends

27 beyond a person’s technical immigration status to include items that “indicate” a person’s status, Appling, slip op. at 9—a narrow set of information such as verbal admissions, copies of

28 immigration documents, and the like. See Cal. PI Opp. 12-13; Dkt. 112, at 9; Dkt. 73-2, at 15. In all events, Appling did not endorse any limitless interpretation like the government’s.

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1 Implied preemption in this context would violate the rule that federal intrusions into core
2 state prerogatives require “unmistakably clear” textual statements. Gregory, 501 U.S. at 460.
3 Congress must be “explicit” if it wants to “readjust the balance of state and national authority.”
4 Bond, 134 S. Ct. at 2089 (quotation marks and alteration omitted). That principle forecloses the
5 argument that Congress can silently, through implication only, “alter[] the State’s governmental
6 structure” and preempt States from exercising fundamental sovereign rights, like declining to
7 help administer a federal program. City of Abilene v. FCC, 164 F.3d 49, 52 (D.C. Cir. 1999).
8 Courts do “not simply infer this sort of congressional intrusion.” Id. Indeed, Gregory usually
9 forecloses applying even an express requirement to a core state function. Where Congress has
10 made no preemptive statement at all—as the government’s implied preemption theory
11 assumes—there is no assurance that Congress “has in fact faced” the gravity of interfering with
12 the “substantial sovereign powers” of the States. Gregory, 501 U.S. at 461 (citation omitted).
13 The government has not even mentioned Gregory. It has not found a single case
14 15 imposing obstacle preemption where Gregory applied. And it certainly has not found a case
16 applying obstacle preemption to a State’s policy limiting its own agents’ participation in a 17 federal program.14 The Court should refuse to take that unprecedented step.
C. Even If It Could, Congress Has Not Impliedly Preempted the Values Act. 18
Even if it could preempt the Values Act through implication only, Congress has not made 19
any such intention “clear and manifest.” Wyeth v. Levine, 555 U.S. 555, 565 (2009). 20
1. The government has entirely ignored a dispositive reason to reject its implied 21 22 preemption claim: Congress has already determined what it deemed to be the proper scope of 23 preemption in § 1373. Cal. PI Opp. 22. An express preemption statute like § 1373 is “powerful
24 evidence” against implied preemption, because it shows that Congress has already decided which
25
26 14 For instance, Gregory did not apply to the preemption claims in Arizona v. United States, 567 U.S. 387 (2012), because none of the challenged statutes exercised a State’s fundamental
27 prerogatives to structure its government or limit its participation in a federal program. Just the opposite: The Court struck down three state laws that invaded federal prerogatives by enacting
28 the State’s “own immigration policy.” Id. at 408; see id. at 403 (alien registration requirement); id. at 406-07 (alien employment prohibition); id. at 410 (authority to arrest immigrants).
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1 state laws “posed an obstacle to its objectives.” Wyeth, 555 U.S. at 574-75 (rejecting obstacle
2 preemption on this basis). Fully cognizant of DHS’s statutory duties, Congress chose only to
3 preempt state policies that limit the sharing of “citizenship or immigration status” information. 8
4 U.S.C. § 1373(a). And Congress has consistently refused to go further, rejecting numerous
5 proposals to expand § 1373.15 The case for implied preemption is therefore “particularly weak”
6 here. Wyeth, 555 U.S. at 575 (quotation marks omitted). Whatever its constitutionality, see
7 supra, § 1373’s intentional narrowness “creates a ‘reasonable inference’ that Congress did not
8 intend to preempt state . . . laws that do not fall within [its] scope.” Atay v. Cty. of Maui, 842
9 F.3d 688, 704 (9th Cir. 2016) (quoting Freightliner Co. v. Myrick, 514 U.S. 280, 288 (1995)).16
10 Moreover, the government’s obstacle preemption claim would render § 1373 entirely
11 unnecessary. If it were really true that the INA already implicitly preempted state policies that
12
“restrict[] state and local officials . . . from cooperating” with DHS, PI Mem. 25, there would 13
have been no need to enact § 1373, which singles out a small subset of those same policies for 14
15 preemption. The government’s theory thus “would render statutory text superfluous.” Clark v.
16 Rameker, 134 S. Ct. 2242, 2249 (2014). It makes no attempt to justify that result.

17

2. The statutes the government invokes confirm just how weak its obstacle preemption

18 claim is. Its brief relies exclusively on statutes that direct DHS—but not the States—to detain

19 and remove noncitizens after their release from criminal custody. E.g., 8 U.S.C. §§ 1226(c)(1),

20 1231(a)(2), 1231(a)(4), 1357(d). Its basic theory is that DHS’s job would be easier if California

21 volunteered its own resources to help DHS, and so the INA implicitly requires California to offer

22 that assistance.17 See, e.g., PI Mem. 35-36 (state assistance saves DHS “time and resources”); PI

23
24 15 See, e.g., H.R. 2964, 114 Cong. § 5 (2015); H.R. 2278, 113 Cong. § 114 (2013). 16 While § 1373 does not “foreclose[]”implied preemption principles, Geier v. Am. Honda Motor
25 Co., 529 U.S. 861, 872-73 (2000), it is strong evidence against implied preemption because it shows that Congress “knew how” but did not “expressly forbid state laws” like the Values Act.
26 Chicanos Por La Causa v. Napolitano, 558 F.3d 856, 867 (9th Cir. 2009).
27 17 The government also criticizes an exception in the Values Act that allows transfers when DHS obtains a judicial warrant. PI Reply 14; see Cal. Gov’t Code § 7284.6(a)(4). But that provision
28 simply conditions the State’s participation, which the State is free to withhold completely. If it can decline altogether, surely it can also identify the circumstances in which it will participate.
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1 Reply 13 (state assistance means “minimal effort by federal officials”). Those assertions are
2 plainly insufficient to overcome the presumption against preemption. “The Supreme Court has
3 warned that obstacle preemption analysis does ‘not justify a freewheeling judicial inquiry into
4 whether a state statute is in tension with federal objectives.’” Atay, 842 F.3d at 704.
5 None of the statutes remotely supports preemption. For instance, § 1357(d) directs DHS
6 to “take custody of the alien” after state criminal custody ends, and is the only place the INA
7 mentions notification of release dates. See Arizona, 567 U.S. at 410 (explaining that § 1357(d)
8 allows States to “respond[] to requests for information about when an alien will be released”).
9 Critically, § 1357(d) lets States decide whether to “request[]” this form of cooperation. 8 U.S.C.
10 § 1357(d)(3). Thus, the INA explicitly leaves notification of release dates to States’ discretion.
11 Deference to States’ choices is echoed in numerous other provisions throughout the INA,
12
which explicitly allow States to limit their participation in the deportation scheme. See, e.g., id. 13
§ 1357(g)(1) (allowing participation “to the extent consistent with State and local law”); id. § 14
15 1252c(a) (similar); id. § 1103(a)(10) (participation only “with the consent of” state officials); id.
16 § 1226(d)(3) (federal “assistance” at the “request” of a State). These cooperative provisions
17 “undermine[] any inference of interference with Congress’s method.” Chinatown Neighborhood
18 Ass’n v. Harris, 794 F.3d 1136, 1143 (9th Cir. 2015) (rejecting obstacle preemption where “the
19 federal scheme is cooperative” and invites States to make their own choices).

20

Next, the government relies heavily on 8 U.S.C. § 1231(a)(4), which prohibits removal

21 while a noncitizen is serving a criminal sentence. PI Reply 12-13; PI Mem. 24; MTD Opp. 11,

22 13. But § 1231(a)(4) serves to protect States’ criminal justice systems from federal interference,

23 in recognition of the States’ paramount authority over “the punishment of local criminal

24 activity.” Bond, 134 S. Ct. at 2089. It exudes deference to the States, which are empowered to

25 decide whether earlier removal is “in the best interest of the State.” 8 U.S.C. § 1231(a)(4)(B)(ii).

26 The government’s theory would turn Congress’s solicitude on its head.

27

Section 1231(a)(1) works the same way, directing DHS to pursue removal after criminal

28 custody ends. 8 U.S.C. § 1231(a)(1)(B)(iii). Its function is to protect, not conscript, state criminal

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1 justice systems. And it only imposes obligations on DHS, not the States. Moreover, even by its
2 terms it bears no relationship to most (if not all) releases from state detention: In virtually all
3 cases, a person’s “release date from state or local criminal custody” can only “trigger” the 90-day
4 removal period (PI Mem. 24) when the person received a final removal order while in state
5 custody. Id. § 1231(a)(1)(B). Yet that rarely, if ever, happens in California jails. See DOJ, Inst.
6 Hearing Prog., at 2 (2018) (showing no California jails with an in-custody removal program),
7 https://bit.ly/2rfubHM. The government itself has produced no evidence that there is anyone in
8 California jails subject to the Values Act whose release date triggers a 90-day removal period.
9 Similarly, § 1226(c) simply provides for DHS—not the States—to detain certain
10 noncitizens when they are released from criminal custody. The Values Act, of course, leaves
11
DHS free to arrest, detain, and remove noncitizens, just without certain assistance from 12
California. The government argues that without state aid, some people will not be arrested by 13
DHS immediately upon release. PI Mem. 24, 27. But even if that happens, and DHS does not 14
15 arrest them until later, the only possible consequence is that they become eligible for a bond 16 hearing.18 See Preap v. Johnson, 831 F.3d 1193, 1206 (9th Cir. 2016), cert. granted, 138 S. Ct.
17 1279; 8 U.S.C. § 1226(a) (providing bond hearings). The possibility of a bond hearing in some
18 cases is a slender reed on which to base the government’s preemption challenge.19

19

III. The Values Act Does Not Violate Intergovernmental Immunity.

20

The immunity doctrine cannot, consistent with the Tenth Amendment, prevent a State

21 from choosing not to administer a federal program. That would wipe out States’ most essential

22 Tenth Amendment prerogative, and it would do so automatically, without any indication of

23 18 The government disputes even that much. On appeal in Preap, it argues that mandatory

24 detention applies “regardless of when the arrest occurred,” U.S. Br., Nielsen v. Preap, No. 16-

1363, at 9 (June 2018), in which case the Values Act would never impact mandatory detention.

25 19 Even that connection is minimal. Noncitizens are only subject to mandatory detention under §

26

1226(c) if they have committed an enumerated crime, and the exceptions in the Values Act allow for transfer and notification based on long list of crimes. Cal. Gov’t Code § 7282.5. The

27 government’s § 1226(c) argument therefore only applies to the narrow set of people who have committed crimes that trigger § 1226(c) but not a Values Act exception. Such occasional and

28 hypothetical scenarios do not establish preemption. See Harris, 794 F.3d at 1142 (no preemption based on “the prospect of a ‘modest impediment’ to general federal purposes”) (citation omitted).

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1 preemptive intent from Congress. Unsurprisingly, the government cannot find a single case that
2 applies the immunity doctrine to a State’s decision to opt out of a federal program.
3 The government argues that the Values Act violates intergovernmental immunity because
4 it “treat[s] federal immigration officials worse than other entities.” PI Mem. 31. But that is true
5 every time a State exercises its anti-commandeering prerogative. After Printz, for example, a
6 sheriff who refused Brady Act background checks would be treating ATF officials worse than
7 others who asked for background checks. If the government were right, Congress could force
8 States to administer programs simply by seeking assistance of the same sort that States provide
9 to other entities. That does not square with Printz, New York, NFIB, or the “prerogative to reject
10 Congress’s desired policy” that they recognize. NFIB, 567 U.S. at 581; Dkt. 73-2, at 23-24.
11 Even if immunity could apply here, it would not bar the Values Act. First, Congress
12 retains “the primary role” in resolving immunity questions. North Dakota v. United States, 495
13 U.S. 423, 435 (1990) (plurality op.). And Congress has thoroughly addressed States’ role in the
14 15 deportation scheme. See, e.g., 8 U.S.C. §§ 1373, 1357(d), 1357(g). Where “Congress has made 16 its assessment of the federal interest” and allows the States leeway, its “action sufficiently 17 qualifies the intergovernmental immunity of the United States to permit the state to make the 18 distinction it has.” United States v. Lewis Cty., 175 F.3d 671, 676 (9th Cir. 1999). Second, there 19 are “significant differences” between immigration enforcement and criminal enforcement. Davis
20 v. Michigan Dep’t of Treasury, 489 U.S. 803, 816 (1989) (discrimination permissible under these
21 circumstances). Immigration enforcement instills fear and destroys cooperation with state
22 residents in a way that finds no parallel in ordinary law enforcement. Cal. Gov’t Code § 7284.2
23 (listing its unique harms). Accordingly, the State’s decision to treat immigration differently
24 would be fully “justified” even if intergovernmental immunity applied. Davis, 489 U.S. at 816
25 (citation omitted).
26
27
28
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Case 2:18-cv-00490-JAM-KJN Document 182 Filed 06/12/18 Page 22 of 23

1 Dated: June 12, 2018

Respectfully submitted,

2

/s/ Spencer E. Amdur

3 Julia Harumi Mass (SBN 189649)

Spencer E. Amdur (SBN 320069) Cody H. Wofsy (SBN 294179)

4 Angelica H. Salceda (SBN 296152)

AMERICAN CIVIL LIBERTIES UNION

ACLU FOUNDATION OF NORTHERN FOUNDATION

5 CALIFORNIA

39 Drumm Street

6

39 Drumm Street San Francisco, CA 94111

San Francisco, CA 94111 Tel: (415) 343-0770

7 Tel: (415) 621-2493

Fax: (415) 395-0950

Fax: (415) 255-8437

samdur@aclu.org

8 jmass@aclunc.org

cwofsy@aclu.org

9 asalceda@aclunc.org

Omar C. Jadwat (pro hac vice)

10 Jessica Karp Bansal (SBN 277347) NATIONAL DAY LABORER

Lee Gelernt (pro hac vice) AMERICAN CIVIL LIBERTIES UNION

11 ORGANIZING NETWORK

FOUNDATION

674 South LaFayette Park Place 12 Los Angeles, CA 90057

125 Broad Street, 18th Floor New York, NY 10004

13 Tel: (213) 380-2214 Fax: (213) 380-2787

Tel: (212) 549-2660 ojadwat@aclu.org

14 jbansal@ndlon.org

lgelernt@aclu.org

15 Angela Chan (SBN 250138)

Michael Kaufman (SBN 254575)

16

ASIAN AMERICANS ADVANCING JUSTICE - ASIAN LAW CAUCUS

Jennifer Pasquarella (SBN 263241) ACLU FOUNDATION OF SOUTHERN

17 55 Columbus Avenue

CALIFORNIA

San Francisco, CA 94404

1313 West 8th Street

18 Tel: (415) 848-7719

Los Angeles, CA 90017

19 angelac@advancingjustice-alc.org

Tel: (213) 977-5232 mkaufman@aclusocal.org

20 Bardis Vakili (SBN 247783)

jpasquarella@aclusocal.org

ACLU FOUNDATION OF SAN DIEGO

21 & IMPERIAL COUNTIES

P.O. Box 87131 22 San Diego, CA 92138-7131

23 Tel: (619) 398-4485 bvakili@aclusandiego.org

24

25

26

27

28

Brief of Amici Curiae the Partnership and CHIRLA

Case 2:18-cv-00490-JAM-KJN Document 182 Filed 06/12/18 Page 23 of 23

1 CERTIFICATE OF SERVICE
2 I hereby certify that on June 12, 2018, I electronically filed the foregoing Brief of Amici
3 Curiae with the Clerk for the United States District Court for the Eastern District of California by
4 using the CM/ECF system. A true and correct copy of this brief has been served via the Court’s
5 CM/ECF system on all counsel of record.
6

7

/s/ Spencer E. Amdur

8

Spencer E. Amdur

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Brief of Amici Curiae the Partnership and CHIRLA

 
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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 THE UNITED STATES OF AMERICA, No. 2:18-cv-490-JAM-KJN

12

Plaintiff,

13

v.

14 STATE OF CALIFORNIA, et al.,

ORDER RE: THE UNITED STATES OF AMERICA’S MOTION FOR PRELIMINARY INJUNCTION

15

Defendants.

16

17

I. INTRODUCTION

18

Before this Court is the United States of America’s

19 (“Plaintiff” or “United States”) Motion for a Preliminary

20 Injunction (“Motion”). Plaintiff seeks an Order from this Court

21 enjoining enforcement of certain provisions of three laws enacted

22 by the State of California (“Defendant” or “California”)1 through

23 Assembly Bill 103 (“AB 103”), Assembly Bill 450 (“AB 450”) and

24 Senate Bill 54 (“SB 54”). Specifically, Plaintiff requests that

25 this Court preliminarily enjoin the following provisions of

26 1 Because Edmund Gerald Brown Jr., Governor of California, and
27 Xavier Becerra, Attorney General of California, are sued in their official capacities only, the Court will address all three named
28 defendants as “California” or “Defendant.”
1

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 2 of 60

1 California law: (1) California Government Code Section 12532 (as

2 added by AB 103); (2) California Government Code Sections 7285.1

3 and 7285.2 and California Labor Code Sections 90.2 and 1019.2 as

4 applied to private employers only (as added by AB 450); and (3)

5 California Government Code Sections 7284.6(a)(1)(C),

6 7284.6(a)(1)(D), and 7284.6(a)(4) (as added by SB 54). Plaintiff

7 claims that these statutes violate the Supremacy Clause of the

8 United States Constitution, Art. VI, cl.2, and are invalid.

9 Compl., ECF No. 1, ¶¶ 61, 63 & 65. Plaintiff argues that federal

10 law preempts each provision because, in the area of immigration

11 enforcement, California “lacks the authority to intentionally

12 interfere with private citizens’ [and state and local employees’]

13 ability to cooperate voluntarily with the United States or to

14 comply with federal obligations.” Motion for Preliminary

15 Injunction (“Mot.”), ECF No. 2-1, at 2.

16

Plaintiff also contends that California “has no authority to

17 target facilities holding federal detainees pursuant to a federal

18 contract for an inspection scheme to review the ‘due process’

19 afforded during arrest and detention.” Id. Accordingly,

20 Plaintiff implores this Court to enjoin these state law

21 provisions because they “stand as an obstacle to the

22 accomplishment and execution of the full purposes and objectives

23 of Congress and are therefore preempted by federal law.” Id. at

24 3 (citations omitted).

25

Defendant vigorously opposes Plaintiff’s motion for a

26 preliminary injunction, see Opp’n, ECF No. 74, contending that

27 these three state laws properly “allocate the use of limited law-

28 enforcement resources, provide workplace protections, and protect 2

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 3 of 60

1 the rights of [California’s] residents.” Id. at 1. Defendant

2 further argues that these statutes “are consistent with

3 applicable federal law and do not interfere with the federal

4 government’s responsibility over immigration.” Id. Defendant

5 claims that it “acted squarely within its constitutional

6 authority when it enacted the law[s] [the United States seeks to

7 enjoin] here[.]” Id. None of the state laws, according to

8 Defendant, “conflict[] with federal law or undermine[] the

9 federal government’s authority or ability to undertake

10 immigration enforcement and all are consistent with the

11 legislative framework [of the immigration laws and regulations].”

12 Id.

13

This Motion presents unique and novel constitutional issues.

14 The Court must answer the complicated question of where the

15 United States’ enumerated power over immigration ends and

16 California’s reserved police power begins. The Court must also

17 resolve the issue of whether state sovereignty includes the power

18 to forbid state agents and private citizens from voluntarily

19 complying with a federal program. Plaintiff’s Motion requires

20 this Court to carefully examine the purposes and principles of

21 the federalist system–a system, established by the Constitution,

22 of dual sovereignty between the States and the Federal Government

23 whose principal benefit may be “a check on abuses of government

24 power.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).

25

Deciding these critical issues requires this Court to

26 determine the proper balance between the twin powers of

27 California and the United States. The law is clear that so long

28 as the Federal Government is acting within the powers granted to 3

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1 it under the Constitution, Congress may impose its will on the

2 States. Id. at 460. However, if Congress is going to preempt or

3 interfere with the decision of the people of California, “it is

4 incumbent upon [this Court] to be certain of [Congress’s] intent

5 before finding that federal law overrides” the constitutional

6 balance of federal and state powers. Id. (citation omitted).

7

If Congress intends to alter the usual constitutional

balance between the States and Federal Government it

8

must make its intention to do so unmistakably clear in

the language of the statute. . . . Congress should make

9

its intention clear and manifest if it intends to pre-

empt the historic powers of [the State].

10

11 Id. at 460–61 (quoting Atascadero State Hosp. v. Scanlon, 473

12 U.S. 234, 242 (1985)) (quotation marks omitted).

13

Applying these well-established principles of law to the

14 present Motion, and as explained in detail below, this Court

15 finds that AB 103, SB 54, and the employee notice provision of AB

16 450 are permissible exercises of California’s sovereign power.

17 With respect to the other three challenged provisions of AB 450,

18 the Court finds that California has impermissibly infringed on

19 the sovereignty of the United States. Plaintiff’s Motion is

20 therefore denied in part and granted in part.

21

II. Legal Standards

22

A. Preliminary Injunction Standard

23

Plaintiff moves the Court to enjoin enforcement of the

24 challenged state laws. Before the Court can grant the requested

25 relief, Plaintiff must establish—as to each challenged law—that

26 it is likely to succeed on the merits of its claim, that it is

27 likely to suffer irreparable harm in the absence of preliminary

28 relief, that the balance of the equities tips in its favor, and 4

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 5 of 60

1 that an injunction is in the public interest. Winter v. Nat.

2 Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In the Ninth

3 Circuit, an injunction may also be proper “if there is a

4 likelihood of irreparable injury to plaintiff; there are serious

5 questions going to the merits; the balance of hardships tips

6 sharply in favor of the plaintiff; and the injunction is in the

7 public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir.

8 2012).

9

Here, however, the nature of the requested relief increases

10 Plaintiff’s burden. An order enjoining the enforcement of state

11 laws would alter the status quo and thus qualifies as a mandatory

12 injunction. Tracy Rifle & Pistol LLC v. Harris, 118 F. Supp. 3d

13 1182, 1194 (E.D. Cal. 2015). Plaintiff must establish that the

14 law and facts clearly favor its position, not simply that it is

15 likely to succeed on its claims. See Garcia v. Google, Inc., 786

16 F.3d 733, 740 (9th Cir. 2015).

17

B. Supremacy Clause

18

In the United States, “both the National and State

19 Governments have elements of sovereignty the other is bound to

20 respect.” Arizona v. United States, 567 U.S. 387, 398 (2012).

21 The Constitution establishes the balance between these sovereign

22 powers and the Nation’s dual structure. The Supremacy Clause

23 declares that the “Constitution, and the Laws of the United

24 States which shall be made in Pursuance thereof . . . shall be

25 the supreme Law of the Land; and the Judges in every State shall

26 be bound thereby[.]” U.S. Const. Art. VI, cl. 2. The Tenth

27 Amendment limits the powers of the United States to those which

28 the Constitution delegates, reserving the remaining powers to the 5

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1 States. U.S. Const. amend. X (“The powers not delegated to the

2 United States by the Constitution, nor prohibited by it to the

3 States, are reserved to the States respectively, or to the

4 people.”). Thus, rather than wielding a plenary power to

5 legislate, Congress may only enact legislation under those powers

6 enumerated in the Constitution. See Murphy v. Nat’l Collegiate

7 Athletic Ass’n, 138 S. Ct. 1461, 1476 (2018) (“The Constitution

8 confers on Congress not plenary legislative power but only

9 certain enumerated powers.”); United States v. Morrison, 529 U.S.

10 598, 607 (2000) (“Every law enacted by Congress must be based on

11 one or more of its powers enumerated in the Constitution.”).

12

The United States’ broad power over “the subject of

13 immigration and the status of aliens” is undisputed. Arizona,

14 567 U.S. at 394.2 “But the Court has never held that every state

15 enactment which in any way deals with aliens is a regulation of

16 immigration and thus per se pre-empted by this constitutional

17 power, whether latent or exercised.” DeCanas v. Bica, 424 U.S.

18 351, 355 (1976) superseded by statute on other grounds as

19 recognized in Arizona, 567 U.S. at 404.

20

1. Obstacle Preemption

21

Where Congress has the power to enact legislation it has the

22 power to preempt state law, even in areas traditionally regulated

23 by the States. See Arizona, 567 U.S. at 399; Gregory, 501 U.S.

24 at 460. Courts recognize three types of preemption: express

25 2 Unless quoting from another source, this Court will use the 26 term “immigrant” when referring to “any person not a citizen or
national of the United States.” Cf. 8 U.S.C § 1101(a)(3) 27 (defining “alien”). For persons who have not obtained lawful
immigration or citizenship status, the Court will use the term 28 “undocumented immigrants.”
6

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1 preemption, field preemption, and conflict preemption.

2 Plaintiff’s preemption argument is primarily premised on the most

3 enigmatic member of this doctrinal family, “obstacle” preemption—

4 a species of conflict preemption.

5

Conflict preemption is found in cases where it is physically

6 impossible to comply with both federal and state regulations or

7 in cases where the “challenged state law ‘stands as an obstacle

8 to the accomplishment and execution of the full purposes and

9 objectives of Congress.’ ” Arizona, 567 U.S. at 399–400 (quoting

10 Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). “What is a

11 sufficient obstacle is a matter of judgment, to be informed by

12 examining the federal statute as a whole and identifying its

13 purpose and intended effects.” Crosby v. Nat’l Foreign Trade

14 Council, 530 U.S. 363, 373 (2000). The Court must examine and

15 consider the entire scheme of the federal statute, including

16 those elements expressed and implied. Id. “If the purpose of

17 the act cannot otherwise be accomplished—if its operation within

18 its chosen field else must be frustrated and its provisions be

19 refused their natural effect—the state law must yield to the

20 regulation of Congress within the sphere of its delegated power.”

21 Id. at 373 (quoting Savage v. Jones, 225 U.S. 501, 533 (1912)).

22

There is a strong presumption against preemption when

23 Congress legislates in an area traditionally occupied by the

24 States. Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136,

25 1141 (9th Cir. 2015). The Court presumes “ ‘the historic police

26 powers of the States’ are not superseded ‘unless that was the

27 clear and manifest purpose of Congress.’ ” Arizona, 567 U.S. at

28 400 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 7

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 8 of 60

1 (1947)); see Rice, 331 U.S. at 230 (When Congress legislates in a

2 “field which the States have traditionally occupied[,] [] we

3 start with the assumption that the historic police powers of the

4 States were not to be superseded by the Federal Act unless that

5 was the clear and manifest purpose of Congress.”). Such purpose

6 must be “unmistakably clear in the language of the statute,”

7 Gregory, 501 U.S. at 460 (quoting Atascadero State Hosp. v.

8 Scanlon, 473 U.S. 234 (1985)), as must the presence of an

9 obstacle. Chinatown Neighborhood Ass’n, 794 F.3d at 1141 (“[T]he

10 California statute cannot be set aside absent ‘clear evidence’ of

11 a conflict.”); see also Savage, 225 U.S. at 533 (1912) (“In other

12 words, [the intent to supersede the State’s exercise of its

13 police power] is not to be implied unless the act of Congress,

14 fairly interpreted, is in actual conflict with the law of the

15 state.”). “Mere possibility of inconvenience” is not a

16 sufficient obstacle—the repugnance must be “so direct and

17 positive that the two acts cannot be reconciled or consistently

18 stand together.” See Goldstein v. California, 412 U.S. 546, 554–

19 55 (1973) (quoting The Federalist No. 32, p. 243 (B. Wright ed.

20 1961)); Kelly v. Washington ex rel. Foss Co., 302 U.S. 1, 10

21 (1937).

22

The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101

23 et seq., is “the comprehensive federal statutory scheme for

24 regulation of immigration and naturalization.” DeCanas, 424 U.S.

25 at 353. Congress has amended and supplemented the scheme over

26 the years by passing statutes like the Immigration Reform and

27 Control Act (“IRCA”) and the Illegal Immigration Reform and

28 Immigrant Responsibility Act (“IIRIRA” or “IIRAIRA”), among 8

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1 others. Plaintiff argues that the INA, as amended, preempts the

2 state laws challenged in this case. Mot. at 2–3, 11–32.

3

2. Intergovernmental Immunity

4

The Supremacy Clause gives rise to another doctrine

5 restricting States’ power: the doctrine of intergovernmental

6 immunity. Under this line of precedent, a State may not regulate

7 the United States directly or discriminate against the Federal

8 Government or those with whom it deals. North Dakota v. United

9 States, 495 U.S. 423, 435 (1990) (plurality op.). “Since a

10 regulation imposed on one who deals with the Government has as

11 much potential to obstruct governmental functions as a regulation

12 imposed on the Government itself, the Court has required that the

13 regulation be one that is imposed on some basis unrelated to the

14 object’s status as a Government contractor or supplier, that is,

15 that it be imposed equally on other similarly situated

16 constituents of the State.” North Dakota, 495 U.S. at 437–38.

17 The doctrine protects private entities and individuals even when

18 the burdens imposed upon them are not then passed on to the

19 Federal Government. See Davis v. Michigan Dep’t of Treasury, 489

20 U.S. 803, 814–15, 817 (1989) (finding a state tax system that

21 favored state retirees over federal retirees violated

22 intergovernmental immunity even though the tax arguably did not

23 interfere with the Federal Government’s ability to perform its

24 governmental functions) (citing Phillips Chem. Co. v. Dumas

25 Indep. Sch. Dist., 361 U.S. 376, 387 (1960)). Though the

26 doctrine finds its most comfortable repose in tax cases, courts

27 have extended its reach to other contexts. See, e.g., North

28 Dakota, 495 U.S. 423 (analyzing North Dakota’s liquor control 9

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 10 of 60

1 regulations); Boeing Co. v. Movassaghi, 768 F.3d 832 (9th Cir.

2 2014) (analyzing a California law governing cleanup of a federal

3 nuclear site); In re Nat’l Sec. Agency Telecomms. Records Litig.,

4 633 F. Supp. 2d 892 (N.D. Cal. 2007) (analyzing state

5 investigations into telecommunication carriers that concerned the

6 alleged disclosures of customer records to the NSA).

7

A targeted regulation is not invalid simply because it

8 distinguishes between the two sovereigns. “The State does not

9 discriminate against the Federal Government and those with whom

10 it deals unless it treats someone else better than it treats

11 them.” North Dakota, 495 U.S. at 437–38 (quoting Washington v.

12 United States, 460 U.S. 536, 544–545 (1983)). Accordingly, a

13 regulation should not be struck down unless it burdens the

14 Federal Government (or those dealing with the Federal Government)

15 more so than it does others. North Dakota, 495 U.S. at 439

16 (finding a regulatory regime that did not disfavor the Federal

17 Government could not be considered to discriminate against it).

18 Furthermore, a regulation will survive if significant differences

19 between the two classes justify the burden. Davis, 489 U.S. at

20 815–17. “The relevant inquiry is whether the inconsistent []

21 treatment is directly related to, and justified by, significant

22 differences between the two classes.” Id. at 816 (citation and

23 quotation marks omitted).

24

C. Tenth Amendment

25

The Tenth Amendment limits Congress’s legislative authority

26 to those powers enumerated in the Constitution. Absent from this

27 list of powers “is the power to issue direct orders to the

28 governments of the States.” Murphy, 138 S. Ct. at 1476. Thus, 10

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1 in addition to erecting a higher wall against preemption, the

2 Tenth Amendment restrains Congress’s ability to impose its will

3 upon the States directly.

4

The Supreme Court’s so-called “anticommandeering” doctrine

5 recognizes this check on Congressional power. Congress may not

6 directly compel States to enact a regulation or enforce a federal

7 regulatory program, conscript state officers for such purpose, or

8 prohibit a State from enacting laws. See New York v. United

9 States, 505 U.S. 144, 188 (1992) (“The Federal Government may not

10 compel the States to enact or administer a federal regulatory

11 program.”); Printz v. United States, 521 U.S. 898, 935 (1997)

12 (“Today we hold that Congress cannot circumvent that prohibition

13 by conscripting the State’s officers directly.”); Murphy, 138 S.

14 Ct. at 1478 (“The PASPA provision at issue here—prohibiting state

15 authorization of sports gambling—violates the anticommandeering

16 rule. That provision unequivocally dictates what a state

17 legislature may and may not do.”). Even requiring state officers

18 to perform discrete, ministerial tasks violates the doctrine.

19 Printz, 521 U.S. at 929–30.

20

The reasons behind the anticommandeering doctrine are

21 several. See Murphy, 138 S. Ct. at 1477 (Part III-B). First,

22 the rule reflects “the Constitution’s structural protections of

23 liberty.” Printz, 521 U.S. at 921. By balancing power between

24 the sovereigns, it prevents the accumulation of excessive power

25 and “reduce[s] the risk of tyranny and abuse from either front.”

26 Gregory, 501 U.S. at 458. Second, the doctrine prevents Congress

27 from passing the costs and burdens of implementing a federal

28 program onto the States. Printz, 521 U.S. at 930. Third, the 11

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1 doctrine promotes accountability; it ensures that blame for a

2 federal program’s burdens and defects falls on the responsible

3 government. Id. (“And it will likely be the [state chief law

4 enforcement officers], not some federal official, who will be

5 blamed for any error (even one in the designated federal

6 database) that causes a purchaser to be mistakenly rejected.”).

7 These reasons, among others, counsel that courts must adhere to

8 the strictures of the rule even where a Congressional act serves

9 important purposes, is most efficiently effectuated through state

10 officers, or places a minimal burden upon the State. Id. at 932.

11 “It is the very principle of separate state sovereignty that such

12 a law offends, and no comparative assessment of the various

13 interests can overcome that fundamental defect.” Id.

14

III. OPINION

15

A. Likelihood of Success on the Merits

16

1. Assembly Bill 103

17

Approved by the Governor and filed with the Secretary of

18 State on June 27, 2017, Assembly Bill 103 added Section 12532 to

19 the California Government Code and directs the Attorney General

20 to review and report on county, local, and private locked

21 detention facilities in which noncitizens are housed or detained

22 for purposes of civil immigration proceedings in California.

23 Cal. Gov’t Code § 12532. It directs the Attorney General to

24 conduct a review of such facilities by March 1, 2019. Cal. Gov’t

25 Code § 12532(b). This review must include a review of the

26 conditions of confinement, the standard of care and due process

27 provided to the individuals housed or detained in the facilities,

28 and the circumstances around their apprehension and transfer to 12

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1 the facility. Cal. Gov’t Code § 12532(b)(1). Additionally—by

2 the same deadline—the Attorney General must provide a

3 comprehensive report of his findings to the Legislature, the

4 Governor, and the public. Cal. Gov’t Code § 12532(b)(2). In

5 furtherance of this objective, the Attorney General “shall be

6 provided all necessary access for the observations necessary to

7 effectuate [these] reviews . . . , including, but not limited to,

8 access to detainees, officials, personnel, and records.” Cal.

9 Gov’t Code § 12532(c).

10

Plaintiff argues that this review and reporting requirement

11 interferes with the Federal Government’s exclusive authority in

12 the area of immigrant detention. Mot. at 18–19. Because the

13 decision whether to pursue removal is entrusted to the Federal

14 Government’s discretion, California’s efforts to assess the

15 process afforded to immigrant detainees poses an obstacle,

16 Plaintiff contends, to administering the federal immigration

17 scheme. Id. at 19–20. “Federal law,” it argues, “does not

18 contemplate any role for the facility itself, or for states and

19 localities, in determining which aliens are properly subject to

20 detention or the terms and conditions of that detention.” Id. at

21 18.

22

Defendant responds that the Legislature passed AB 103 in

23 reaction to growing concerns of egregious conditions in

24 facilities housing civil detainees. Opp’n at 6 (citing Decl. of

25 Holly Cooper and Def. RFJN, Exh. K (Office of Inspector General,

26 Management Alert on Issues Requiring Immediate Action at the Theo

27 Lacy Facility in Orange, California, OIG-17-43-MA, March 6,

28 2017)). Several amici echo these concerns. See See Br. for 13

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 14 of 60

1 Nat’l Health Law Program, et al., as Amici Curiae, ECF No. 104;

2 Br. for Immigrant Legal Res. Ctr., et al., as Amici Curiae, ECF

3 No. 126; Br. for Nat’l Immigr. Law Ctr., et al., as Amici Curiae,

4 ECF No. 136. Defendant argues the review and reporting AB 103

5 requires fall well within the Attorney General’s broad

6 constitutional powers to enforce state laws and conduct

7 investigations relating to subjects under his jurisdiction.

8 Opp’n at 6 (citing Cal. Const. art. V, § 13; Cal. Gov’t Code

9 § 11180). Rather than enacting a new regulatory scheme or

10 imposing substantive requirements, AB 103 “simply authorizes

11 funding” to address issues the Attorney General already has the

12 authority to review in response to increased concerns in this

13 area. Id. at 7, 30; June 20, 2018, Hearing Transcript

14 (“Trans.”), ECF No. 189, at 25:2–13.

15

The Court finds no indication in the cited portions of the

16 INA that Congress intended for States to have no oversight over

17 detention facilities operating within their borders. See 8

18 U.S.C. § 1231(g)(1)-(2); 8 U.S.C. § 1103(a)(11). Indeed, the

19 detention facility contracts Defendant provided to the Court

20 expressly contemplate compliance with state and local law.

21 Melton Decl., Exhs. M–S (filed under seal), ECF No. 81. These

22 contracts demonstrate that California retains some authority over

23 the detention facilities. Contrary to Plaintiff’s

24 characterization, AB 103’s review process does not purport to

25 give California a role in determining whether an immigrant should

26 be detained or removed from the country. The directive

27 contemplates increased transparency and a report that may serve

28 as a baseline for future state or local action. At this point, 14

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1 what that future action might be is subject to speculation and

2 conjecture.

3

The review and reporting requirement contemplated in AB 103

4 is different from the state licensing requirements struck down in

5 Leslie Miller and Gartrell. See Leslie Miller, Inc. v. Arkansas,

6 352 U.S. 187, 190 (1956); Gartrell Const. Inc. v. Aubry, 940 F.2d

7 437 (9th Cir. 1991). In Leslie Miller, the Supreme Court held

8 that an Arkansas statute imposing licensing requirements on a

9 federal contractor interfered with the federal government’s power

10 to select contractors and schedule construction, and therefore

11 conflicted with the federal law regulating procurement. 352 U.S.

12 at 190. Thirty-five years later, the Ninth Circuit upheld an

13 injunction of a similar licensing requirement as applied to a

14 federal contractor in California. Gartrell, 940 F.2d at 438. It

15 found that the Federal Government already considered many of the

16 factors involved in the State’s licensing determination during

17 its own “responsibility” determination and held that, under

18 Leslie Miller, the licensing requirement was preempted. Id. at

19 438–41. The Circuit reasoned: “Because the federal government

20 made a direct determination of Gartrell’s responsibility,

21 California may not exercise a power of review by requiring

22 Gartrell to obtain state licenses.” Id. at 441.

23

Unlike state licensing regulations, AB 103 does not impose

24 any substantive requirements upon detention facilities. For all

25 its bark, the law has no real bite. It directs the Attorney

26 General to channel an authority he already wields to an issue of

27 recent State interest. The facility need only provide access for

28 these reviews, which is of little or no consequence. Given the 15

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1 Attorney General’s power to conduct investigations related to

2 state law enforcement—a power which Plaintiff concedes, Trans. at

3 15:11–16:5—the Court does not find this directive in any way

4 constitutes an obstacle to the federal government’s enforcement

5 of its immigration laws or detention scheme.

6

There is, however, one federal regulation that might

7 directly conflict with Government Code Section 12532(c). Under 8

8 C.F.R. § 236.6, no one—including state or local government

9 entities or any privately operated detention facility—who obtains

10 information relating to any detainee, “shall disclose or

11 otherwise permit to be made public the name of, or other

12 information relating to, such detainee.” It continues:

13

Such information shall be under the control of the

Service and shall be subject to public disclosure only

14

pursuant to the provisions of applicable federal laws,

regulations and executive orders. Insofar as any

15

documents or other records contain such information,

such documents shall not be public records. This

16

section applies to all persons and information

identified or described in it, regardless of when such

17

persons obtained such information, and applies to all

requests for public disclosure of such information,

18

including requests that are the subject of proceedings

pending as of April 17, 2002.

19

20 8 C.F.R. § 236.6 (Information regarding detainees).

21

According to Plaintiff, this regulation establishes that

22 information regarding detainees belongs solely to the Federal

23 Government and that facilities violate the regulation by turning

24 such information over to the Attorney General. Mot. at 22; Reply

25 at 9. For additional support, Plaintiff quotes the supplementary

26 information published with the rule in the Federal Register,

27 wherein the Immigration and Naturalization Service explained that

28 “the rule guarantees that information regarding federal detainees 16

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1 will be released under a uniform federal scheme rather than the

2 varying laws of the fifty states.” 68 Fed. Reg. 4364, 4366 (Jan.

3 29, 2003).

4

Defendant counters that there is no conflict because the

5 regulation prohibits only the public disclosure of information

6 about detainees, not disclosure to other government entities.

7 Opp’n at 30–31. Because the Attorney General “conducts these

8 reviews in his capacity as the chief law officer of the State,”

9 and “not as a member of the public,” Defendant maintains there is

10 no conflict. Id. Defendant points out that AB 103, on its face,

11 does not provide for disclosure of detainee information to the

12 public. Id. Further, such disclosure is unlikely because “much

13 if not all” of the information in question remains confidential

14 under state law. Id.

15

The Court agrees with Defendant that there is no conflict

16 apparent on the face of Section 12532(c). The federal regulation

17 at issue is most naturally read to prohibit public disclosures of

18 information, not the provision of information to other

19 governmental entities or law enforcement. 8 C.F.R. § 236.6. The

20 information published in the Federal Register supports this

21 interpretation. 68 Fed. Reg. 4364 , 4364 (“Summary: This final

22 rule governs the public disclosure . . . of the name and other

23 information relating to any immigration detainee[.]”), 4365

24 (“These provisions plainly authorize the Attorney General . . .

25 to provide by regulation that persons housing INS detainees on

26 behalf of the federal government shall not publicly disclose the

27 names and other information regarding those detainees.”), 4367

28 (“Executive Order 13132[:] . . . This rule merely pertains to the 17

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1 public disclosure of information concerning Service detainees

2 . . . . In effect, the rule will relieve state or local

3 government entities of responsibility for the public release of

4 information relating to any immigration detainee being housed or

5 otherwise maintained or provided service on behalf of the

6 Service. Instead, the rule reserves that responsibility to the

7 Service with regard to all Service detainees.”). Plaintiff’s

8 cited cases do not broaden the scope of the rule; each case

9 concerned public disclosure of detainee information, not the

10 provision of information to another government entity. See Voces

11 De La Frontera, Inc. v. Clarke, 373 Wis. 2d 348 (2017) (finding

12 records concerning detainees statutorily exempt from disclosure

13 under Wisconsin’s public records law); Comm’r of Corr. v. Freedom

14 of Info. Comm’n, 307 Conn. 53 (2012) (finding former detainee’s

15 records exempt from Connecticut’s Freedom of Information Act);

16 ACLU of New Jersey v. Cnty. of Hudson, 352 N.J. Super. 44 (2002)

17 (finding § 236.6 preempts New Jersey’s Right-to-Know Law to the

18 extent it requires public disclosure of information regarding INS

19 detainees).

20

Plaintiff nevertheless contends that California’s Attorney

21 General is a member of the public as contemplated by the

22 regulation. But Plaintiff did not identify, and the Court is

23 unaware of, any judicial decision interpreting the regulation to

24 restrict information sharing with government entities or law

25 enforcement. The regulation contemplates that such information

26 would fall into the hands of state and local government entities

27 through their contractual relationships with the federal

28 government. In light of the California Attorney General’s role 18

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1 in state law enforcement, and without any authority to the

2 contrary, the Court does not find a conflict, express or implied,

3 between the access required under Government Code Section

4 12532(c) and 8 C.F.R. § 236.6.

5

Finally, the Court finds AB 103 is not invalid under the

6 doctrine of intergovernmental immunity. Plaintiff argues the law

7 violates this doctrine because it imposes a review scheme on

8 facilities contracting with the federal government, only. This

9 characterization is valid. However, the burden placed upon the

10 facilities is minimal and Plaintiff’s evidence does not show

11 otherwise. See Homan Decl. at ¶ 60 (summarily stating that the

12 inspections are burdensome). Importantly, the review appears no

13 more burdensome than reviews required under California Penal Code

14 §§ 6030, 6031.1. Thus, even if AB 103 treats federal contractors

15 differently than the State treats other detention facilities,

16 Plaintiff has not shown the State treats other facilities better

17 than those contractors. North Dakota, 495 U.S. at 437–38 (“The

18 State does not discriminate against the Federal Government and

19 those with whom it deals unless it treats someone else better

20 than it treats them.”).

21

Plaintiff is not likely to succeed on the merits of this

22 claim. Its motion for a preliminary injunction as to AB 103 is

23 denied.

24

2. Assembly Bill 450

25

The regulation of employment traditionally falls within the

26 States’ police power:

27 ///

28 /// 19

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 20 of 60

1

States possess broad authority under their police

powers to regulate the employment relationship to

2

protect workers within the State. Child labor laws,

minimum and other wage laws, laws affecting

3

occupational health and safety, and workmen’s

compensation laws are only a few examples.

4

5 DeCanas v. Bica, 424 U.S. 351, 356 (1976) (decision superseded by

6 statute).

7

AB 450 imposes various requirements on public and private

8 employers with respect to immigration worksite enforcement

9 actions. 2017 Cal. Stat., ch. 492 (A.B. 450). It prohibits

10 employers from providing voluntary consent to an immigration

11 enforcement agent to enter nonpublic areas of a place of labor or

12 to access, review, or obtain the employer’s employee records.

13 Cal. Gov’t Code §§ 7285.1, 7285.2. It requires employers to

14 provide notice to their employees of any impending I-9 (or other

15 employment record) inspection within 72 hours of receiving notice

16 of that inspection. Cal. Lab. Code § 90.2. Lastly, AB 450

17 prohibits employers from reverifying the employment eligibility

18 of current employees when not required by federal law. Cal. Lab.

19 Code § 1019.2. As passed, AB 450 states that its provisions are

20 severable. 2017 Cal. Stat., ch. 492, Sec. 6 (A.B. 450).

21

Plaintiff challenges AB 450 as applied to private employers

22 only, Compl. ¶¶ 35, 61, Trans. at 10:2–19, arguing that the

23 above-noted additions to state law pose an obstacle to

24 immigration enforcement objectives under the Immigration Reform

25 and Control Act (“IRCA”) and the INA.

26

“Congress enacted IRCA as a comprehensive framework for

27 ‘combatting the employment of illegal aliens.’ ” Arizona, 567

28 U.S. at 404. IRCA imposes criminal sanctions on employers who 20

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1 knowingly hire, recruit, refer, or continue to employ

2 unauthorized workers, but does not impose criminal sanctions on

3 employees. 8 U.S.C. § 1324a; Arizona, 567 U.S. at 404–07 (“The

4 correct instruction to draw from the text, structure, and history

5 of IRCA is that Congress decided it would be inappropriate to

6 impose criminal penalties on aliens who seek or engage in

7 unauthorized employment.”). The statute authorizes the Attorney

8 General to establish procedures for complaints and

9 investigations. 8 U.S.C. § 1324a(e)(1). It also confers

10 authority upon immigration officers and administrative law judges

11 to be given “reasonable access to examine evidence of any person

12 or entity being investigated” and to compel by subpoena the

13 attendance of witnesses and the production of evidence. 8 U.S.C.

14 § 1324a(e)(2).

15

The Supreme Court has found IRCA preempts additional

16 penalties on employers (via express preemption) and criminal

17 sanctions on unauthorized workers for seeking or performing work

18 (via conflict preemption). Arizona, 567 U.S. 387. Courts have

19 held IRCA does not preempt: a provision of Arizona law allowing

20 suspension and revocation of businesses licenses based on

21 employing unauthorized workers, Chamber of Commerce of U.S. v.

22 Whiting, 563 U.S. 582 (2011); an Arizona law requiring that every

23 employer verify the employment eligibility of hired employees

24 through the E-Verify system, id. (as amended by IIRIRA); and

25 various labor protections, with some limits on the damages an

26 unlawfully employed immigrant is entitled to receive, see, e.g.,

27 Salas v. Sierra Chem. Co., 59 Cal.4th 407 (2014) (holding the

28 State’s extension of employee protections to all workers 21

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1 regardless of immigration status is preempted only to the extent

2 it authorizes lost pay awards for any period after an employer

3 discovers the employee’s ineligibility to work in the United

4 States).

5

a. Prohibitions on Consent

6

The Court finds AB 450’s prohibitions on consent, Cal. Gov’t

7 Code §§ 7285.1, 7285.2., troubling due to the precarious

8 situation in which it places employers. Trans. at 92:9–18.

9 Despite that concern, the question before the Court is limited to

10 Plaintiff’s Supremacy Clause claim and the relationship between

11 the State and the Federal Government.

12

Plaintiff’s preemption argument rests on the notion that

13 Congress presumed immigration enforcement officers could gain

14 access to worksites by consent of the employer. Mot. at 11–13.

15 Plaintiff contends the entire enforcement scheme is premised on

16 this authority. Id.

17

Defendant does not dispute that immigration enforcement

18 agents could, prior to AB 450, gain access to nonpublic areas of

19 a worksite through employer consent. In enacting AB 450, the

20 state legislators acknowledged that immigration officers could do

21 so under existing law. See Pl. Exh. J (Senate Judiciary

22 Committee Report), ECF No. 171-10. But, Defendant argues, the

23 entry and access provisions do not conflict with IRCA because

24 “IRCA was not intended to diminish states’ labor protections.”

25 Opp’n at 26. Because AB 450 permits entry and access pursuant to

26 judicial warrant (or subpoena, for documents), or when otherwise

27 required by federal law, Defendant claims the law does not deny

28 the “reasonable access to examine evidence” required under IRCA. 22

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1 See 8 U.S.C. § 1324a(e)(2).

2

The arguments are wanting on both sides. By attempting to

3 narrow the Court’s focus to the criminal penalties at issue under

4 IRCA, Defendant fails to acknowledge that immigration enforcement

5 officers might also seek to investigate civil violations of the

6 immigration laws or pursue investigative activities outside of

7 IRCA’s provisions. As Plaintiff pointed out at the June 20,

8 2018, hearing on its Motion, Trans. at 114:20–115:11, IRCA added

9 new sections to the already existing law governing immigration

10 enforcement activities; Defendant did not address any of these

11 other grants of power. Further, Defendant cites no authority for

12 its proposition that AB 450’s judicial warrant requirement and

13 savings clause together constitute “reasonable access” under

14 IRCA. Irrespective of the State’s interest in protecting

15 workers, the Court finds that the warrant requirement may impede

16 immigration enforcement’s investigation of employers or other

17 matters within their authority to investigate.

18

Even though these two subsections of AB 450 interfere with

19 immigration enforcement’s historical practices, the Court

20 hesitates to find the statutes preempted. In preemption

21 analysis, the Court presumes “ ‘the historic police powers of the

22 States’ are not superseded ‘unless that was the clear and

23 manifest purpose of Congress.’ ” Arizona, 567 U.S. at 400. Laws

24 governing labor relations and the workplace generally fall within

25 the States’ police powers. Congress has not expressly authorized

26 immigration officers to enter places of labor upon employer

27 consent, nor has Congress authorized immigration enforcement

28 officers to wield authority coextensive with the Fourth 23

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1 Amendment. Although Plaintiff’s cited cases show instances of

2 immigration enforcement lawfully exercising its investigative

3 authority in accordance with the Fourth Amendment, none of these

4 cases establish that Congress has expressly or impliedly granted

5 immigration enforcement agents such authority. See I.N.S. v.

6 Delgado, 466 U.S. 210 (1984) (noting that the federal immigration

7 officers were lawfully present at a worksite because they

8 obtained either a warrant or the employer’s consent to their

9 entry); Zepeda v. I.N.S., 753 F.2d 719, 725 (9th Cir. 1983)

10 (explaining that Congress, by authorizing the INS “to interrogate

11 any alien or person believed to be an alien as to his right to be

12 or to remain in the United States” without a warrant, authorized

13 the INS “to question aliens to the fullest extent permissible

14 under the [F]ourth [A]mendment”) (citing 8 U.S.C. § 1357(a)(1));

15 Int’l Molders & Allied Workers’ Local Union No. 164 v. Nelson,

16 799 F.2d 547 (9th Cir. 1986) (striking part of an injunction

17 order that required every INS warrant to “contain a specific

18 description of each suspect to be questioned and be based on

19 ‘probable cause to believe that such person is an illegal

20 alien’ ” because it misstated the standard for non-detentive

21 questioning”). Nor do these cases show consent to be an

22 essential pillar of the enforcement regime. Certainly, obstacle

23 preemption may be “implied,” but precedent counsels against

24 reading Congressional “presumptions” or “assumptions” into the

25 statutes without a more robust record than that presently before

26 the Court.

27

Ultimately, however, the Court need not resolve the

28 preemption issue because Plaintiff is likely to succeed on its 24

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1 Supremacy Clause claim under the intergovernmental immunity

2 doctrine. The doctrine applies in these circumstances even

3 though the laws regulate employers and not the Federal Government

4 directly. See Davis, 489 U.S. at 814, 817; Phillips Chem. Co.,

5 361 U.S. at 387 (holding that state taxes imposed on lessees of

6 federal land were invalid where those taxes were more burdensome

7 than taxes imposed on lessees of state land). For those

8 employers who choose to allow immigration enforcement agents to

9 enter or access documents, AB 450 imposes significant and

10 escalating fines. See Cal. Gov’t Code § 7285.1(b) (subjecting

11 employers to a fine of $2,000 to $5,000 for a first violation and

12 $5,000 to $10,000 for each subsequent violation); Cal. Gov’t Code

13 § 7285.2(b) (same). These fines inflict a burden on those

14 employers who acquiesce in a federal investigation but not on

15 those who do not.

16

Defendant argues the application of the doctrine in these

17 circumstances would expand its reach. It notes that the

18 intergovernmental immunity cases evaluating indirect

19 discrimination have typically concerned laws that imposed burdens

20 on entities contracting with, or supplying something to, the

21 Federal Government, thus “dealing” with the United States in an

22 economic sense. Trans. at 93:1–95:6.

23

The Court is not convinced that the term “deal” is

24 circumscribed in the manner Defendant suggests. As in other

25 intergovernmental immunity cases, the imposition of civil fines

26 (like the imposition of taxes) turns on whether an employer

27 chooses to work with federal immigration enforcement. These

28 fines are a clear attempt to “meddl[e] with federal government 25

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1 activities indirectly by singling out for regulation those who

2 deal with the government.” See In re NSA, 633 F. Supp. 2d at

3 903. The Court does not find Defendant’s argument that the law

4 is neutral convincing. Opp’n at 29 (arguing the law applies to

5 “any person or entity seeking to enforce the civil immigration

6 laws, whether federal, state, or local”). Given that immigration

7 enforcement is the province of the Federal Government, it demands

8 no stretch of reason to see that Government Code Sections 7285.1

9 and 7285.2, in effect, target the operations of federal

10 immigration enforcement.

11

The Court finds that a law which imposes monetary penalties

12 on an employer solely because that employer voluntarily consents

13 to federal immigration enforcement’s entry into nonpublic areas

14 of their place of business or access to their employment records

15 impermissibly discriminates against those who choose to deal with

16 the Federal Government. The law and facts clearly support

17 Plaintiff’s claim as to these two subsections and Plaintiff is

18 likely to succeed on the merits.

19

b. Notice Requirement

20

AB 450 also added a provision to the California Labor Code

21 requiring employers to provide notice to their employees “of any

22 inspections of I-9 Employment Eligibility Verification forms or

23 other employment records conducted by an immigration agency

24 within 72 hours of receiving notice of the inspection.” Cal.

25 Lab. Code § 90.2(a)(1). It specifies the contents of the

26 requisite notice and instructs employers to provide a copy of the

27 inspection notice to any employee upon reasonable request. Id.

28 § 90.2(a)(1)–(3). 26

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1

Labor Code Section 90.2 also requires employers to provide

2 each current, affected employee with the results of the

3 inspection within 72 hours of receipt, including any obligations

4 of the employer and affected employee arising from the results.

5 Id. § 90.2(b). The statute defines an “affected employee” as “an

6 employee identified by the immigration agency inspection results

7 to be an employee who may lack work authorization, or an employee

8 whose work authorization documents have been identified by the

9 immigration agency inspection to have deficiencies.” Id.

10 § 90.2(b)(2). Employers are subject to civil penalties for

11 violations, except that the section “does not require a penalty

12 to be imposed upon an employer or person who fails to provide

13 notice to an employee at the express and specific direction or

14 request of the federal government.” Id. § 90.2(c).

15

Plaintiff argues that this notice provision stands as an

16 obstacle to the implementation of federal law by aiming to thwart

17 immigration regulation. Reply at 5. “Obviously,” it argues,

18 investigations “will be less effective if the targets of the

19 investigations are warned ahead of time and kept abreast of the

20 status of the United States’ enforcement efforts.” Mot. at 17.

21

This argument convolutes the purposes of IRCA enforcement

22 actions. IRCA primarily imposes obligations and penalties on

23 employers, not employees. See 8 U.S.C. § 1324a. The new

24 California Labor Code section only requires employers to provide

25 notice to employees if the employer itself has received notice of

26 an impending inspection. The “targets” of the investigation have

27 thus already been “warned.” Pursuant to federal regulations,

28 employers are to be given at least three business days’ notice 27

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 28 of 60

1 prior to an I-9 inspection. See 8 C.F.R. § 274a.2(b)(2)(ii).

2 The state law merely extends this prior notice to employees.

3 Given IRCA’s focus on employers, the Court finds no indication—

4 express or implied—that Congress intended for employees to be

5 kept in the dark.

6

The Court declines to adopt Plaintiff’s cynical view of the

7 law. As amici point out, notice provides employees with an

8 opportunity to cure any deficiencies in their paperwork or

9 employment eligibility. See Br. for Cal. Labor Fed’n, et al., as

10 Amici Curiae, ECF No. 134. Federal law affords such a courtesy

11 to employers; the Court does not view an extension of that

12 courtesy to employees as an attempt to thwart IRCA’s goals.

13

The notice provision also does not violate the

14 intergovernmental immunity doctrine. Unlike the prohibitions on

15 consent, violations of this provision do not turn on the

16 employer’s choice to “deal with” (i.e., consent to) federal law

17 enforcement. An employer is not punished for its choice to work

18 with the Federal Government, but for its failure to communicate

19 with its employees. This requirement does not readily fit into

20 the contours of the intergovernmental immunity doctrine and

21 application would stretch the doctrine beyond its borders. The

22 Court thus finds no merit to Plaintiff’s Supremacy Clause claim

23 as to California Labor Code Section 90.2. Plaintiff’s motion for

24 a preliminary injunction as to this subdivision of AB 450 is

25 denied.

26

c. Reverification Prohibition

27

California Labor Code Section 1019.2 limits an employer’s

28 ability to reverify an employee’s employment eligibility when not 28

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1 required by law:

2

Except as otherwise required by federal law, a public

or private employer, or a person acting on behalf of a

3

public or private employer, shall not reverify the

employment eligibility of a current employee at a time

4

or in a manner not required by Section 1324a(b) of

Title 8 of the United States Code.

5

6 Cal. Lab. Code § 1019.2(a). An employer that violates this

7 subsection is subject to a civil penalty of up to $10,000. Id.

8 § 1019.2(b)(1). The law should not be “interpreted, construed,

9 or applied to restrict or limit an employer’s compliance with a

10 memorandum of understanding governing the use of the federal E-

11 Verify system.” Id. § 1019.2(c).

12

Under IRCA, an employer faces liability for continuing to

13 employ an immigrant in the United States knowing that the

14 immigrant is (or has become) unauthorized with respect to such

15 employment. 8 U.S.C. § 1324a(2). Plaintiff argues that this

16 continuing obligation to avoid knowingly employing an

17 unauthorized immigrant worker conflicts with California’s

18 prohibition on reverification. Mot. at 17–18 (citing New El Rey

19 Sausage Co., Inc. v. I.N.S., 925 F.2d 1153 (9th Cir. 1991)).

20 Defendant responds that there is no obstacle because the state

21 law contains an express savings clause for instances where

22 reverification is required by federal law and does not limit an

23 employer’s compliance with a memorandum of understanding

24 governing the use of the federal E-Verify system. Opp’n at 26–

25 28.

26

The Court finds Plaintiff is likely to succeed on the merits

27 of this claim, with the caveat that a more complete evidentiary

28 record could impact the Court’s analysis at a later stage of this 29

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1 litigation. Neither party provided the Court with much

2 information on how the verification system currently works in

3 practice and how the new law does or does not change those

4 practices. Based on a plain reading of the statutes, the

5 prohibition on reverification appears to stand as an obstacle to

6 the accomplishment of Congress’s purpose in enacting IRCA. See

7 Arizona, 567 U.S. at 399–400. Congress could have chosen to tie

8 employer liability to instances when an employer fails to verify

9 employment eligibility when required to do so by federal law.

10 Instead, Congress broadened liability to encompass situations

11 when an employer knows one of its immigrant employees is or has

12 become unauthorized to work and continues to employ them. In a

13 single act, Congress premised criminal sanction on an employer’s

14 subjective knowledge and established a system through which

15 employers could verify compliance with the law. As the Ninth

16 Circuit explained in New El Rey Sausage Co.:

17

The inclusion in the statute of section 1324a(b)’s

verification system demonstrates that employers, far

18

from being allowed to employ anyone except those whom

the government had shown to be unauthorized, have an

19

affirmative duty to determine that their employees are

authorized. This verification is done through the

20

inspection of documents. Notice that these documents

are incorrect places the employer in the position it

21

would have been if the alien had failed to produce the

documents in the first place: it has failed to

22

adequately ensure that the alien is authorized.

23 925 F.2d at 1158. Prohibiting employers from reverifying

24 employment eligibility complicates the subjective element of the

25 crime; e.g., could an employer who might otherwise be found to

26 “know” that one of its employees lacks authorization find shelter

27 behind the state law because it could not confirm its suspicion?

28 The law frustrates the system of accountability that Congress 30

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1 designed.

2

Based on the authority and evidence before the Court at this

3 juncture, which clearly support Plaintiff’s claim, the Court

4 finds Plaintiff is likely to succeed on the merits of its

5 Supremacy Clause claim against California Labor Code Section

6 1019.2(a).

7

3. Senate Bill 54

8

SB 54 added several subsections to the California Government

9 Code. Plaintiff seeks to enjoin three of these subsections. The

10 first two challenged by Plaintiff prohibit state law enforcement

11 agencies from sharing certain information for immigration

12 enforcement purposes:

13

(a) California law enforcement agencies shall not:

14

(1) Use agency or department moneys or personnel to

investigate, interrogate, detain, detect, or arrest

15

persons for immigration enforcement purposes, including

any of the following:

16

. . . 17

(C) Providing information regarding a person’s release

18

date or responding to requests for notification by

providing release dates or other information unless

19

that information is available to the public, or is in

response to a notification request from immigration

20

authorities in accordance with Section 7282.5.

Responses are never required, but are permitted under

21

this subdivision, provided that they do not violate any

local law or policy.

22

(D) Providing personal information, as defined in

23

Section 1798.3 of the Civil Code, about an individual,

including, but not limited to, the individual's home

24

address or work address unless that information is

available to the public.

25

26 Cal. Gov’t Code § 7284.6(a)(1)(C) & (D). Subsection (e) contains

27 a savings clause expressly exempting the exchange of information

28 pursuant to 8 U.S.C. §§ 1373 and 1644. Cal. Gov’t Code 31

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 32 of 60

1 § 7284.6(e).

2

Plaintiff also challenges the subsection limiting transfers

3 of individuals to immigration authorities:

4

(a) California law enforcement agencies shall not:

5

. . .

6

(4) Transfer an individual to immigration authorities

unless authorized by a judicial warrant or judicial

7

probable cause determination, or in accordance with

Section 7282.5.

8

9 Cal. Gov’t Code § 7284.6(a)(4). California Government Code

10 Section 7282.5 defines the circumstances in which law enforcement

11 officials have discretion to cooperate with immigration

12 authorities as referenced in subparagraphs (a)(1)(C) and (a)(4)

13 above, i.e., convictions for certain offenses.

14

a. Direct Conflict with Section 1373

15

The primary, and most direct, conflict Plaintiff identifies

16 is that between the information sharing provisions and 8 U.S.C.

17 § 1373 (“Section 1373”).3 Section 1373(a) bars States from

18 prohibiting, or in any way restricting, “any government entity or

19 official from sending to, or receiving from, the Immigration and

20 Naturalization Service information regarding the citizenship or

21 immigration status, lawful or unlawful, of any individual.”

22 (emphasis added). Arguing for a broad interpretation of the

23 phrase “information regarding the citizenship or immigration

24 status, lawful or unlawful, of any individual,” Plaintiff

25 contends the prohibitions on sharing release dates and home and

26
27 3 In its Complaint, Plaintiff identifies another statute, 8 U.S.C. § 1644, that contains the same prohibition as Section
28 1373(a). Plaintiff does not discuss Section 1644 in its Motion.
32

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1 work addresses violates Section 1373.

2

Defendant argues that Section 1373 is unconstitutional under

3 the Supreme Court’s recent holding in Murphy. 138 S. Ct. 1461

4 (2018); see Supp. Br., ECF No. 156. The Court in Murphy held

5 that Congress cannot dictate what a state legislature may and may

6 not do, “as if federal officers were installed in state

7 legislative chambers and were armed with the authority to stop

8 legislators from voting on any offending proposals.” Id. at

9 1482. The decision clarified that the Court’s anticommandeering

10 precedent extends to prohibitions on state legislative action.

11 Section 1373 does just what Murphy proscribes: it tells States

12 they may not prohibit (i.e., through legislation) the sharing of

13 information regarding immigration status with the INS or other

14 government entities.

15

Plaintiff argues that Murphy’s holding—and the

16 anticommandeering rule generally—does not reach statutes

17 requiring information sharing between government entities. Reply

18 at 17–22. Plaintiff points to a number of federal statutes that

19 require States to convey information to the Federal Government.

20 Reply at 19 n.14. For additional support, it cites Reno v.

21 Condon for the principle that a regulation on States as the

22 owners of databases does not violate the Tenth Amendment. Reply

23 at 18; 528 U.S. 141 (2000). Plaintiff also notes that the Printz

24 opinion distinguished federal laws regulating the provision of

25 information to the federal government from regulations requiring

26 forced participation of the States in administering a federal

27 program.

28

Reno v. Condon involved a constitutional challenge to the

33

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1 Driver’s Privacy Protection Act (“DPPA”), which bars States from

2 disclosing a driver’s personal information without the driver’s

3 consent. 528 U.S. 141 (2000); see 18 U.S.C. § 2721(a) (“A State

4 department of motor vehicles, and any officer, employee, or

5 contractor thereof, shall not knowingly disclose or otherwise

6 make available to any person or entity personal information . . .

7 about any individual obtained by the department in connection

8 with a motor vehicle record[.]”). The Supreme Court held the

9 provision does not run afoul of the Tenth Amendment:

10

[T]he DPPA does not require the States in their

sovereign capacity to regulate their own citizens. The

11

DPPA regulates the States as the owners of data bases.

It does not require the South Carolina Legislature to

12

enact any laws or regulations, and it does not require

state officials to assist in the enforcement of federal

13

statutes regulating private individuals. We

accordingly conclude that the DPPA is consistent with

14

the constitutional principles enunciated in New York

and Printz.

15

16 Id. at 150. The Court rejected South Carolina’s argument that

17 the DPPA is unconstitutional for its exclusive regulation of the

18 States, finding the Act to be generally applicable but not

19 deciding whether general applicability is required to survive

20 constitutional scrutiny. Id.

21

Plaintiff’s second source of support is dicta from Printz.

22 521 U.S. 898 (1997). The Printz Court evaluated a federal

23 statute that required state law enforcement officers to assist in

24 administering a federal regulatory scheme. In describing the

25 issues to be resolved, Justice Scalia wrote:

26

The Government points to a number of federal statutes

enacted within the past few decades that require the

27

participation of state or local officials in

implementing federal regulatory schemes. . . . [Some of

28

these statutes], which require only the provision of

34

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1

information to the Federal Government, do not involve

the precise issue before us here, which is the forced

2

participation of the States’ executive in the actual

administration of a federal program.

3

4 Id. at 918. Justice Scalia expressly distinguished the laws

5 under consideration in Printz from laws that require the

6 provision of information to the Federal Government. Thus, Printz

7 left open the question of whether required information sharing

8 could constitute commandeering.

9

Defendant would have this Court follow the lead of the

10 district court in City of Philadelphia v. Sessions. No. 17-3894,

11 2018 WL 2725503 (E.D. Pa. June 6, 2018). That court rejected

12 Plaintiff’s same—or substantially similar—arguments and found

13 Section 1373 unconstitutional under Murphy. Id. at *28-33. It

14 held that “on their face, [Section 1373(a) and (b)] regulate

15 state and local government entities and officials, which is fatal

16 to their constitutionality under the Tenth Amendment.” Id. at

17 *32. The district court distinguished Reno, explaining that Reno

18 did not involve a “statute that commanded state legislatures to

19 enact or refrain from enacting state law.” Id. (noting the

20 Murphy Court’s discussion of Reno). It also refused to put much

21 weight in the cited dicta from Printz, finding that Printz’s

22 holding supports the court’s conclusion as to Section 1373.

23

The Court finds the constitutionality of Section 1373 highly

24 suspect. Like the district court in City of Philadelphia, the

25 Court reads Section 1373 to dictate what states may and may not

26 do, in contravention of the Tenth Amendment. The more critical

27 question, however, is whether required information sharing

28 constitutes commandeering at all. Printz left this question 35

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1 open.

2

One view, which amici, the California Partnership to End

3 Domestic Violence and the Coalition for Humane Immigrant Rights,

4 articulate, is that the context of the information sharing

5 affects the commandeering inquiry. See Br. for Cal. P’ship to

6 End Domestic Violence and the Coal. for Humane Immigrant Rights,

7 as Amici Curiae, ECF No. 182. Amici argue “purely ministerial

8 reporting requirements” might not constitute commandeering, but

9 “forced information sharing, where it facilitates the on-the-

10 ground, day-to-day administration of a federal program, runs

11 afoul of the anti-commandeering rule.” Id. at 7. They argue

12 that “none of [the] examples [Plaintiff cites to show that

13 Congress frequently calls on states to share relevant

14 information] remotely resembles a system of state officers

15 performing daily services for immigration agents.” Id. at 8.

16 The Court agrees—cautiously, because these other provisions were

17 not heavily briefed—that the information sharing provisions cited

18 in footnote 14 of Plaintiff’s Reply do not appear to approximate

19 the level of state and local law enforcement integration into

20 federal immigration enforcement operations seen in this context.

21

Whether the constitutionality of an information sharing

22 requirement is absolute or whether it turns on how much the

23 requirement effectively integrates state law enforcement into a

24 federal regime is an interesting, and seemingly open,

25 constitutional question that may prove dispositive in another

26 case. Here, however, the Court need not reach a definitive

27 answer because the Court finds no direct conflict between SB 54

28 and Section 1373. 36

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1

The state statute expressly permits information sharing in

2 accordance with Section 1373. Cal. Gov’t Code § 7284.6(e). The

3 functionality of this clause depends on whether Section 1373 is

4 construed broadly to encompass information such as release dates

5 and addresses or narrowly to include only one’s immigration

6 status or citizenship (i.e., category of presence in the United

7 States, and whether an individual is a U.S. citizen, and if not,

8 the country of citizenship). See City of Philadelphia, 2018 WL

9 2725503, at *35.

10

Two district courts have held that Section 1373 must be

11 interpreted narrowly. In Steinle v. City & Cnty. of San

12 Francisco, the district court explained:

13

Nothing in 8 U.S.C. § 1373(a) addresses information

concerning an inmate’s release date. The statute, by

14

its terms, governs only “information regarding the

citizenship or immigration status, lawful or unlawful,

15

of any individual.” 8 U.S.C. § 1373(a). If the

Congress that enacted the Omnibus Consolidated

16

Appropriations Act of 1997 (which included § 1373(a))

had intended to bar all restriction of communication

17

between local law enforcement and federal immigration

authorities, or specifically to bar restrictions of

18

sharing inmates’ release dates, it could have included

such language in the statute. It did not, and no

19

plausible reading of “information regarding . . .

citizenship or immigration status” encompasses the

20

release date of an undocumented inmate. Because the

plain language of the statute is clear on this point,

21

the Court has no occasion to consult legislative

history.

22

23 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017). Plaintiff urges the

24 Court to limit its reliance on Steinle, which involved a

25 negligence claim and in which the United States did not appear as

26 a party. But, the district court in City of Philadelphia—a case

27 in which the United States did appear—agreed with the Steinle

28 court’s analysis and concluded that the United States’ broad 37

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1 interpretation “is simply impossible to square with the statutory

2 text.” 2018 WL 2725503, at *34.

3

Both district courts rejected the analysis in Bologna v.

4 City & Cnty. of San Francisco, the principal case Plaintiff cites

5 for persuasive value. 192 Cal. App. 4th 429, 438–40 (Ct. App.

6 2011). In analyzing a tort claim similar to the claim at issue

7 in Steinle, the California Appellate Court characterized Section

8 1373 as invalidating “all restrictions on the voluntary exchange

9 of immigration information between federal, state and local

10 government entities and officials and federal immigration

11 authorities.” Id. at 438. The Steinle court expressly disavowed

12 this interpretation:

13

This Court is not bound by the state court’s

interpretation of federal law, and respectfully

14

disagrees with the Bologna court’s characterization of

the scope of § 1373(a). “As [the Supreme Court has]

15

repeatedly held, the authoritative statement is the

statutory text, not the legislative history or any

16

other extrinsic material. Extrinsic materials have a

role in statutory interpretation only to the extent

17

they shed a reliable light on the enacting

Legislature’s understanding of otherwise ambiguous

18

terms.” Exxon Mobil Corp. v. Allapattah Servs., Inc.,

545 U.S. 546, 568 (2005). The Ninth Circuit has

19

explained in some detail why the Constitution does not

permit giving legislative effect to language found only

20

in congressional reports that is not consistent with

the language of a statute itself: The principle that

21

committee report language has no binding legal effect

is grounded in the text of the Constitution and in the

22

structure of separated powers the Constitution created.

. . . Treating legislative reports as binding law also

23

undermines our constitutional structure of separated

powers, because legislative reports do not come with

24

the traditional and constitutionally-mandated political

safeguards of legislation.

25

26 Steinle, 230 F. Supp. 3d at 1014–15; see City of Philadelphia,

27 2018 WL 2725503, at *35 (disagreeing with Bologna).

28

The Court agrees with its fellow district courts that the

38

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1 plain meaning of Section 1373 limits its reach to information

2 strictly pertaining to immigration status (i.e. what one’s

3 immigration status is) and does not include information like

4 release dates and addresses. See Carson Harbor Vill., Ltd. v.

5 Unocal Corp., 270 F.3d 863, 878 (9th Cir. 2001) (“It is

6 elementary that the meaning of a statute must, in the first

7 instance, be sought in the language in which the act is framed,

8 and if that is plain, . . . the sole function of the courts is to

9 enforce it according to its terms.”) (citation omitted).

10

A contrary interpretation would know no bounds. The phrase

11 could conceivably mean “everything in a person’s life.” See Br.

12 for City & Cnty. of San Francisco, as Amicus Curiae, ECF No. 112;

13 see also State ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015,

14 1035 (N.D. Cal. 2018) (“Under the INA, almost every bit of

15 information about an individual could be relevant to status,

16 particularly with respect to the right to asylum or as a defense

17 to removal.”). If Congress intended the statute to sweep so

18 broadly, it could have used broader language or included a list

19 to define the statute’s scope. See, e.g., 8 U.S.C. § 1367(a)(2)

20 (prohibiting immigration enforcement officers from “permit[ting]

21 the use by or disclosure to anyone . . . of any information which

22 relates to an alien who is the beneficiary of an application for

23 relief under [certain sections of the INA]”). One cannot

24 naturally read “information regarding immigration status” to

25 include the types of information Plaintiff now seeks to

26 incorporate. While an immigrant’s release date or home address

27 might assist immigration enforcement officers in their endeavors,

28 neither of these pieces of information have any bearing on one’s 39

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1 immigration or citizenship status.

2

The parties offer competing precedent to aid the Court in

3 interpreting the term “regarding.” In Roach, the Ninth Circuit

4 cautioned courts to refrain from interpreting the words “relate

5 to,” in an express preemption provision, too broadly. Roach v.

6 Mail Handlers Ben. Plan, 298 F.3d 847 (9th Cir. 2002). The

7 Circuit explained:

8

[I]n the context of a similarly worded preemption

provision in the Employee Retirement Income Security

9

Act (ERISA), the Supreme Court has explained that the

words “relate to” cannot be taken too literally. “If

10

‘relate to’ were taken to extend to the furthest

stretch of its indeterminacy, then for all practical

11

purposes pre-emption would never run its course, for

‘really, universally, relations stop nowhere.’ ”

12

Instead, “relates to” must be read in the context of

the presumption that in fields of traditional state

13

regulation “the historic police powers of the States

[are] not to be superseded by [a] Federal Act unless

14

that was the clear and manifest purpose of Congress.”

15 Id. at 849–50 (citations omitted). Plaintiff urges the Court to,

16 instead, focus on the Supreme Court’s more recent interpretation

17 of the term “respecting” in Lamar, Archer & Cofrin, LLP v.

18 Appling. 138 S. Ct. 1752 (2018) (interpreting a provision in the

19 Bankruptcy Code excepting debts obtained by fraud from

20 discharge); Reply at 16. In Appling, the Court read the word

21 “respecting” to have a broadening effect, instructing the Court

22 to read the relevant text expansively. Id. at 1760. The Supreme

23 Court also observed that a limiting construction would

24 effectively read the term “respecting” out of the statute. Id.

25 at 1761.

26

The Court finds the law in Appling sufficiently distinct

27 from the law at issue here to limit the decision’s instructional

28 value. The Appling Court was not called upon to determine the 40

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1 preemptive effect of a federal statute and thus did not have

2 presumptions against preemption to factor into its analysis.

3 Further, the Appling Court held that “a statement about a single

4 asset can be a ‘statement respecting the debtor’s financial

5 condition.’ ” Id. at 1757. It reasoned, “[a] single asset has a

6 direct relation to and impact on aggregate financial condition,

7 so a statement about a single asset bears on a debtor’s overall

8 financial condition[.]” Id. at 1761. In contrast, as noted

9 above, a person’s address or release date has no direct relation

10 to one’s immigration or citizenship status.

11

Unlike the law in Appling, a narrow reading of the phrase

12 “regarding immigration status” does not read “regarding” out of

13 the statute. Plaintiff makes a similar argument by noting the

14 omission of the term “regarding” in Section 1373(c) as compared

15 to subsection (a). Mot. at 28. Section 1373(c) governs the

16 obligation of federal immigration authorities in responding to

17 inquiries from other government entities, and an official record

18 of a person’s citizenship or immigration status is presumably

19 within their control. Opp’n at 12–13; Br. for City and Cnty. of

20 San Francisco, as Amicus Curiae, at 9. Subsection (a) is

21 directed toward government entities and their officers, who might

22 possess information pertaining to an individual’s immigration

23 status but not hold an official record. The phrase “information

24 regarding” thus serves a purpose even when the statute is read

25 narrowly.

26

In any event, neither Roach nor Appling involved a provision

27 like the one at issue in this case. The Court is convinced,

28 based on the analysis above, that “information regarding 41

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1 immigration or citizenship status” does not include an

2 immigrant’s release date or home and work addresses. Section

3 1373 and the information sharing provisions of SB 54 do not

4 directly conflict.

5

b. Obstacle Preemption

6

Apart from any direct conflict with Section 1373, Plaintiff

7 argues that “the structure of the INA makes clear that states and

8 localities are required to allow a basic level of information

9 sharing” and cooperation with immigration enforcement. Mot. at

10 24. Plaintiff points to 8 U.S.C. § 1226(c)(1), a law that

11 requires “mandatory detention” for certain immigrants after their

12 release from criminal custody. It also cites 8 U.S.C. § 1231,

13 which instructs the Attorney General to remove an immigrant

14 within a period of 90 days after the immigrant has been ordered

15 removed. 8 U.S.C. § 1231(a)(1)(A). For certain immigrants,

16 detention during the removal period is mandatory. 8 U.S.C. §

17 1231(a)(2). With some exceptions “the Attorney General may not

18 remove an [immigrant] who is sentenced to imprisonment until the

19 [immigrant] is released from imprisonment. Parole, supervised

20 release, probation, or possibility of arrest or further

21 imprisonment is not a reason to defer removal.” 8 U.S.C. §

22 1231(a)(4)(A).

23

Plaintiff argues that SB 54 undermines the system Congress

24 designed. Mot. at 25. The limits on information sharing and

25 transfers prevent or impede immigration enforcement from

26 fulfilling its responsibilities regarding detention and removal

27 because officers cannot arrest an immigrant upon the immigrant’s

28 release from custody and have a more difficult time finding 42

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1 immigrants after the fact without access to address information.

2 Id. at 25–27. It contends that limiting adherence to transfer

3 requests affords undocumented immigrants an opportunity to

4 abscond. Plaintiff also points out that the subset of crimes for

5 which SB 54 permits cooperation do not match the crimes under

6 federal law that may serve as the predicate for removability or

7 crimes for which detention is mandatory. Id. at 26.

8 Additionally, it argues that requiring a judicial warrant or

9 judicial finding of probable cause is irreconcilable with the

10 INA, which establishes a system of civil administrative warrants

11 as the basis for immigration arrest and removal. Id. at 30.

12

The Court disagrees and instead finds that California’s

13 decision not to assist federal immigration enforcement in its

14 endeavors is not an “obstacle” to that enforcement effort.

15 Plaintiff’s argument that SB 54 makes immigration enforcement far

16 more burdensome begs the question: more burdensome than what?

17 The laws make enforcement more burdensome than it would be if

18 state and local law enforcement provided immigration officers

19 with their assistance. But refusing to help is not the same as

20 impeding. If such were the rule, obstacle preemption could be

21 used to commandeer state resources and subvert Tenth Amendment

22 principles. Federal objectives will always be furthered if

23 states offer to assist federal efforts. A state’s decision not

24 to assist in those activities will always make the federal object

25 more difficult to attain than it would be otherwise. Standing

26 aside does not equate to standing in the way.

27

Though not analyzing an obstacle preemption claim, the

28 Seventh Circuit recently expressed a similar view with respect to 43

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1 decisions to withhold assistance. See City of Chicago v.

2 Sessions, 888 F.3d 272 (7th Cir. 2018). The Circuit explained:

3

[T]he Attorney General repeatedly characterizes the

issue as whether localities can be allowed to thwart

4

federal law enforcement. That is a red herring.

First, nothing in this case involves any affirmative

5

interference with federal law enforcement at all, nor

is there any interference whatsoever with federal

6

immigration authorities. The only conduct at issue here

is the refusal of the local law enforcement to aid in

7

civil immigration enforcement through informing the

federal authorities when persons are in their custody

8

and providing access to those persons at the local law

enforcement facility. Some localities might choose to

9

cooperate with federal immigration efforts, and others

may see such cooperation as impeding the community

10

relationships necessary to identify and solve crimes.

The choice as to how to devote law enforcement

11

resources—including whether or not to use such

resources to aid in federal immigration efforts—would

12

traditionally be one left to state and local

authorities.

13

14 City of Chicago, 888 F.3d at 282 (analyzing conditions imposed on

15 federal grants). This common-sense distinction militates against

16 adopting Plaintiff’s perspective of the laws.

17

The Court is also wary of finding preemption in the absence

18 of a “clear and manifest purpose of Congress” to supersede the

19 States’ police powers. See Arizona, 567 U.S. at 400. California

20 has not crossed over into the exclusively federal realm of

21 determining who may enter and remain within the United States.

22 SB 54 only governs the activities of the State’s own law

23 enforcement agencies. Although Congress clearly intends its

24 immigration laws to exclusively regulate the subject of

25 immigration and the activities of federal immigration enforcement

26 officers, the Court sees no clear indication that Congress

27 intended to displace the States’ regulation of their own law

28 enforcement agencies. 44

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1

Despite Plaintiff’s urgings, this case does not mirror

2 Arizona v. United States. 567 U.S. 387 (2012). Arizona sought

3 to impose additional rules and penalties upon individuals whom

4 Congress had already imposed extensive, and exclusive,

5 regulations. SB 54 does not add or subtract any rights or

6 restrictions upon immigrants. Immigrants subject to removal

7 remain subject to removal. SB 54, instead, directs the

8 activities of state law enforcement, which Congress has not

9 purported to regulate. Preemption is inappropriate here.

10

The Court’s reluctance to glean such a purpose from the

11 cited statutes is amplified because Congress indicated awareness

12 that state law might be in tension with federal objectives and

13 decided to tolerate those competing interests. See Bonito Boats,

14 Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166–67 (1989)

15 (“The case for federal pre-emption is particularly weak where

16 Congress has indicated its awareness of the operation of state

17 law in a field of federal interest, and has nonetheless decided

18 to stand by both concepts and to tolerate whatever tension there

19 is between them.”) (citation and quotation marks omitted); see

20 also Wyeth v. Levine, 555 U.S. 555, 575 (2009) (quoting Bonito

21 Boats and finding that a plaintiff’s failure-to-warn claims were

22 not preempted by federal law).

23

First, in the portions of the INA where Congress provided

24 for cooperation between state and federal officials, it

25 conditioned cooperation on compliance with state law. For

26 instance, 8 U.S.C. § 1252c(a) authorizes state and local law

27 enforcement officials to arrest and detain certain immigrants “to

28 the extent permitted by relevant State and local law.” 45

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1 Subsection (b) imposes an obligation on the Attorney General to

2 cooperate with states in providing information that would assist

3 state and local law enforcement, but does not impose any

4 corollary obligations on state or local law enforcement.

5 Similarly, 8 U.S.C. § 1357(g) authorizes the Attorney General to

6 enter into agreements with the State to perform immigration

7 officer functions, but only “to the extent consistent with State

8 and local law.” These conditions on cooperation indicate that

9 Congress did not intend to preempt state law in this area.

10

Second, the primary mechanism—a “detainer”—by which

11 immigration enforcement agents solicit release dates, transfers,

12 and detention is a “request.” See 8 C.F.R. § 287.7(a); Mot. at

13 25 (“To effectuate the INA’s provisions, DHS issues an

14 ‘immigration detainer[.]’ ”). Even detainers soliciting

15 “temporary detention” have been found to be a non-mandatory

16 “request,” despite the use of the word “shall” in the governing

17 provision. 8 C.F.R. § 287.7(d); see Galarza v. Szalczyk, 745

18 F.3d 634, 640 (3d Cir. 2014) (“[N]o provisions of the [INA]

19 authorize federal officials to command local or state officials

20 to detain suspected aliens subject to removal.”); see also

21 Miranda-Olivares v. Clackamas Cnty., No. 3:12-CV-02317-ST, 2014

22 WL 1414305, at *7 (D. Or. Apr. 11, 2014) (following Galarza and

23 noting that the Ninth Circuit has interpreted detainer letters,

24 in the habeas corpus context, to be advisory in nature, not

25 imposing—or even allowing—a warden to hold a detainee at the end

26 of his term of imprisonment) (citing Garcia v. Taylor, 40 F.3d

27 299 (9th Cir. 1994)). The voluntary nature of any response to

28 these requests demonstrates that the federal government has not 46

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1 supplanted state discretion in this area.

2

Congress’s deliberate decision to condition enforcement

3 cooperation on consistency with state law, and the primary

4 mechanism by which immigration officials seek law enforcement

5 assistance being merely a “request,” counsels against implied

6 preemption in this area. A clear and manifest purpose to preempt

7 state law is absent from these provisions.

8

Plaintiff argues that “Congress could have authorized the

9 federal government to take custody of aliens immediately, without

10 regard to the status of state criminal enforcement,” Reply at 22–

11 23, and that because it did not, the Court can infer that

12 Congress intended states to cooperate with immigration law

13 enforcement. The Court does not find such inference warranted.

14 The Court can just as readily infer that Congress recognized the

15 States’ sovereign power to enforce their criminal laws and

16 thought interference would upset the balance in powers. See Def.

17 Reply to MTD at 1 (“It is not Congress that offers California the

18 ‘opportunity’ to enforce state criminal laws[;] it is a right

19 inherent in California’s sovereignty.”). Furthermore, it is

20 often the case that an immigrant is not deemed removable or

21 inadmissible until after they have been convicted of a crime. In

22 these cases, state process is a predicate to federal action.

23

The Ninth Circuit’s holding in Preap does not require a

24 different outcome. Preap v. Johnson, 831 F.3d 1193 (9th Cir.

25 2016) cert. granted sub nom. Nielsen v. Preap, 138 S. Ct. 1279

26 (2018). The Preap court held that the INA’s mandatory detention

27 provision only applies in cases when immigrants are “promptly”

28 detained after being released from custody. Id. at 1197. Preap 47

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1 does not, however, require contemporaneous transfer for the

2 mandatory detention provision to apply. And, a longer delay in

3 securing custody does not preclude detention. It just makes

4 detention a discretionary decision rather than a mandatory

5 obligation. See id. at 1201; 8 U.S.C. § 1226. The Court finds

6 that the operational challenges immigration enforcement agencies

7 may have faced following the Preap decision do not alter the

8 Court’s conclusions with respect to Congress’s clear and manifest

9 purpose.

10

The Court further finds that Tenth Amendment and

11 anticommandeering principles counsel against preemption. Though

12 responding to requests for information and transferring

13 individuals to federal custody may demand relatively little from

14 state law enforcement, “[t]he issue of commandeering is not one

15 of degree[.]” Galarza, 745 F.3d at 644; see Printz, 521 U.S. at

16 932 (“But where, as here, it is the whole object of the law to

17 direct the functioning of the state executive, and hence to

18 compromise the structural framework of dual sovereignty, such a

19 ‘balancing’ analysis is inappropriate. It is the very principle

20 of separate state sovereignty that such a law offends, and no

21 comparative assessment of the various interests can overcome that

22 fundamental defect.”). Under Printz, even enlisting state

23 officers to perform discrete, ministerial tasks constitutes

24 commandeering. Thus, it is highly unlikely that Congress could

25 have made responses to requests seeking information and/or

26 transfers of custody mandatory. See Cnty. of Santa Clara v.

27 Trump, 250 F. Supp. 3d 497, 534 (N.D. Cal. 2017), (“The Executive

28 Order uses coercive means in an attempt to force states and local 48

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1 jurisdictions to honor civil detainer requests, which are

2 voluntary ‘requests’ precisely because the federal government

3 cannot command states to comply with them under the Tenth

4 Amendment.”) (focusing on requests for detention).

5

The Printz Court outlined several reasons why commandeering

6 is problematic, which parallel California’s concerns in enacting

7 SB 54. The Court noted that commandeering shifts the costs of

8 program implementation from the Federal Government to the states.

9 Printz, 521 U.S. at 930. The California Legislature enacted SB

10 54, in part, to divert California’s resources away from

11 supporting the Federal Government’s enforcement efforts. It

12 stated:

13

(d) Entangling state and local agencies with federal

immigration enforcement programs diverts already

14

limited resources and blurs the lines of accountability

between local, state, and federal governments.

15

. . . 16

(f) This chapter seeks to ensure effective policing, to

17

protect the safety, well-being, and constitutional

rights of the people of California, and to direct the

18

state’s limited resources to matters of greatest

concern to state and local governments.

19

20 Cal. Gov’t Code § 7284.2 (Legislative findings and declarations).

21 Defendant contends that working with immigration enforcement

22 diverts resources from the States’ priorities. Opp’n at 15–16;

23 see e.g., Hart Decl., ECF No. 75-3, at 4 (“[W]e are often faced

24 with staffing shortages that make even processing the additional

25 paperwork related to detainers difficult.”).

26

The Printz Court also explained that “even when States are

27 not forced to absorb the costs of implementing a federal program,

28 they are still put in the position of taking the blame for its 49

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1 burdensomeness and for its defects.” 521 U.S. at 930 (“And it

2 will likely be the CLEO, not some federal official, who will be

3 blamed for any error (even one in the designated federal

4 database) that causes a purchaser to be mistakenly rejected.”).

5

Here, when California assists federal immigration

6 enforcement in finding and taking custody of immigrants, it risks

7 being blamed for a federal agency’s mistakes, errors, and

8 discretionary decisions to pursue particular individuals or

9 engage in particular enforcement practices. Under such a regime,

10 federal priorities dictate state action, which affects the

11 State’s relationship with its constituency and that

12 constituency’s perception of its state government and law

13 enforcement. Indeed, Defendant and amici highlight the impact

14 these perceptions have on the community’s relationship with local

15 law enforcement. See Cal. Gov’t Code § 7284.2 (“This trust is

16 threatened when state and local agencies are entangled with

17 federal immigration enforcement, with the result that immigrant

18 community members fear approaching police when they are victims

19 of, and witnesses to, crimes, seeking basic health services, or

20 attending school, to the detriment of public safety and the well-

21 being of all Californians.”); Br. for Current and Former

22 Prosecutors and Law Enforcement Leaders, as Amici Curiae, ECF No.

23 127; Br. for City of Los Angeles, as Amicus Curiae, ECF No. 128;

24 Br. for Cnty. of Los Angeles, et al., as Amici Curiae, ECF No.

25 129.

26

Plaintiff discounts Defendant’s interest in extracting

27 itself from immigration enforcement, but fails to confront

28 California’s primary concern: the impact that state law 50

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1 enforcement’s entanglement in immigration enforcement has on

2 public safety. The historic police powers of the State include

3 the suppression of violent crime and preservation of community

4 safety. In this power inheres the authority to structure and

5 influence the relationship between state law enforcement and the

6 community it serves. The ebb of tensions between communities and

7 the police underscores the delicate nature of this relationship.

8 Even perceived collaboration with immigration enforcement could

9 upset the balance California aims to achieve. It is therefore

10 entirely reasonable for the State to determine that assisting

11 immigration enforcement in any way, even in purportedly passive

12 ways like releasing information and transferring custody, is a

13 detrimental use of state law enforcement resources.

14

However, because Congress has not required states to assist

15 in immigration enforcement—and has merely made the option

16 available to them—this case presents a unique situation. As

17 Judge Orrick observed in State ex rel. Becerra v. Sessions: “No

18 cited authority holds that the scope of state sovereignty

19 includes the power to forbid state or local employees from

20 voluntarily complying with a federal program.” 284 F. Supp. 3d

21 1015, 1035 (N.D. Cal. 2018). The Second Circuit in City of New

22 York concluded a state could not do so. City of New York v.

23 United States, 179 F.3d 29, 35 (2nd Cir. 1999) (“We therefore

24 hold that states do not retain under the Tenth Amendment an

25 untrammeled right to forbid all voluntary cooperation by state or

26 local officials with particular federal programs.”).

27 Nevertheless, the Supreme Court’s holding in Murphy undercuts

28 portions of the Second Circuit’s reasoning and calls its 51

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1 conclusion into question. Compare City of New York, 179 F.3d at

2 35 (distinguishing Section 1373 from the laws in Printz and New

3 York because the Section does not compel state and local

4 governments to enact or administer any federal regulatory program

5 or conscript them into federal service) with Murphy, 138 S. Ct.

6 at 1478 (holding the anticommandeering rule applies to

7 Congressional prohibitions on state actions in addition to

8 commands to take affirmative actions). Further, the Second

9 Circuit’s broad proclamations may be limited to the specific City

10 Executive Order at issue, procedural posture, and record in that

11 case. See Br. for Admin. L., Const. L., Crim. L., and Immigr. L.

12 Scholars, as Amici Curiae, ECF No. 132, at 13 (distinguishing

13 City of New York). Regardless, the City of New York holding is

14 not binding on this Court.

15

The Court finds that a Congressional mandate prohibiting

16 states from restricting their law enforcement agencies’

17 involvement in immigration enforcement activities—apart from,

18 perhaps, a narrowly drawn information sharing provision—would

19 likely violate the Tenth Amendment. See City of Chicago v.

20 Sessions, 888 F.3d 272, 282 (7th Cir. 2018) (stating, in dicta:

21 “The choice as to how to devote law enforcement resources—

22 including whether or not to use such resources to aid in federal

23 immigration efforts—would traditionally be one left to state and

24 local authorities.”); Koog v. United States, 79 F.3d 452, 460

25 (5th Cir. 1996) (“Whatever the outer limits of state sovereignty

26 may be, it surely encompasses the right to set the duties of

27 office for state-created officials and to regulate the internal

28 affairs of governmental bodies.”). The Tenth Amendment analysis 52

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1 in Murphy supports this conclusion. Murphy, 138 S. Ct. at 1478

2 (a prohibition on state legislation violates the

3 anticommandeering rule), 1481 (“[P]reemption is based on a

4 federal law that regulates the conduct of private actors, not

5 States.”); see New York, 505 U.S. at 166 (“[T]he Framers

6 explicitly chose a Constitution that confers upon Congress the

7 power to regulate individuals, not States.”). If Congress lacks

8 the authority to direct state action in this manner, then

9 preemption cannot and should not be used to achieve the same

10 result. The Supremacy Clause requires courts to hold federal law

11 supreme when Congress acts pursuant to one of its enumerated

12 powers; those powers do not include the authority to dictate a

13 state’s law enforcement policies.

14

Having concluded that California may restrict the assistance

15 its law enforcement agencies provide immigration enforcement, the

16 Court finds California’s choice to cooperate in certain

17 circumstances permissible. See Cal. Gov’t Code § 7284.6(a)(1)(C)

18 (allowing California law enforcement agencies to provide

19 information regarding a person’s release date when that person

20 has been convicted of certain crimes), § 7284(a)(4) (permitting

21 California law enforcement agencies to transfer individuals to

22 immigration authorities when authorized by a judicial warrant or

23 judicial probable cause determination, or when the individual has

24 been convicted of certain crimes). As the Seventh Circuit

25 explained:

26

[F]or the persons most likely to present a threat to

the community, City law enforcement authorities will

27

cooperate with ICE officials even in “sanctuary”

cities. The decision to coordinate in such

28

circumstances, and to refuse such coordination where

53

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1

the threat posed by the individual is lesser, reflects

the decision by the state and local authorities as how

2

best to further the law enforcement objectives of their

communities with the resources at their disposal.

3

4 City of Chicago, 888 F.3d at 281. While the Court, again,

5 acknowledges that City of Chicago involved different claims than

6 those presented here, the Court agrees with the assessment. Just

7 as the State may restrict the assistance its law enforcement

8 officers provide immigration enforcement, the State may choose to

9 outline exceptions to that rule in accordance with its own law

10 enforcement priorities and concerns. For example, California is

11 concerned with the monetary liability law enforcement agencies

12 may face if they maintain custody of an individual for purposes

13 of transfer without a judicial warrant or probable cause

14 determination justifying that custody. See Roy v. Cnty. of Los

15 Angeles, No. CV 12-09012-AB (FFMx), 2018 WL 914773, at *22–24

16 (C.D. Cal. Feb. 7, 2018) (“The LASD officers have no authority to

17 arrest individuals for civil immigration offenses, and thus,

18 detaining individuals beyond their date for release violated the

19 individuals’ Fourth Amendment rights.”); Br. for States and the

20 District of Columbia, as Amici Curiae, ECF No. 139 (“SB 54’s

21 [warrant requirement] is a reasonable way to protect the state

22 and its law enforcement agencies from monetary liability for

23 unlawfully detaining individuals requested to be transferred to

24 federal immigration authorities after their period of state

25 custody expires.”). The California Legislature expressed this

26 concern when it passed SB 54:

27

State and local participation in federal immigration

enforcement programs also raises constitutional

28

concerns, including the prospect that California

54

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1

residents could be detained in violation of the Fourth

Amendment to the United States Constitution, targeted

2

on the basis of race or ethnicity in violation of the

Equal Protection Clause, or denied access to education

3

based on immigration status. See Sanchez Ochoa v.

Campbell, et al. (E.D. Wash. 2017) 2017 WL 3476777;

4

Trujillo Santoya v. United States, et al. (W.D. Tex.

2017) 2017 WL 2896021; Moreno v. Napolitano (N.D. Ill.

5

2016) 213 F. Supp. 3d 999; Morales v. Chadbourne (1st

Cir. 2015) 793 F.3d 208; Miranda-Olivares v. Clackamas

6

County (D. Or. 2014) 2014 WL 1414305; Galarza v.

Szalczyk (3d Cir. 2014) 745 F.3d 634.

7

8 Cal. Gov’t Code § 7284.2(e). Because California’s directive to

9 its law enforcement agencies is not preempted, the Court finds

10 its determination to make certain exceptions to the rule also

11 survives preemption analysis.

12

c. Intergovernmental Immunity

13

The intergovernmental immunity doctrine has no clear

14 application to SB 54. SB 54 regulates state law enforcement; it

15 does not directly regulate federal immigration authorities.

16

Plaintiff argues the information sharing and transfer

17 restrictions “apply only to requests made by federal entities[.]”

18 Mot. at 31. It claims that although “the statute defines

19 ‘immigration authorities’ to include, in addition to federal

20 officers, ‘state, or local officers, employees or persons

21 performing immigration enforcement functions,’ it also defines

22 ‘immigration enforcement’ to mean ‘any and all efforts to

23 investigate, enforce, or assist in the investigation or

24 enforcement of any federal civil immigration law, and also

25 includes any and all efforts to investigate, enforce, or assist

26 in the investigation or enforcement of any federal criminal

27 immigration law that penalizes a person’s presence in, entry, or

28 reentry to, or employment in, the United States.’ ” Id. (citing 55

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 56 of 60

1 the definitions in Cal. Gov’t Code § 7284.4).

2

The Court is not convinced that the intergovernmental

3 immunity doctrine extends to the State’s regulation over the

4 activities of its own law enforcement and decision to restrict

5 assistance with some federal endeavors. None of the cases cited

6 in the parties’ briefs involve an analogous regulation. The

7 preemption analysis above thus counsels against expanding the

8 doctrine to the present situation. North Dakota v. United

9 States, 495 U.S. 423, 435 (1990) (“The Court has more recently

10 adopted a functional approach to claims of governmental immunity,

11 accommodating of the full range of each sovereign’s legislative

12 authority and respectful of the primary role of Congress in

13 resolving conflicts between the National and State

14 Governments.”).

15

Even if the doctrine might arguably apply to this situation,

16 Plaintiff has not shown it is likely to succeed on this claim.

17 First, Plaintiff has not shown that the laws uniquely burden

18 federal immigration authorities. The information sharing

19 provisions permit sharing when the information is available to

20 the public. Cal. Gov’t Code § 7284.6(a)(1)(C)-(D). Plaintiff

21 has not identified any examples of similarly situated authorities

22 (i.e., civil law enforcement agencies) that the State treats

23 better than it does federal immigration authorities. And while

24 the Court agrees with Plaintiff that “federal, state, or local

25 officer[s] . . . performing immigration enforcement functions”

26 boils down to federal immigration enforcement, see Cal. Gov’t

27 Code § 7284.4, the Court finds the discrimination—if any—is

28 justified by California’s choice to divert its resources away 56

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 57 of 60

1 from assisting immigration enforcement efforts. As explained in

2 detail above, the purported “burden” here is California’s

3 decision not to help the Federal government implement its

4 immigration enforcement regime. The State retains the power to

5 make this choice and the concerns that led California to adopt

6 this policy justify any differential treatment that results.

7

For all of the reasons set forth in Part III.A.3 of this

8 Order, the Court finds that Plaintiff is not likely to succeed on

9 the merits of its SB 54 claim and its motion for a preliminary

10 injunction as to this statute is denied.

11

B. Preliminary Injunction Equitable Factors

12

Each party submitted evidence showing hardships to their

13 sovereign interests and their constituencies should the Court

14 fail to decide this Motion in their favor. See Exhs. to Mot. and

15 Reply, ECF Nos. 2-2–5, 46, 171-1–25, 173, 178; Exhs. to Opp’n,

16 ECF Nos. 75, 78, 81, 83. Many of the amici curiae also

17 identified harms that would befall themselves or their

18 constituencies because of this Court’s Order. The parties’

19 interests largely hang in balance, each seeking to vindicate what

20 it—and its supporters—view as critical public policy objectives.

21 These harms are not susceptible to remediation through damages;

22 each side faces much more than mere economic loss. See Ariz.

23 Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014)

24 (“Irreparable harm is traditionally defined as harm for which

25 there is no adequate legal remedy, such as an award of

26 damages.”).

27

“[A]n alleged constitutional infringement will often alone

28 constitute irreparable harm.” United States v. Arizona, 641 F.3d 57

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 58 of 60

1 339, 366 (9th Cir. 2011) (citation omitted), rev’d in part on

2 other grounds, 567 U.S. 387 (2012). “It is clear that it would

3 not be equitable or in the public’s interest to allow the state

4 to violate the requirements of federal law . . . . In such

5 circumstances, the interest of preserving the Supremacy Clause is

6 paramount.” Id. (quoting Cal. Pharmacists Ass’n v. Maxwell-

7 Jolly, 563 F.3d 847, 852–53 (9th Cir. 2009)); see Am. Trucking

8 Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1059–60 (9th

9 Cir. 2009) (“Similarly, while we do not denigrate the public

10 interest represented by the Ports, that must be balanced against

11 the public interest represented in [Congress’s] decision to

12 deregulate the motor carrier industry, and the Constitution’s

13 declaration that federal law is to be supreme.”).

14

For the state laws which the Court found no likelihood that

15 Plaintiff will succeed on its claims—California Government Code

16 Sections 12532 (AB 103), 7284.6(a)(1)(C) & (D), and 7284.6(a)(4)

17 (SB 54), and California Labor Code Section 90.2 (AB 450)—no

18 injunction will issue. “Because it is a threshold inquiry, when

19 a plaintiff has failed to show the likelihood of success on the

20 merits, [the Court] need not consider the remaining three

21 Winter elements.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th

22 Cir. 2015) (citation and quotation marks omitted). The Court

23 will not find an irreparable injury where it has not found an

24 underlying constitutional infringement. See Goldie’s Bookstore,

25 Inc. v. Super. Ct. of Cal., 739 F.2d 466, 472 (9th Cir. 1984)

26 (“In this case, however, the constitutional claim is too tenuous

27 to support our affirmance on [the] basis [of irreparable

28 harm].”). 58

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 59 of 60

1

As to California Government Code Sections 7285.1 and 7285.2

2 and California Labor Code Section 1019.2, the Court presumes that

3 Plaintiff will suffer irreparable harm based on the

4 constitutional violations identified above. The equitable

5 considerations favor an injunction in such circumstances. See

6 United States v. Alabama, 691 F.3d 1269, 1301 (11th Cir. 2012)

7 (“The United States suffers injury when its valid laws in a

8 domain of federal authority are undermined by impermissible state

9 regulations. Frustration of federal statutes and prerogatives

10 are not in the public interest, and we discern no harm from the

11 state’s nonenforcement of invalid legislation.”). The Court

12 therefore enjoins enforcement of these provisions as to private

13 employers, as set forth in the Order below.

14

C. Conclusion

15

This Court has gone to great lengths to explain the legal

16 grounds for its opinion. This Order hopefully will not be viewed

17 through a political lens and this Court expresses no views on the

18 soundness of the policies or statutes involved in this lawsuit.

19 There is no place for politics in our judicial system and this

20 one opinion will neither define nor solve the complicated

21 immigration issues currently facing our Nation.

22

As noted in the Introduction to this Order, this case is

23 about the proper application of constitutional principles to a

24 specific factual situation. The Court reached its decision only

25 after a careful and considered application of legal precedent.

26 The Court did so without concern for any possible political

27 consequences. It is a luxury, of course, that members of the

28 other two branches of government do not share. But if there is 59

Case 2:18-cv-00490-JAM-KJN Document 193 Filed 07/05/18 Page 60 of 60

1 going to be a long-term solution to the problems our country

2 faces with respect to immigration policy, it can only come from

3 our legislative and executive branches. It cannot and will not

4 come from piecemeal opinions issued by the judicial branch.

5 Accordingly, this Court joins the ever-growing chorus of Federal

6 Judges in urging our elected officials to set aside the partisan

7 and polarizing politics dominating the current immigration debate

8 and work in a cooperative and bi-partisan fashion toward drafting

9 and passing legislation that addresses this critical political

10 issue. Our Nation deserves it. Our Constitution demands it.

11

IV. ORDER

12

For the reasons set forth above, the Court DENIES IN PART

13 AND GRANTS IN PART Plaintiff’s Motion for Preliminary Injunction.

14

The Court DENIES Plaintiff’s Motion to enjoin California

15 Government Code Sections 12532, 7284.6(a)(1)(C) & (D), and

16 7284.6(a)(4), and California Labor Code Section 90.2.

17

The Court GRANTS Plaintiff’s Motion and preliminarily

18 enjoins the State of California, Governor Brown, and Attorney

19 General Becerra from enforcing California Government Code

20 Sections 7285.1 and 7285.2 and California Labor Code Section

21 1019.2(a)&(b) as applied to private employers.

22

IT IS SO ORDERED.

23 Dated: July 4, 2018

24

25

26

27

28 60

 
 Case 2:18-cv-00490-JAM-KJN Document 197 Filed 07/09/18 Page 1 of 7

1

2

3

4

5

6

7

8

9

10

UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF CALIFORNIA

12

13 UNITED STATES OF AMERICA,

No. 2:18-cv-490-JAM-KJN

14

Plaintiff,

15

v.

16 STATE OF CALIFORNIA, et al.,

ORDER RE: STATE OF CALIFORNIA’S MOTION TO DISMISS

17

Defendants.

18

19

In response to the United States of America’s (“Plaintiff”

20 or “United States”) allegations that California overstepped its

21 authority and violated the Supremacy Clause, the State of

22 California (“Defendant” or “California”)1 moves to dismiss the

23 Complaint in its entirety. ECF No. 77. The United States

24 opposes dismissal. ECF No. 166.

25 ///

26 1 Because Edmund Gerald Brown Jr., Governor of California, and
27 Xavier Becerra, Attorney General of California, are sued in their official capacities only, the Court will address all three named
28 defendants as “California” or “Defendant.”
1

Case 2:18-cv-00490-JAM-KJN Document 197 Filed 07/09/18 Page 2 of 7

1

The parties appeared before the Court on June 20, 2018, and

2 argued the merits of the United States’ claims as they related to

3 the United States’ pending Motion for Preliminary Injunction and

4 California’s pending Motion to Dismiss. The Court filed its

5 Order Re: The United States of America’s Motion for Preliminary

6 Injunction on July 5, 2018, in which the Court set forth, in

7 detail, its evaluation of the United States’ claims and the

8 challenged state laws. ECF No. 193. The Court concluded the

9 United States is not likely to succeed on the merits of its

10 Supremacy Clause claims against SB 54, AB 103, and the notice

11 requirement provision of AB 450. It also found the United States

12 has shown a likelihood of success on its claim against the

13 remaining provisions of AB 450, as those provisions apply to

14 private employers.

15

For the reasons set forth in the Court’s Preliminary

16 Injunction Order, and as explained further below, Defendant’s

17 motion to dismiss is granted in part and denied in part.

18

19

I. OPINION

20

A. Legal Standard

21

Defendant moves to dismiss the Complaint under Federal Rule

22 of Civil Procedure 12(b)(6). In reviewing such motion, the Court

23 “inquire[s] whether the complaint’s factual allegations, together

24 with all reasonable inferences, state a plausible claim for

25 relief.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc.,

26 637 F.3d 1047, 1054 (9th Cir. 2011). “Dismissal can be based on

27 the lack of a cognizable legal theory or the absence of

28 sufficient facts alleged under a cognizable legal theory.” 2

Case 2:18-cv-00490-JAM-KJN Document 197 Filed 07/09/18 Page 3 of 7

1 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

2 1988).

3

B. Assembly Bill 103

4

AB 103 directs the California Attorney General’s attention

5 to civil immigration detention facilities within the State and

6 establishes a review and reporting requirement with respect to

7 those facilities. Plaintiff’s theory of liability rests on the

8 notion that federal law preempts that new requirement and that

9 the new requirement conflicts with 8 C.F.R. § 236.6. Opp’n at 9.

10 Additionally, Plaintiff argues that AB 103 violates the

11 intergovernmental immunity doctrine. Id. at 10.

12

The Court finds AB 103 does not violate the Supremacy

13 Clause. As explained in the Preliminary Injunction Order, the

14 Court does not find any indication in the cited federal statutes

15 that Congress intended for States to have no oversight over

16 detention facilities operating within their borders. Order at

17 12–19. AB 103’s review and reporting requirement does not give

18 California a role in determining whether an immigrant should be

19 detained or removed from the country, nor does it place any

20 substantive requirements or burdens on these detention facilities

21 apart from providing access. Id. at 14–16. The Court finds no

22 conflict between AB 103 and 8 C.F.R. § 236.6; on its face, AB 103

23 only requires disclosure of records to the Attorney General and

24 does not contemplate the release of detainee information to the

25 public. Id. at 17–18. Finally, the Court finds that the minimal

26 burden the reviews place on the facilities does not violate the

27 intergovernmental immunity doctrine. Id. at 19.

28

For these reasons and those stated in this Court’s

3

Case 2:18-cv-00490-JAM-KJN Document 197 Filed 07/09/18 Page 4 of 7

1 Preliminary Injunction Order, at 12–19, Plaintiff’s Supremacy

2 Clause claim against AB 103 is dismissed.

3

C. Assembly Bill 450 – Consent, Access, and

Reverification Provisions

4

5

AB 450 added several provisions to California law. It added

6 sections to the California Government Code that prohibit

7 employers from providing voluntary consent to an immigration

8 enforcement agent to enter nonpublic areas of a place of labor or

9 to access, review, or obtain the employer’s employee records.

10 Cal. Gov’t Code §§ 7285.1, 7285.2. It also added a provision to

11 the Labor Code that prohibits employers from reverifying the

12 employment eligibility of current employees when not required by

13 federal law. Cal. Lab. Code § 1019.2.

14

The Court preliminarily enjoined these three laws. Order at

15 60. Suffice it to say, the Court finds that Plaintiff has stated

16 a plausible claim for relief with respect to these provisions.

17 The Court denies Defendant’s motion to dismiss Plaintiff’s claim

18 as to California Government Code Sections 7285.1 and 7285.2 and

19 California Labor Code Section 1019.2.

20

D. Assembly Bill 450 – Notice Requirement

21

AB 450 also added a provision to the California Labor Code

22 that requires employers to provide notice to their employees “of

23 any inspections of I-9 Employment Eligibility Verification forms

24 or other employment records conducted by an immigration agency

25 within 72 hours of receiving notice of the inspection.” Cal.

26 Lab. Code § 90.2(a)(1). The law also requires employers to

27 provide affected employees with the results of the inspection.

28 Id. § 90.2(b). Plaintiff argues this law is impermissible 4

Case 2:18-cv-00490-JAM-KJN Document 197 Filed 07/09/18 Page 5 of 7

1 because “it would be unthinkable for a state to require that

2 suspects be warned of upcoming criminal investigations by the

3 Federal Bureau of Investigation, or that suspects be kept up to

4 date on the results of investigative work done by the Bureau.”

5 Opp’n at 8.

6

The Court does not agree with Plaintiff’s characterization

7 of this provision. Order at 27–28. The law does no more than

8 extend the notice afforded employers—the primary targets of IRCA

9 enforcement actions—to employees. Id. Further, because employer

10 liability is based on an employer’s failure to communicate

11 information to its employees, and not on the employer’s choice to

12 “deal with” immigration enforcement, the provision does not

13 violate the intergovernmental immunity doctrine. Id.

14

For these reasons and those stated in this Court’s

15 Preliminary Injunction Order, at 27–28, Plaintiff’s Supremacy

16 Clause claim against California Labor Code Section 90.2 is

17 dismissed.

18

E. Senate Bill 54

19

Senate Bill 54 (“SB 54”) added several provisions to the

20 government code that Plaintiff challenges. SB 54 restricts

21 California law enforcement agencies from sharing an individual’s

22 release dates and personal information (i.e. home and work

23 addresses) for immigration enforcement purposes. Cal. Gov’t Code

24 § 7284.6(a)(1)(C) & (D). It further restricts those agencies

25 from transferring individuals to immigration authorities. Cal.

26 Gov’t Code § 7284.6(a)(4).

27

The Court finds that the challenged provisions of SB 54 do

28 not violate the Supremacy Clause. See Order at 32–57. Because 5

Case 2:18-cv-00490-JAM-KJN Document 197 Filed 07/09/18 Page 6 of 7

1 “information regarding immigration or citizenship status” does

2 not include an immigrant’s release date or home and work

3 addresses, SB 54 does not directly conflict with 8 U.S.C. § 1373.

4 Id. at 32–41. For the reasons set forth in Part III.A.3.b. of

5 the Preliminary Injunction Order, the Court also finds that the

6 INA does not preempt SB 54. Id. at 42–55. Finally, the Court

7 finds SB 54 does not violate the doctrine of intergovernmental

8 immunity because it falls outside of the doctrine’s scope or,

9 alternatively, because California’s reasons for enacting the law

10 justify the differential treatment, if any. Id. at 55–57.

11

For these reasons and those stated in this Court’s

12 Preliminary Injunction Order, at 32–57, Plaintiff’s Supremacy

13 Clause claim against SB 54 is dismissed.

14

F. Leave to Amend

15

Neither party addressed whether the Court should grant

16 Plaintiff leave to amend the Complaint. However, “a district

17 court should grant leave to amend even if no request to amend the

18 pleading was made, unless it determines that the pleading could

19 not possibly be cured by the allegation of other facts.” Cook,

20 Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d

21 242, 247 (9th Cir. 1990).

22

Given the nature of Plaintiff’s claims, the Court finds

23 amendment would be futile. Plaintiff challenges the

24 constitutional validity of the state laws and resolution of its

25 claims turns on questions of law. The parties have extensively

26 litigated these issues over the past several months. The Court

27 finds new allegations will not cure the deficiencies in

28 Plaintiff’s Complaint and leave to amend is therefore denied. 6

Case 2:18-cv-00490-JAM-KJN Document 197 Filed 07/09/18 Page 7 of 7

1

2

II. ORDER

3

For the reasons set forth above, and incorporated by

4 reference herein, the Court GRANTS Defendant’s motion to dismiss

5 Plaintiff’s Supremacy Clause claims against AB 103, SB 54, and

6 California Labor Code Section 90.2 (added by AB 450) without

7 leave to amend. The Court DENIES Defendant’s motion to dismiss

8 Plaintiff’s Supremacy Clause claim with respect to California

9 Government Code Sections 7285.1 and 7285.2 and California Labor

10 Code Section 1019.2 (added by AB 450).

11

The parties shall file an amended Joint Status Report no

12 later than July 31, 2018. The parties should specifically address

13 how they anticipate the case will proceed in this Court and

14 suggest dates for discovery cut-off, expert witness disclosure,

15 filing of dispositive motions, pretrial conference and trial.

16

IT IS SO ORDERED.

17 Dated: July 9, 2018

18

19

20

21

22

23

24

25

26

27

28 7

 
 Case 2:18-cv-00490-JAM-KJN Document 126 Filed 05/21/18 Page 1 of 22

1 PILLSBURY WINTHROP SHAW PITTMAN LLP KIRKE M. HASSON #61446
2 kirke.hasson@pillsburylaw.com Four Embarcadero Center, 22nd Floor
3 San Francisco, CA 94111-5998 Telephone: 415.983.1077
4 Facsimile: 415.983.1200

5 ELAINE Y. LEE #293452 elaine.lee@pillsburylaw.com
6 725 South Figueroa Street, Suite 2800 Los Angeles, CA 90017-5406
7 Telephone: 213.488.7100 Facsimile: 213.629.1033
8

9 Attorneys for Amici Curiae, IMMIGRANT LEGAL RESOURCE CENTER,
10 HUMAN RIGHTS WATCH, & FREEDOM FOR IMMIGRANTS
11

12

UNITED STATES DISTRICT COURT

13

EASTERN DISTRICT OF CALIFORNIA

14

15 THE UNITED STATES OF AMERICA,
16
Plaintiff,
17
v.
18
THE STATE OF CALIFORNIA; 19 EDMUND GERALD BROWN, JR.,
Governor of California, in his Official 20 Capacity; and XAVIER BECERRA,
Attorney General of California, in his 21 Official Capacity,

22

Defendants.

23

Case No. 2:18-cv-00490-JAM-KJN BRIEF OF AMICI CURIAE IMMIGRANT LEGAL RESOURCE CENTER, HUMAN RIGHTS WATCH, AND FREEDOM FOR IMMIGRANTS IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION Hearing Date: _June 20, 2018 Hearing Time: 10:00 a.m. Courtroom: 6
The Honorable John A. Mendez

24

25

26

27

28

Case No. 2:18-cv-00490-JAM-KJN

BRIEF OF AMICI CURIAE ILRC, HRW, & FFI IN SUPPORT OF DEFENDANTS’ OPP. TO
MOTION FOR PRELIMINARY INJUNCTION

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1

2

TABLE OF CONTENTS

3

PAGES

4 I. INTRODUCTION........................................................................................... 1

5

II.

CONDITIONS IN CALIFORNIA IMMIGRATION DETENTION CENTERS NEED REVIEW ........................................................................... 3

6

A. Lack of Adequate Medical Care ........................................................... 3

7

B. Problems Faced by Particularly Vulnerable Populations ..................... 9

8

1. Failure to Treat Mental Health Issues and Prevent

9

Suicides....................................................................................... 9

10

2. Problems Faced by Other Vulnerable Populations................... 12

11

C. Limited Access to Counsel and Legal Services.................................. 14

12 III. CONCLUSION ............................................................................................. 15

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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Case No. 2:18-cv-00490-JAM-KJN

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Case 2:18-cv-00490-JAM-KJN Document 126 Filed 05/21/18 Page 3 of 22

1

TABLE OF AUTHORITIES

2

Cases

3 Gonzales v. Oregon,

4

546 U.S. 243 (2006) ............................................................................................. 3

5 Hedrick v. Grant,

6

No. 76-162 (E.D. Cal. 2016) ..................................................................10, 11, 12

7 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ............................................................................................. 3
8
Other Authorities
9

10 “I still Need You”: The Detention and Deportation of Californian Parents, Human Rights Watch (May 15, 2017),

11

https://www.hrw.org/report/2017/05/15/i-still-need-you/detention-and-

12

deportation-californian-parents ............................................................................ 1

13 “We don’t feel okay here”: Detainee Deaths, Suicide Attempts, and Hunger

Strikes Plague California Immigration Facility, Los Angeles Times (Aug.

14

8, 2017), http://www.latimes.com/local/lanow/la-me-ln-adelanto-

15

detention-20170808-story.html ............................................................................ 9

16 8 Witkin, Summary 11th Const. Law

17

Section 1098 (2017) ............................................................................................. 3

18 A Call for Change: Protecting the Rights of LGBTQ Detainees, Just

Detention International (Feb. 2009), https://justdetention.org/wp-

19

content/uploads/2015/10/Call-for-Change-Protecting-the-Rights-of-

20

LGBTQ-Detainees.pdf .......................................................................................13

21 Abuse in Adelanto: An Investigation into a California Town’s Immigration

22

Jail, CIVIC and Detention Watch Network (October 2015),

https://static1.squarespace.com/static/5a33042eb078691c386e7bce/t/5a9da

23

d7be4966b064c98e07c/1520283004817/CIVIC_DWN-Adelanto-

24

Report_old.pdf..............................................................................................11, 14

25

26

27

28
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Case 2:18-cv-00490-JAM-KJN Document 126 Filed 05/21/18 Page 4 of 22

1 Advocacy Group: If You’re Abused in Immigration Detention, the

2

Government Doesn’t Care, NBC San Diego (April 27, 2017, updated on

April 28, 2017), https://www.nbcsandiego.com/news/local/Advocacy-

3

Group-If-Youre-Abused-in-Immigration-Detention-the-Government-

4

Doesnt-Care-420666314.html ............................................................................13

5 California’s Due Process Crisis: Access to Legal Counsel for Detained

6

Immigrants, The California Coalition for Universal Representation (June

2016), http://www.publiccounsel.org/tools/assets/files/0783.pdf......................14

7

California’s governor vetoed a bill that would stop privately run migrant

8

detention. What now? Virginia’s Public Radio (Sept. 30, 2016),

9

http://wvtf.org/post/californias-governor-vetoed-bill-would-stop-privately-

run-migrant-detention-what-now#stream/0 ......................................................... 1
10

11 Callous and Cruel: Use of Force against Inmates with Mental Disabilities in US Jails and Prisons, Human Rights Watch (May 12, 2015),

12

https://www.hrw.org/report/2015/05/12/callous-and-cruel/use-force-

13

against-inmates-mental-disabilities-us-jails-and ................................................ 11

14 CIVIC Files Civil Rights Complaint Alleging Frequent Denial of Visits at

Adelanto Since Trump’s Election, CIVIC (Jan. 18, 2017),

15

http://www.endisolation.org/blog/archives/1170 ............................................... 15

16
Complaint to the Office for Civil Rights & Civil Liberties within the

17

Department of Homeland Security, FREEDOM FOR IMMIGRANTS (April 11.

18

2017),

https://static1.squarespace.com/static/5a33042eb078691c386e7bce/t/5a9da

19

297419202ab8be09c92/1520280217559/SexualAssault_Complaint.pdf .......... 13

20 Conditions worsen for some ICE detainees at Richmond jail, San Francisco

21

Chronicle (Nov. 10, 2017),

https://www.sfchronicle.com/news/article/Conditions-worsen-for-some-

22

ICE-detainees-at-12346066.php ......................................................................... 13

23

Contra Costa sheriff stonewalls officials who want to tour troubled jail, San

24

Francisco Chronicle (April 21, 2018),

25

https://www.sfchronicle.com/news/article/Contra-Costa-sheriff-

stonewalls-officials-who-12854365.php ............................................................ 15

26

27

28
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1 Deportation chosen over Richmond jail; complaints under investigation, San

2

Francisco Chronicle (Nov. 2, 2017),

https://www.sfchronicle.com/news/article/Deportation-chosen-over-

3

Richmond-jail-complaints-12324755.php.......................................................... 13

4
Detained, Then Violated, The Intercept (April 11, 2018),

5

https://theintercept.com/2018/04/11/immigration-detention-sexual-abuse-

6

ice-dhs/ ................................................................................................................ 14

7 Detention by the Numbers, Freedom For Immigrants,

https://www.freedomforimmigrants.org/detention-statistics/ (last accessed

8

May 13, 2018)....................................................................................................... 1

9
ICE Violates First Amendment Rights of 60+ Attorneys and Faith Leaders,

10

CIVIC (June 27, 2017), http://www.endisolation.org/blog/archives/1265 ........ 15

11 Invisible in Isolation: The Use of Segregation and Solitary Confinement in

12

Immigration Detention, National Immigrant Justice Center and Physicians

for Human Rights (Sept. 2012)

13

https://www.immigrantjustice.org/sites/immigrantjustice.org/files/Invisible

14

%20in%20Isolation-

The%20Use%20of%20Segregation%20and%20Solitary%20Confinement

15

%20in%20Immigration%20Detention.September%202012_7.pdf ................... 11

16
Letter to Thomas D. Homan, Director, U.S. Immigration and Customs

17

Enforcement, et al., CIVIC (April 11, 2017),

18

https://static1.squarespace.com/static/5a33042eb078691c386e7bce/t/5a9da

297419202ab8be09c92/1520280217559/SexualAssault_Complaint.pdf .......... 13

19

Letter to Timothy S. Aitken, Field Office Director, U.S. Immigration and

20

Customs Enforcement re: Violations of Policy Regarding Detention,

21

Shackling, and Care of Pregnant Women at Mesa Verde Detention

Facility, American Civil Liberties Union of Southern California (June 18,

22

2015), https://www.aclusocal.org/sites/default/files/wp-

23

content/uploads/2015/06/Mesa-Verde-Ruiz-Letter-FINAL.pdf .......................... 5

24 Lifeline on Lockdown: Increased US Detention of Asylum Seekers, Human

25

Rights First (July 2016),

http://www.humanrightsfirst.org/sites/default/files/Lifeline-on-

26

Lockdown.pdf ....................................................................................................... 2

27

28
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1 New Data on 637 Detention Facilities Used by ICE in FY 2015, TRAC

2

Immigration, http://trac.syr.edu/immigration/reports/422/#f2 (last accessed

May 13, 2018)....................................................................................................... 1

3

4 One Year Longitudinal Study of the Psychological Effects of Administrative Segregation, submitted to the National Institute of Justice (Oct. 31, 2010),

5

https://www.ncjrs.gov/pdffiles1/nij/grants/232973.pdf ..................................... 11

6 Systemic Indifference: Dangerous & Substandard Medical Care in US

7

Immigration Detention, Human Rights Watch (May 8, 2017),

https://www.hrw.org/report/2017/05/08/systemic-indifference/dangerous-

8

substandard-medical-care-us-immigration-detention.............................4, 7, 8, 10

9
Top Complaints in California Immigration Detention Facilities, Community

10

Initiatives for Visiting Immigrants in Confinement (“CIVIC”) (Aug. 28,

11

2015), http://www.endisolation.org/blog/archives/1278......................................3

12 Torture and other cruel, inhuman or degrading treatment or punishment,

A/66/268, United Nations General Assembly (Aug. 5, 2011),

13

https://documents-dds-

14

ny.un.org/doc/UNDOC/GEN/N11/445/70/PDF/N1144570.pdf?OpenElem

ent .......................................................................................................................11
15

16 US: Transgender Women Abused in Immigration Detention, HUMAN RIGHTS

WATCH (March 23, 2016), https://www.hrw.org/news/2016/03/23/us-

17

transgender-women-abused-immigration-detention .......................................... 14

18

19

20

21

22

23

24

25

26

27

28
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1 I. INTRODUCTION

2

Amici Curiae Immigrant Legal Resource Center (“ILRC”), Human Rights

3 Watch (“HRW”), and Freedom For Immigrants (“FFI,” formerly Community

4 Initiatives for Visiting Immigrants in Confinement) (collectively, “Amici”)

5 respectfully submit this brief in support of Defendants’ Opposition to Plaintiff’s

6 Motion for Preliminary Injunction. Amici urge denial of Plaintiff’s Motion in light

7 of the tragic state of the general welfare, health, and safety conditions in immigration

8 detention centers in California.

9

At present, the ten immigration detention centers in California hold an average

10 of over 4,500 people on a given day, or approximately 15% of all immigration

11 detainees nationwide.1 Each year, approximately 100,000 people in immigration

12 detention—or a quarter of all people detained—pass through a California detention

13 facility.2 These detention facilities hold asylum seekers and long-term residents of

14 California, many of whom are parents of citizens.3 They hold men, women, and

15 children, sometimes for days, sometimes for months or years. Many people are held

16 without individualized bond hearings, lacking the ability to even ask a judge whether

17 they may fight their case out of detention.

18

Those detained in immigration detention centers in California are exposed to a

19 host of inhumane conditions, from serious, sometimes deadly, lack of adequate

20 medical care to sexual abuse to everyday indignities. The true extent of inhumane

21 conditions in immigration detention centers in California is impossible for the State

22

23 1 “I still Need You”: The Detention and Deportation of Californian Parents, HUMAN RIGHTS WATCH (May 15, 2017), https://www.hrw.org/report/2017/05/15/i-still-need-you/detention-and-deportation-californian-
24 parents; see also Detention by the Numbers, Freedom For Immigrants,
https://www.freedomforimmigrants.org/detention-statistics/ (last accessed May 13, 2018). 25 2 Reynaldo Leanos Jr., California’s governor vetoed a bill that would stop privately run migrant detention.
26 What now? VIRGINIA’S PUBLIC RADIO (Sept. 30, 2016), http://wvtf.org/post/californias-governor-vetoedbill-would-stop-privately-run-migrant-detention-what-now#stream/0; see also New Data on 637 Detention
27 Facilities Used by ICE in FY 2015, TRAC Immigration, http://trac.syr.edu/immigration/reports/422/#f2 (last accessed May 13, 2018).
28 3 Supra fn. 1.

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1 to determine without access to inspect these centers, but even the limited anecdotal

2 evidence that is available to Amici is horrific. One person bled to death after an

3 attempt to remove “the largest abdominal mass” a doctor had ever seen, which went

4 undetected by detention center staff even though the detained person constantly

5 complained of pain and requested treatment over the course of two years. Another

6 person suffered a miscarriage when she fell on her stomach while shackled at her

7 hands and feet, and then was denied the necessary medical and mental health follow-

8 up care. Detained persons suffer serious mental health and languish in detention

9 centers where the suicide rate is more than triple that of the general prison 10 population, and yet do not have access to mental health professionals or are placed

11 in solitary confinement. Particularly vulnerable populations such as women and

12 LGBTQ individuals are subject to unique degradation and sex abuse. Instead of

13 finding refuge, torture victims who fled to the United States precisely because they

14 were seeking asylum from persecution elsewhere are locked away in abusive and

15 dangerous detention centers.4 Detained persons have even gone on hunger strikes

16 for new underwear.

17

This brief offers examples of the conditions of immigration detention centers

18 in California based on stories learned by Amici through their interactions with

19 detained persons. Amici seek to underscore the vital importance of the State of 20 California’s goals in empowering itself to learn in a systematic way whether, as

21 Amici suspect, the problems made evident by these stories are widespread. AB 103

22 is needed for the State to review the general welfare, health, and safety conditions of

23 the immigration detention centers within its borders. It seeks to ensure that

24 California’s immigration detention centers are compatible with the fundamental

25

26

4 In 2014, 84% of asylum seekers who suffer a positive credible fear of persecution in their home countries 27 were detained. Olga Byrne, Eleanor Acer, and Robyn Barnard, Lifeline on Lockdown: Increased US

28

Detention of Asylum Seekers, HUMAN RIGHTS FIRST (July 2016), http://www.humanrightsfirst.org/sites/default/files/Lifeline-on-Lockdown.pdf.

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1 rights of its residents and the concept of basic human dignity. Amici urge the Court

2 to accord these factors appropriate weight in deciding the Plaintiff’s Motion for

3 Preliminary Injunction.

4 II. CONDITIONS IN CALIFORNIA IMMIGRATION DETENTION

5

CENTERS NEED REVIEW

6

Conditions in immigration detention centers in California desperately need

7 review. AB 103 allows the State of California to exercise its inherent power to

8 regulate the general welfare, health, and safety of individuals within its borders, an

9 exercise of its police power. See 8 Witkin, Summary 11th Const. Law § 1098 10 (2017); Gonzales v. Oregon, 546 U.S. 243, 270 (2006), citing Medtronic, Inc. v.

11 Lohr, 518 U.S. 470, 475 (1996) (“[T]he structure and limitations of federalism […]

12 allow the States ‘great latitude under their police powers to legislate as to the

13 protection of the lives, limbs, health, comfort, and quiet of all persons.’”).

14 Anecdotal facts indicate systemic issues with the general welfare, health, and safety

15 of those detained in California’s immigration detention centers.

16

A. Lack of Adequate Medical Care

17

One of the top complaints by immigration detainees in California is lack of

18 access to adequate medical care.5 In the individual stories presented below,

19 individuals suffered because of unreasonable delay in receiving care, treatment by 20 unqualified staff, and inappropriate treatment and care. Amici believe the State of

21 California, upon review and inspection, will find many more such cases, indicating

22 substandard medical care in immigration detention centers in California. Systemic

23 failure to provide adequate medical care is likely given that staff providing medical

24 care at the immigration detention centers are unqualified (as in the case of Carlos H.,

25

26

27 5 Top Complaints in California Immigration Detention Facilities, COMMUNITY INITIATIVES FOR VISITING

28

IMMIGRANTS IN CONFINEMENT (“CIVIC”) (Aug. 28, 2015), http://www.endisolation.org/blog/archives/1278.

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1 below) or untrained.6

2

Raul Ernesto Morales-Ramos, a 44-year old man, died in April 2015 while

3 detained in the Adelanto Detention Facility from organ failure and suffering

4 widespread signs of cancer.7 Despite the fact that he had complained of pain and

5 exhibited cancer symptoms over the course of two years, and had a large, clearly

6 visible abdominal mass, Mr. Morales-Ramos did not receive adequate medical care 7 until just a month before he died. His death resulted from a critical lapse of care:

8 had he been diagnosed and treated sooner, Mr. Morales-Ramos’ cancer may have

9 been treatable.

10

Likely already suffering from symptoms of cancer, Mr. Morales-Ramos was

11 first referred for follow-up with a doctor for gastrointestinal symptoms in April 2013

12 while detained at the Theo Lacy Facility in Orange County, California. More than a

13 year later, in May 2014, this consultation had not yet occurred and Mr. Morales-

14 Ramos was transferred to Adelanto with no documentation of his gastrointestinal

15 symptoms. There, he was seen by registered nurses several times over the next nine

16 months after submitting sick call requests for body aches, weight loss, pain in his 17 joints, knees, and back, and diarrhea. No one thought to diagnose or treat him for

18 cancer.

19

In February 2015, having suffered for a year without proper treatment, Mr.

20 Morales-Ramos submitted a grievance in which he pled, “To who receives this. I

21 am letting you know that I am very sick and they don’t want to care for me. The

22

23

24

6 U.S. Immigration and Customs Enforcement’s Office of Detention Oversight itself noted that in Adelanto, for instance, “approximately 50 percent of ADF’s medical staff hires are new graduates” with a “definite

25 difference between their skills and those of more experienced nurses.” Clara Long and Grace Meng, Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention, HUMAN

26 RIGHTS WATCH (May 8, 2017), https://www.hrw.org/report/2017/05/08/systemic-indifference/dangeroussubstandard-medical-care-us-immigration-detention.

27 7 All facts in this story are from HRW’s review of U.S. Immigration and Customs Enforcement records

28

detailed in Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention, supra fn. 6.

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1 nurse only gave me ibuprofen and that only alleviates me for a few hours. Let me

2 know if you can help me. I only need medical attention.” Four days later, a nurse

3 practitioner saw Mr. Morales-Ramos but missed all symptoms of cancer, instead

4 instructing him to increase his water intake and exercise and documenting that his

5 symptoms were resolved. A few weeks later, on March 2, 2015, another nurse saw

6 Mr. Morales-Ramos and noted a distended abdomen but “did not detect a mass or

7 protrusion.”

8

A consultation with a doctor finally occurred on March 6, 2015. This

9 doctor—observing Mr. Morales-Ramos just four days after a nurse failed to detect a 10 mass—documented the “largest [abdominal mass] she had ever seen in her practice,”

11 which was “notably visible through the abdominal wall.” She scheduled Mr.

12 Morales-Ramos for a colonoscopy, which did not occur until about one month later.

13 During the colonoscopy, Mr. Morales-Ramos began to experience abdominal

14 bleeding after a doctor attempted to remove the mass. Mr. Morales-Ramos was

15 transferred to the hospital and died three days later after a surgical attempt to stop

16 his bleeding.

17

Monserrat Ruiz Cuevas suffered a miscarriage while detained at Mesa Verde

18 Detention Center in Bakersfield.8 After her miscarriage, Ms. Ruiz said that she was

19 further denied access to adequate follow-up medical and mental health care.

20

When Ms. Ruiz first arrived at Mesa Verde on May 8, 2015 after seeking

21 asylum based on a credible fear of persecution or torture, staff conducted a

22 pregnancy test. However, Ms. Ruiz said that she was not informed of the result.

23 Instead, Ms. Ruiz only learned she was pregnant several days later after she

24 experienced heart and breathing complications, was transported to a hospital for

25

26 8 Letter to Timothy S. Aitken, Field Office Director, U.S. Immigration and Customs Enforcement re:

Violations of Policy Regarding Detention, Shackling, and Care of Pregnant Women at Mesa Verde 27 Detention Facility, AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA (June 18, 2015),

28

https://www.aclusocal.org/sites/default/files/wp-content/uploads/2015/06/Mesa-Verde-Ruiz-LetterFINAL.pdf.

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1 urgent care (while fully shackled), and examined by a doctor who informed her she

2 was pregnant and had severe dehydration.

3

After her pregnancy was confirmed, Ms. Ruiz said she was still not provided

4 with access to specialized medical care. On May 12, 2015, she complained of back

5 pain and other distressing symptoms but waited two days until staff determined she

6 should be sent to a hospital. On May 14, 2015, while walking to the transportation

7 van to go to the hospital, Ms. Ruiz was shackled in both leg and arm restraints. She

8 tripped over her shackles and fell on her stomach while being transported to a

9 hospital to receive urgent medical care related to her pregnancy. Once at the

10 hospital, Ms. Ruiz said she was kept in shackles the entire time and the doctor did

11 not take any steps to address her concerns about harming her baby because of the

12 fall.

13

The following day, on May 15, 2015, Ms. Ruiz began bleeding heavily and

14 experiencing other symptoms of miscarriage. She said she was transported to the

15 hospital in handcuffs, waited several hours to see the doctor while handcuffed to the

16 stretcher, and then transferred to the hospital bed and handcuffed to the bed. After

17 she was evaluated, the doctor told Ms. Ruiz that she had lost her child. Ms. Ruiz

18 said she was then transported back to Mesa Verde that same day, once again in

19 handcuffs.

20

After her miscarriage, Ms. Ruiz said that she did not receive any necessary

21 follow-up gynecological care or mental health services. Despite the fact that she

22 continued to experience ongoing bleeding and vaginal irritation, she said there were

23 no efforts to ensure that she had not contracted an infection or that her hemorrhaging

24 had ceased. Even after Mesa Verde medical staff determined that she needed urgent

25 care from a gynecologist, Ms. Ruiz was never provided with this care, she said.

26 Instead, she only received Tylenol and milk of magnesia.

27

Ms. Ruiz also said that she did not receive any mental health care (further

28 discussed in Section II.B.1, below) although she was visibly weeping and depressed

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1 for several days. Ms. Ruiz said she was eventually taken to see a psychiatrist who

2 chuckled and said that all he could do for her was prescribe sleeping medication.

3 Ms. Ruiz was subsequently granted asylum and released to live with her partner, a

4 legal permanent resident.

5

Jose L. lost the ability to walk more than just short distances, and perhaps also

6 lost sight in his right eye, due to failure to receive adequate medical care while

7 detained at Adelanto Detention Facility.9 Jose, a 54-year old former green card

8 holder who had lived in the U.S. for 32 years, had a history of lower back pain and

9 diabetes. In mid-2013, Jose was working in the facility kitchen when he slipped and

10 fell, hitting his hip and back. After his pain became uncontrollable and he could not

11 stand up for more than five minutes, Jose asked to see a doctor but had to wait 18

12 months before seeing a surgeon. This unreasonable delay left Jose in pain and with

13 decreased function. Jose was eventually scheduled for surgery but was deported

14 before he could have the surgery.

15

Unreasonable delays in receiving care may have also resulted in Jose

16 becoming legally blind in his right eye. In July 2014, Jose began to complain about

17 losing vision in his right eye and severe pain, which was eventually diagnosed as

18 proliferative diabetic retinopathy, a common complication of diabetes. From the

19 time he first complained, it took five days for Jose to receive an initial evaluation by

20 a physician, who thought he might have a retinal detachment, which according to

21 medical experts should have been deemed an emergency. Forty-eight hours later,

22 the optometrist found Jose’s eye had hemorrhaged and recommended that he see a

23 retinal specialist as soon as possible. It then took the facility doctor four days to

24 submit a request for authorization stating, “needs retinal specialist ASAP,” and over

25 a month before Jose was seen by a retinal specialist. Afterward, numerous

26

27 9 All facts in this story are from HRW’s review of U.S. Immigration and Customs Enforcement records

28

detailed in Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention, supra fn. 6.

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1 recommendations for follow-up appointments with a retinal specialist were delayed.

2 For example, a follow-up scheduled for one week later occurred four weeks later.

3 At one point, the retinal specialist cancelled the appointment due to non-payment,
4 presumably by U.S. Immigration and Customs Enforcement (“ICE”).

5

Because proliferative diabetic retinopathy does not develop overnight,

6 symptoms should have been observed during Jose’s annual eye exam in February

7 2014. Jose’s diabetes does not appear to have been managed well overall, and

8 although his sugar level was high, the doctors did not make changes to his insulin

9 dosages.

10

Carlos H. tore his anterior cruciate ligament (“ACL”) and possibly broke a

11 bone in February 2015 while detained at Yuba County Jail in California when he fell

12 in the shower.10 Carlos’ injuries were not properly diagnosed or treated for five

13 months because he was seen only by licensed vocational nurses (“LVNs”) who did

14 not refer him to a doctor, and then because ICE continually delayed his scheduled

15 surgery without providing any clinical reason. His medical records show long

16 delays at each stage of the process and he essentially endured pain that could have

17 been treated or ameliorated for almost a year.

18

Carlos requested medical care for his knee five times over three months. For

19 his first four requests, Carlos was not seen by a doctor or a registered nurse; instead,

20 he was seen by a LVN who did not refer him to a doctor until the fifth visit, even

21 though this constituted practice outside the scope of a LVN’s license. Once Carlos

22 was seen by a doctor, his knee was appropriately examined and he was sent for an

23 X-ray and MRI, which revealed a torn ACL and possibly a meniscus tear. Carlos

24 was referred to an orthopedist who recommended surgery and the facility submitted

25 a request to ICE for approval at the end of July.

26

27 10 All facts in this story are from HRW’s review of U.S. Immigration and Customs Enforcement records

28

detailed in Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention, supra fn. 6.

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1

What followed then was unexplained delay by ICE in scheduling the surgery.

2 ICE twice requested delays without explanation, first from mid-August to the end of

3 August, and then again until the first week of October. Carlos continued to endure

4 pain during these delays. Medical records show that Carlos may have even had a

5 broken bone and was forced to walk around on it during the five-month delay.

6

Even after his surgery, Carlos’s ordeal was not over. The surgeon had ordered

7 narcotic pain medications, but the facility doctor changed the order to a non-narcotic

8 without explanation and without setting up a mechanism to monitor post-operation

9 pain. Two days after surgery, Carlos collapsed with shortness of breath, possibly 10 from not having adequate pain control, which would have been prevented by the

11 medications ordered by the surgeon. The LVN who managed the emergency

12 response measured his pulse and oxygen, but not his respiration or blood pressure,

13 and did not involve the facility physician, which was troubling given the risk of

14 blood clot and pulmonary embolism.

15

B. Problems Faced by Particularly Vulnerable Populations

16

Many immigration detainees are survivors of violence and torture. These

17 detainees are unusually vulnerable and may often fall victim to additional harms

18 while in detention, a particularly ironic circumstance given that they have often

19 entered the country seeking, as intended by federal policy, asylum from persecution 20 in their home countries. This is sadly reflected in the fact that there is a high number

21 of attempted and completed suicides at immigration detention centers.11 “I think

22 doing something like that is something that has crossed the mind of all of us who are

23 locked up here,” a detainee at Adelanto said of suicide.12

24

1. Failure to Treat Mental Health Issues and Prevent Suicides

25

26 11 Paloma Esquivel, “We don’t feel okay here”: Detainee Deaths, Suicide Attempts, and Hunger Strikes
27 Plague California Immigration Facility, L.A. TIMES (Aug. 8, 2017), http://www.latimes.com/local/lanow/la-me-ln-adelanto-detention-20170808-story.html.
28 12 Id.

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1

The high rate of suicide at California’s immigration detention centers must be

2 understood within the context of a system that has a track record of failure to treat

3 mental health issues and suicide risk.

4

First, suicide risks are not addressed: a person detained at Yuba County Jail

5 attempted suicide in October 2014 by hanging himself in the shower.13 At the time

6 of his intake in June 2014, he reported anxiety problems and depressive symptoms

7 but was not flagged as any sort of suicide risk, despite the fact that his mother called

8 the same day and expressed concern about her son’s mental health, and that his chief

9 complaint in his previous psychiatric evaluation was that his brother committed

10 suicide by hanging himself the previous year.

11

Second, immigration detention centers attempt to treat detained persons

12 suffering from mental health problems by putting them in solitary confinement.

13 Two attorneys of clients with mental health conditions detained in Adelanto

14 Detention Center told HRW their clients were regularly put into isolation because

15 adequate mental health care was unavailable.14 In one particular case, a detained

16 person had done well in a psychiatric facility, but when she was returned to the

17 detention center, she did not receive the same medication she had received in the

18 hospital. She became unstable and suicidal and was repeatedly put in isolation.15

19 Another attorney working with detained persons stated, “I’ve had clients, very

20 mentally ill clients ... who’ve suffered from schizophrenia and various psychotic

21 episodes, and the way [detention center operators] responds to that is to put people

22 in solitary.”16 At one point, eight percent of people in immigration detention

23

24 13 Plaintiffs’ Mot. to Enforce Consent Decree in Hedrick v. Grant, No. 76-162 (E.D. Cal. Oct. 24, 2016) (ECF. No. 163 at 22-32).
25 14 Supra fn. 6. 26 15 Id.

27

16 Alexis Perlmutter and Mike Corradini, Invisible in Isolation: The Use of Segregation and Solitary Confinement in Immigration Detention, NATIONAL IMMIGRANT JUSTICE CENTER AND PHYSICIANS FOR

28 HUMAN RIGHTS (Sept. 2012) https://www.immigrantjustice.org/sites/immigrantjustice.org/files/Invisible%20in%20Isolation-

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1 interviewed by FFI at Adelanto reported that they had been held in solitary

2 confinement.17

3

Studies suggest that solitary confinement may severely exacerbate previously

4 existing mental health issues. Because of this, the United Nations special rapporteur

5 on torture believes that solitary confinement of any duration of time for those with

6 psychosocial disabilities is cruel, inhuman, or degrading treatment.18 The Special

7 Rapporteur cites to studies that have found that spending seven days in solitary

8 confinement can lead to a decline in brain activity, and that over seven days, the

9 decline may be irreversible.19

10

The conditions at Yuba County Jail provide insight. There, a group of

11 prisoners and immigration detainees brought suit and obtained a consent decree to

12 address mental health care and suicide prevention.20 Pursuant to the consent decree,

13 a grand jury reviewed conditions at Yuba County Jail and found the following in

14 2015: (1) “the extended stay of ICE prisoners … have increased the medical and

15 mental health needs of inmates [referring to both criminal and immigration

16 detainees]”; (2) “[t]he Mental Health Professional (psychiatrist) although available

17 by phone, is on site only one day per week mainly to evaluate incoming inmates and

18

19 The%20Use%20of%20Segregation%20and%20Solitary%20Confinement%20in%20Immigration%20Deten
20 tion.September%202012_7.pdf. 17 Christina Fialho and Victoria Mena, Abuse in Adelanto: An Investigation into a California Town’s
21 Immigration Jail, CIVIC AND DETENTION WATCH NETWORK (October 2015), https://static1.squarespace.com/static/5a33042eb078691c386e7bce/t/5a9dad7be4966b064c98e07c/1520283
22 004817/CIVIC_DWN-Adelanto-Report_old.pdf.
23 18 Juan E. Mendez, Special Rapporteur of the Human Rights Council, Torture and other cruel, inhuman or degrading treatment or punishment, A/66/268, UNITED NATIONS GENERAL ASSEMBLY (Aug. 5, 2011),
24 https://documents-dds-ny.un.org/doc/UNDOC/GEN/N11/445/70/PDF/N1144570.pdf?OpenElement; see also, Jamie Fellner, Callous and Cruel: Use of Force against Inmates with Mental Disabilities in US Jails
25 and Prisons, HUMAN RIGHTS WATCH (May 12, 2015), https://www.hrw.org/report/2015/05/12/callous-andcruel/use-force-against-inmates-mental-disabilities-us-jails-and; and Maureen L.O’Keefe, et al., One Year
26 Longitudinal Study of the Psychological Effects of Administrative Segregation, submitted to the National Institute of Justice (Oct. 31, 2010), https://www.ncjrs.gov/pdffiles1/nij/grants/232973.pdf.
27 19 Supra fn. 17, citing Stuart Grassian, “Psychiatric Effects of Solitary Confinement” (1993), p. 1.
28 20 Supra fn. 13.

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1 update prescriptions”; (3) “[t]here are no non-emergency or ongoing mental health

2 services available to the inmates”; [and] (4) “[i]nmates diagnosed as needing

3 treatment at a state mental hospital wait for months to transfer. Suicidal inmates can

4 stay in padded cells, with little or no comforts, for weeks…”21

5

In 2016, prisoners and immigration detainees brought a motion to enforce the

6 consent decree at Yuba County Jail, citing the high sustained rate of suicide at the 7 jail.22 In thirty months, there had been at least forty-one suicide attempts at Yuba

8 County Jail. The risk of suicide in Yuba County Jail is more than three-and-a-half

9 times higher than the suicide rate for the general prison population.23 Plaintiffs 10 seeking to enforce the consent decree also describe a “deliberate indifference to

11 suicide hazards,” “segregation of the mentally ill including in unsanitary ‘rubber

12 rooms’ covered in blood and feces,” and prisoners with mental illness who have

13 been regularly placed in isolation cells with shuttered windows for days at a time

14 and deprived of access to outdoor exercise for weeks on end.

15

2. Problems Faced by Other Vulnerable Populations

16

In addition to the lack of mental health care and issues faced by the general

17 population of detained persons, certain groups of unusually vulnerable detained

18 persons such as women and LGTBQ individuals suffer additional problems.

19

Because there are fewer women than men in detention facilities, their

20 particular needs are often overlooked. They are often consolidated, with lower

21 security risk women housed along with higher security risk women, resulting in

22 more constrictive conditions for all women than their male counterparts. For

23 instance, women detained at Contra Costa West County Detention Facility report

24 being locked in their cells for up to 23 hours a day and are told to use bio bags in

25

26 27 21 Id.
22 Id. 28 23 Id.
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1 their cell when they need to use the bathroom.24

2

Sexual and physical abuse is a serious problem in California’s immigration

3 detention centers, and certain populations such as LGBTQ detained persons face

4 higher risks of abuse. Data obtained by FFI from the Department of Homeland

5 Security Office of the Inspector General shows at least 1,016 reports of physical and

6 sexual abuse filed by people in detention nationwide between May 2014 and July

7 2016.25 Two California facilities—Adelanto and Otay Mesa Detention Center—are

8 among the five facilities with the most sexual assault complaints in the nation.26 At

9 Otay, Yordy Cancino, a gay man, reported that he experienced consistent sexual 10 harassment by guards.27 Mr. Cancino said that when he took showers, one of the

11 male guards would position himself so that he could see Mr. Cancino naked and

12 guards would call him over the detention facility radio, “Cancino, my royal princess,

13 wake up.”

14

LGBTQ detained persons are fifteen times more likely than the general

15 population of detained persons to be sexually assaulted in detention centers.28

16

17 24 Otis R. Taylor Jr., Deportation chosen over Richmond jail; complaints under investigation, SAN

18

FRANCISCO CHRONICLE (Nov. 2, 2017), https://www.sfchronicle.com/news/article/Deportation-chosenover-Richmond-jail-complaints-12324755.php; see also Otis R. Taylor Jr., Conditions worsen for some ICE

19 detainees at Richmond jail, SAN FRANCISCO CHRONICLE (Nov. 10, 2017), https://www.sfchronicle.com/news/article/Conditions-worsen-for-some-ICE-detainees-at-12346066.php

20 25 Letter to Thomas D. Homan, Director, U.S. Immigration and Customs Enforcement, et al., CIVIC (April

11, 2017), 21 https://static1.squarespace.com/static/5a33042eb078691c386e7bce/t/5a9da297419202ab8be09c92/1520280
217559/SexualAssault_Complaint.pdf. 22
26 Id.

23 27 Complaint to the Office for Civil Rights & Civil Liberties within the Department of Homeland Security,

24

FREEDOM FOR IMMIGRANTS (April 11. 2017), https://static1.squarespace.com/static/5a33042eb078691c386e7bce/t/5a9da297419202ab8be09c92/1520280

25 217559/SexualAssault_Complaint.pdf; see also Mari Payton, Advocacy Group: If You’re Abused in Immigration Detention, the Government Doesn’t Care, NBC SAN DIEGO (April 27, 2017, updated on April
26 28, 2017), https://www.nbcsandiego.com/news/local/Advocacy-Group-If-Youre-Abused-in-ImmigrationDetention-the-Government-Doesnt-Care-420666314.html.

27 28 A Call for Change: Protecting the Rights of LGBTQ Detainees, JUST DETENTION INTERNATIONAL (Feb.

28

2009), https://justdetention.org/wp-content/uploads/2015/10/Call-for-Change-Protecting-the-Rights-ofLGBTQ-Detainees.pdf.

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1 Transgender women detained persons often suffer abuse because they are housed

2 with men. Even when housed exclusively with other transgender detained persons,

3 however, as they were in Santa Ana City Jail, some detained persons told HRW that

4 they were regularly subjected to humiliating and abusive strip searches by male

5 guards.29 Many say they were not able to get adequate medical services including

6 hormone replacement therapy, and spent unreasonably long periods of time in 7 solitary confinement.30

8

Because of factors including homophobia, detainees who are victims of sexual

9 abuse often do not report the abuse. Those who do report abuse may face retaliation. 10 “A lot of people don’t complain,” said Gretta Soto Moreno, a transgender woman

11 who was held in detention centers in Arizona and California.31 “As soon as you

12 make a grievance, if you defend yourself, you become a personal enemy of the

13 system. Even if the system stinks and is corrupt…Grievances only go to the next

14 officer, and they take care of each other.”

15

C. Limited Access to Counsel and Legal Services

16

The harmful, abusive, and even life-endangering conditions of confinement

17 described above are exacerbated by the fact that most detained persons have no

18 access to counsel. An estimated 68 percent of immigration detainees in California

19 are unrepresented by counsel.32 Studies at Adelanto suggest that as few as 12.3% of 20 detainees are represented.33 Access to counsel is restricted due to several factors

21 including costly telephone access, limited visitation, and frequent and distant

22

23 29 US: Transgender Women Abused in Immigration Detention, HUMAN RIGHTS WATCH (March 23, 2016), 24 https://www.hrw.org/news/2016/03/23/us-transgender-women-abused-immigration-detention.
30 Id. 25 31 Alice Speri, Detained, Then Violated, THE INTERCEPT (April 11, 2018),
https://theintercept.com/2018/04/11/immigration-detention-sexual-abuse-ice-dhs/. 26 32 California’s Due Process Crisis: Access to Legal Counsel for Detained Immigrants, THE CALIFORNIA
27 COALITION FOR UNIVERSAL REPRESENTATION (June 2016), http://www.publiccounsel.org/tools/assets/files/0783.pdf.
28 33 Supra fn. 17.

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1 transfers. Telephone calls are extremely expensive for detainees. Prior to 2013,

2 calls could be as exorbitant as $5.00 per minute. Since then, the FCC set interstate

3 caps for rates charged to detainees, but rates can still be as high as 25 cents per

4 minute. Visitation is also unreasonably restricted. In January 2017, FFI filed a

5 complaint against Adelanto, documenting visit denials and unreasonable visitation

6 waiting times.34 Recently, over 60 faith leaders and attorneys were denied visits to 7 Adelanto without any reason.35 On top of this, current restrictions make it difficult if

8 not impossible to bring interpreters to detention centers, limiting the ability of legal

9 workers to communicate with detainees. Some facilities, such as the West County 10 Detention, have ignored requests from local government officials to tour the

11 facilities.36

12 III. CONCLUSION

13

The anecdotal evidence available to Amici from their sources suggest a

14 picture of dire general welfare, health, and safety conditions in immigrant detention

15 centers in California. Amici respectfully urge the Court to weigh the urgency of

16 these considerations and the State of California’s strong interest in learning more 17 about the conditions of the immigration detention centers within its borders, as it

18 considers the Plaintiff’s Motion for Preliminary Injunction.

19

20

21

22

23

24

25

34 CIVIC Files Civil Rights Complaint Alleging Frequent Denial of Visits at Adelanto Since Trump’s Election, CIVIC (Jan. 18, 2017), http://www.endisolation.org/blog/archives/1170.

26 35 ICE Violates First Amendment Rights of 60+ Attorneys and Faith Leaders, CIVIC (June 27, 2017),

http://www.endisolation.org/blog/archives/1265. 27 36 Otis R. Taylor Jr., Contra Costa sheriff stonewalls officials who want to tour troubled jail, SAN

28

FRANCISCO CHRONICLE (April 21, 2018), https://www.sfchronicle.com/news/article/Contra-Costa-sheriffstonewalls-officials-who-12854365.php.

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1
Dated: May 17, 2018
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No. 2:18-cv-00490-JAM-KJN

PILLSBURY WINTHROP SHAW PITTMAN LLP

/s/ Kirke M. Hasson

By:

Kirke M. Hasson

Attorneys for Amici Curiae, IMMIGRANT LEGAL RESOURCE CENTER, HUMAN RIGHTS WATCH, & FREEDOM FOR IMMIGRANTS

-16-

BRIEF OF AMICI CURIAE ILRC, HRW, & FFI IN SUPPORT OF DEFENDANTS’ OPP. TO
MOTION FOR PRELIMINARY INJUNCTION

 
 Case 2:18-cv-00490-JAM-KJN Document 127 Filed 05/21/18 Page 1 of 27

1 JOSHUA A. GELTZER (DC #1018768)
MARY B. MCCORD (DC#427563) 2 DANIEL B. RICE (DC # 888273343)
3 INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION GEORGETOWN UNIVERSITY LAW CENTER
4 600 New Jersey Avenue NW
Washington, DC 20001 5 Phone: (202) 662-9042
6 Email: jg1861@georgetown.edu

7 MATTHEW J. PIERS (IL #2206161) CHIRAG G. BADLANI (IL #6308523)
8 CARYN C. LEDERER (IL #6304495) 9 HUGHES SOCOL PIERS RESNICK & DYM, LTD.
70 West Madison St., Suite 4000 10 Chicago, IL 60602
Phone: (312) 580-0100 11 Fax: (312) 604-2623 12 Email: mpiers@hsplegal.com

13 Counsel for Amici Curiae Current and Former Prosecutors and
14 Law Enforcement Leaders

15 UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA

17 18 THE UNITED STATES OF AMERICA,

19

Plaintiff,

20

v.

21 THE STATE OF CALIFORNIA;

22 EDMUND GERALD BROWN JR.,

Governor of California, in his Official

23 Capacity; and XAVIER BECERRA,

24

Attorney General of California, in his Official Capacity,

25 Defendants.
26

27

)

)

)

) )

Case No. 2:18-cv-00490 (JAM) (KJN)

) ) ) ) ) ) ) ) )

BRIEF OF AMICI CURIAE CURRENT AND FORMER PROSECUTORS AND LAW ENFORCEMENT LEADERS IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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)

)

28

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1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES .......................................................................................................... ii

INTEREST AND IDENTITY OF AMICI CURIAE...................................................................... 1 4
INTRODUCTION .......................................................................................................................... 2 5 ARGUMENT .................................................................................................................................. 4

6 I. Trust and Respect Between Communities and Law Enforcement Officials Are

7

Essential to Public Safety and Are Thwarted When Victims and Witnesses Fear Deportation Consequences of Cooperating. ....................................................................... 4

8 II. Policies Limiting Local and State Involvement in Federal Immigration Enforcement

Are Critical to Building and Maintaining Trust Between the Community and Law

9

Enforcement While Preserving Local Resources. ............................................................ 12

10 CONCLUSION............................................................................................................................. 15

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
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1

TABLE OF AUTHORITIES

2 Cases

3 Galarza v. Szalczyk, No. 10-cv-06815, 2012 WL 1080020 (E.D. Pa. Mar. 30, 2012) ............12

4 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012).................................................................13

5

Mendoza v. Osterberg, No. 13CV65, 2014 WL 3784141 (D. Neb. July 31, 2014) ................12 6

Miranda-Olivares v. Clackamas Cnty., No. 12-cv-02317-ST, 2014 WL 1414305 (D. Or.

7

Apr. 11, 2014) ..............................................................................................................12

8 Morales v. Chadbourne, 996 F. Supp. 2d 19 (D. R.I. 2014), aff’d on appeal, 793 F.3d 208

9

(1st Cir. 2015) ..............................................................................................................12

10 Uroza v. Salt Lake Cnty., No. 11CV713DAK, 2013 WL 653968 (D. Ut. Feb. 21, 2013) ......12

11 Vohra v. United States, No. 04-cv-00972-DSF-RZ, 2010 U.S. Dist. LEXIS 34363 (C.D.

12

Cal. Feb. 4, 2010), adopted, 2010 U.S. Dist. LEXIS 34088 (C.D. Cal. Mar. 29, 2010) ............................................................................................................................12

13 Villars v. Kubiatowski, 45 F. Supp. 3d 791 (N.D. Ill. 2014) ...................................................12

14

Statutes 15

16 Cal. Gov’t Code § 7282 et seq. ................................................................................................14

17 Cal. Gov’t Code § 7284 et seq. ........................................................................................1, 3, 14

18 Cook County, IL Code § 46-37(b) ..........................................................................................12

19 Or. Rev. Stat. Ann. § 181A.820 ...............................................................................................13

20 Other Authorities

21 American Immigration Council, Immigrants in California (2017) available at

22

https://www.americanimmigrationcouncil.org/sites/default/files/research/

immigrants_in_california.pdf (2017) ............................................................................1

23

Nawal H. Ammar et al., Calls to Police and Police Response: A Case Study of Latina

24

Immigrant Women in the USA, 7 Int’l J. Police Sci. & Mgmt. 230 (2005) .................11

25 Devlin Barrett, DHS: Immigration Agents May Arrest Crime Victims, Witnesses at

26

Courthouses, Wash. Post, Apr. 4, 2017, https://www.washingtonpost.com/world/

national-security/dhs-immigration-agents-may-arrest-crime-victims-witnesses-at-

27

courthouses/2017/04/04/3956e6d8-196d-11e7-9887-1a5314b56a08_story.html .........8

28
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1 Stephen Rex Brown, Courthouse Arrests of Immigrants by ICE Agents Have Risen 900%

in New York This Year: Immigrant Defense Project, N.Y. Daily News, Nov. 15,

2

2017, http://www.nydailynews.com/new-york/ice-courthouse-arrests-immigrants-

3

900-n-y-2017-article-1.3633463 ....................................................................................8

4 Jacob Bucher, Michelle Manasse, & Beth Tarasawa, Undocumented Victims: An

Examination of Crimes Against Undocumented Male Migrant Workers, 7 Sw. J.

5

Crim. Just. 159 (2010) .................................................................................................10

6 Letter from Tani G. Cantil-Sakauye, Chief Justice of the Supreme Court of California, to

7

Jeff Sessions, Att’y Gen. of the U.S., and John F. Kelly, Sec’y of Dep’t of

Homeland Sec. (Mar. 16, 2017), available at http://newsroom.courts.ca.gov/news/

8

chief-justice-cantil-sakauye-objects-to- immigration-enforcement-tactics-at-

california-courthouses..............................................................................................9, 10 9

10 Steve Coll, When a Day in Court is a Trap for Immigrants, New Yorker, Nov. 8, 2017, https://www.newyorker.com/news/daily-comment/when-a-day-in-court-is-a-trap-

11

for-immigrants ...............................................................................................................8

12 Maria Cramer, ICE Courthouse Arrests Worry Attorneys, Prosecutors, Boston Globe,

June 16, 2017, https://www.bostonglobe.com/metro/2017/06/15/

13

ice-arrests-and-around-local-courthouses-worry-lawyers-prosecutors/

14

xxFH5vVJnMeggQa0NMi8gI/story.html ....................................................................10

15 Robert C. Davis, Edna Erez, & Nancy Avitabile, Access to Justice for Immigrants Who

Are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y

16

Rev. 183 (2001) .........................................................................................................6, 7

17 Detainer Policies, Immigrant Legal Res. Ctr. (Mar. 21, 2017), available at

18

https://www.ilrc.org/detainer-policies .........................................................................14

19 Letter from Mary E. Fairhurst, Chief Justice of the Supreme Court of Washington, to

John F. Kelly, Sec’y of Dep’t of Homeland Sec. (Mar. 22, 2017), available at

20

https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%

21

20News/KellyJohnDHSICE032217.pdf ........................................................................9

22 James Fanelli, Father of Two Who Testified in Brooklyn Homicide Cases and Is Married to a U.S. Citizen Detained by ICE, N.Y. Daily News, Aug. 2, 2017,

23

http://www.nydailynews.com/new-york/dad-2-testified-brooklyn-murder-cases-

detained-ice-article-1.3378899 ......................................................................................8 24

25 Elizabeth Fussell, The Deportation Threat Dynamic & Victimization of Latino Migrants: Wage Theft & Robbery, 52 Soc. Q. 593, 610 (2011) ...................................................10

26 Michael John Garcia & Kate M. Manuel, Cong. Research Serv., R43457, State and Local

27

“Sanctuary” Policies Limiting Participation in Immigration Enforcement 9 (July

10, 2015), available at https://www.fas.org/sgp/crs/homesec/R43457.pdf...........13, 14 28

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1 Heidi Glenn, Fear of Deportation Spurs 4 Women to Drop Domestic Abuse Cases in

Denver, NPR, Mar. 21, 2017, http://www.npr.org/2017/03/21/520841332/

2

fear-of-deportation-spurs-4-women-to-drop-domestic-abuse-cases-in-denver .............9

3 Philip Jankowski, Deportation Fears Keep Victim from Cooperating in Domestic

4

Violence Case, Travis DA Says, The Statesman (Austin), Mar. 8, 2017,

http://www.statesman.com/news/local/deportation-fears-keep-victim-from-

5

cooperating-domestic-violence-case-travis-says/rdZAjFEAxjHWnxXV1LlpjM/ ........8

6 Anita Khashu, The Role of Local Police: Striking a Balance Between Immigration

7

Enforcement and Civil Liberties, Police Found. (Apr. 2009), available at

https://www.policefoundation.org/wp-content/uploads/2015/06/The-Role-of-

8

Local-Police-Narrative.pdf ........................................................................................5, 6

9 Latinos and the New Trump Administration, Pew Research Ctr.: Hispanic Trends, Feb.

10

23, 2017, http://www.pewhispanic.org/2017/02/23/latinos-and-the-new-trump-

administration/ ...............................................................................................................4

11 Letter from Law Enforcement Task Force to Hon. Trey Gowdy and Hon. Zoe Lofgren

12

(July 20, 2015), available at https://immigrationforum.org/wp-content/uploads/

2015/07/072015-LEITF-Letter-House.pdf ..................................................................13 13

14 Jasmine C. Lee, Rudy Omri, and Julia Preston, What Are Sanctuary Cities?, N.Y. Times, Feb. 6, 2017, http://www.nytimes.com/interactive/2016/09/02/us/sanctuary-

15

cities.html .....................................................................................................................14

16 Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration

Enforcement, Nat’l Immigration Law Ctr. (Aug. 2013) (statement of Chief

17

Acevedo), available at https://www.nilc.org/wp-content/uploads/2017/02/Law-

18

Enforcement-Opposition-to-Mandates-2013-08-30.pdf ................................................7

19 Jill Theresa Messing et al., Latinas’ Perceptions of Law Enforcement: Fear of

Deportation, Crime Reporting, and Trust in the System, 30 J. Women & Soc.

20

Work 328, 334 (2015)..............................................................................................5, 11

21 Katie Mettler, “This is Really Unprecedented”: ICE Detains Woman Seeking Domestic

22

Abuse Protection at Texas Courthouse, Wash. Post, Feb. 16, 2017,

https://www.washingtonpost.com/news/morning-mix/wp/2017/02/16/this-is-

23

really-unprecedented-ice-detains-woman-seeking-domestic-abuse-protection-at-

texas-courthouse/ ...........................................................................................................8 24

25

Michael Morris & Lauren Renee Sepulveda, A New ICE Age, Texas Dist. & Cty. Attorneys Ass’n, The Texas Prosecutor, Vol. 47, No. 4 (July/Aug. 2017),

26

https://www.tdcaa.com/journal/new-ice-age .................................................................6

27 Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact of Public Safety and Honoring the Victims: Hearing Before
28
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1

the S. Comm. on the Judiciary (July 21, 2015) (statement of Tom Manger, Chief,

Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n),

2

available at http://www.judiciary.senate.gov/imo/media/doc/07-21-

3

15%20Manger%20Testimony.pdf. ......................................................................3, 7, 10

4 Phoenix, AZ, Police Dep’t Operations Order Manual (Jan. 2011) available at https://www.phoenix.gov/policesite/Documents/089035.pdf ......................................13
5

6

James Queally, Fearing Deportation, Many Domestic Violence Victims Are Steering Clear of Police and Courts, L.A. Times, Oct. 9, 2017, http://www.latimes.com/

7

local/lanow/la-me-ln-undocumented-crime-reporting-20171009-story.html ................6

8 Letter from Stuart Rabner, Chief Justice of the Supreme Court of New Jersey, to John F.

Kelly, Sec’y of Dep’t of Homeland Sec. (Apr. 19, 2017), available at

9

https://www.documentcloud.org/documents/3673664-Letter-from-Chief-Justice-

10

Rabner-to-Homeland.html#document/p1 ......................................................................9

11 Angelica S. Reina, Brenda J. Lohman, & Marta María Maldonado, “He Said They’d

Deport Me”: Factors Influencing Domestic Violence Help-Seeking Practices

12

Among Latina Immigrants, 29 J. Interpersonal Violence 593 (2013)..........................11

13 Sarah Stillman, When Deportation Is a Death Sentence, New Yorker, Jan. 15, 2018,

14

https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-

sentence ..........................................................................................................................9

15

S.P. Sullivan, Advocates Say ICE Courthouse Arrests in N.J. Are Hurting Immigrant

16

Crime Victims, NJ, June 5, 2017, http://www.nj.com/politics/index.ssf/2017/

06/advocates_say_ice_courthouse_arrests_are_hurting_i.html .....................................9 17

18 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement 5-6 (May 2013), available at www.policylink.org/sites/

19

default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF ..........................5

20 Washington, DC, Mayor’s Order 2011-174: Disclosure of Status of Individuals: Policies

and Procedures of District of Columbia Agencies (Oct. 19, 2011) available at

21

https://www.scribd.com/document/69470234/Disclosure-Status-of-Individuals-D-

22

C ...................................................................................................................................13

23 Chuck Wexler, Commentary: Why Police Support Sanctuaries, Phila. Inquirer, Mar. 10,

2017, http://www.philly.com/philly/opinion/20170310_Commentary

24

__Why_police_support_sanctuaries.html ....................................................................14

25 Emma Whitford, Courthouse ICE Arrests Are Making Immigrants ‘Sitting Ducks,’

26

Lawyers Warn, Gothamist, June 22, 2017, http://gothamist.com/2017/06/22/

ice_immigrants_courts.php ............................................................................................9

27

Tom K. Wong, “The Effects of Sanctuary Policies on Crime and the Economy,” Center

28

for American Progress (Jan. 26, 2017), available at

v
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1

https://www.americanprogress.org/issues/immigration/reports/2017/01/26/

297366/the-effects-of-sanctuary-policies-on-crime-and-the-economy/ ......................14 2

3 Tom K. Wong, Sanctuary Cities Don’t ‘Breed Crime.’ They Encourage People to Report Crime., Wash. Post., Apr. 24, 2018,

4

https://www.washingtonpost.com/news/monkey-cage/wp/2018/04/24/

sanctuary-cities-dont-breed-crime-they-encourage-people-to-report-crime..................5 5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1

INTEREST AND IDENTITY OF AMICI CURIAE

2

Amici Current and Former Prosecutors and Law Enforcement Leaders file this brief as

3 Amici Curiae in support of Defendants.1 Amici are criminal justice leaders who have extensive 4
expertise in law enforcement, prosecution, and cooperative federal-state law enforcement 5

6 activities. They are intimately familiar with the challenges of performing critical law

7 enforcement and governance functions in communities where immigrants fear the police and are

8 vulnerable to exploitation and crime. Amici represent jurisdictions from across the country that
9 understand the challenges of protecting local community needs and public safety. 10
Amici’s experience in keeping their communities safe has underscored the critical 11 12 importance of bringing immigrants and their families “out of the shadows.” Community trust and
13 cooperation are essential to public safety, and sound police work as well as successful

14 prosecutorial efforts are undermined by undocumented immigrants’ and their communities’ fears

15 of interacting with law enforcement and the justice system. This dynamic, moreover, leaves 16
undocumented immigrants more vulnerable to crime and exploitation, and undocumented 17
immigrant victims less likely to come forward or cooperate with investigations and prosecutions, 18
19 leading to more violence in the communities amici are and have been charged with protecting. In

20 the State of California, where more than a quarter of the population are immigrants,2 these

21 problems have a particularly profound impact.
22 Amici believe that enjoining Senate Bill 54, commonly known as the “California Values
23 Act,” Cal. Gov’t Code § 7284 et seq. (“SB 54”), would precariously impact public safety in
24
25 California. By ensuring that jurisdictions throughout the state uniformly prioritize public safety

26 1 A full list of amici is attached as Exhibit A.
27 2 American Immigration Council, Immigrants in California (2017) available at
28 https://www.americanimmigrationcouncil.org/sites/default/files/research/immigrants_in_ california.pdf (2017) (in 2015 immigrants comprised 27.3 percent of California’s population).
1
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1 over civil immigration enforcement, SB 54 aims to reduce fear and uncertainty in California

2 communities regarding engagement with law enforcement and preserve limited state and local

3 resources—at a time when aggressive federal immigration enforcement has impacted each of
4
these issues. 5

6

Local involvement in immigration enforcement, including honoring transfer requests or

7 civil detainers—requests from Immigration and Customs Enforcement (“ICE”) to hold an

8 individual in local governmental custody to allow ICE to take the individual into federal
9 custody—or providing information about release dates and custody status, causes community
10 members to distrust the police and justice system officials. This dwindling of trust results in a
11
12 decrease in cooperation, hindering the ability of local law enforcement and local prosecutors to

13 keep their communities safe. Such involvement also drains scarce resources that would otherwise

14 be used to enhance public safety measures. SB 54 ensures that localities throughout the state will

15 refrain from adopting certain policies that could jeopardize public safety in their own and

16
neighboring jurisdictions, or that could subject them to liability for unconstitutional practices. 17

18

Amici believe that the injunction sought by the federal government is misguided and

19 would eliminate important public safety protections established by the State of California after

20 having carefully evaluated the needs of its residents.

21

INTRODUCTION

22 The lessons amici have learned in protecting their communities shed important light on
23 the issues raised in this case. When community residents live in constant fear that interactions
24

25 with local law enforcement officials could result in deportation, there is a fundamental

26 breakdown in trust that threatens public safety and impedes justice system leaders from doing

27 their jobs. Extensive evidence shows that undocumented immigrants—and their lawfully present
28 family and neighbors—fear that turning to the police and cooperating with prosecutors could 2
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1 bring adverse immigration consequences. As a result, immigrant communities are less willing to

2 report crimes and cooperate with criminal investigations and prosecutions. This fundamental

3 breakdown in trust poses a major challenge both to the investigation and prosecution of
4
individual crimes and to the proper allocation of public safety resources. 5

6

SB 54 is one of many policies designed to address this issue of trust by limiting local and

7 state involvement in federal immigration enforcement. Under SB 54, local law enforcement

8 entities cannot ask an individual about his or her immigration status for immigration enforcement
9 purposes, cannot hold individuals past their release dates pursuant to a warrantless detainer
10 request, and are limited in providing release date information for individuals or transferring such
11 12 individuals in local custody.3 Like similar policies, SB 54 aims to preserve state and local

13 resources and improve public safety by promoting cooperation between law enforcement and the

14 communities they serve.4 SB 54’s uniform approach enhances its effectiveness by reducing the
15 fear and confusion that exist when neighboring jurisdictions employ varying practices that the 16
public does not fully understand. The injunction sought by the federal government, if granted, 17 18 would upend important protections the State of California has deemed necessary for its residents
19 at a time when federal immigration enforcement practices have exacerbated the already-

20 challenging task of cultivating trust between immigrant communities and local law enforcement. 21

22

23

24

25

3 Cal. Gov’t Code § 7284 et seq. 4 See Oversight of the Administration’s Misdirected Immigration Enforcement Policies:

26 Examining the Impact of Public Safety and Honoring the Victims: Hearing Before the S. Comm.

on the Judiciary, at 2 (July 21, 2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., 27 Police Dep’t & President, Major Cities Chiefs Ass’n), available at http://www.judiciary.senate.

28 gov/imo/media/doc/07-21-15%20Manger%20Testimony.pdf.

3
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1

ARGUMENT

2

I. Trust and Respect Between Communities and Law Enforcement Officials

3

Are Essential to Public Safety and Are Thwarted When Victims and

Witnesses Fear Deportation Consequences of Cooperating.

4 The experience of policing cities across the country has taught law enforcement officers
5

6 that “[t]o do our job, we must have the trust and respect of the communities we serve.”5 In order

7 to stop crime, police officers “need the full cooperation of victims and witnesses.”6

8

This common-sense philosophy is sometimes called “community policing.” Community

9 policing is an approach to policing whereby local law enforcement engages communities in a
10 working partnership to reduce crime and promote public safety.7 It thus requires police to
11
12 interact with neighborhood residents in a manner that will build trust and improve the level of

13 cooperation with the police department.8 When that relationship of trust is missing—as it is when

14 people believe that contacting police or cooperating with prosecutors could lead to deportation

15 for themselves or others—community policing breaks down and the entire community is harmed.
16 According to a recent Pew survey, 67 percent of Hispanic immigrants and 47 percent of
17 all Hispanic adults in the United States worry about deportation—of themselves, family
18
19 members, or close friends.9 This fear necessarily affects cooperation and communication with

20 police and prosecutors. Immigrants—and their family members and neighbors who may be U.S.

21 citizens or lawfully present—often assume that interaction with law enforcement officials could
22 have adverse consequences for themselves or a loved one.
23

24 5 Id. at 2.

25

6 Id. 7 See Anita Khashu, The Role Of Local Police: Striking a Balance Between Immigration

26 Enforcement and Civil Liberties, Police Found. (Apr. 2009), available at https://www.

policefoundation.org/wp-content/uploads/2015/06/The-Role-of-Local-Police-Narrative.pdf. 27 8 Id.

28 9 Latinos and the New Trump Administration, Pew Research Ctr.: Hispanic Trends, Feb. 23, 2017, http://www.pewhispanic.org/2017/02/23/latinos-and-the-new-trump-administration/.

4

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1

As a result, immigrant communities in general, and undocumented immigrants in

2 particular, are less likely to trust and cooperate with local police and prosecutors. One survey of
3 Latinos in four major cities found that 70 percent of undocumented immigrants and 44 percent of
4 all Latinos would be less likely to contact law enforcement authorities if they were victims of a
5
6 crime for fear that the police would ask them or people they know about their immigration status;

7 and 67 percent of undocumented immigrants and 45 percent of all Latinos would be less likely to

8 voluntarily offer information about, or report, crimes because of the same fear.10 And a recent 9
survey of undocumented individuals in San Diego County found that if local law enforcement 10
officials were working together with ICE, 60.8 percent of survey respondents would be less 11 12 likely to report a crime they witnessed, and 42.9 percent would be less likely to report being a
13 victim of a crime.11

14

These studies (among others) highlight that fears of immigration enforcement and the

15 resulting damage to law enforcement cooperation affect not just undocumented community
16 members but also individuals with citizenship or lawful status, particularly in “mixed-status”
17
18 households.12

19

20 10 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in
21 Immigration Enforcement 5–6 (May 2013), available at www.policylink.org/sites/default/ 22 files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF; see also id. at 1 (“Survey results
indicate that the greater involvement of police in immigration enforcement has significantly 23 heightened the fears many Latinos have of the police, . . . exacerbating their mistrust of law
enforcement authorities.”). 24 11 Tom K. Wong, Sanctuary Cities Don’t ‘Breed Crime.’ They Encourage People to Report 25 Crime., Wash. Post., Apr. 24, 2018, https://www.washingtonpost.com/news/monkey-cage/
wp/2018/04/24/sanctuary-cities-dont-breed-crime-they-encourage-people-to-report-crime/. 26 12 An estimated 85% of immigrants live in mixed-status families. See Khashu, supra note 7, at
24; see also Jill Theresa Messing et al., Latinas’ Perceptions of Law Enforcement: Fear of 27 Deportation, Crime Reporting, and Trust in the System, 30 J. Women & Soc. Work 328, 334 28 (2015) (“The results indicate that for each 1-point increase in fear of deportation [e.g., from ‘not

5
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1

This problematic atmosphere of mistrust is felt by police as well. In one study, two-thirds

2 of the law enforcement officers polled expressed the view that recent immigrants reported crimes
3 less frequently than others.13 Those surveyed also indicated that the crimes underreported by
4 immigrants are most often serious ones, with domestic violence and gang violence at the top.14
5
6 These trends have only worsened in recent months. According to the Houston Police

7 Department, rape reporting by members of the Hispanic community fell over 40 percent from the

8 first quarter of 2016 to the same period in 2017, despite an overall increase in city-wide crime
9 reports.15 Los Angeles, San Francisco, and San Diego also witnessed lagging sexual assault and 10
domestic violence reporting by Hispanic persons—but not other ethnic groups—in the first half 11 12 of 2017.16 According to Los Angeles County Sheriff’s Deputy Marino Gonzalez, “[t]hey’re

13 afraid of us. And the reason they’re afraid of us is because they think we’re going to deport

14 them.”17

15

Immigrants’ widely recognized fear of interacting with law enforcement and prosecutors

16
poses a fundamental challenge for community policing. Police cannot prevent or solve crimes if 17

18 victims or witnesses are unwilling to talk to them or prosecutors because of concerns that they,

19

20
much’ to ‘some’ worry, or from ‘some’ to ‘a lot’], Latina participants were 15% less willing to 21 report being victim of a violent crime to police.”). 22 13 Robert C. Davis, Edna Erez, & Nancy Avitabile, Access to Justice for Immigrants Who Are
Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183, 187 23 (2001).
14 Id. at 188–89. 24 15 Michael Morris & Lauren Renee Sepulveda, A New ICE Age, Texas Dist. & Cty. Attorneys
25 Ass’n, The Texas Prosecutor, Vol. 47, No. 4 (July/Aug. 2017), https://www.tdcaa.com/journal/ new-ice-age.
26 16 James Queally, Fearing Deportation, Many Domestic Violence Victims Are Steering Clear of
Police and Courts, L.A. Times, Oct. 9, 2017, http://www.latimes.com/local/lanow/la-me-ln27 undocumented-crime-reporting-20171009-story.html. 28 17 Id.

6
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1 their loved ones, or their neighbors will face adverse immigration consequences. As the president

2 of the Major Cities Chiefs Association has explained to Congress, “[c]ooperation is not
3 forthcoming from persons who see their police as immigration agents.”18 As cautioned by one
4 official, “immigrants will never help their local police to fight crime once they fear we have
5
6 become immigration officers.”19

7

The underreporting of crimes by recent immigrants is a problem for the entire criminal

8 justice system.20 The most immediate consequence, of course, is that serious crimes go
9 unreported and unpunished. As one official explained, when criminal behavior goes unreported,
10 “[c]rime multiplies” and “[u]nresolved resentments grow in the community.”21 Another added
11 12 that the underreporting of crime “keeps fear at very high levels and diminishes quality of life.”22

13 Even beyond the underreporting of crime, undocumented immigrant victims and witnesses may

14 refuse to come to court to testify in important criminal cases because of their fear of being
15 detained and deported. 16
These concerns are anything but hypothetical. Over the past several months, they have 17 18 manifested in ways that threaten long-term harm to criminal justice system operations. A
19 Department of Homeland Security official recently illustrated why many immigrants hesitate to

20 cooperate with law enforcement. In a briefing to reporters, he stated that “[j]ust because they’re a
21 victim in a certain case does not mean there’s not something in their background that could cause 22

23 18 Statement of Tom Manger, supra note 4, at 2.
24 19 Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration Enforcement,
25 Nat’l Immigration Law Ctr. (Aug. 2013), at 2 (statement of Chief Acevedo), available at https://www.nilc.org/wp-content/uploads/2017/02/Law-Enforcement-Opposition-to-Mandates-
26 2013-08-30.pdf. 20 Davis et al., supra note 13, at 188.
27 21 Id. 28 22 Id.

7
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1 them to be a removable alien.”23 An immigrant woman living in Texas learned that lesson all too

2 perversely when she arrived at a courthouse seeking a protective order against her abusive
3 boyfriend, only to leave under arrest—likely due to a tip from her abuser.24 In August 2017,
4 federal agents detained an undocumented immigrant who had provided key testimony in two
5
6 homicide cases.25 And weeks later, ICE agents arrested a victim of domestic violence as he left a

7 county courthouse.26 The Immigrant Defense Project reports that the number of arrests or

8 attempted arrests by ICE agents at courthouses throughout New York rose by a staggering 900
9 percent from 2016 to 2017.27 10
Precisely because victims and witnesses fear similar treatment from immigration 11
12 authorities, some violent crimes have gone unreported, and pending prosecutions have

13 disappeared from courts’ dockets. A Texas district attorney confirmed that a victim of domestic

14 violence had become uncooperative because she feared deportation.28 Denver prosecutors were 15

16

17 23 Devlin Barrett, DHS: Immigration Agents May Arrest Crime Victims, Witnesses at

18

Courthouses, Wash. Post, Apr. 4, 2017, https://www.washingtonpost.com/world/nationalsecurity/dhs-immigration-agents-may-arrest-crime-victims-witnesses-at-courthouses/2017/

19 04/04/3956e6d8-196d-11e7-9887-a5314b56a08_story.html. 24 Katie Mettler, “This is Really Unprecedented”: ICE Detains Woman Seeking Domestic Abuse

20 Protection at Texas Courthouse, Wash. Post, Feb. 16, 2017, https://www.washingtonpost.com/

news/morning-mix/wp/2017/02/16/this-is-really-unprecedented-ice-detains-woman-seeking21 domestic-abuse-protection-at-texas-courthouse/.

22 25 James Fanelli, Father of Two Who Testified in Brooklyn Homicide Cases and Is Married to a U.S. Citizen Detained by ICE, N.Y. Daily News, Aug. 2, 2017, http://www.nydailynews.com/

23 new-york/dad-2-testified-brooklyn-murder-cases-detained-ice-article-1.3378899.

26 Steve Coll, When a Day in Court Is a Trap for Immigrants, New Yorker, Nov. 8, 2017, 24 https://www.newyorker.com/news/daily-comment/when-a-day-in-court-is-a-trap-for-immigrants.

25 27 Stephen Rex Brown, Courthouse Arrests of Immigrants by ICE Agents Have Risen 900% in New York This Year: Immigrant Defense Project, N.Y. Daily News, Nov. 15, 2017,

26 http://www.nydailynews.com/new-york/ice-courthouse-arrests-immigrants-900-n-y-2017-article-

1.3633463. 27 28 Philip Jankowski, Deportation Fears Keep Victim from Cooperating in Domestic Violence

28 Case, Travis DA Says, The Statesman (Austin), Mar. 8, 2017, http://www.statesman.com/

8
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1 forced to drop four domestic abuse cases when similar worries deterred the victims from

2 testifying;29 in 2017, more than a dozen Latina women in Denver dropped their own civil cases
3 against domestic abusers, citing fear of deportation.30 An immigrant mother in New Jersey,
4 fearing that interaction with the court system could trigger removal, declined to report that her
5
6 son had been assaulted on his way to school.31 And a victim of domestic violence in New York

7 City “did not think it was in her best interest” to pursue a protective order.32 In addition to their

8 particular deportation concerns, undocumented immigrant victims and witnesses may
9 understandably recoil more generally from a system that allows participants to walk freely into a
10 courthouse to fulfill a civic responsibility to testify, only to be detained by immigration
11
12 authorities and prevented from returning to their lives.

13

In response to these incidents, the chief justices of three state supreme courts have written

14 top federal authorities to emphasize that preserving trust with immigrant communities is essential
15 to the administration of justice.33 As the Chief Justice of California has explained, enforcement 16

17

18

news/local/deportation-fears-keep-victim-from-cooperating-domestic-violence-case-travissays/rdZAjFEAxjHWnxXV1LlpjM/.

19 29 Heidi Glenn, Fear of Deportation Spurs 4 Women to Drop Domestic Abuse Cases in Denver,

NPR, Mar. 21, 2017, http://www.npr.org/2017/03/21/520841332/fear-of-deportation-spurs-4-

20 women-to-drop-domestic-abuse-cases-in-denver.

30 Sarah Stillman, When Deportation Is a Death Sentence, New Yorker, Jan. 15, 2018, 21 https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence.

22 31 S.P. Sullivan, Advocates Say ICE Courthouse Arrests in N.J. Are Hurting Immigrant Crime Victims, NJ, June 5, 2017, http://www.nj.com/politics/index.ssf/2017/06/advocates_say_

23 ice_courthouse_arrests_are_hurting_i.html. 32 Emma Whitford, Courthouse ICE Arrests Are Making Immigrants ‘Sitting Ducks,’ Lawyers
24 Warn, Gothamist, June 22, 2017, http://gothamist.com/2017/06/22/ice_immigrants_courts.php. 25 33 Letter from Tani G. Cantil-Sakauye, Chief Justice of the Supreme Court of California, to Jeff
Sessions, Att’y Gen. of the U.S., and John F. Kelly, Sec’y of Dep’t of Homeland Sec. (Mar. 16,

26 2017), available at http://newsroom.courts.ca.gov/news/chief-justice-cantil-sakauye-objects-to-

immigration-enforcement-tactics-at-california-courthouses; Letter from Mary E. Fairhurst, Chief 27 Justice of the Supreme Court of Washington, to John F. Kelly, Sec’y of Dep’t of Homeland Sec.

28 (Mar. 22, 2017), available at https://www.courts.wa.gov/content/publicUpload/Supreme%20

9
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1 policies that include arresting immigrants at courthouses, “the vast majority of whom pose no

2 risk to public safety, are neither safe nor fair.”34 Other leaders around the country have stated that
3 using local court systems as levers for federal immigration enforcement “undercuts local law
4 enforcement’s ability to develop the critical trust needed to keep communities safe.”35
5

6

Distrust between immigrants and law enforcement also results in greater victimization of

7 immigrants. “When immigrants come to view their local police and sheriffs with distrust because

8 they fear deportation, it creates conditions that encourage criminals to prey upon victims and
9 witnesses alike.”36 This phenomenon has been termed the “deportation threat dynamic,” whereby 10
individuals who fear removal from the United States do not report the crimes they suffer.37 11
12 Nearly two-thirds of undocumented migrant workers participating in a study in Memphis,

13 Tennessee, reported being the victim of at least one crime, with the most common being theft

14 and robbery.38 Respondents indicated that fewer than a quarter of these crimes were reported to
15 the police, and only one was reported by the victim himself.39 16

17

18
19 Court%20News/KellyJohnDHSICE032217.pdf; Letter from Stuart Rabner, Chief Justice of the Supreme Court of New Jersey, to John F. Kelly, Sec’y of Dep’t of Homeland Sec. (Apr. 19,
20 2017), available at https://www.documentcloud.org/documents/3673664-Letter-from-ChiefJustice-Rabner-to-Homeland.html#document/p1.
21 34 Cantil-Sakauye Letter, supra note 33. 22 35 Maria Cramer, ICE Courthouse Arrests Worry Attorneys, Prosecutors, Boston Globe, June 16,
2017, https://www.bostonglobe.com/metro/2017/06/15/ice-arrests-and-around-local-courthouses23 worry-lawyers-prosecutors/xxFH5vVJnMeggQa0NMi8gI/story.html (citing Massachusetts
Attorney General Maura Healey). 24 36 Statement of Tom Manger, supra note 4, at 2. 25 37 Elizabeth Fussell, The Deportation Threat Dynamic & Victimization of Latino Migrants: Wage
Theft & Robbery, 52 Soc. Q. 593, 610 (2011). 26 38 Jacob Bucher, Michelle Manasse, & Beth Tarasawa, Undocumented Victims: An Examination
of Crimes Against Undocumented Male Migrant Workers, 7 Sw. J. Crim. Just. 159, 164, 166 27 (2010). 28 39 Id. at 165.

10
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1

Undocumented immigrants are especially vulnerable to domestic violence. A number of

2 studies have shown that abusive partners may exploit the threat of deportation in order to
3 maintain power and control.40 Financial dependence on an abusive partner with stable
4 immigration status may facilitate violence in this way.41 Seventy percent of participants in one
5
6 study of domestic abuse victims said that immigration status was a major factor keeping them

7 from seeking help or reporting their abuse to the authorities—and thereby permitting the

8 violence to continue.42 In another study, immigration status was identified as the single largest
9 factor independently affecting the rate at which battered Latina immigrants called the police.43 10
SB 54 aims to improve public safety by reducing fear of immigration enforcement and 11
12 promoting cooperation between law enforcement and the communities they serve. Moreover, in a

13 state where more than a quarter of its residents are immigrants, statewide uniformity enhances

14 the impact of individual communities’ policies by reducing the uncertainty and fear created when
15 localities adopt varying approaches to immigration enforcement requests. 16

17

18

19

20

21 40 See, e.g., Messing et al., supra note 12, at 330 (citing several studies); Angelica S. Reina, 22 Brenda J. Lohman, & Marta María Maldonado, “He Said They’d Deport Me”: Factors
Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants, 29 J. 23 Interpersonal Violence 593, 601 (2013). The latter study cited a participant who explained that a
partner “beat me up and I could have called the police because that was what I thought to do . . . 24 but he threatened me . . . . [H]e told me that if I called the police I was going to lose out . . . 25 because [police officers] . . . would . . . take me, because I didn’t have legal documents.” Reina,
Lohman, & Maldonado at 601. 26 41 See, e.g., Messing et al., supra note 12, at 330.
42 Reina, Lohman, & Maldonado, supra note 40, at 600. 27 43 Nawal H. Ammar et al., Calls to Police and Police Response: A Case Study of Latina 28 Immigrant Women in the USA, 7 Int’l J. Police Sci. & Mgmt. 230, 237 (2005).

11
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1

II. Policies Limiting Local and State Involvement in Federal Immigration

2

Enforcement Are Critical to Building and Maintaining Trust Between the Community and Law Enforcement While Preserving Local Resources.

3 In limiting local and state involvement in federal immigration enforcement, many
4

jurisdictions aim to enhance community trust as well as preserve local resources. For example, 5

6 like SB 54, some state and local policies seek to limit local involvement in immigration

7 enforcement by prohibiting local law enforcement from providing release date information or

8 holding individuals after their release date based on an ICE detainer request for purposes of
9 transfer to ICE custody.44 Eliminating these protections serves no justifiable goal, particularly 10
when doing so substantially undermines other important public safety efforts. Moreover, 11
12 communities need significant resources including funds, training, and personnel to best serve

13 local law enforcement needs; redistribution to immigration enforcement siphons limited

14

15 44 See, e.g., Cook County, IL Code § 46-37(b): Policy for Responding to ICE Detainers. Under

16 long-standing Fourth Amendment precedent, numerous federal courts have found that continued detention under an ICE detainer gives rise to a claim for a violation of the Fourth Amendment,

17 and subjects the detaining officer or jurisdiction to civil liability. See Morales v. Chadbourne,

18

996 F. Supp. 2d 19, 29 (D. R.I. 2014), aff’d on appeal, 793 F.3d 208 (1st Cir. 2015) (plaintiff stated Fourth Amendment claim where she was held for 24 hours on ICE detainer issued without

19 probable cause); Galarza v. Szalczyk, No. 10-cv-06815, 2012 WL 1080020, at *10, *13 (E.D. Pa. Mar. 30, 2012) (plaintiff stated a Fourth Amendment claim against both federal and local

20 defendants where he was held for 3 days after posting bail based on an ICE detainer), rev’d on

other grounds, 745 F.3d 634 (3d Cir. 2014); Miranda-Olivares v. Clackamas Cnty., No. 12-cv21 02317-ST, 2014 WL 1414305, at *10 (D. Or. Apr. 11, 2014) (plaintiff’s detention on an ICE

22 detainer after she would otherwise have been released “constituted a new arrest, and must be analyzed under the Fourth Amendment”); Mendoza v. Osterberg, No. 13CV65, 2014 WL

23 3784141, at *6 (D. Neb. July 31, 2014) (recognizing that “[t]he Fourth Amendment applies to all

seizures of the person,” and thus, “[i]n order to issue a detainer[,] there must be probable cause”) 24 (internal quotation marks, ellipses, and citations omitted); Villars v. Kubiatowski, 45 F. Supp. 3d

25 791, 808 (N.D. Ill. 2014) (plaintiff stated a Fourth Amendment claim where he was held on an ICE detainer that “lacked probable cause”); Uroza v. Salt Lake Cnty., No. 11CV713DAK, 2013

26 WL 653968, at *5–6 (D. Ut. Feb. 21, 2013) (plaintiff stated a Fourth Amendment claim where

ICE issued his detainer without probable cause); Vohra v. United States, No. 04-cv-00972-DSF27 RZ, 2010 U.S. Dist. LEXIS 34363, at *25 (C.D. Cal. Feb. 4, 2010) (magistrate’s report and

28 recommendation), adopted, 2010 U.S. Dist. LEXIS 34088 (C.D. Cal. Mar. 29, 2010).

12
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Case 2:18-cv-00490-JAM-KJN Document 127 Filed 05/21/18 Page 20 of 27

1 resources away from where they are most needed while simultaneously damaging community

2 engagement and protection.45
3 Policies limiting local law enforcement involvement in federal immigration matters are
4 not limited to California, and the policies embedded in SB 54 and challenged in this suit can be
5
6 found in jurisdictions around the country. Some administrative policies or laws include formal

7 restrictions on local law enforcement’s ability to apprehend or arrest an individual for federal

8 immigration violations, including restrictions on arrests for civil violations of federal
9 immigration law.46 Other policies include restrictions on local law enforcement inquiries or 10
investigations into a person’s immigration status or the gathering of such information at the local 11 12 level.47 Additionally, many jurisdictions have adopted policies against continued detention of an

13

14

15

45 See Letter from Law Enforcement Task Force to Hon. Trey Gowdy and Hon. Zoe Lofgren (July 20, 2015), available at https://immigrationforum.org/wp-content/uploads/2015/07/072015-

16 LEITF-Letter-House.pdf. 46 See Michael John Garcia & Kate M. Manuel, Cong. Research Serv., R43457, State and Local
17 “Sanctuary” Policies Limiting Participation in Immigration Enforcement 9 (July 10, 2015),

18

available at https://www.fas.org/sgp/crs/homesec/R43457.pdf; see also OR. REV. STAT. ANN. § 181A.820 (“No law enforcement agency of the State of Oregon or of any political subdivision

19 of the state shall use agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship

20 present in the United States in violation of federal immigration laws.”); Washington, DC,

Mayor’s Order 2011-174: Disclosure of Status of Individuals: Policies and Procedures of District 21 of Columbia Agencies, at 2 (Oct. 19, 2011) (“No person shall be detained solely on the belief

22 that he or she is not present legally in the United States or that he or she has committed a civil immigration violation.”), available at https://www.scribd.com/document/69470234/Disclosure-

23 Status-of-Individuals-D-C [hereinafter DC Order]; Phoenix, AZ, Police Dep’t Operations Order

Manual, at 1.4 (Jan. 2011) (“The investigation and enforcement of federal laws relating to illegal 24 entry and residence in the United States is specifically assigned to [Immigration and Customs

25 Enforcement within DHS].”), available at https://www.phoenix.gov/policesite/Documents/ 089035.pdf; see also Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012) (“[The sheriff]

26 may not detain individuals solely because of unlawful presence.”). 47 See, e.g., DC Order, supra note 46 (public safety employees “shall not inquire about a person’s
27 immigration status . . . for the purpose of initiating civil enforcement of immigration proceedings

28 that have no nexus to a criminal investigation”).

13
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Case 2:18-cv-00490-JAM-KJN Document 127 Filed 05/21/18 Page 21 of 27

1 individual based on immigration detainer requests to facilitate transfer to ICE custody for at least

2 some categories of noncitizens.48 Several states, like California, limit the extent to which local
3 police can cooperate with detainer requests, and more than 400 counties have policies limiting
4 cooperation with detainers.49
5

6

Recent incidents in localities with policies limiting local involvement in federal

7 immigration enforcement demonstrate the public safety benefits of such policies. For example, in

8 2016, Los Angeles Police Department officers had an encounter with a suspected gang member
9 that resulted in a vehicle chase, a foot pursuit, and shots fired. An undocumented immigrant
10 helped police locate the suspect by providing a description and vehicle information.50 In Tucson,
11
12 Arizona, an undocumented man confronted and struggled with a man who tried to steal a car

13 with children inside. The immigrant held the individual until police arrived, then cooperated with

14 detectives in the follow-up investigation, resulting in charges of kidnapping, auto theft, and
15 burglary.51 These examples show why crime is lower to a statistically significant degree in 16
counties that limit local involvement in federal immigration enforcement, as by declining to hold 17 18 individuals in local custody simply because ICE requests it.52

19

20 48 Garcia & Manuel, supra note 46, at 14. 49 Jasmine C. Lee, Rudy Omri, and Julia Preston, What Are Sanctuary Cities?, N.Y. Times, Feb.
21 6, 2017, http://www.nytimes.com/interactive/2016/09/02/us/sanctuary-cities; Detainer Polices,
22 Immigrant Legal Res. Ctr. (Mar. 21, 2017), available at https://www.ilrc.org/detainer-policies. The California TRUST Act, Cal. Gov’t Code § 7282 et seq., enacted in 2013, placed limitations
23 on local jurisdictions’ compliance with detainer requests. SB 54, recognizing that many courts
have held that ICE detainers can give rise to Fourth Amendment violations, prohibits detention 24 on the basis of a detainer request. Id. §§ 7284.2(e), 7284.6(a)(1)(b). 25 50 Chuck Wexler, Commentary: Why Police Support Sanctuaries, Phila. Inquirer, Mar. 10, 2017,
http://www.philly.com/philly/opinion/20170310_Commentary__Why_police_support_
26 sanctuaries.html. 51 Id.
27 52 Tom K. Wong, “The Effects of Sanctuary Policies on Crime and the Economy,” Center for
28 American Progress (Jan. 26, 2017), available at https://www.americanprogress.org/issues/

14
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Case 2:18-cv-00490-JAM-KJN Document 127 Filed 05/21/18 Page 22 of 27

1

The injunction sought by the federal government threatens to disrupt the California

2 legislature’s effort to ensure that immigrants do not fear interactions with local law enforcement
3 or face unconstitutional treatment, and that jurisdictions within the state do not divert resources
4 from effective public safety efforts. In short, eliminating these protections would send a
5
6 dangerous signal to witnesses and victims within immigrant communities: cooperate with local

7 law enforcement at your own risk.

8

CONCLUSION

9

For the foregoing reasons, as well as the reasons set forth in Defendants’ Brief, this Court

10 should deny Plaintiff’s Motion for Preliminary Injunction.
11

12 May 18, 2018

Respectfully Submitted,

13

/s/ Joshua A. Geltzer

14

Joshua A. Geltzer

Mary B. McCord

15

Daniel B. Rice

16

INSTITUTE FOR CONSTITUTIONAL ADVOCACY

AND PROTECTION

17

Georgetown University Law Center

600 New Jersey Avenue NW

18

Washington, DC 20001

19 Matthew J. Piers

20

Chirag G. Badlani

Caryn C. Lederer

21

HUGHES SOCOL PIERS RESNICK & DYM, LTD.

22

70 West Madison St., Suite 4000

Chicago, IL 60602

23

Phone: (312) 580-0100

24

Counsel for Amici Curiae

25

26

27 immigration/reports/2017/01/26/297366/the-effects-of-sanctuary-policies-on-crime-and-the28 economy/ (“The results of the CEM analysis show that there are, on average, 35.5 fewer crimes
per 10,000 people in sanctuary counties—a result that is highly statistically significant.”). 15
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Case 2:18-cv-00490-JAM-KJN Document 127 Filed 05/21/18 Page 23 of 27

1

CERTIFICATE OF SERVICE

2 The undersigned hereby certifies that a copy of BRIEF OF AMICI CURIAE CURRENT AND

3 FORMER PROSECUTORS AND LAW ENFORCEMENT LEADERS was served on May 18,
4
2018 via this Court’s ECF filing system, whereupon all counsel of record were served. 5

6

/s/ Joshua A. Geltzer

Joshua A. Geltzer

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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Case 2:18-cv-00490-JAM-KJN Document 127 Filed 05/21/18 Page 24 of 27
1 2 3 4
EXHIBIT A
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Brief of Amici Curiae Current and Former Prosecutors and Law Enforcement Leaders Case No. 2:18-00490

Case 2:18-cv-00490-JAM-KJN Document 127 Filed 05/21/18 Page 25 of 27

1

EXHIBIT A: LIST OF AMICI*

2 Law Enforcement Action Partnership (LEAP)
3 Roy L. Austin
4 Former Deputy Assistant to the President for Urban Affairs, Justice and Opportunity, White House Domestic Policy Council
5 Former Deputy Assistant Attorney General, Civil Rights Division, U.S. Department 6 of Justice
Former Assistant U.S. Attorney, District of Columbia 7
Carmen Best 8 Police Chief, Seattle, Washington
9 Sherry Boston
10 District Attorney, Stone Mountain Judicial Circuit (DeKalb County), Georgia

11 Chris Burbank 12 Police Chief (Ret.), Salt Lake County, Utah
Director, Law Enforcement Engagement, Center for Policing Equity 13
Jerry L. Clayton 14 Sheriff, Washtenaw County, Michigan
15 Randy Gaber
16 Assistant Police Chief, Madison, Wisconsin

17 Mark Gonzalez 18 District Attorney, Nueces County (Corpus Christi), Texas

19 Ronald Haddad Police Chief, Dearborn, Michigan
20

21

Michael Haley Former Sheriff, Washoe County, Nevada

22 Jim Hart
23 Sheriff, Santa Cruz County, California

24 John Hummel 25 District Attorney, Deschutes County (Bend), Oregon

26

27

28 *Individual affiliations are provided for identification purposes only.

Brief of Amici Curiae Current and Former Prosecutors and Law Enforcement Leaders Case No. 2:18-00490

Case 2:18-cv-00490-JAM-KJN Document 127 Filed 05/21/18 Page 26 of 27

1 Miriam Aroni Krinsky
Executive Director, Fair and Just Prosecution 2 Former Assistant U.S. Attorney, Central District of California
3 Former Criminal Appellate Chief and Chief, General Crimes, Central District of California
4 Former Chair, Solicitor General’s Criminal Appellate Advisory Group

5 William Landsdowne 6 Former Police Chief, San Diego County, California
Former Police Chief, San Jose County, California 7 Former Police Chief, Richmond, California

8 Chris Magnus 9 Chief, Tucson Police Department, Arizona

10 Beth McCann District Attorney, 2nd Judicial Circuit (Denver), Colorado
11
12 Mary B. McCord Former Acting Assistant Attorney General and Principal Deputy Assistant Attorney General for
13 National Security, U.S. Department of Justice Former Assistant U.S. Attorney and Chief, Criminal Division, U.S. Attorney's Office for the
14 District of Columbia
15 Bill McCarthy
16 Sheriff, Polk County (Des Moines), Iowa

17 Stephanie N. Morales 18 Commonwealth’s Attorney, Portsmouth Judicial Center, Portsmouth, Virginia

19 Marilyn J. Mosby State’s Attorney, Baltimore City, Maryland (2015-Present)
20

21

Andy Norris Lieutenant (Ret.), Tuscaloosa, Alabama

22 Joe Pelle
23 Sheriff, Boulder County, Colorado

24 Mark Prosser 25 Director, Department of Public Safety, Storm Lake, Iowa

26 Celestino Rivera Police Chief, Lorain, Ohio
27

28

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Case 2:18-cv-00490-JAM-KJN Document 127 Filed 05/21/18 Page 27 of 27
1 Daniel Satterberg Prosecuting Attorney, King County (Seattle), Washington
2 3 Ronal Serpas
Co-Chairman, Law Enforcement Leaders to Reduce Crime & Incarceration 4 Former Superintendent, New Orleans Police Department, Louisiana
Former Chief, Metropolitan Nashville Police Department, Tennessee 5 Former Chief, Washington State Patrol 6
Carol A. Siemon 7 Prosecuting Attorney, Ingham County (Lansing), Michigan 8 Michael Tupper 9 Police Chief, Marshalltown, Iowa 10 Cyrus R. Vance, Jr.
District Attorney, New York County (Manhattan), New York 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Brief of Amici Curiae Current and Former Prosecutors and Law Enforcement Leaders Case No. 2:18-00490

 
 Case 2:18-cv-00490-JAM-KJN Document 128 Filed 05/21/18 Page 1 of 20

1 MICHAEL N. FEUER (SBN 111529) City Attorney
2 JAMES P. CLARK (SBN 64780) Chief Deputy City Attorney
3 LEELA A. KAPUR (SBN 125548) Executive Assistant City Attorney
4 VALERIE L. FLORES (SBN 138572) Managing Assistant City Attorney
5 HARIT U. TRIVEDI (SBN 217282) Deputy City Attorney
6 STREFAN FAUBLE (SBN 247653) Deputy City Attorney
7 200 North Main St., City Hall East Suite 800 Los Angeles, California 90012
8 Harit.Trivedi@lacity.org Telephone: (213) 978-7100
9 Facsimile: (213) 978-8250

10 Attorneys for Proposed Amicus Curiae City of Los Angeles
11 IN THE UNITED STATES DISTRICT COURT
12 FOR THE EASTERN DISTRICT OF CALIFORNIA
13

14

15

16 THE UNITED STATES OF AMERICA, Case No. 2:18-cv-00490-JAM-KJN

17

Plaintiff,

18

v.

AMICUS CURIAE BRIEF OF THE CITY OF LOS ANGELES IN OPPOSITION TO

19

PLAINTIFF’S MOTION FOR

20

THE STATE OF CALIFORNIA; EDMUND PRELIMINARY INJUNCTION GERALD BROWN JR., Governor of

21

California, in his official capacity; and XAVIER BECERRA, Attorney General of

Hearing Date: June 20, 2018 Hearing Time: 10:00 a.m.

22 California, in his official capacity,

Location:

Courtroom 6

23

Defendants. Judge: Honorable John A. Mendez Action Filed: March 6, 2018

24

25

26

27

28

CITY OF LOS ANGELES’ AMICUS CURIAE BRIEF

Case 2:18-cv-00490-JAM-KJN Document 128 Filed 05/21/18 Page 2 of 20

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES .......................................................................................................... ii

3 INTRODUCTION AND INTEREST OF AMICUS CURIAE ........................................................ 1

ARGUMENT .................................................................................................................................. 3 4
I. California and Los Angeles Share a Commitment to Policing Policies that

5

Build Trust with Immigrant Communities and Provide Security to All

Residents. ................................................................................................................ 3

6

A. Los Angeles Has for Decades Implemented Strategies Designed to

Promote Cooperation Between the LAPD and the City’s Immigrant

7

Communities. .............................................................................................. 3

8

B. Los Angeles’ Long-Standing Policies Have Reduced Crime in the

City and Improved Cooperation with Immigrant Communities. ................ 5

9

II. The Court Should Reject the Federal Government’s Attempt to Impede

Successful Policing Policies That Are Consistent with the United States

10

Constitution and Federal Immigration Statutes. ..................................................... 7

11

A. SB 54 is an Exercise of the State’s Core Sovereign Powers Vis-à-

vis the Federal Government. ....................................................................... 7

12

B. SB 54 is Protected Under the Tenth Amendment’s Anti-

Commandeering Doctrine. .......................................................................... 8 13
C. SB 54 is Consistent With Section 1373. ................................................... 10

14

D. SB 54 Does Not Obstruct Enforcement of Federal Immigration

Laws. ......................................................................................................... 12 15
III. AB 450 and AB 103 Support Los Angeles’ Efforts to Improve Trust,

16

Safety and Security in its Immigrant Communities. ............................................. 14

CONCLUSION ............................................................................................................................. 15 17

18

19

20

21

22

23

24

25

26

27

28 i
CITY OF LOS ANGELES’ AMICUS CURIAE BRIEF

Case 2:18-cv-00490-JAM-KJN Document 128 Filed 05/21/18 Page 3 of 20

1

TABLE OF AUTHORITIES

2

Page(s)

3

CASES

4 Alden v. Maine, 527 U.S. 706 (1999) .................................................................................................................. 9

5

Arizona v. United States,

6

567 U.S. 387 (2012) ................................................................................................................ 13

7 FERC v. Mississippi,

8

456 U.S. 742 (1982) .................................................................................................................. 8

9 Gartrell Constr. v. Aubry, 940 F.2d 437 (9th Cir. 1991)............................................................................................. 12, 13

10 Geier v. Am. Honda Motor Co.,

11

529 U.S. 861 (2000) ................................................................................................................ 13

12 Georgia v. Ashcroft,

13

501 U.S. 452 (1991) ........................................................................................................ 2, 7, 11

14

Hines v. Davidowitz, 312 U.S. 52 (1941) .................................................................................................................. 13

15 International Paper Co v. Ouellette,

16

479 U.S. 481 (1987) ................................................................................................................ 14

17 Lewis v. Clarke, 137 S. Ct. 1285 (2017) .............................................................................................................. 9
18

19

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .................................................................................................................. 9

20 Murphy v. NCAA,

21

No. 16-476 (U.S. May 14, 2018), slip op......................................................................... passim

22 Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) .............................................................................................................. 7, 8 23

New York v. United States,

24

505 U.S. 144 (1992) ............................................................................................................ 9, 12

25 Printz v. United States,

26

521 U.S. 898 (1997) .............................................................................................................. 2, 9

27 Steinle v. City and County of San Francisco, 230 F.Supp.3d 994, 1015 (N.D. Cal. 2017) ............................................................................ 11
28
ii
CITY OF LOS ANGELES’ AMICUS CURIAE BRIEF

Case 2:18-cv-00490-JAM-KJN Document 128 Filed 05/21/18 Page 4 of 20

1 Sturgeon v Bratton,

174 Cal. App. 4th 1407 (Cal. Ct. App. 2009) ......................................................................... 11

2

United States v. Lopez,

3

514 U.S. 549 (1995) .............................................................................................................. 2, 8

4 United States v. McCoy,

5

323 F.3d 1114 (9th Cir. 2003)............................................................................................. 8, 11

6 United States v. Morrison,

529 U.S. 598 (2000) .................................................................................................................. 8

7

Valle Del Sol Inc. v. Whiting,

8

732 F.3d 1006 (9th Cir. 2013)................................................................................................. 13

9

10

FEDERAL STATUTES

11 8 U.S.C. § 1325 ........................................................................................................................... 4, 5

12 8 U.S.C. § 1373 ............................................................................................................. 9, 10, 11, 12 13

14 CALIFORNIA STATUTES
15 Assembly Bill 103............................................................................................................... 2, 14, 15
16 Assembly Bill 450............................................................................................................... 2, 14, 15
17 Cal. Gov. Code § 7283 ................................................................................................................... 5
18 Cal. Gov. Code § 7284.2 ................................................................................................................. 1
19 Cal. Gov. Code § 7284.2(c) ............................................................................................................ 3
20 Cal. Gov. Code § 7284.6(a)(1)(C) & (D)...................................................................................... 10
21 Cal. Gov. Code § 7284.6(e) .......................................................................................................... 10
22 Cal. Gov. Code § 7285.1 ............................................................................................................... 14
23 Cal. Gov. Code §7285.2 ................................................................................................................ 14
24 Cal. Gov. Code § 12532 ................................................................................................................ 15

25 Senate Bill 54 ......................................................................................................................... passim

26

27

28 iii
CITY OF LOS ANGELES’ AMICUS CURIAE BRIEF

Case 2:18-cv-00490-JAM-KJN Document 128 Filed 05/21/18 Page 5 of 20

1 OTHER AUTHORITIES
2

3 Andrea Castillo, ICE Arrests Farmworkers, Sparking Fears in the Central Valley Over Immigrants and the Economy, L.A. Times, March 31, 2018......................................... 14
4

5

Brittny Mejia, Andrea Castillo and Kate Mather, In Trump Era, LAPD Strengthens Bonds With Immigrants Here Illegally, L.A. ............................................................................ 7

6 Deepa Fernandes, Undocumented Workers Fight Wages Under Threat of

7

Deportation, Public Radio International, March 20, 2018...................................................... 15

8 Gallup, Trust in Government Tracking Poll, Sept. 10, 2017 .......................................................... 8

9 LAPD Chief of Police, Memorandum re Reporting of Sexual Assault and Domestic

10

Violence Crimes in Immigrant Communities, April 18, 2018............................................... 6, 7

11

LAPD Chief of Police, Notice re Immigration Enforcement Procedures, Dec. 29, 2017................................................................................................................................. 4, 5, 10

12 LAPD, 2015-2016 Crime and Initiatives Report, Part 1 crimes include aggravated

13

assault, rape, murder, robbery, arson, burglary, larceny-theft, and motor

vehicle theft ............................................................................................................................... 6 14

LAPD, Community Policing Unit Mission Statement..................................................................... 4 15

16 LAPD, Compstat Profile ................................................................................................................. 6

17 Paige St. John and Joel Rubin, ICE held an American Man in Custody for 1,273 Days, L.A. Times, April 27, 2018........................................................................................... 14

18 Paloma Esquivel, We Don’t Feel Safe Here: Detainee Deaths, Suicide Attempts

19

and Hunger Strikes Plague California Immigration Facility, L.A. Times, Aug.

8, 2017..................................................................................................................................... 15 20

The Federalist No. 45 (J. Madison)................................................................................................. 8 21

22

U.S. Census Bureau, Place of Birth by Nativity and Citizenship Status, 2012-2016 American Community Survey 5-Year Estimates ....................................................................... 1

23

24

25

26

27

28 iv
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1

INTRODUCTION AND INTEREST OF AMICUS CURIAE

2

This case is about preserving trust and rejecting fear. The City of Los Angeles (“City” or

3 “Los Angeles”) has chosen for decades to build the relationship between its police and its

4 immigrant communities on trust – a choice to which Los Angeles is constitutionally entitled.

5 Nearly forty years ago, the Los Angeles Police Department (“LAPD”) adopted Special Order 40,

6 a formal policy restricting LAPD officers from initiating police action based on immigration

7 status. Special Order 40 was intended to encourage all individuals, regardless of their

8 immigration status, to report criminal activity and cooperate with their local police.

9

Los Angeles has adopted numerous other policing strategies over the past several decades

10 also based upon the notion that trust is built and public safety best served when the City’s police

11 officers are not involved in the enforcement of federal civil immigration laws. These strategies

12 have proven to be effective in establishing trust between LAPD officers and the people they serve

13 – including the 1.5 million immigrants living in Los Angeles1 – and protecting and enhancing the

14 safety of all communities in the City.

15

Senate Bill 54 (“SB 54”) is based on these same principles – that “a relationship of trust

16 between California’s immigrant community and state and local agencies is central to the public

17 safety of the people of California” and that building trust requires minimizing the entanglement of

18 local police in federal immigration enforcement. Cal. Gov. Code § 7284.2.

19

Plaintiff’s attack on SB 54 is an attempt to supplant trust-based policing with a regime

20 based on fear, where residents have cause to worry their neighborhood police officer is actually

21 part of a national deportation force. Plaintiff’s argument undermines public safety in Los Angeles

22 and lacks support in either the Constitution or federal immigration statutes.

23

Policing policies like those embodied in SB 54 have improved cooperation with

24 immigrant communities and reduced crime for all residents. In the past forty years since adopting

25 its initial immigration-related policies, Los Angeles has seen crime rates plummet to record lows.

26 1 U.S. Census Bureau, Place of Birth by Nativity and Citizenship Status, 2012-2016 American
27 Community Survey 5-Year Estimates, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_16_5YR
28 _B05002&prodType=table 1
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1 At the same time, LAPD officers have benefited from the cooperation of witnesses and victims of

2 crime in the City’s immigrant communities. These positive trends will not continue if immigrant

3 communities see LAPD officers as agents of federal immigration authorities.

4

SB 54’s efforts to improve public safety are constitutionally protected exercises of core

5 police powers over which state and local governments retain sovereignty vis-à-vis the federal

6 government. United States v. Lopez, 514 U.S. 549, 564 (1995). Courts should only tolerate

7 federal encroachment into these traditional areas of local authority based on an “unmistakably

8 clear” statute that “regulates private actors.” Georgia v. Ashcroft, 501 U.S. 452, 460-463 (1991);

9 Murphy v. NCAA, No. 16-476 (U.S. May 14, 2018), slip op. at 21. Courts have rejected previous

10 federal attempts to conscript and commandeer local police to implement federal regulatory

11 programs, as Plaintiff seeks to do here. Printz v. United States, 521 U.S. 898, 925 (1997).

12

SB 54 also comports with federal immigration statutes. SB 54 expressly allows local

13 police departments to share information in their possession regarding any individual’s

14 immigration status, precisely what federal law requires. Plaintiff wants more information – such

15 as home and work addresses – but the federal statutes do not require more. Nor does SB 54

16 interfere with any other unmistakably clear enforcement mandates of federal immigration law

17 sufficient to justify upending constitutionally sacrosanct decisions of local law enforcement

18 officials regarding local public safety.

19

Assembly Bill 450 (“AB 450”) and Assembly Bill 103 (“AB 103”) also foster trust

20 between immigrant communities and state and local government. AB 450 bolsters many

21 protections for Los Angeles workers, including those who work in sweatshops or substandard

22 conditions and fear their employers will invite a workplace raid if they complain to authorities.

23 AB 103 ensures Los Angeles residents that the State Attorney General will protect the rights of

24 their family members and loved ones who are held in detention facilities far from home.

25

Los Angeles has a compelling interest in maintaining the collaborative relationship it has

26 developed with its immigrant communities and the public safety of all its residents. The three

27 State statutes at issue here serve that same interest. The Court should reject Plaintiff’s attempt to

28 enjoin those laws. 2

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1

ARGUMENT

2 I. 3

California and Los Angeles Share a Commitment to Policing Policies that Build Trust with Immigrant Communities and Provide Security to All Residents.
SB 54 is part of the State’s efforts to improve public safety by promoting trust between

4 the people and their police. State lawmakers know trust is cultivated best in an environment

5 where local police officers are not involved in enforcing federal civil immigration laws. As the

6 State Legislature found in adopting SB 54, “trust is threatened when state and local agencies are

7 entangled with federal immigration enforcement, with the result that immigrant community

8 members fear approaching police when they are victims of, and witnesses to, crimes … .” Cal.

9 Gov. Code § 7284.2(c).

10 Los Angeles has embraced these same principles for decades. Nearly forty years ago, the

11 LAPD Board of Police Commissioners adopted the City’s initial policies limiting the role its

12 officers play in immigration enforcement based on “the principle that effective law enforcement

13 depends on a high degree of cooperation between the Department and the public it serves.”

14 Declaration of Arif Alikhan (ECF No. 75-2) (“Alikhan Decl.”), ¶ 18. LAPD has followed these

15 principles ever since. Los Angeles’ policing policies and long experience are particularly

16 relevant to understanding the efficacy and legality of SB 54.

17

A. Los Angeles Has for Decades Implemented Strategies Designed to Promote

18

Cooperation Between the LAPD and the City’s Immigrant Communities.

19

For over forty years, Los Angeles has exercised its constitutionally protected powers over

20 local law enforcement to adopt policing policies designed to encourage all victims of and 21 witnesses to crime to collaborate with the LAPD. Alikhan Decl., ¶¶ 6, 8.2 Central to these

22 policies has been the decision by LAPD leadership and its civilian overseers to leave federal civil

23 immigration enforcement to the federal government.

24

In 1979, the LAPD began a policy known as Special Order 40 – adopted by the Los

25 Angeles Board of Police Commissioners and signed by then-Chief of Police Daryl Gates.

26 Alikhan Decl., ¶ 7. Special Order 40 restricts an officer from initiating a police action with the

27 2 Arif Alikhan is the LAPD Director of the Office of Constitutional Policing and Policy and the highest-ranking civilian in the Department. Alikhan Decl., ¶ 2.
28 3
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1 objective of discovering a person’s immigration status, and also prohibits misdemeanor arrests for

2 violations of Title 8 of United States Code Section 1325 (Improper Entry).3 Special Order 40 is

3 based on the principle that undocumented immigration status in itself is not a matter for police

4 action and that LAPD personnel are required to enforce the law and serve members of the public

5 equally without regard to immigration status. The City adopted this policy to ensure that

6 individuals, regardless of their civil immigration status, would report crimes to the LAPD and

7 assist the LAPD in apprehending and prosecuting those responsible for criminal acts. Alikhan

8 Decl., ¶ 8.

9

After the civil disturbances of 1992, the LAPD implemented robust community policing

10 strategies in all of its diverse neighborhoods. Alikhan Decl., ¶ 6. Community policing “is based

11 upon a partnership between the police and the community whereby the police and the community

12 share responsibility for identifying, reducing, eliminating and preventing problems that impact

13 community safety and order.” As part of these efforts, “the community and police work as

14 partners to identify and prioritize problems of crime and disorder and share the responsibility for

15 the development and implementation of proactive problem-solving strategies to address identified

16 issues.”4

17

In 2014, the LAPD adopted a practice of not detaining individuals otherwise eligible for

18 release from custody based on requests from U.S. Immigration and Customs Enforcement

19 (“ICE”). Alikhan Decl., ¶ 10. LAPD does not detain individuals based on ICE detainer requests

20 unless accompanied by a judicial determination of probable cause that the arrestee was involved

21 in a criminal offense or an otherwise valid warrant from a judicial officer.5

22

LAPD provides U.S. Department of Homeland Security (“DHS”) and ICE personnel

23 access to interview individuals in LAPD custody consistent with State law. Individuals arrested

24 by the LAPD may be detained in LAPD jail facilities for a short period of time only – often for

25 3 See LAPD Chief of Police, Notice re Immigration Enforcement Procedures, Dec. 29, 2017, http://clkrep.lacity.org/onlinedocs/2017/17-1198_misc_03-12-2018.pdf (summarizing the
26 LAPD’s immigration-related policies and practices). 4 LAPD, Community Policing Unit Mission Statement,
27 http://www.lapdonline.org/support_lapd/content_basic_view/731 5 LAPD Chief of Police, Notice re Immigration Enforcement Procedures, Dec. 29, 2017,
28 http://clkrep.lacity.org/onlinedocs/2017/17-1198_misc_03-12-2018.pdf 4
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1 only a few hours and generally not more than 96 hours – and then must be transferred to the

2 County Sheriff’s Department or released. Alikhan Decl., ¶ 11. LAPD permits personnel from

3 DHS and ICE access to interview individual arrestees, but only after obtaining the arrestee’s

4 informed, written consent, as required under State law. Id., ¶ 12; Cal. Gov. Code § 7283 et seq.

5 If the arrestee declines the interview, the LAPD does not provide DHS or ICE personnel access to

6 its facilities in order to interview that individual.6

7

LAPD’s policies also regulate treatment of information regarding individuals in LAPD

8 custody. For example, the LAPD does not send an arrestee’s home or work address information

9 to federal immigration officials unless the information is subject to disclosure already under the

10 California Public Records Act. Nor does LAPD share information about an arrestee’s release

11 date unless it is public or the arrestee has been convicted of a serious or violent felony as defined

12 under State law.7

13

LAPD also has a policy against participating with ICE to enforce civil immigration law.

14 Alikhan Decl., ¶ 13. LAPD does not participate in the federal government’s voluntary program

15 authorized under Section 1357(g) of Title 8 of the United States Code, which permits local law

16 enforcement officers to perform civil immigration enforcement if the agencies meet the

17 qualification and training requirements and are granted the civil enforcement authority by the

18 federal government.8

19

B. Los Angeles’ Long-Standing Policies Have Reduced Crime in the City and

Improved Cooperation with Immigrant Communities. 20

LAPD’s policies regarding immigrant communities are rooted in a commitment to fair,

21

constitutional policing and to the principle that all of Los Angeles is safer when our officers

22

maintain a relationship of respect and cooperation with residents of the City’s many diverse

23

neighborhoods. Alikhan Decl., ¶ 17.

24

This era of trust has seen a dramatic fall in crime in Los Angeles. Through the City’s

25

26 6 Id. 7 Id.
27 8 Id. These LAPD policies did not change in any meaningful way following the enactment of SB 54 because SB 54’s various mandates regarding the involvement of local agencies in immigration
28 enforcement generally track existing LAPD practices. Alikhan Decl., ¶¶ 15-16. 5
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1 community policing policies, the LAPD and community members have driven down the City’s

2 crime rate in neighborhoods with high numbers of immigrants as well as across the City. Overall

3 crime levels in the Los Angeles are historically low. In 1979, when Special Order 40 was issued,

4 the LAPD reported nearly 350,000 total Part 1 crimes.9 The total crime rate peaked in the early

5 1990s. But by the end of 2016, following decades of cultivating trust between police and

6 residents and a robust community policing strategy, the total number of Part 1 crimes in the City

7 had fallen by nearly half, to 125,430.10 Violent crime has fallen to record lows. And the level of

8 gang violence also has decreased, especially in areas with large concentrations of immigrant

9 communities. Alikhan Decl., ¶ 6.

10

Trust between the LAPD and residents also elicits greater cooperation from victims of and

11 witnesses to crime. In particular, cooperation of immigrants in reporting crimes and assisting in

12 the investigation and prosecution of criminals is critical to the fair and effective enforcement of

13 the law and the safety of all members of the community. Alikhan Decl., ¶ 17. When people feel

14 confident that they can come forward as victims or witnesses to a crime, irrespective of

15 immigration status and without fear of jeopardizing their status or that of their family members,

16 the LAPD’s ability to reduce violent crimes, especially those involving violent gang members,

17 significantly improves. Id.

18

Conversely, fear of the police reduces cooperation. And, more specifically, fear that the

19 City’s police are serving as immigration officers stifles the cooperation of immigrant

20 communities. One stark example in Los Angeles was the sharp decrease in the reporting of

21 sexual assault and domestic violence related crimes within Latino communities during the first

22 few months of the new presidential administration. In the first four months of 2017, reports of

23 sexual assault amongst Hispanic victims fell over 23% compared to the same period the year

24 before. Reports of domestic violence from the same community fell over 8%.11

25 9 LAPD, 2015-2016 Crime and Initiatives Report, http://assets.lapdonline.org/assets/pdf/crimesand-initiatives2015.pdf. Part 1 crimes include aggravated assault, rape, murder, robbery, arson,
26 burglary, larceny-theft, and motor vehicle theft. 10 LAPD, Compstat Profile, http://assets.lapdonline.org/assets/pdf/123116cityprof.pdf
27 11 LAPD Chief of Police, Memorandum re Reporting of Sexual Assault and Domestic Violence Crimes in Immigrant Communities, April 18, 2018,
28 http://www.lapdpolicecom.lacity.org/042418/BPC_18-0141.pdf 6
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1

These alarming statistics raised concerns that deportation fears were preventing victims in

2 immigrant communities from reporting crimes. In response, the LAPD launched a series of

3 measures designed to abate this fear and restore the confidence of the City’s immigrant

4 communities in their police officers. Central to the LAPD’s efforts was ensuring residents that

5 the LAPD does not, and will not, undertake the enforcement of civil immigration laws.12

6

The benefits of trust-based community policing are not hypothetical. Nor are the

7 regressive, negative effects of rekindling immigrants’ fear that local police are in fact deportation

8 officers. The experience of Los Angeles over the past several decades demonstrates that trust,

9 respect and cooperation are essential to public safety in Los Angeles. Alikhan Decl., ¶ 19.

10 Immigration experts and civil rights advocates agree.13 LAPD’s long-standing policies and

11 practices seek to promote and maintain those principles, as do the provisions of SB 54. On the

12 other hand, if immigrant communities fear that LAPD officers are acting as agents of federal

13 immigration authorities, the relationship between the police and these communities very likely

14 will erode. Immigrant communities will be less willing to report crimes and cooperate with

15 criminal investigations, threatening the public safety of all who live and work in Los Angeles. Id.

16 II. 17

The Court Should Reject the Federal Government’s Attempt to Impede Successful Policing Policies That Are Consistent with the United States Constitution and Federal Immigration Statutes.

18

A. SB 54 is an Exercise of the State’s Core Sovereign Powers Vis-à-vis the

Federal Government. 19

The Constitution establishes “a system of dual sovereignty between the States and the

20

Federal Government.” Georgia v. Ashcroft, 501 U.S. 452, 457 (1991); see Murphy, slip op. at 14.

21 Under this system, the federal government has “limited powers” and the states “retain substantial

22 sovereign authority” over important aspects of the everyday lives of their residents. Id. States
23 and their political subdivisions have broad authority over many elements of government,
24 including education, land use, health and safety, and, importantly, law enforcement.14

25
12 Id. 26 13 Brittny Mejia, Andrea Castillo and Kate Mather, In Trump Era, LAPD Strengthens Bonds With
Immigrants Here Illegally, L.A. Times, May 17, 2018. 27 14 “[T]his general power of governing, possessed by the States but not by the Federal
Government,” is known as the “police power.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 28 519, 535-536 (2012).

7

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1

SB 54 is a proper exercise of the State’s police power because control over local law

2 enforcement exists at the core of powers over which state and local governments retain

3 sovereignty vis-à-vis the federal government. The Supreme Court has acknowledged as much:

4 “Indeed, we can think of no better example of the police power, which the Founders denied the

5 National Government and reposed in the States, than the suppression of violent crime and

6 vindication of its victims.” United States v. Morrison, 529 U.S. 598, 618 (2000); see also United

7 States v. Lopez, 514 U.S. 549, 564 (1995) (describing “criminal law enforcement” as an area

8 “where States historically have been sovereign”); United States v. McCoy, 323 F.3d 1114, 1124

9 (9th Cir. 2003) (“the field of criminal law enforcement” is one “where state power is preeminent”

10 and national authority “limited”).

11

Trust in local leaders is one of the primary reasons why the Framers placed local law

12 enforcement in the sovereign hands of state and local government. The reservation of police

13 power to the states, and in turn to local jurisdictions, reflects the Framer’s wise judgment that

14 “punishing street crime” and many other “vital functions of modern government” should be

15 administered by “smaller governments closer to the governed.” Sebelius, 567 U.S. at 535-536.

16 “The Framers thus ensured that powers which ‘in the ordinary course of affairs, concern the lives,

17 liberties, and priorities of the people’ were held by governments more local and more accountable

18 than a distant federal bureaucracy.” Id. (quoting The Federalist No. 45 (J. Madison)). The

19 Framers’ faith in the close bond between local governments and their residents was well founded,

20 as polls continue to show Americans trust their local governments significantly more than the

21 federal government.15

22

B. SB 54 is Protected Under the Tenth Amendment’s Anti-Commandeering

Doctrine.

23 In codifying California’s decision about how to allocate its limited resources in the

24 exercise of its police powers, SB 54 implicates central elements of California’s exercise of its

25 sovereign powers under the Tenth Amendment. See FERC v. Mississippi, 456 U.S. 742, 761

26 (1982) (“having the power to make decisions and set policy is what gives the State its sovereign

27 15 See, e.g., Gallup, Trust in Government Tracking Poll, Sept. 10, 2017,
28 http://news.gallup.com/poll/5392/trust-government.aspx

8

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1 nature. It would follow that the ability of a state legislative [body] … to consider and promulgate

2 regulations of its choosing must be central to a State's role in the federal system.”).

3

First, California’s exercise of it police powers to make law enforcement decisions is

4 central to its state sovereignty. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (police

5 powers have been “[t]hroughout our history” “primarily, and historically…matter[s] of local

6 concern” over which states have had “great latitude”). Second, California’s allocation of its

7 limited resources also is essential to its sovereignty. See Murphy, slip op. at 18 (“the

8 anticommandeering principle prevents Congress from shifting the cost of regulation to the

9 States.”); Lewis v. Clarke, 137 S. Ct. 1285, 1294-95 (2017) (“one of the underlying rationales for

10 state sovereign immunity … [is] a government’s ability to make its own decisions about ‘the

11 allocation of scarce resources,’”) (quoting Alden v. Maine, 527 U.S. 706, 751 (1999)).

12

The federal government’s attempt to commandeer California’s resources and compel local

13 officers to enforce federal immigration law in contradiction of California’s sovereign decisions

14 found in SB 54 directly violates California’s Tenth Amendment rights. See Printz v. United

15 States, 521 U.S. 898, 925 (1997) (“The federal government may not compel the States to

16 implement, by legislation or executive action, federal regulatory programs.”); New York v. United

17 States, 505 U.S. 144, 166 (1992) (“We have always understood that where Congress has the

18 authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the

19 power directly to compel the States to require or prohibit those acts.”).

20

The anticommandeering doctrine applies with equal force when a federal statute purports

21 to prohibit a State from enacting legislation, as Plaintiff alleges Section 1373 does here. In

22 Murphy, the Supreme Court recently discussed the history and virtues of the doctrine and applied

23 it to invalidate a federal law that prohibited states from authorizing sports gambling schemes.

24 The Court found the distinction between a federal statute compelling a state to act (as in Printz

25 and New York) and one prohibiting a state from acting (as in Murphy and this case) to be an

26 “empty” one – either way, “Congress cannot issue direct orders to state legislatures.” Murphy,

27 slip op. at 18-19.

28 9
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1

C. SB 54 is Consistent With Section 1373.

2

SB 54 complies with 8 U.S.C. § 1373, which prohibits restrictions on sharing

3 “information regarding the citizenship or immigration status, lawful or unlawful, of any

4 individual.” In addition to the many reasons set forth in the State’s brief, Los Angeles below

5 highlights the following further proof that Section 1373 does not conflict with or preempt SB 54.

6

First, SB 54 expressly requires compliance with Section 1373: “This section does not

7 prohibit or restrict any government entity or official from sending to, or receiving from, federal

8 immigration authorities, information regarding the citizenship or immigration status, lawful or

9 unlawful, of an individual … .” Cal. Gov. Code § 7284.6(e). LAPD’s policies also expressly

10 require compliance with Section 1373.16 Thus, SB 54, LAPD policy, and Section 1373 all agree

11 that the LAPD may inform DHS and ICE of the immigration status, lawful or unlawful, of

12 individuals in LAPD custody.

13

Second, SB 54 does not allow – and Section 1373 does not require – sharing information

14 other than immigration status. For example, under SB 54 local law enforcement agencies

15 generally may not disclose non-public information regarding an arrestee’s home or work address

16 or non-public release date information except for violent offenders. See Cal. Gov. Code §

17 7284.6(a)(1)(C) & (D). Section 1373 also does not require disclosure of that information because

18 an arrestee’s personal contact or release date is not “information regarding the citizenship or

19 immigration status, lawful or unlawful.”

20

Notably, in making its untenable argument, Plaintiff omits and ignores the important

21 words “lawful or unlawful” contained in the text of Section 1373: “information regarding the

22 citizenship or immigration status, lawful or unlawful, of any individual.”17 By including these

23 words, Congress made clear that local agencies must share information about whether an

24 individual’s immigration status is lawful or unlawful. An individual’s home or work address or

25 release date has no bearing on whether a person’s immigration status is lawful or not. Plaintiff

26 16 LAPD Chief of Police, Notice re Immigration Enforcement Procedures, Dec. 29, 2017, http://clkrep.lacity.org/onlinedocs/2017/17-1198_misc_03-12-2018.pdf
27 17 Plaintiff twice omits those words when directly quoting Section 1373 in its Complaint (see Complaint at 5:25, 15:5-6), and replaces those words with an ellipsis in its memorandum in
28 support of its present motion (see Motion at 25:16-18). 10
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1 seeks this information because it would help federal authorities locate and seize individuals. But

2 Section 1373 is not intended to be an instrument for locating and seizing individuals for

3 immigration crimes. Section 1373 allows the sharing of information possessed by local

4 government regarding the “immigration status, lawful or unlawful” of individuals, only. Release

5 date and personal contact information do not fall within that definition under any reasonable

6 interpretation of the language.

7

Third, Plaintiff’s overbroad interpretation of Section 1373 fails because the statute does

8 not contain “unmistakably clear” language sufficient to usurp the State’s exercise of its core

9 police powers. Georgia v. Ashcroft, 501 U.S. at 460-463 (requiring “unmistakably clear” statute

10 to alter the usual constitutional balance between state and federal government). State and local

11 governments operate at the zenith of their sovereign powers when implementing local law

12 enforcement decisions such as SB 54. McCoy, 323 F.3d at 1124 (“the field of criminal law

13 enforcement” is one “where state power is preeminent” and national authority “limited”). At the

14 very least, courts should demand “unmistakably clear” statutory language in obvious conflict with

15 local law to justify upending the constitutionally protected decisions California and Los Angeles

16 have made regarding how best to maintain public safety.

17

Fourth, courts in Los Angeles and elsewhere have held that the policies embodied in SB

18 54 do not conflict with Section 1373. See Steinle v. City and County of San Francisco, 230

19 F.Supp.3d 994, 1015 (N.D. Cal. 2017) (holding that Section 1373 does not require local police to

20 send release date information to ICE: “no plausible reading of ‘information regarding …

21 citizenship or immigration status’ encompasses the release date of an undocumented inmate.”);

22 see also Sturgeon v Bratton, 174 Cal. App. 4th 1407 (Cal. Ct. App. 2009) (upholding LAPD’s

23 Special Order 40 against a facial challenge under Section 1373).

24

Fifth, Plaintiff’s preemption claim fails even if Section 1373 is construed to be in conflict

25 with SB 54. As the Supreme Court recently reiterated, “since the Constitution ‘confers upon

26 Congress the power to regulate individuals, not States,’ the [federal statutory] provision at issue

27 must be best read as one that regulates private actors” in order to support preemption. Murphy,

28 slip op. at 21 (emphasis added) (quoting New York, 505 U.S. at 166). Section 1373 does not 11

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1 impose any duties or rights on private individuals. As the Court found in Murphy, “there is no

2 way in which this provision can be understood as a regulation on private actors.” Id. at 24. Thus, 3 Section 1373 cannot preempt SB 54.

4

D. SB 54 Does Not Obstruct Enforcement of Federal Immigration Laws.

5

SB 54 does not interfere with the enforcement of federal immigration laws in an unlawful

6 manner. To the contrary, SB 54’s policies increase victim and witness cooperation with police

7 and reduce crime for everyone. See, infra, Section I.B. Federal immigration laws should not be 8 construed to preempt non-conflicting local law enforcement measures in a manner that will

9 increase local crime.

10

While the brief passages quoted from various cases in its Motion appear to support

11 Plaintiff’s argument that SB 54 obstructs immigration enforcement, closer inspection shows the

12 cases prohibit only direct conflict, and no such direct conflict exists here. Plaintiff misreads these 13 cases to create the appearance that states may not direct their police powers or allocate their

14 resources in ways that even indirectly frustrate federal goals. The cases do not stand for this

15 broad assertion.

16

Plaintiff’s cases fall into two categories: those where state law directly conflicts with an

17 explicit provision of federal law (as Plaintiff incorrectly contends California’s laws conflict with 18 Section 1373), and those directly conflicting with a scheme of federal law that occupies a field.

19

Only one case Plaintiff cites falls into the first category: Gartrell Constr. v. Aubry, 940

20 F.2d 437 (9th Cir. 1991). Plaintiff quotes Gartrell for the proposition that a state law is

21 preempted and invalid if it “results in interference with federal government functions.” Motion at

22 13 (quoting Gartrell). The context undercuts Plaintiff’s quotation. In Gartrell, California’s labor 23 code required contractors to satisfy state-determined contractor-responsibility requirements and

24 receive state licenses to perform work on federal contracts. The Ninth Circuit held the Federal

25 Acquisition Regulations, which had its own standards for contractor-responsibility, preempted

26 state law and, as such, California law was attempting to review the federal government’s

27 responsibility determination. Id. at 439. California law thus directly contradicted federal 28 provisions on a federal matter.
12
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1

Plaintiff’s other cases involve direct conflicts with comprehensive, field-occupying

2 systems that exclude any state legislation. Plaintiff cites Valle Del Sol Inc. v. Whiting, 732 F.3d

3 1006 (9th Cir. 2013) and Hines v. Davidowitz, 312 U.S. 52, 67 (1941) for the proposition state

4 enactments cannot “stand[] as an obstacle to the accomplishment and execution of the full

5 purposes and objectives of Congress.” Motion at 3, 10. The quotations are accurate, but again

6 the context undercuts Plaintiff’s point. Valle concerns an Arizona statute criminalizing the

7 transporting, concealing, or harboring of an unauthorized alien, or attempting to do so, with a

8 minimum $1,000 fine. The court concluded federal legislation had already occupied the field.

9 Thus, any provisions that went beyond the federal scheme, such as the fine, directly contradicted

10 Congress’s scheme.

11

Hines concerns a Pennsylvania law passed in 1939 which required every alien 18 years or

12 over to carry and present to police an identification card. In 1940, Congress enacted the Alien

13 Registration Act, which did not require aliens to carry an identification card. The Hines court

14 concluded the federal Act was a comprehensive plan occupying the field and Pennsylvania’s law

15 was in direct conflict with the federal Act. Importantly, the court did not say Pennsylvania’s law

16 was improper because it was in indirect tension with or failed to facilitate federal law.

17

Plaintiff cites Geier v. Am. Honda Motor Co., 529 U.S. 861, 865 (2000), which quotes the

18 passage in Hines examining the existence of standing as an “obstacle” to the “objective of

19 Congress.” Motion at 10. In Geier, the Court concluded the petitioner’s lawsuit alleging a car

20 manufacturer negligently failed to include a driver-side airbag was preempted by the National

21 Traffic and Motor Vehicle Safety Act of 1966, which occupied the field and did not require

22 driver-side airbags.

23

Plaintiff cites Arizona v. United States, 567 U.S. 387, 406 (2012), for the proposition that

24 state law addressing immigration enforcement is preempted when it “diminish[ed]” and

25 “detract[ed] from the federal government’s enforcement of federal immigration law.” Motion at

26 13. The Court determined that federal immigration law occupied the entire field, having created a

27 “comprehensive and unified system” (id. at 402-03). Thus, Arizona’s law, which made it a

28 misdemeanor for an unauthorized alien to work in Arizona, was inconsistent with federal law. 13

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1

Plaintiff cites International Paper Co v. Ouellette, 479 U.S. 481, 494 (1987) for the

2 proposition “state law…is preempted if it interferes with the methods by which the federal statute

3 was designed to reach [its] goal.” Motion at 27. Context again undercuts Plaintiff’s use of the

4 quotation. In International Paper, the Court held the Clean Water Act dominated the field except

5 for a limited savings clause permitting state law to apply to in-state point sources. Id. at 984-95,

6 500. Thus, Vermont’s preempted state laws which went beyond in-state point sources were found

7 inconsistent with the occupied-field of federal law. This, again, is a direct conflict; the Court did

8 not say or suggest Vermont’s law was preempted because it indirectly frustrated a federal goal.

9 III. AB 450 and AB 103 Support Los Angeles’ Efforts to Improve Trust, Safety and Security in its Immigrant Communities.
10 AB 450 prevents employers from providing voluntary consent to federal immigration
11 agents who, without a warrant or judicial subpoena, attempt to enter non-public areas of an
12 employer’s workplace, or seek to access or review employee records at the employer’s
13 establishment. Cal. Gov. Code §§ 7285.1, 7285.2. AB 450 serves two important purposes in Los
14 Angeles. First, the statute protects Los Angeles workers from unlawful treatment during
15 workplace immigration raids by federal agents. Los Angeles and other parts of the State have
16 seen many cases of federal agents detaining immigrant workers not for being targets of ICE
17 operations, but for having an appearance similar to an ICE target.18 Workers in Los Angeles also
18 have been subject to federal workplace raids based on assumptions of illegal status or on flawed
19 databases with inaccurate information regarding citizenship status.19 AB 450, in preventing
20 employers from consenting to entry and searches without warrants, ensures workers in Los
21 Angeles are afforded due process rights and the right to work without fear of unlawful
22 harassment, detention, or deportation.
23 Second, AB 450 bolsters protections for Los Angeles workers suffering sweatshop or
24 substandard workplace conditions but fearful their employers will invite or threaten an ICE
25 18 Andrea Castillo, ICE Arrests Farmworkers, Sparking Fears in the Central Valley Over
26 Immigrants and the Economy, L.A. Times, March 31, 2018, http://www.latimes.com/local/lanow/la-me-farmworkers-ice-20180316-htmlstory.html.
27 19 Paige St. John and Joel Rubin, ICE held an American Man in Custody for 1,273 Days, L.A. Times, April 27, 2018, http://www.latimes.com/local/lanow/la-me-citizens-ice-20180427-
28 htmlstory.html.
14
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1 workplace raid if they complain. Many immigrants in Los Angeles and across the State endure

2 poor working conditions, wage theft and other unlawful employment practices. Unfortunately,

3 immigrant workers often do not confront their employers over these violations because employers

4 may threaten to report them to federal immigration authorities.20 AB 450 curbs abusive

5 employers who threaten ICE interrogation and seizure of personnel records to silence employees.

6

AB 103 authorizes the State Attorney General to conduct reviews of county, local, and

7 private detention facilities that house noncitizen individuals within the state of California. Cal.

8 Gov. Code § 12532. While no covered detention facility is located in Los Angeles, residents of

9 Los Angeles have been detained at these facilities and the City has a strong interest in protecting

10 their rights while in custody. Conditions in federal immigration detention centers are suspect.

11 Watchdog groups and news agencies have reported delays in medical treatment, hunger strikes,

12 sexual assaults, and attempted suicides.21 AB 103 helps ensure Los Angeles residents that State

13 officials are monitoring conditions at federal detention centers and protecting the rights of their

14 family members and loved ones who may be held in facilities far from home.

15

CONCLUSION

16

For these reasons, and those provided by the State and other Amici Curiae, the City of Los

17 Angeles respectfully urges the Court to deny Plaintiff’s motion for preliminary injunction.

18 Dated: May 18, 2018
19
20

Respectfully submitted, MICHAEL N. FEUER, City Attorney

21

By: /s/Harit U. Trivedi

HARIT U. TRIVEDI

22

Deputy City Attorney

23

Attorneys for Amicus Curiae City of Los Angeles

24

25 20 Deepa Fernandes, Undocumented Workers Fight Wages Under Threat of Deportation, Public
26 Radio International, March 20, 2018, https://www.pri.org/stories/2018-03-20/undocumentedworkers-fight-wages-under-threat-deportation.
27 21 Paloma Esquivel, We Don’t Feel Safe Here: Detainee Deaths, Suicide Attempts and Hunger Strikes Plague California Immigration Facility, L.A. Times, Aug. 8, 2017,
28 http://www.latimes.com/local/lanow/la-me-ln-adelanto-detention-20170808-story.html 15
CITY OF LOS ANGELES’ AMICUS CURIAE BRIEF

 
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1 MARGARET L. CARTER (S.B. #220637) mcarter@omm.com
2 DANIEL R. SUVOR (S.B. #265674) dsuvor@omm.com
3 DANIEL J. TULLY (S.B. #309240) dtully@omm.com
4 O’MELVENY & MYERS LLP 400 S. Hope Street, 18th Floor
5 Los Angeles, CA 90071 Telephone: 213.430.6000
6 Facsimile: 213.430.6407 Attorneys for Amicus Curiae
7 County of Los Angeles

BARBARA J. PARKER (S.B. #069722) City Attorney MARIA BEE (S.B. #167716) ERIN BERNSTEIN (S.B. #231539) ebernstein@oaklandcityattorney.org MALIA MCPHERSON (S.B. #313918) One Frank H. Ogawa Plaza, 6th Floor Oakland, California Telephone: 510.238.3601 Facsimile: 510.238.6500 Attorneys for Amicus Curiae City of Oakland

8 JAMES R. WILLIAMS (S.B. #271253)
9 County Counsel GRETA S. HANSEN (S.B. #251471)
10 KAVITA NARAYAN (S.B. #264191) LAURA S. TRICE (S.B. #284837)
11 JAVIER SERRANO (S.B. #252266) javier.serrano@cco.sccgov.org
12 70 West Hedding Street, E. Wing, 9th Floor San José, CA 95110
13 Telephone: 408.299.5900 Facsimile: 408.292.7240
14 Attorneys for Amicus Curiae County of Santa Clara
15

16

UNITED STATES DISTRICT COURT

17

EASTERN DISTRICT OF CALIFORNIA

18

19 THE UNITED STATES OF AMERICA,

20

Plaintiff,

21

v.

22 THE STATE OF CALIFORNIA; EDMUND GERALD BROWN JR., Governor of
23 California, in his official capacity; and XAVIER BECERRA, Attorney General of
24 California, in his official capacity,

Case No. 2:18-cv-00490-JAM-KJN [PROPOSED] BRIEF OF AMICI CURIAE 25 CALIFORNIA COUNTIES, CITIES, AND LOCAL OFFICIALS IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION (ECF NO. 74) Judge: Honorable John A. Mendez

25

Defendants.

26

27

28
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1

TABLE OF CONTENTS

2

Page

3

INTEREST OF AMICI CURIAE .................................................................................................... 1

4

ARGUMENT ................................................................................................................................... 3

5

I. SB 54 PROMOTES PUBLIC SAFETY, HEALTH, AND WELFARE.................. 3

6

II. THE FEDERAL GOVERNMENT’S PREFERRED AGENDA FOR

7

LOCAL IMMIGRATION ENFORCEMENT UNDERMINES PUBLIC

SAFETY BY DISCOURAGING POLICE-COMMUNITY

8

COOPERATION AND CIVIC PARTICIPATION................................................. 5

9

A. State and Local Control of Law Enforcement Is Integral to

Promoting Public Safety and Fostering Trust Between Immigrant

10

Communities and Police .............................................................................. 5

11

B. State and Local Sanctuary Policies Promote the Health and Welfare

of California Residents............................................................................... 10

12

1. Sanctuary policies support improved public health. ...................... 11

13

2. Jurisdictions adopting sanctuary policies have stronger

14

economies....................................................................................... 12

15 CONCLUSION .............................................................................................................................. 13

16

17

18

19

20

21

22

23

24

25

26

27

28

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TABLE OF AUTHORITIES

2 3 Cases

Page(s)

4 Gonzales v. Oregon,

5

546 U.S. 243 (2006) ................................................................................................................. 10

6

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ................................................................................................................... 3

7 Rice v. Santa Fe Elevator Corp.,

8

331 U.S. 218 (1947) ................................................................................................................... 3

9 Terrace v. Thompson, 263 U.S. 197 (1923) ................................................................................................................... 4
10

11

United States v. Lopez, 514 U.S. 549 (1995) ................................................................................................................. 13

12 United States v. Morrison,

13

529 U.S. 598 (2000) ................................................................................................................... 3

14 Statutes

15 Cal. Gov’t Code § 7284 et seq. ........................................................................................................ 3

16 Cal. Gov’t Code § 7284.2(a)-(e) ...................................................................................................... 4

17 Cal. Gov’t Code § 7284.2(b)-(d).................................................................................................... 10

18 Cal. Gov’t Code § 7284.2(f) ............................................................................................................ 4

19 Other Authorities

20 Aboii, Sheyda, Undocumented Immigrants and the Inclusive Health Policies of

21

Sanctuary Cities, Harvard Public Health Review (2014) ........................................................ 11

22 Advanced Search: Place of Birth By Nativity and Citizenship Status – 2012-2016

American Community Survey 5-Year Estimates, U.S. Census Bureau, available

23

at https://goo.gl/EcKh5P (last visited Apr. 20, 2018) ................................................................ 1

24 Angela S. Garcia, The Sanctuary Cities Debate, University of Chicago, 23 SSA

25

Magazine 1 (2016), available at https://goo.gl/tnZU2f ............................................................. 7

26

Anita Khashu, The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, Police Foundation (Apr. 2009), at 24,

27

available at https://goo.gl/DoKdWs .......................................................................................... 8

28

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TABLE OF AUTHORITIES

(continued)

2

3

Page(s)

4 Bernice Yeung, Police: Immigration Policies Making It Harder to Catch

5

Criminals, RevealNews.Org (Feb. 5, 2018), available at https://goo.gl/hNMaBW............................................................................................................. 8

6 Christopher Lyons, et al., Neighborhood immigration, violence, and city-level

7

immigrant political opportunities, 78 Am. Sociological Rev. 604 (2013) ............................ 6, 7

8 Chuck Wexler, Police chiefs across the country support sanctuary cities because

they keep crime down, L.A. Times (Mar. 6, 2017), available at

9

https://goo.gl/Fut52T.................................................................................................................. 7

10 Community Policing Dispatch, Office of Community Oriented Policing Services

11

(Feb. 2013), available at https://goo.gl/RfdtXC ........................................................................ 9

12

Craig E. Farrell, Jr., et al., M.C.C. Immigration Committee Recommendations For Enforcement of Immigration Laws by Local Policy Agencies, Major Cities

13

Chiefs Ass’n (2006) ................................................................................................................... 5

14 Elina Treyger, et. al, Immigration Enforcement, Policing, and Crime, 13

15

Criminology 285, 305–06 (2014)............................................................................................... 6

16

Estimates of unauthorized immigrant population, by metro area, 2014, Pew Research Center (Feb. 3, 2017), available at https://goo.gl/ZwBgda........................................ 1

17 Facts About Los Angeles, Discover Los Angeles, 2017 LA Tourism & Convention

18

Board (Dec. 15, 2017), available at https://goo.gl/KtVZWn .................................................... 2

19 Final Report of the President’s Task Force on 21st Century Policing, President’s

Task Force on 21st Century Policing, Office of Community Oriented Policing

20

Services (May 2015), available at https://goo.gl/SJXSaL......................................................... 9

21 Helen B. Marrow, The power of local autonomy: expanding health care to

22

unauthorized immigrants in San Francisco, Ethnic and Racial Studies (2012) ...................... 11

23 Jacqueline Fox, Zika and the Failure to Act Under the Police Power, 49 Conn. L. Rev. 1211, 1222, 1224 n.51 (May 2017) ................................................................................. 12

24

Joseph Hayes and Laura Hill, Undocumented Immigrants in California, Public

25

Policy Institute of California (March 2017), available at

26

https://goo.gl/41CVyK ............................................................................................................... 4

27

Judith Walzer Leavitt, Chinatown, N.Y. Times (Apr. 27, 2003), available at https://goo.gl/s1Ce4s ................................................................................................................ 12

28

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TABLE OF AUTHORITIES

(continued)

2

3

Page(s)

4 Letter from Law Enforcement Immigration Task Force to Congress (June 28,

5

2017), available at https://goo.gl/Pn94ai ................................................................................... 9

6

Los Angeles, Center for the Study of Immigration Integration, USC Dornsife College Of Letters, Arts and Sciences, available at https://goo.gl/wzroXy (last

7

visited May 16, 2018) ................................................................................................................ 2

8 Memorandum for Heads of Department Components and United States Attorneys:

Supporting Federal, State, Local, and Tribal Law Enforcement, Off. of Att’y

9

Gen. (Mar. 31, 2017), available at https://goo.gl/xSJsvs ........................................................ 10

10 Michael L. Light, et al., Undocumented Immigration, Drug Problems, and Driving

11

Under the Influence in the United States, 1990-2014, Am. J. Public Health (July 20, 2017) ......................................................................................................................... 12

12 Michael Light and Ty Miller, Does Undocumented Immigration Increase Violent

13

Crime?, Criminology (2018), available at https://goo.gl/YJbs2V ............................................ 7

14 Michelangelo Landgrave and Alex Nowrasteh, Criminal Immigrants: Their

15

Numbers, Demographics, and Countries of Origin, CATO Institute, Immigration Research and Policy Brief No. 1 (Mar. 15, 2017), at 2, available

16

at https://goo.gl/PqQtmR ........................................................................................................... 6

17 Motion by Supervisor Hilda L. Solis, Protecting Los Angeles County Residents Regardless of Immigration Status (Dec. 6, 2016), at 1, available at

18

https://goo.gl/oNczH5 ................................................................................................................ 2

19 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement

20

in Immigration Enforcement, Univ. of Ill. Chicago (May 2013), at 5–6, available at https://goo.gl/wK3O7o....................................................................................... 7, 8

21 Oakland Resolution No. 63950, adopted July 8, 1986..................................................................... 1

22 Oakland Resolution No. 86498, adopted November 29, 2016 ........................................................ 1

23 Oakland Resolution No. 87036, adopted January 16, 2018 ............................................................. 1

24

Quick Facts: Oakland City, U.S. Census Bureau (July 1, 2016), available at

25

https://goo.gl/2kHE3n ................................................................................................................ 1

26 Randy Capps, et al., Delegation and Divergence: A Study of 287(g) State and

27

Local Immigration Enforcement, Migration Policy Institute (Jan. 2011) .................................. 8

28

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1

TABLE OF AUTHORITIES

(continued)

2

3

Page(s)

4 Ruth D. Peterson and Lauren J. Krivo, National Neighborhood Crime Study

5

(NNCS), Inter-university Consortium for Political and Social Research (2000), available at https://goo.gl/7XjyhH ............................................................................................ 6

6 Salvador Rizzo, Trump’s Claim that Immigrants Bring ‘Tremendous Crime’ Is

7

Still Wrong, Wash. Post (Jan. 18, 2018), available at https://goo.gl/5NTnqS .......................... 6

8 Sampson, Robert, et al., Neighborhoods and Violent Crime: A Multilevel Study of

Collective Efficacy, at 1, Science Magazine (Aug. 15, 1997), available at

9

https://goo.gl/BgMim4 ............................................................................................................... 7

10 Sarah Stillman, When Deportation Is a Death Sentence, The New Yorker (Jan. 15,

11

2018), available at https://goo.gl/4s1P6N ............................................................................. 8, 9

12

Scott H. Decker, et al., Immigration and Local Policing: Results from a National Survey of Law Enforcement Executive, Police Foundation (June 2015), at 174,

13

available at https://goo.gl/WsPwsh ........................................................................................... 8

14 State of Cal. Assembly Comm. on Judiciary, Employment Regulation:

15

Immigration Worksite Enforcement Issues, A.B. 450 (Apr. 19, 2017) ..................................... 5

16 The Federalist No. 45 ....................................................................................................................... 3

17

Tom Wong, The effect of sanctuary policies on crime and the economy, Center for American Progress (Jan. 26, 2017), available at https://goo.gl/UFUtnk............................. 6, 12

18 Constitutional Provisions

19 Cal. Const. art. XI, § 7 ..................................................................................................................... 4

20

21

22

23

24

25

26

27

28

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1

INTEREST OF AMICI CURIAE

2

State and local jurisdictions bear primary responsibility for ensuring the safety and well-

3 being of their communities. This principle is neither novel nor controversial; it is at the core of

4 our federalist system of government. In exercising their sovereign duty to promote public safety,

5 states and local governments throughout the United States—including Amici California

6 Localities,1 which include 25 counties, cities, and local officials throughout California,

7 representing 18,000,000 residents—have adopted laws and policies reflecting their careful

8 judgment of what policies and practices best serve their communities. These communities hail

9 from all corners of the state, including counties of over 10 million people and cities of under

10 20,000.

11

• The City of Oakland is the largest city in Alameda County.2 Roughly 27.3% of the City’s

12

420,000 residents are foreign born,3 and the greater Oakland metropolitan area is home to

13

approximately 240,000 undocumented immigrants.4 Oakland seeks to ensure that its

14

diverse communities can participate equally in civic life and access city services designed

15

to ensure the public’s safety and health without fear that coming into contact with local

16

government will result in deportation. In furtherance of these goals, the City of Oakland

17

18

1 Amici California Localities represent local jurisdictions and officials that have taken steps to improve public health and safety in their communities by encouraging immigrant communities to

19 interact with local government employees. While some Amici identify as “cities of refuge,”

“sanctuary cities,” or “sanctuary jurisdictions,” many do not use a specific term to describe their

20 local policies. All Amici California Localities have taken certain efforts to allocate their local

21

law enforcement resources to community safety and crime prevention, rather than enforcement of federal civil immigration law, or have otherwise adopted policies that support community safety

22

by engaging with immigrant communities. For the purposes of this brief, the phrases “Amici California Localities” or “local jurisdictions” will be used to collectively refer to this diverse

23 array of localities, which are listed at the end of this brief.

24

2 Quick Facts: Oakland City, U.S. Census Bureau (July 1, 2016), available at https://goo.gl/2kHE3n.

25 3 See Advanced Search: Place of Birth By Nativity and Citizenship Status – 2012-2016 American

26

Community Survey 5-Year Estimates, U.S. Census Bureau, available at https://goo.gl/EcKh5P (last visited Apr. 20, 2018).

27 4 Estimates of unauthorized immigrant population, by metro area, 2014, Pew Research Center

28 (Feb. 3, 2017), available at https://goo.gl/ZwBgda.

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1

has been a City of Refuge since July 8, 1986, and has repeatedly reaffirmed that status and

2

its commitment to its immigrant communities.5

3

• The County of Los Angeles is the largest county in the nation, with over 10.2 million

4

residents.6 Nearly 3.5 million immigrants, comprising 35% of the County’s total

5

population, call Los Angeles County home.7 Additionally, 57% of children in Los

6

Angeles have a noncitizen parent.8 As in Oakland, immigrants are an integral part of Los

7

Angeles County’s economic and cultural life, interwoven into the County’s social fabric

8

as neighbors, family, and friends. Immigrants are integral to our community; whether at

9

school, on the job, in church, or at home, they are indistinguishable from their native-born

10

family members and neighbors who have been granted citizenship or legal permanent

11

residence. By creating its Office of Immigrant Affairs and pursuing immigration-focused

12

programs and policies, Los Angeles County has made engagement, integration, and

13

cooperation with its immigrant communities a top priority.

14

• Home to a multi-cultural population of over 1.9 million residents, the County of Santa

15

Clara is the most populous county in Northern California. In recent years, the County’s

16

immigrant population has grown significantly and now comprises approximately 38% of

17

the region’s total population, the highest share since the late 1800s. The County of Santa

18

Clara is responsible for providing essential services and safety-net programs, including

19

health care, law enforcement, emergency planning and response services, care for the

20

youth and elderly, and many other critical social services to all residents, regardless of

21

immigration status. The County of Santa Clara has adopted policies and practices that

22

23 5 Oakland Resolution No. 63950, adopted July 8, 1986; Oakland Resolution No. 86498, adopted November 29, 2016; Oakland Resolution No. 87036, adopted January 16, 2018.
24 6 Facts About Los Angeles, Discover Los Angeles, 2017 LA Tourism & Convention Board (Dec. 25 15, 2017), available at https://goo.gl/KtVZWn.

26

7 Los Angeles, Center for the Study of Immigration Integration, USC Dornsife College Of Letters, Arts and Sciences, available at https://goo.gl/wzroXy (last visited May 16, 2018).

27 8 Motion by Supervisor Hilda L. Solis, Protecting Los Angeles County Residents Regardless of

28 Immigration Status (Dec. 6, 2016), at 1, available at https://goo.gl/oNczH5.

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1

reflect the judgment of its elected officials and law enforcement agencies that assistance

2

with federal civil immigration enforcement would undermine the County’s ability to fight

3

crime and make the entire community less safe.

4

5

This litigation involves the federal government’s challenge to three California laws,

6 including SB 54,9 which aim to promote public safety by limiting state and local entanglement

7 with federal immigration enforcement. SB 54, also known as the California Values Act,

8 manifests a commitment to integrating immigrants into communities and promoting public safety,

9 public health, and a robust economy throughout the State. Amici share the State’s goals of

10 protecting the well-being of all Californians and offer a critical perspective on how state and local

11 jurisdictions are best equipped to address the unique needs of their communities.

12

SB 54 protects the State’s residents in a manner consistent with federal law. The careful

13 delineation of state and federal powers is precisely what the Constitution requires, and what

14 Amici California Localities’ considered judgment respects. And, as extensive research studies

15 show, jurisdictions adopting policies similar to those of the State of California and Amici—in

16 which scarce local law enforcement resources are allocated to investigation of crimes, rather than

17 enforcement of federal civil immigration laws—have safer, healthier, and more economically

18 resilient communities.

19 20 I. 21

ARGUMENT SB 54 PROMOTES PUBLIC SAFETY, HEALTH, AND WELFARE The United States Supreme Court has long emphasized that local control over the health

22 and safety of residents ensures that matters “‘concern[ing] the lives, liberties, and properties of

23 the people’” are determined “by governments more local and more accountable than a distant

24 federal bureaucracy.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536 (2012) (quoting

25 The Federalist No. 45, at 293 (J. Madison)). Enshrined in the Constitution and a core part of

26 American democracy ever since, such local control respects the “historic police powers of the

27 28 9 Cal. Gov’t Code § 7284 et seq. (hereinafter “SB 54”).
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1 States.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see also United States v.

2 Morrison, 529 U.S. 598, 618 (2000) (noting there is “no better example of the police power,

3 which the Founders denied the National Government and reposed in the States, than the

4 suppression of violent crime and vindication of its victims”). Local governments and officials

5 have “wide discretion in determining [their] own public policy and what measures are necessary

6 for [their] own protection and properly to promote the safety, peace, and good order of [their]

7 people.” Terrace v. Thompson, 263 U.S. 197, 217 (1923). California counties and cities likewise

8 possess the power to enforce “all local, police, sanitary, and other ordinances and regulations not

9 in conflict with general laws.” Cal. Const. art. XI, § 7.

10

SB 54 fits well within these established constitutional principles, aiming to “ensure

11 effective policing, to protect the safety, well-being, and constitutional rights of the people of

12 California, and to direct the state’s limited resources to matters of greatest concern to state and

13 local governments.” Cal. Gov’t Code § 7284.2(f). Exercising its police powers over public

14 safety, the State determined that indiscriminately devoting local resources to federal civil

15 immigration enforcement is detrimental to community trust and, therefore, to public safety. See

16 generally id. § 7284.2(a)-(e) (detailing legislative findings that building trust with immigrant

17 communities furthers law enforcement aims, that “entangling” state agencies with federal

18 immigration enforcement diverts local resources and blurs lines of accountability, and that state

19 and local participation would create constitutional concerns). California’s laws reflect sound

20 public policy: here, the State concluded, as had many California localities prior to the passage of

21 SB 54 (including those represented by Amici), that local involvement in federal immigration

22 enforcement would be harmful to the safety and well-being of its residents, including the nearly

23 2.6 million undocumented immigrants who reside and participate in communities throughout

24 California.10

25

26

27 10 See Joseph Hayes and Laura Hill, Undocumented Immigrants in California, Public Policy

28 Institute of California (March 2017), available at https://goo.gl/41CVyK.

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1

The federal government’s attempt to pressure California—and localities within the state—

2 to comply with its preferred immigration enforcement agenda harms Amici in two distinct ways:

3 First, by eroding community trust in law enforcement, thereby reducing community cooperation

4 and making it more difficult for local sheriffs and police officers to effectively protect the public;

5 and second, by preventing immigrant communities from participating in our economies and

6 communities.

7 II. 8 9

THE FEDERAL GOVERNMENT’S PREFERRED AGENDA FOR LOCAL IMMIGRATION ENFORCEMENT UNDERMINES PUBLIC SAFETY BY DISCOURAGING POLICE-COMMUNITY COOPERATION AND CIVIC PARTICIPATION

10

A. State and Local Control of Law Enforcement Is Integral to Promoting Public

Safety and Fostering Trust Between Immigrant Communities and Police 11

12

Law enforcement officials throughout California and the nation agree that building

13 community trust is integral to promoting public safety. The State of California, like many Amici

14 California Localities, has acted on that principle, enacting laws—particularly SB 54—aimed at

15 encouraging cooperation and participation in the law enforcement and criminal justice system to

16 promote justice for all.

17

Amici recognize the importance of building and maintaining trust between police and

18 immigrants. If immigrants fear that interaction with law enforcement may lead to deportation for

19 themselves or a loved one, they are less likely to assist law enforcement as witnesses and/or

20 victims, and public safety will suffer.11 These concerns are not theoretical.12 Regardless of

21 immigrations status, all community residents serve an important role in assisting local law

22 11 See, e.g., Craig E. Farrell, Jr., et al., M.C.C. Immigration Committee Recommendations For 23 Enforcement of Immigration Laws by Local Policy Agencies, Major Cities Chiefs Ass’n (2006)
(“Immigration enforcement by local police would likely negatively affect and undermine the level 24 of trust and cooperation between local police and immigrant communities . . .”).

25 12 In a similar vein, maintaining trust between employers and employees is critical to ensuring that immigrants’ rights are protected in the workplace. As the Legislature recognized in

26 analyzing AB 450, the threat of immigration raids in the workplace “decreased the likelihood that

workers will report labor violations or exercise workplace rights.” See State of Cal. Assembly 27 Comm. on Judiciary, Employment Regulation: Immigration Worksite Enforcement Issues, A.B.

28 450 (Apr. 19, 2017), at 5.

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1 enforcement and the justice system—state and local governments should not be forced to

2 participate in a federal immigration enforcement agenda that ignores community safety and well-

3 being. Amici’s collective experience makes clear that trust between law enforcement and the

4 communities they are sworn to protect is weakened when local law enforcement officers are

5 viewed as de facto immigration enforcers.

6

Jurisdictions with sanctuary policies are on average more—not less—safe. Empirics

7 confirm that jurisdictions with policies limiting their participation in immigration enforcement

8 have comparatively lower crime rates than those without such policies. The Center for American

9 Progress found that counties with sanctuary policies had statistically significantly lower crime

10 than other counties—on average 35.5 fewer crimes committed per 10,000 people.13 Another

11 study found that higher immigrant concentrations were associated with reduced homicide rates

12 and reduced robbery rates.14 In cities that limited local enforcement of federal immigration laws,

13 this correlation was even stronger.15 Other studies have found that certain cities with the lowest

14 levels of targeted immigration enforcement have statistically significant reductions in larceny (by

15 2–3%) and motor vehicle theft (by 5-6%).16 Indeed, contrary to the federal government’s

16 rhetoric,17 immigrants are in fact less likely to commit crimes and be incarcerated than American-

17 born individuals; specifically, undocumented immigrants are 44% less likely to be incarcerated

18

19 13 Tom Wong, The effect of sanctuary policies on crime and the economy, Center for American

20 Progress (Jan. 26, 2017), available at https://goo.gl/UFUtnk.

21

14 Christopher Lyons, et al., Neighborhood immigration, violence, and city-level immigrant political opportunities, 78 Am. Sociological Rev. 604, 615–17, 620 (2013). The National

22

Neighborhood Crime Study (NNCS) compiled crime and sociodemographic data for census tracts in a representative sample of large United States cities for 2000 and was funded by the National

23 Science Foundation. See Ruth D. Peterson and Lauren J. Krivo, National Neighborhood Crime

Study (NNCS), Inter-university Consortium for Political and Social Research (2000), available at 24 https://goo.gl/7XjyhH.

25 15 Lyons supra n.14, at 617.

26

16 Elina Treyger, et al., Immigration Enforcement, Policing, and Crime, 13 Criminology 285, 305–06 (2014) (for the list of 335 included cities, see Appendix 1).

27 17 See, e.g., Salvador Rizzo, Trump’s Claim that Immigrants Bring ‘Tremendous Crime’ Is Still

28 Wrong, Wash. Post (Jan. 18, 2018), available at https://goo.gl/5NTnqS.

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1 compared with native-born citizens.18 Additionally, a recent longitudinal analysis between 1990

2 and 2014 analyzed the effect of unauthorized immigration on violence and concluded that

3 undocumented immigration is generally associated with decreasing violent crime.19

4

These studies are not flukes, nor are their results accidental. When large populations of

5 undocumented immigrants “fear[] that interaction with police leads to arrest and deportation, they

6 will be reluctant to report crimes, make statements, or testify in court. This chilling effect leaves

7 cities less safe for everyone.”20 Sanctuary policies allow local governments to create a “spiral of

8 trust” that fosters communications between government officials and immigrants, reduces social

9 isolation and cynicism toward government, and increases neighborhood attachment.21 This social

10 cohesion and “collective efficacy” has been associated with reduced violence and greater

11 stability, which makes communities generally safer for all.22

12

It is well-documented that as immigration enforcement and the threat of deportation

13 increase, the likelihood of undocumented immigrants reporting crimes decreases significantly.23

14 In a 2013 survey, for example, 67% of undocumented individuals reported that they were less

15 likely to offer information to law enforcement as a witness if they feared officers would inquire

16 about their or others’ immigration status.24 Seventy percent reported being less likely to contact

17

18 18 Michelangelo Landgrave and Alex Nowrasteh, Criminal Immigrants: Their Numbers,

19

Demographics, and Countries of Origin, CATO Institute, Immigration Research and Policy Brief No. 1 (Mar. 15, 2017), at 2, available at https://goo.gl/PqQtmR.

20 19 Michael Light and Ty Miller, Does Undocumented Immigration Increase Violent Crime?,

21 Criminology (2018), available at https://goo.gl/YJbs2V. 20 Angela S. Garcia, The Sanctuary Cities Debate, University of Chicago, 23 SSA Magazine 1
22 (2016), available at https://goo.gl/tnZU2f.

23 21 Lyons, supra n.14, at 609–10.

24

22 Sampson, Robert, et al., Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, Science Magazine (Aug. 15, 1997), at 1, available at https://goo.gl/BgMim4.

25 23 See, e.g., Chuck Wexler, Police chiefs across the country support sanctuary cities because they

26 keep crime down, L.A. Times (Mar. 6, 2017), available at https://goo.gl/Fut52T. 24 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in
27 Immigration Enforcement, Univ. of Ill. Chicago (May 2013), at 5–6, available at

28 https://goo.gl/wK3O7o.

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1 law enforcement authorities even if they were victims of a crime.25 In a survey conducted by the

2 Police Foundation, responding law enforcement personnel and public officials widely reported

3 that aggressive enforcement of immigration law would decrease community trust of police (74%

4 of respondents), trust between community residents (70%), and reporting of crime victimization

5 (85%) and criminal activity (83%).26 Moreover, a more recent Police Foundation survey showed

6 that more than 70% of police chiefs reported that immigrants in their communities are somewhat

7 or much less likely to contact law enforcement when they are victims of or witnesses to crime.27

8 And a 2018 study conducted by the National Immigrant Women’s Advocacy Project found that

9 approximately 40% of the 232 law enforcement officials who responded confirmed that “federal

10 immigration policies have affected their relationships with immigrant communities in 2017

11 compared with 2016, and 71% said that because immigrants face barriers to engaging with law

12 enforcement, officers were less able to hold criminals accountable.”28

13

Reports from California since President Trump took office are stark. In the first three

14 months of 2017, reports of sexual assault among the Latino population in the City of Los Angeles

15 declined 25%, and domestic-violence reports dropped 10%.29 At the same time, reporting among

16 non-Latino victims was virtually unchanged.30

17 25 Id.; see also Randy Capps, et al., Delegation and Divergence: A Study of 287(g) State and 18 Local Immigration Enforcement, Migration Policy Institute (Jan. 2011), at 43 (study that looked
at the impact of 287(g) of the Immigration and Nationality Act on 7 counties and found that in 19 four of the counties that were involved in traffic operations, “community respondents were likely
to report that immigrants were venturing into public places with less frequency, failing to report 20 crimes or interact with police, interacting less with schools and other institutions, patronizing 21 local businesses less often, and changing their driving patterns.”).
26 Anita Khashu, The Role of Local Police: Striking a Balance Between Immigration Enforcement 22 and Civil Liberties, Police Foundation (Apr. 2009), at 24, available at https://goo.gl/DoKdWs.

23 27 Scott H. Decker, et al., Immigration and Local Policing: Results from a National Survey of Law Enforcement Executive, Police Foundation (June 2015), at 174, available at
24 https://goo.gl/WsPwsh.

25 28 Bernice Yeung, Police: Immigration Policies Making It Harder to Catch Criminals, RevealNews.Org (Feb. 5, 2018), available at https://goo.gl/hNMaBW.
26 29 See Sarah Stillman, When Deportation Is a Death Sentence, The New Yorker (Jan. 15, 2018), 27 available at https://goo.gl/4s1P6N.

28 30 Id.

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1

The DOJ itself has previously recognized what these studies make clear—that federal

2 entanglement in state and local law enforcement negatively affects community safety. In 2015, a

3 DOJ Task Force released a report that recommended “[d]ecoupl[ing] federal immigration

4 enforcement from routine local policing” in an effort to build relationships of trust with

5 immigrant communities.31 The DOJ has further described how “[c]ultural and language barriers,

6 immigrants’ fear of deportation or detention, and immigrants’ mistrust of law enforcement are

7 some of the factors that can challenge police-immigrant relations” to the detriment of public

8 safety.32

9

In reaching these conclusions, the study drew directly from state and local experiences

10 that show fear of deportation leads to underreporting of crime, failure to access needed

11 government services, and refusal to cooperate with criminal prosecutions.33 Even for some

12 immigrant victims who had the courage to report crime, the fear of deportation ultimately

13 interfered with their cooperation in prosecutions.34 As a result, the Law Enforcement

14 Immigration Task Force, comprised of many state and local law enforcement officials from

15 across the country, determined that state and local law enforcement “can best serve [their]

16 communities by leaving the enforcement of immigration laws to the federal government.”35

17

The State of California has aimed to make its communities safer by cultivating the trust of

18 all residents—citizens and non-citizens alike—through limiting local entanglement with

19 immigration enforcement. As explained above, sound public policy and longstanding Supreme

20 Court precedent protects—and indeed endorses—state and local governments’ exercise of such

21

22 31 Final Report of the President’s Task Force on 21st Century Policing, President’s Task Force on

23

21st Century Policing, Office of Community Oriented Policing Services (May 2015), available at https://goo.gl/SJXSaL.

24 32 Community Policing Dispatch, Office of Community Oriented Policing Services (Feb. 2013), 25 available at https://goo.gl/RfdtXC.
33 Id. 26 34 Id.

27 35 See Letter from Law Enforcement Immigration Task Force to Congress (June 28, 2017),

28 available at https://goo.gl/Pn94ai.

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1 discretion when it comes to the health and safety of their residents.36

2

B. State and Local Sanctuary Policies Promote the Health and Welfare of

California Residents 3

4

In addition to promoting public safety, states and localities have relied upon their broad

5 police powers to implement policies which, in lawmakers’ considered judgment, protect public

6 health and improve the public welfare. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 300 (2006)

7 (protection of public health and safety is generally enforced through state and local police

8 powers). Indeed, like the State itself,37 numerous counties, cities, and towns in California have

9 adopted “sanctuary” laws or policies to promote public health, safety, and well-being in their

10 respective jurisdictions.38 Social science confirms the positive impacts of sanctuary policies on

11 communities as soundly based in the best interests of California cities and counties’ public health

12 and economic welfare.

13

14

36 To be sure, the federal government is fully aware that effective community policing requires 15 local control over law enforcement policy decisions. In practice, however, the federal

16

government supports state and local governments’ exercise of such discretion when it proves politically expedient. Indeed, just last year, in an attempt to justify his decision to rescind consent

17 decrees between the Justice Department’s Civil Rights Division and local police departments—a decision Amici in no way condone—Attorney General Sessions touted the importance of local

18 control over law enforcement decisions, writing that addressing rising crime rates and securing

19

public safety “are, first and foremost, tasks for state, local, and tribal enforcement,” and that “[l]ocal control and local accountability are necessary for effective local policing. The federal

20

government does not manage, nor does it set policy for local law enforcement agencies.” Memorandum for Heads of Department Components and United States Attorneys: Supporting

21 Federal, State, Local, and Tribal Law Enforcement, Off. of Att’y Gen. (Mar. 31, 2017), available

at https://goo.gl/xSJsvs. This lawsuit turns that position on its head.

22 37 For example, the legislative findings of the California Values Act explain that a “relationship of

23 trust” between immigrants and state and local agencies is central to the “public safety of the people of California” and is threatened by entanglement with immigration enforcement, with the

24 result that “immigrant community members fear approaching police when they are victims of,

and witnesses to, crimes, seeking basic health services, or attending school.” §§ 7284.2(b)-(d). 25
38 As used herein, “sanctuary laws” or “sanctuary policies” encompasses the broad range of

26 policies, laws, or regulations that state or local governments may implement, consistent with the

police powers reserved to them under the Constitution, aimed at limiting local entanglement with 27 federal civil immigration enforcement efforts and serving to promote public health, safety, and

28 well-being throughout their communities.

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1

1. Sanctuary policies support improved public health.

2

Sanctuary policies support public health and safety goals by ensuring access to and

3 encouraging utilization of basic government services, which improves public health outcomes.

4 The disparities in access to care and care utilization based on lawful immigration status are well

5 documented.39 Undocumented immigrants and their family members are significantly less likely

6 to utilize government services, including health care, due in large part to fear that their

7 interactions with healthcare providers or government entities will lead to deportation.

8

For localities that provide health care and other social services through public health

9 departments and safety-net hospitals, like Amici California Localities, sanctuary policies are one

10 way to address these disparities.40 To address the fears that often keep undocumented immigrants

11 from seeking healthcare, providers in localities with sanctuary policies use “buffering” strategies,

12 such as (i) advertising “safe” spaces where information regarding immigration status will not be

13 collected in a manner inconsistent with state or federal law, or (ii) having individual

14 conversations to reassure applicants that they will not be asked about their status except as

15 required by state or federal law.41 Such strategies allow healthcare providers to foster trust with

16 their patients and provide much needed medical care to a traditionally underserved segment of the

17 community.

18

Public health strategies, by their nature, are only successful when they address the needs

19 of entire communities. As history demonstrates, the exclusion of any segment of the community

20 from screening services related to sexual health, disease prevention, or prenatal care can have

21

22

23 39 Helen B. Marrow, The power of local autonomy: expanding health care to unauthorized

24

immigrants in San Francisco, Ethnic and Racial Studies (2012), at 73; see also Aboii, Sheyda, Undocumented Immigrants and the Inclusive Health Policies of Sanctuary Cities, Harvard Public

25 Health Review (2014) (noting that undocumented immigrants are less likely to be insured, and

that few undocumented immigrants have a primary care physician or first point-of-contact in the

26 healthcare system aside from the emergency room.)

27 40 Marrow, supra n.40, at 73. 28 41 Id. at 79.

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1 significant consequences on the greater community.42 By improving access and utilization of

2 healthcare services to undocumented immigrants, sanctuary policies have salutary effects on the

3 health and well-being of the community as a whole.43

4

2. Jurisdictions adopting sanctuary policies have stronger economies.

5

Research strongly suggests that “[w]hen local law enforcement focuses on keeping

6 communities safe, rather than becoming entangled in federal immigration enforcement efforts,

7 communities are safer and community members stay more engaged in the local economy. This in

8 turn brings benefits to individual households, communities, counties, and the economy as a

9 whole.”44 A notable study by the Center for American Progress found that “economies are

10 stronger in sanctuary counties—from higher median household income, less poverty, and less

11 reliance on public assistance to higher labor force participation, higher employment-to-population

12 ratios, and lower unemployment.”45 On average, median household income is $4,353 higher in

13 counties with sanctuary policies or laws than in counties without such policies.46

14

State and local governments’ attempts to improve economic status for their residents

15 through limited immigration enforcement is a guiding principle of the general police power—the

16 power for jurisdictions to decide which policies and practices will improve the lives of their

17

18 42 One example includes the plague outbreaks that swept through San Francisco at the beginning

19

of the twentieth century. Public health officials discriminated against residents of San Francisco’s Chinatown district during the epidemic abatement, which led to a larger health crisis

20 than had healthcare officials adopted a public health strategy addressing the needs of all communities. See generally Jacqueline Fox, Zika and the Failure to Act Under the Police Power,

21 49 Conn. L. Rev. 1211, 1222, 1224 n.51 (May 2017); Judith Walzer Leavitt, Chinatown, N.Y.

Times (Apr. 27, 2003), available at https://goo.gl/s1Ce4s. 22 43 Moreover, emerging research suggests that undocumented immigration in communities may be

23 associated directly with reductions in public health concerns. For example, a recent study found

that increased undocumented immigration was associated with statistically significant decreases

24 in drug arrests, drug overdose deaths, and DUI arrests at the state level. Michael L. Light, et al.,

25

Undocumented Immigration, Drug Problems, and Driving Under the Influence in the United States, 1990-2014, Am. J. Public Health (July 20, 2017).

26 44 Wong, supra n.13.

27 45 Id. 28 46 Id.

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1 residents and the safety of their communities.

2

CONCLUSION

3

State and local governments are duty-bound to promote the safety and welfare of all

4 residents in their communities, regardless of immigration status. As the Supreme Court has

5 recognized, state and local governments are uniquely suited for the task given their intimate

6 knowledge of and close connection to their diverse communities. Here, California exercised its

7 sovereign duty to promote public safety and well-being. The Court should reject the federal

8 government’s attempt to prevent the state from “exercising [its] own judgment in an area to which

9 States lay claim by right of history and expertise.” United States v. Lopez, 514 U.S. 549, 583

10 (1995) (Kennedy, J., concurring). Consistent with long-standing precedent and constitutional

11 principles, it is state and local governments that are best able and most accountable to determine

12 the policies that will best protect their communities, not the federal government. After all, they

13 know their communities’ needs and how best to serve them.

14

For all these reasons, Amici California Localities support the State of California’s

15 opposition to the federal government’s motion for preliminary injunction and respectfully submit

16 that the motion should be denied.

17

18

19

20

21

22

23

24

25

26

27

28

BRIEF OF AMICI COUNTIES & CITIES

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1 Dated: May 18, 2018

Respectfully submitted,

2

By: /s/ Margaret L. Carter

Margaret L. Carter

3

MARGARET L. CARTER (S.B. #220637)

4

mcarter@omm.com DANIEL R. SUVOR (S.B. #265674)

5

dsuvor@omm.com DANIEL J. TULLY (S.B. #309240)

6

dtully@omm.com O’MELVENY & MYERS LLP

7

400 S. Hope Street, 18th Floor Los Angeles, CA 90071

8

Telephone: 213.430.6000 Facsimile: 213.430.6407

9

Attorneys for Amicus Curiae County of Los Angeles

10

11

By:/s/ Barbara J. Parker (as authorized on 5/18/18) Barbara J. Parker

12

BARBARA J. PARKER (S.B. #069722)

City Attorney

13

MARIA BEE (S.B. #167716)

ERIN BERNSTEIN (S.B. #231539)

14

ebernstein@oaklandcityattorney.org MALIA MCPHERSON (S.B. #313918)

15

One Frank H. Ogawa Plaza, 6th Floor Oakland, California

16

Telephone: (510) 238-3601 Facsimile: (510) 238-6500

17

Attorneys for Amicus Curiae City of Oakland

18

By: /s/ Javier Serrano (as authorized on 5/18/18)

19

Javier Serrano

JAMES R. WILLIAMS (S.B. #271253)

20

County Counsel

GRETA S. HANSEN (S.B. #251471)

21

KAVITA NARAYAN (S.B. #264191)

LAURA S. TRICE (S.B. #284837)

22

JAVIER SERRANO (S.B. #252266)

javier.serrano@cco.sccgov.org

23

70 West Hedding Street, E. Wing, 9th Floor

San José, CA 95110

24

Telephone: (408) 299-5900

Facsimile: (408) 292-7240

25

Attorneys for Amicus Curiae

County of Santa Clara

26

27

Full List of Amici Curiae and Additional Counsel for Amici Curiae Provided Below

28

BRIEF OF AMICI COUNTIES & CITIES

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1

LIST OF AMICI CURIAE

2 County of Alameda, California

3 City of Albany, California

4 City of Arvin, California

5 City of Berkeley, California

6 City of Culver City, California

7 City of Davis, California

8 City of East Palo Alto, California

9 County of Los Angeles, California

10 County of Marin, California

11 County of Monterey, California

12 City of Morgan Hill, California

13 City of Mountain View, California

14 City of Oakland, California

15 City of Palm Springs, California

16 City of Richmond, California

17 City of Sacramento, California

18 City of San Diego, California

19 City of San José, California

20 City of Santa Ana, California

21 County of Santa Clara, California

22 County of Santa Cruz, California

23 City of Santa Monica, California

24 County of Sonoma, California

25 Mayor Michael Tubbs, City of Stockton, California

26 City of West Hollywood, California

27

28

BRIEF OF AMICI COUNTIES & CITIES

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1

ADDITIONAL COUNSEL FOR AMICI CURIAE

2

Donna R. Ziegler

3

County Counsel, County of Alameda

1221 Oak Street, Suite 450

4

Oakland, CA 94612

5

Attorney for the County of Alameda,

California 6

Edward Z. Kotkin City Attorney, City of Palm Springs
3200 E. Tahquitz Canyon Way Palm Springs, CA 92262
Attorney for the City of Palm Springs, California

7

Craig Labadie

Bruce Reed Goodmiller

City Attorney, City of Albany

8

1000 San Pablo Avenue

City Attorney, City of Richmond 450 Civic Center Plaza

Albany, CA 94706 9

Richmond, CA 94804

Attorney for the City of Albany, California Attorney for the City of Richmond, California 10

11

Shannon L. Chaffin

City Attorney, City of Arvin

12

200 Campus Drive, PO Box 548

Arvin, CA 93203 13

Attorney for the City of Arvin, California 14

Susana Alcala Wood City Attorney, City of Sacramento
915 I Street, Fourth Floor Sacramento, CA 95814 Attorney for the City of Sacramento,
California

15

Farimah Brown

City Attorney, City of Berkeley

16

2180 Milvia Street, 4th Floor

Berkeley, CA 94074 17

Mara W. Elliot City Attorney, City of San Diego
1200 Third Ave., Suite 1620 San Diego, CA 92101

Attorney for the City of Berkeley, California Attorney for the City of San Diego, California 18

19

Carol Schwab

Richard Doyle

City Attorney, City of Culver City

20

9770 Culver Boulevard

City Attorney, City of San José 200 East Santa Clara St., 16th Floor

Culver City, CA 90232 21

San José, CA 95113

Attorney for the City of Culver City,

Attorney for the City of San José, California

22

California

23

Harriet Steiner

24

City Attorney, City of Davis

Sonia R. Carvalho City Attorney, City of Santa Ana

Best Best & Krieger LLP

25

500 Capitol Mall, Suite 1700

20 Civic Center Plaza, M-29 P.O. Box 1988

Sacramento, CA 95814 26

Santa Ana, CA 92702

Attorney for the City of Davis, California Attorney for the City of Santa Ana, California 27

28

BRIEF OF AMICI COUNTIES & CITIES

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1

Rafael E. Alvarado Jr.

City Attorney, City of East Palo Alto

2

2415 University Ave.

East Palo Alto, CA 94303

3

Attorney for the City of East Palo Alto,

4

California

Dana McRae County Counsel, County of Santa Cruz
701 Ocean Street, Room 505 Santa Cruz, CA 95060
Attorney for the County of Santa Cruz, California

5

Brian Washington

6

County Counsel, County of Marin

3501 Civic Center Drive, Rm 275

7

San Rafael, CA 94903

Lane Dilg City Attorney, City of Santa Monica
1685 Main Street, Third Floor Santa Monica, CA 90401

8 Attorney for the County of Marin, California 9

Attorney for the City of Santa Monica, California

10

Charles J. McKee

County Counsel, County of Monterey

11

168 West Alisal St, 3rd Fl

Salinas, CA 93901

12

Attorney for the County of Monterey,

13

California

Bruce D. Goldstein County Counsel, County of Sonoma 575 Administration Drive, Suite 105A
Santa Rosa, CA 95403 Attorney for the County of Sonoma,
California

14

Donald A. Larkin

15

City Attorney, City of Morgan Hill

17575 Peak Avenue

16

Morgan Hill, CA 95037

17

Attorney for the City of Morgan Hill,

California

18

Michael Jenkins City Attorney, City of West Hollywood
JENKINS & HOGIN, LLP 1230 Rosecrans Avenue, Suite 110
Manhattan Beach, CA 90266 Attorney for the City of West Hollywood,
California

19

Jannie L. Quinn

City Attorney, City of Mountain

20

500 Castro St., 3rd Floor

Mountain View, CA 94041

21

Attorney for the City of Mountain View,

22

California

23

24

25

26

27

28

BRIEF OF AMICI COUNTIES & CITIES

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1 JAMIE S. GORELICK (pro hac vice) jamie.gorelick@wilmerhale.com
2 CATHERINE M.A. CARROLL catherine.carroll@wilmerhale.com
3 CHRISTOPHER E. BABBITT (SBN: 225813) christopher.babbitt@wilmerhale.com
4 CLAIRE M. BERGERON claire.bergeron@wilmerhale.com
5 SHEILA E. MENZ sheila.menz@wilmerhale.com
6 WILMER CUTLER PICKERING HALE AND DORR LLP
7 1875 Pennsylvania Avenue NW Washington, DC 20006
8 Telephone: 202 663 6000 Facsimile: 202 663 6363
9 Attorneys for Amici Curiae
10

11

12

13

UNITED STATES DISTRICT COURT

14

EASTERN DISTRICT OF CALIFORNIA

15

SACRAMENTO DIVISION

16 THE UNITED STATES OF AMERICA,

17

Plaintiff,

18

v.

19 THE STATE OF CALIFORNIA; EDMUND GERALD BROWN JR., GOVERNOR OF
20 CALIFORNIA, IN HIS OFFICIAL CAPACITY; AND XAVIER BECERRA,
21 ATTORNEY GENERAL OF CALIFORNIA, IN HIS OFFICIAL CAPACITY,
22 Defendants.
23

Case No. 2:18-cv-00490-JAM-KJN

PROPOSED BRIEF FOR TAHIRIH JUSTICE CENTER, ET AL., AS AMICI CURIAE IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND DEFENDANTS’ MOTION TO DISMISS

Hearing Date: June 20, 2018

Hearing Time: 10:00 a.m.

Location:

Courtroom 6

24

Judge: Hon. John A. Mendez

25

Action Filed: March 6, 2018

26

27

28

Case No. 2:18-cv-00490-JAM-KJN

i

Proposed Brief for Tahirih Justice Center, et

al., as Amici Curiae

Case 2:18-cv-00490-JAM-KJN Document 130 Filed 05/21/18 Page 2 of 23

TABLE OF CONTENTS 1

2

INTERESTS OF AMICI CURIAE........................................................................................................1 3

SUMMARY OF ARGUMENT .............................................................................................................2 4

ARGUMENT .........................................................................................................................................4 5

I. 6

California’s Community Trust Laws Enhance Survivor Safety ................................................4

II. 7

California’s Community Trust Laws Enhance Public Safety ....................................................9

III. California’s Community Trust Laws Align With, And Enhance The Effectiveness Of,

8

State And Federal Laws Intended To Protect Survivors..........................................................13

9

A. Violence Against Women Act .....................................................................................13

10

B. Trafficking Victims Protection Act .............................................................................14

11 CONCLUSION....................................................................................................................................15

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 Case No. 2:18-cv-00490-JAM-KJN

ii

Proposed Brief for Tahirih Justice Center,

et al., as Amici Curiae

Case 2:18-cv-00490-JAM-KJN Document 130 Filed 05/21/18 Page 3 of 23

TABLE OF AUTHORITIES 1

2

CASES

Page(s)

3 Arizona v. United States,

4

567 U.S. 387 (2012).............................................................................................................3, 15

5 City of Chicago v. Sessions,

888 F.3d 272 (7th Cir. 2018) .............................................................................................10, 12 6

7

United States v. Morrison, 529 U.S. 598 (2000).................................................................................................................12

8

DOCKETED CASES

9 Statement of Interest on Behalf of the United States, City of El Cenizo v. Texas, No.

10

5:17-cv-404-OLG (W.D. Tex. June 23, 2017), ECF No. 90 ...................................................12

11

FEDERAL STATUTES

12 8 U.S.C. § 1101(a)(15)(T)....................................................................................................................14

13 8 U.S.C. § 1101(a)(15)(U) ...................................................................................................................14

14

CALIFORNIA STATUTES

15 A.B. 450, California Immigrant Workers Protection Act..................................................................2, 4

16 A.B. 103, California omnibus bill..........................................................................................................2
17 S.B. 54, California Values Act...........................................................................................................2, 5
18 Cal. Gov’t Code § 7284.2(b)..............................................................................................................4, 5
19 Cal. Gov’t Code § 7284.2(c)..............................................................................................................4, 5
20

21

PUBLIC LAW

22

Trafficking Victims Protection Act of 2000 (“TVPA”), Pub. L. No. 106-386, 114 Stat. 1464 (Oct.28, 2000) .........................................................................................3, 13, 14, 15

23

Pub. L. No. 106-386, § 107......................................................................................................13

Pub. L. No. 106-386, §§ 1501-1513 ........................................................................................13

24

Pub. L. No. 106-386 § 1502(a)(1)............................................................................................15

25

Pub. L. No. 106-386 § 1512.....................................................................................................14 Pub. L. No. 106-386 § 1513(a)(2)(A) ..................................................................................4, 15

26

Pub. L. No. 106-386 § 1513(a)(2)(B) ..................................................................................4, 15

27 Violence Against Women Act of 1994 (“VAWA”), Pub. L. No. 103-322, 108 Stat. 1796 (Sept. 13, 1994)...........................................................................................3, 6, 13, 14, 15

28

Pub. L. No. 103-322, tit. IV, §§ 40701-40703...................................................................13, 14

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1

LEGISLATIVE HISTORY

2 159 Cong. Rec. H705 (daily ed. Feb. 28, 2013) ..................................................................................13

3 159 Cong. Rec. S597 (daily ed. Feb. 12, 2013) ...................................................................................13

4 H.R. Rep. No. 103-395 (1993).........................................................................................................4, 14

5

REGULATIONS

6 Enhancing Public Safety in the Interior of the United States, Exec. Order No. 13768,

7

82 Fed. Reg. 8799 (Jan. 25, 2017) .............................................................................................7

8

OTHER AUTHORITIES

9

Elizabeth M. McCormick, Rethinking Indirect Victim Eligibility for U Non-Immigrant Visas to Better Protect Immigrant Families and Communities, 22 STAN. L. &

10

POL’Y REV. 587 (2011) ...........................................................................................................9

11 Emma E. Fridel, A Multivariate Comparison of Family, Felony, and Public Mass

Murders in the United States, SAGE Journals, Journal of Interpersonal

12

Violence (Nov. 8, 2017), https://doi.org/10.1177%2F0886260517739286 ............................11

13 James Queally, Fearing Deportation, Many Domestic Violence Victims Are Steering

14

Clear of Police and Courts, L.A. Times (Oct. 9, 2017), http://www.latimes.com/local/lanow/la-me-ln-undocumented-crime-reporting-

15

20171009-story.html ..............................................................................................................8, 9

16 Jane Mayer, The Link Between Domestic Violence and Mass Shootings, The New

Yorker (June 16, 2017), https://www.newyorker.com/news/news-desk/the-

17

link-between-domestic-violence-and-mass-shootings-james-hodgkinson-

18

steve-scalise .............................................................................................................................11

19

John Burnett, New Immigration Crackdowns Creating “Chilling Effect” On Crime Reporting, NPR (May 25, 2017),

20

https://www.npr.org/2017/05/25/529513771/new-immigration-crackdowns-

creating-chilling-effect-on-crime-reporting .............................................................................10 21

22

Letter from the Major County Sheriffs’ Association and Major Cities Chiefs Association Opposing S. 2146 (Oct. 19, 2015),

23

http://www.aila.org/infonet/letter-county-sheriffs-opposing-s-2146 .........................................9

24 Liz Robbins, Police Fear Trump Immigration Orders May Handcuff Efforts to Fight Gangs, N.Y. Times (Feb. 22, 2017),

25

https://www.nytimes.com/2017/02/22/nyregion/police-fear-trump-

immigration-orders-may-handcuff-effort-to-fight-gangs.html ............................................ 9-10 26

27

Mai Thi Nguyen & Hannah Gill, Interior Immigration Enforcement: The Impacts of Expanding Local Law Enforcement and Authority, 53 Urb. Stud. J. 302 (2015) ......................7

28

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1

Michael E. Miller, ‘People Here Live in Fear’: MS-13 Menaces a Community Seven Miles from the White House, Wash. Post (Dec. 20, 2017),

2

https://www.washingtonpost.com/local/people-here-live-in-fear-ms-13menaces-a-community-seven-miles-from-the-white-

3

house/2017/12/20/6cebf318-d956-11e7-b859-

fb0995360725_story.html?noredirect=on&utm_term=.bc8c964d93e5 ..................................11 4

5

Michael Runner et al., Family Violence Prevention Fund, Intimate Partner Violence in Immigrant and Refugee Communities: Challenges, Promising Practices

6

and Recommendations, Robert Wood Johnson Foundation (Mar. 2009), https://www.futureswithoutviolence.org/userfiles/file/ImmigrantWomen/IPV_

7

Report_March_2009.pdf ........................................................................................................4, 5

8 Michael Samsel, Warning Signs: Escalation, Abuse and Relationships,

https://www.abuseandrelationships.org/Content/Basics/escalation.html (last

9

visited May 15, 2018) ..............................................................................................................10

10 National Immigrant Women’s Advocacy Project, Promoting Access to Justice for

11

Immigrant and Limited English Proficient Crime Victims in an Age of

Increased Immigration Enforcement: Initial Report from a 2017 National

12

Survey, Am. Univ., Wash. Coll. Of Law (May 3, 2018),

http://library.niwap.org/wp-content/uploads/Immigrant-Access-to-Justice-

13

National-Report.pdf ...................................................................................................................8

14 Nik Theodore, Dep’t of Urban Planning and Policy, Insecure Communities: Latino

15

Perceptions of Police Involvement in Immigration Enforcement, Univ. of Ill. at Chi. (May 2013),

16

http://www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_R

EPORT_FINAL.PDF .................................................................................................................7

17

Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the

18

Police, 91 Iowa L. Rev. 1449 (2006).........................................................................................7

19 Pamela Constable, For Immigrant Women, Domestic Violence Creates a Double

20

Shadow, Wash. Post (Dec. 2, 2013), https://www.washingtonpost.com/local/for-immigrant-women-domestic-

21

violence-creates-a-double-shadow/2013/12/02/5626b85e-55e6-11e3-8304-

caf30787c0a9_story.html?utm_term=.cbd37f3285d4 ...............................................................4

22

Press Release, No Más, New Study of Domestic Violence and Sexual Assault in the

23

U.S. Latin@ Community Reveals Barriers to Reporting and High Willingness

24

to Intervene to Help Survivors (Apr. 21, 2015), https://nomore.org/pressrelease/no-mas-study-pr/ ............................................................................................................5

25 PRI’s The World, Some Immigrant Women, Victims of Domestic Violence, Afraid to

26

Seek Help (Mar. 21, 2013), https://www.pri.org/stories/2013-03-21/some-

immigrant-women-victims-domestic-violence-afraid-seek-help ...............................................5

27

28 Case No. 2:18-cv-00490-JAM-KJN

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1

Randy Capps, et al., Revving Up The Deportation Machinery: Enforcement and Pushback Under Trump, Migration Policy Institute (May 2018),

2

https://www.migrationpolicy.org/sites/default/files/publications/ImmigrationE nforcement-FullReport-FINAL-WEB.pdf .................................................................................8

3

Scott D. Rhodes et al., The Impact of Local Immigration Enforcement Policies on the

4

Health of Immigrant Hispanics/Latinos in the United States, 105 Am. J. Pub.

5

Health 329 (Feb. 2015). .............................................................................................................7

6

T. J. Raphael & Dana Roberson, How Gun Laws Let Domestic Violence Offenders Slip Through the Cracks, PRI (Nov. 16, 2017),

7

https://www.pri.org/stories/2017-11-16/how-gun-laws-let-domestic-violence-

offenders-slip-through-cracks ..................................................................................................11

8

Tahirih Justice Center, 2017 Advocate and Legal Service Survey Regarding

9

Immigrant Survivors, http://www.tahirih.org/wp-

10

content/uploads/2017/05/2017-Advocate-and-Legal-Service-Survey-KeyFindings.pdf (last visited May 16, 2018) ...................................................................................2

11 Tahirih Justice Center, Nationwide Survey: A Window Into the Challenges Immigrant

12

Women and Girls Face in the United States and the Policy Solutions to

Address Them (Jan. 31, 2018), https://www.tahirih.org/wp-

13

content/uploads/2018/01/Tahirih-Justice-Center-Survey-Report-1.31.18.pdf ..................1, 5, 8

14 Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, Center

15

for American Progress (Jan. 26, 2017), https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297

16

366/the-effects-of-sanctuary-policies-on-crime-and-the-economy/ ........................................10

17 Virginia Fay, Back Into the Shadows: Immigrants Retreat from Needed Services as

Deportation Fears Loom, Peninsula Press (June 12, 2017),

18

http://peninsulapress.com/2017/06/12/back-into-the-shadows/ .................................................9

19 Washington State Institute for Public Policy, Recidivism Trends of Domestic Violence

20

Offenders in Washington State (Aug. 2013), http://www.wsipp.wa.gov/ReportFile/1541/Wsipp_Recidivism-Trends-of-

21

Domestic-Violence-Offenders-in-Washington-State_Full-Report.pdf ....................................11

22

23

24

25

26

27

28 Case No. 2:18-cv-00490-JAM-KJN

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1

INTERESTS OF AMICI CURIAE

2

The Tahirih Justice Center (“Tahirih”) is the largest multi-city direct-services and policy-

3 advocacy organization in the United States specializing in assisting immigrant women and girls who 4
survive gender-based violence, including human trafficking, forced labor, domestic violence, rape 5 6 and sexual assault, and female genital cutting/mutilation. Tahirih serves clients at five offices,

7 including in San Francisco, and has provided free legal assistance to more than 25,000 individuals.

8

Additional amici ASISTA, Asian Pacific Institute on Gender-Based Violence, Immigration

9 Center for Women and Children, and CASA de Esperanza are immigration service providers that
10 serve survivors of gender-based crimes in California, as well as national policy organizations that 11
advocate for legal and other protections for survivors.1 12
Based on their experience serving and advocating for survivors of gender-based violence, 13 14 amici have a special understanding of how the California laws at issue in this case promote
15 community safety, and advance the State of California’s sovereign interests, by encouraging

16 immigrant survivors of gender-based violence to seek protection from and treatment for the effects

17 of violence. Similarly, amici have a unique understanding of the harms that an injunction of these
18 laws would cause to immigrant women and girls who are survivors of gender-based violence. 19
As amici’s experience with their clients demonstrates, many immigrant women who 20 21 experience domestic violence are hesitant to contact the police or seek child custody or other relief in 22 courts out of fear that doing so will lead to intervention by immigration authorities.2 Such fear has

23 been amplified in recent months as the federal government has stepped up its immigration

24 enforcement efforts, including through policies that seek to harness state and local authorities’

25

26 1 2

Amici’s full names and addresses appear at Appendix 1. See Tahirih Justice Center, Nationwide Survey: A Window Into the Challenges Immigrant

27 Women and Girls Face in the United States and the Policy Solutions to Address Them 8 (Jan. 31,

2018), https://www.tahirih.org/wp-content/uploads/2018/01/Tahirih-Justice-Center-Survey-Report28 1.31.18.pdf.

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1 participation in immigration enforcement. In response to an April 2017 national survey of over 700 2 service providers, three out of four respondents reported that survivors had expressed concerns about

3 going to court for matters relating to their abusers, and many respondents reported that their clients

4 were expressing increased fear in light of new federal immigration policies. 3

5

In amici’s experience, the California laws at issue here, which limit state and local

6 entanglement in immigration enforcement, promote the safety of immigrant survivors of gender-
7 based violence by providing some assurance that a survivor can call the police or reach out to a state
8

9 or local agency for help without risking deportation proceedings or detention. These laws enhance

10 the safety of survivors, by making them more likely to seek help, and may also assist survivors in

11 learning about the federal immigration protections available to them. The challenged laws also

12 improve overall community safety by encouraging immigrant victims and witnesses to report crimes

13 and other activity that may threaten society at large. As the experiences of amici’s clients illustrate
14 (see infra Part II), survivors who contact the police are critical to the investigation and prosecution
15 16 of criminal activity on a broader scale.

17

SUMMARY OF ARGUMENT

18

Amici respectfully submit this brief to assist the Court in analyzing the public benefits of the

19 California Values Act (S.B. 54), California omnibus bill A.B. 103, and the California Immigrant

20 Workers Protection Act (A.B. 450) (collectively referred to in this brief as the California
21 “Community Trust Laws”) as they relate to immigrant survivors of gender-based violence. These 22
benefits confirm that the challenged laws fall squarely within the broad scope of California’s police 23 24 powers, and that the public interest weighs in favor of denying the Department of Justice’s motion

25

26

27

3

2017 Advocate and Legal Service Survey Regarding Immigrant Survivors,

http://www.tahirih.org/wp-content/uploads/2017/05/2017-Advocate-and-Legal-Service-Survey-Key-

28

Findings.pdf (last visited May 16, 2018). Case No. 2:18-cv-00490-JAM-KJN

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1 for a preliminary injunction. See Arizona v. United States, 567 U.S. 387, 404 (2012).4

2

The public-safety concerns that prompted the California legislature to adopt the Community

3 Trust Laws apply with unique force to immigrant women who are survivors of gender-based

4 violence. This is true for three main reasons. First, by limiting state and local entanglement with
5 federal immigration enforcement, the Community Trust Laws encourage and make it safe for 6
survivors to seek protection from, and treatment for, the effects of gender-based violence. These 7
laws provide valuable protections to immigrant survivors of gender-based violence, particularly at a 8 9 time when the federal government has stepped up its immigration enforcement efforts in a manner
10 that has chilled immigrants’ willingness to interact with state and local authorities, as the

11 experiences of amici’s own clients demonstrate.

12

Second, by facilitating the reporting of gender-based violence, the Community Trust Laws

13 strengthen public safety for the whole community. Survivors of domestic violence may have
14 firsthand information relating to a variety of criminal activity. If they are afraid to report it, abusers
15 16 remain free to continue to act violently toward survivors and others, jeopardizing public safety.

17

Finally, far from conflicting with federal immigration laws, California’s Community Trust

18 Laws directly align with federal laws enacted to protect immigrant survivors of gender-based

19 violence. Congress enacted the Violence Against Women Act (“VAWA”) and the Trafficking

20 Victims Protection Act (“TVPA”) to provide legal protections to immigrant survivors of gender-
21 based violence and to encourage survivors to report abuse. As the text and legislative history of 22
these two laws make clear, Congress desired to: “permit[] battered immigrant women to leave their 23 24 batterers without fearing deportation”; “encourage law enforcement officials to better serve

25

26 4 See also Defendants’ Opposition to Plaintiff’s Motion for a Preliminary Injunction (“Opp.”),

27

United States v. California, No. 2:18-cv-00490-JAM-KJN (E.D. Cal. May 4, 2018), ECF No. 74 at 1, 40.

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1 immigrant crime victims and to prosecute crimes committed against aliens”; and to “facilitate the 2 reporting of crimes to law-enforcement officials by trafficked, exploited, victimized, and abused

3 aliens who are not in lawful immigration status.” See Pub. L. No. 106-386 §§ 1513(a)(2)(A)-(B),

4 114 Stat. at 1533-1534; H.R. Rep. No. 103-395, at 25 (1993). The California Community Trust

5 Laws—which were enacted to foster a relationship of trust between state authorities and California’s

6 immigrant residents—are fully in accord with those federal mandates.5
7 ARGUMENT
8

9 I.

California’s Community Trust Laws Enhance Survivor Safety

10

Of the many women in the United States who are raped or physically assaulted each year,

11 “immigrant and refugee women are especially vulnerable.”6 Immigrant women face unique

12 obstacles in seeking protection from gender-based violence, including language barriers, lack of

13 familiarity with social services and law-enforcement systems, and fear of the police based on
14 experiences with law enforcement in their countries of origin.7 Survivors of gender-based violence 15
may also fear that contacting authorities to report abuse will put the survivor or a family member at 16 17 risk of deportation.8 In a 2015 survey of 800 Latinos and Latinas nationwide, 41 percent of

18

19

5 See Cal. Gov’t Code § 7284.2(b), (c) (setting forth legislative findings that “a relationship

20

of trust between California’s immigrant community and state and local agencies is central to the public safety of the people of California” and that the erosion of this trust results in “immigrant

21 community members fear[ing] approaching police when they are victims of, and witnesses to, crimes”); see also Opp. at 5 (noting that the state adopted A.B. 450 in order to “ensure that all

22 California workers enjoy the protections afforded to them under state law ‘without fear of

harassment, detention, or deportation’” (internal citation omitted)).

23

6 Michael Runner, et al., Family Violence Prevention Fund, Intimate Partner Violence in

24

Immigrant and Refugee Communities: Challenges, Promising Practices and Recommendations 11, Robert Wood Johnson Foundation (Mar. 2009), https://www.futureswithoutviolence.org/

25 userfiles/file/ImmigrantWomen/IPV_Report_March_2009.pdf. 7 Id. at 4-5.

26

8 Pamela Constable, For Immigrant Women, Domestic Violence Creates a Double Shadow,

27

Wash. Post (Dec. 2, 2013), https://www.washingtonpost.com/local/for-immigrant-women-domesticviolence-creates-a-double-shadow/2013/12/02/5626b85e-55e6-11e3-8304-

28

caf30787c0a9 story.html?utm term=.cbd37f3285d4.

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1 respondents cited fear of deportation as the number-one barrier preventing Latino and Latina 2 survivors of domestic violence from seeking help.9

3

Many abusers are well aware of this chilling effect and will deliberately use a survivor’s

4 immigration status against her, threatening to contact immigration authorities and report the survivor

5 if she discloses abuse.10 While this tool of exploitation and control is especially prominent when the
6 survivor is undocumented, an abuser may also use the threat of deportation to control a survivor who
7 actually holds lawful status by isolating the survivor to prevent her from learning that she has lawful
8
9 immigration status and capitalizing on her belief that her status is within his control.11

10

California’s Community Trust Laws are designed to combat some of the barriers that prevent

11 survivors from seeking help. As the California legislature explained in its statement of intent

12 accompanying S.B. 54, the express purpose of this law is to build “a relationship of trust” between
13 “California’s immigrant community and state and local agencies.” Cal. Gov’t Code § 7284.2(b). 14
Such a relationship is threatened, the legislature found, when “state and local agencies are entangled 15 16 with federal immigration enforcement, with the result that immigrant community members fear 17 approaching police when they are victims of, and witnesses to, crimes,” and when “seeking basic

18 health services.” Cal. Gov’t Code § 7284.2(c). To that end, the law places several carefully tailored

19 limitations on the ability of state and local officials to act as an arm of federal immigration

20

21

9 Press Release, No Más, New Study of Domestic Violence and Sexual Assault in the U.S.

Latin@ Community Reveals Barriers to Reporting and High Willingness to Intervene to Help

22 Survivors (Apr. 21, 2015), https://nomore.org/press-release/no-mas-study-pr/.

23

10 Runner, supra note 6, at 4; PRI’s The World, Some Immigrant Women, Victims of Domestic Violence, Afraid to Seek Help (Mar. 21, 2013), https://www.pri.org/stories/2013-03-

24

21/some-immigrant-women-victims-domestic-violence-afraid-seek-help (quoting Sister Rosemary Welsh, Executive Director of Casa de Misericordia in Laredo, Texas, as follows: “One of the ways

25 men would keep [immigrant women] in a domestic violence situation was saying that ‘I am a U.S. citizen’ or ‘I am a legal permanent resident, and you call the police, they will deport you and I will

26 stay with the kids[.]”); Tahirih Justice Center, Nationwide Survey, supra note 2, at 8 (observing that

27

“[m]any women are hesitant to contact the police or seek child custody or other relief in courts because abusers threaten to call immigration authorities if they do”).

28

11 See Runner, supra note 6, at 12. Case No. 2:18-cv-00490-JAM-KJN

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1 authorities. By doing so, the Community Trust Laws ensure that survivors can safely access 2 immediate benefits like protection from abuse and emergency medical care, as well as longer-term

3 benefits, such as restraining orders, without fear of triggering immigration consequences. Taking

4 those steps, once a survivor feels secure in doing so, may also help her to learn about federal legal
5 protections specifically designed to protect immigrant survivors of domestic violence. See infra, 6
Part III. 7
The example of one of Tahirih’s clients is illustrative: “P” was living in Gibraltar when she 8 9 met and married a U.S. citizen. After they had a son together, P’s husband convinced her to sell her
10 home, quit her job, and move with him to the United States. Over time, P’s husband grew verbally

11 and physically abusive. On one occasion, he intentionally crashed the couple’s car as he was driving

12 with P and their baby. The abuse escalated, culminating in an incident in which P’s husband
13 screamed at her, strangled her, and scratched her face and eye. P did not immediately call the police, 14
fearing violent retaliation from her husband. Finally, after P’s husband threw her and their child out 15 16 of the house during a snowstorm, P’s friend encouraged her to call the police, and after doing so, P 17 was able to get a protective order. According to P, she never would have reported the abuse if she
18 thought there were a chance that she would be detained, deported, or separated from her son, who

19 has autism and requires ongoing special care. Through assistance from Tahirih, P obtained lawful

20 permanent residence in 2015 based on a federal Violence Against Women Act “self-petition,” and

21 she will soon be eligible for citizenship. Her son is thriving now that he is not regularly witnessing

22 (or being subjected to) domestic violence.
23

24

Studies have shown that when local officials enforce federal immigration law, immigrants

25 are deterred from contacting local officials—be it in an emergency room or by dialing 911—out of

26 fear that doing so will result in detention or deportation. One study illustrates the stark impact such

27 a policy had in North Carolina on women’s and children’s health: In jurisdictions where state and

28 Case No. 2:18-cv-00490-JAM-KJN

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1 local authorities entered into immigration enforcement agreements with federal authorities, 2 Hispanic/Latina mothers sought prenatal care later than non-Hispanic/Latina mothers.12 The study

3 noted that “participants reported profound mistrust of health services, avoiding health services, and

4 sacrificing their health and the health of their family members.”13 Another study of similar North
5 Carolina policies found that “the majority of Hispanic interviewees stated that they would hesitate 6
before reporting crime to authorities out of fear that a friend, neighbour, or family member might be 7
placed in danger of deportation [proceedings].”14 Survey results confirm these findings. In a 2012 8 9 survey of 2,000 Latinos in Chicago, Houston, Los Angeles, and Phoenix, 45 percent of respondents
10 reported that as a result of increased cooperation between the police and immigration authorities,

11 they were less likely to contact law enforcement if they were victims of a crime.15

12

This is not an abstract fear. Since January 2017, when the White House released an

13 Executive Order declaring it to be the “policy of the executive branch to empower State and local
14 law enforcement agencies across the country to perform the functions of an immigration officer …
15 16 to the maximum extent permitted by law,” a series of studies, surveys, and media reports have found

17 evidence that immigrant survivors of gender-based violence are increasingly fearful about contacting

18 state and local authorities.16 In response to an April 2017 survey of more than 700 legal advocates

19

20

12 Scott D. Rhodes et al., The Impact of Local Immigration Enforcement Policies on the Health of Immigrant Hispanics/Latinos in the United States, 105 Am. J. Pub. Health 329 (Feb.

21 2015). 13 Id.

22

14 Mai Thi Nguyen & Hannah Gill, Interior Immigration Enforcement: The Impacts of

23

Expanding Local Law Enforcement and Authority, 53 Urb. Stud. J. 302, 15 (2015); see also Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 Iowa L. Rev.

24

1449, 1451 (2006) (“to the extent [survivors of domestic violence] believe that [the] police will report them to immigration authorities …, ‘women and children will continue to endure ongoing

25 abuse rather than call for help.’”(internal citations omitted)). 15 Nik Theodore, Dep’t of Urban Planning and Policy, Insecure Communities: Latino

26 Perceptions of Police Involvement in Immigration Enforcement, Univ. of Ill. at Chi. (May 2013),

27

http://www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF. 16 See Enhancing Public Safety in the Interior of the United States, Exec. Order No. 13768,

28

82 Fed. Reg. 8799 (Jan. 25, 2017). Case No. 2:18-cv-00490-JAM-KJN

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1 and legal-services organizations, three out of four respondents reported that their clients had 2 expressed concerns about contacting the police or going to court for matters related to crimes

3 committed against them.17 In response to a more recent survey of prosecutors conducted by

4 American University Washington College of Law’s National Immigrant Women’s Advocacy
5 Project, survey respondents reported a drop in the level of cooperation in cases of immigrant crime 6 victims, particularly for those involving domestic abuse, sexual assault, and child abuse.18 And a 7
May 2018 report by the Migration Policy Institute observed that victim advocates and service 8 9 providers nationwide have witnessed recent “declines in immigrant participation in their services”
10 and a “drop in the number of clients pursuing protection from abusers.”19

11

This chilling effect has also been felt in California. In Los Angeles, reports by Latinos of

12 incidents of spousal abuse dropped by 3.5% in the first six months of 2017 compared to 2016, while
13 reporting among non-Latino survivors remained unchanged.20 San Francisco and San Diego 14
reported even steeper declines in Latino spousal abuse reporting during the same time period, of 15
18% and 13%, respectively.21 Beyond law enforcement, many immigrants are disengaging from 16
17 other critical services in response to stepped-up immigration enforcement. Some families are

18 keeping their children home from school and others have ceased seeking treatment for chronic

19

20

17 Tahirih Justice Center, Nationwide Survey, supra note 2.

21

18 National Immigrant Women’s Advocacy Project, Promoting Access to Justice for

Immigrant and Limited English Proficient Crime Victims in an Age of Increased Immigration

22 Enforcement: Initial Report from a 2017 National Survey 72, Am. Univ., Wash. Coll. Of Law (May

3, 2018), http://library.niwap.org/wp-content/uploads/Immigrant-Access-to-Justice-National23 Report.pdf.

24

19 Randy Capps, et al., Revving Up The Deportation Machinery: Enforcement and Pushback Under Trump 69, Migration Policy Institute (May 2018),

25 https://www.migrationpolicy.org/sites/default/files/publications/ImmigrationEnforcement-

FullReport-FINAL-WEB.pdf.

26

20 James Queally, Fearing Deportation, Many Domestic Violence Victims Are Steering Clear

27

of Police and Courts, L.A. Times (Oct. 9, 2017), http://www.latimes.com/local/lanow/la-me-lnundocumented-crime-reporting-20171009-story.html.

28

21 Id. Case No. 2:18-cv-00490-JAM-KJN

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1 illnesses from local clinics for fear of Immigration and Customs Enforcement (“ICE”) raids.22 In 2 addition, fewer immigrant survivors of gender-based violence are seeking out critical legal services.

3 For example, the legal director of a domestic violence shelter in Orange County observed that after a

4 February 2017 incident in which ICE agents entered a courthouse in Texas to arrest an immigrant

5 woman who was seeking a restraining order, “[w]e went from half our clients being undocumented,

6 to zero undocumented clients.”23
7 II. California’s Community Trust Laws Enhance Public Safety
8

9

By encouraging immigrant survivors to seek help from state and local agencies, California’s

10 Community Trust laws also increase public safety for the whole community. As state officials and

11 immigrant advocates have observed, when immigrants are afraid to contact the police, they “become

12 targets for other crimes.”24 Former New York City Mayor Rudy Giuliani has emphasized that the
13 public safety at issue is wider than the immigrant community: “If you are an illegal immigrant … 14 and a crime is committed against you, I want you to report that, because lo and behold, the next time 15
a crime is committed, it could be against a citizen or a legal immigrant.”25 Thus, laws that chill 16 17 immigrants’ reporting of abuse and other crimes may lead to increased overall criminal activity.
18 That is one reason why major policing groups, including the Major Cities Chiefs Association

19 (“MCCA”), Major County Sheriffs Association, and International Association of Chiefs of Police

20 have opposed efforts to defund so-called “sanctuary” jurisdictions.26 One recent report concluded 21

22

22 Virginia Fay, Back Into the Shadows: Immigrants Retreat from Needed Services as

23

Deportation Fears Loom, Peninsula Press (June 12, 2017), http://peninsulapress.com/2017/06/12/back-into-the-shadows/.

24

23 Queally, supra note 20. 24 Id.

25

25 Elizabeth M. McCormick, Rethinking Indirect Victim Eligibility for U Non-Immigrant

Visas to Better Protect Immigrant Families and Communities, 22 STAN. L. & POL’Y REV. 587,

26 599-600 (2011).

27

26 Letter from the Major County Sheriffs’ Association and Major Cities Chiefs Association Opposing S. 2146 (Oct. 19, 2015), http://www.aila.org/infonet/letter-county-sheriffs-opposing-s-

28

2146; Liz Robbins, Police Fear Trump Immigration Orders May Handcuff Efforts to Fight Gangs,

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1 that, on average, 35.5 fewer crimes are committed per 10,000 people in so-called “sanctuary” 2 counties than non-“sanctuary” counties.27

3

At the same time, when immigrants are afraid to contact the police, the police are deprived of

4 valuable information about criminal activity.28 After passage of a Texas law last year banning so-
5 called “sanctuary” jurisdictions, members of the Houston Police Department described how the law 6
affected the immigrant communities they work with and made it more difficult to investigate 7
criminal activity in the community. For example, an eyewitness to a burglary said that she would 8 9 not talk to police about what she saw because she feared being deported. Another woman in
10 Houston reported that she knew her neighbors were selling drugs, but she was too afraid to give the

11 police information about it because she feared talking to them while undocumented. As one member

12 of the Houston Police Department said, “People are afraid to talk to the police, and how does that
13 help us as police do our job?”29 14
As the United States Court of Appeals for the Seventh Circuit recently explained, the 15 16 consequences of this chilling effect are “magnified” in cases involving domestic violence. City of 17 Chicago v. Sessions, 888 F.3d 272, 280 (7th Cir. 2018). Unless and until they are stopped,

18 perpetrators of domestic violence often continue to act abusively and, in many instances, escalate

19 their levels of violence.30 Studies show that rates of recidivism for domestic-violence offenders may

20

21 N.Y. Times (Feb. 22, 2017), https://www.nytimes.com/2017/02/22/nyregion/police-fear-trumpimmigration-orders-may-handcuff-effort-to-fight-gangs.html (quoting a statement by the

22 International Association of Chiefs of Police).

23

27 Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, Center for American Progress (Jan. 26, 2017),

24

https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-ofsanctuary-policies-on-crime-and-the-economy/.

25

28 John Burnett, New Immigration Crackdowns Creating “Chilling Effect” On Crime

Reporting, NPR (May 25, 2017), https://www.npr.org/2017/05/25/529513771/new-immigration-

26 crackdowns-creating-chilling-effect-on-crime-reporting.

27

29 Id. 30 See Michael Samsel, Warning Signs: Escalation, Abuse and Relationships,

28

https://www.abuseandrelationships.org/Content/Basics/escalation.html (last visited May 15, 2018).

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1 be higher than for other crimes and that perpetrators of sexual violence often go on to commit other 2 violent acts with tragic results that could have been avoided.31 It is no surprise to many researchers

3 that “what perpetrators of terrorist attacks turn out to often have in common more than any particular

4 religion or ideology, are histories of domestic violence.”32 One recent study found that
5 approximately 20% of all of mass murders committed in the U.S. between 2006 and 2016 involved a 6 perpetrator with a history of domestic violence.33 7
When local laws ensure that immigrant survivors of gender-based violence feel safe reporting 8 9 abuse, survivors may therefore assist local officials in investigating and prosecuting not only gender-
10 based violence, but also other serious criminal activity.34 For example:

11

 One Tahirih client was severely abused by a United States Citizen who was also

12

engaged in sex trafficking of young girls. She reported him to the police and went on

13

to serve as a key witness and even wore a wire to help federal prosecutors secure a

14 conviction. The client’s abuser is currently serving a prison sentence.
15

16

 Another Tahirih client called the police to report abuse at the hands of her husband,

17

also a United States Citizen. Her call led to the successful prosecution of that abuser

18

31 See Washington State Institute for Public Policy, Recidivism Trends of Domestic Violence 19 Offenders in Washington State (Aug. 2013), http://www.wsipp.wa.gov/ReportFile/1541/

20

Wsipp_Recidivism-Trends-of-Domestic-Violence-Offenders-in-Washington-State_Full-Report.pdf. 32 See, e.g., Jane Mayer, The Link Between Domestic Violence and Mass Shootings, The New

21 Yorker (June 16, 2017), https://www.newyorker.com/news/news-desk/the-link-between-domesticviolence-and-mass-shootings-james-hodgkinson-steve-scalise; T. J. Raphael & Dana Roberson, How

22 Gun Laws Let Domestic Violence Offenders Slip Through the Cracks, PRI (Nov. 16, 2017),

https://www.pri.org/stories/2017-11-16/how-gun-laws-let-domestic-violence-offenders-slip-through23 cracks.

24

33 Emma E. Fridel, A Multivariate Comparison of Family, Felony, and Public Mass Murders in the United States, SAGE Journals, Journal of Interpersonal Violence (Nov. 8, 2017),

25 https://doi.org/10.1177%2F0886260517739286.

34 See Michael E. Miller, ‘People Here Live in Fear’: MS-13 Menaces a Community Seven

26 Miles from the White House, Wash. Post (Dec. 20, 2017),

27

https://www.washingtonpost.com/local/people-here-live-in-fear-ms-13-menaces-a-communityseven-miles-from-the-white-house/2017/12/20/6cebf318-d956-11e7-b859-

28

fb0995360725 story.html?noredirect=on&utm term=.bc8c964d93e5.

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1

on a wide array of criminal charges in addition to domestic abuse, including grand

2

larceny, DWI, burglary, and assault on a police officer.

3

In short, ample evidence supports the California legislature’s determination that public safety

4 is strengthened—a key element of the State’s broad police powers—by laws that foster trust between
5 police and the communities they serve by limiting state and local entanglement in immigration 6
enforcement. See United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better 7
example of the police power … than the suppression of violent crime and vindication of its 8 9 victims.”). As the DOJ itself recently argued when it supported state legislative action in the
10 immigration field, “[a] state may exercise its sovereign police powers to implement a state-wide

11 policy concerning cooperation with federal [immigration] authorities … as [the state] has done

12 here.”35

13

The public interest weighs heavily against enjoining these laws, as an injunction would chill

14 the willingness of survivors to report crime, and, in turn, have a detrimental impact on public safety.
15

16 As the Seventh Circuit recently explained:

17

[T]he impact on localities forced to comply with [federal measures prohibiting

18

“sanctuary” jurisdictions] could be devastating. Those local and state governments

19

have concluded that the safety of their communities is furthered by a relationship of

20

trust with the undocumented persons and lawful immigrants residing therein—and

21

those localities are clearly in the best position to determine the security needs of their

22 own communities. Such trust, once destroyed by the mandated cooperation and
23

24

communication with the federal immigration authorities, would not easily be restored.

25

City of Chicago, 888 F.3d at 291.

26

27

35 Statement of Interest on Behalf of the United States at 25-26, City of El Cenizo v. Texas,

28

No. 5:17-cv-404-OLG (W.D. Tex. June 23, 2017), ECF No. 90.

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1 III.

California’s Community Trust Laws Align With, And Enhance The Effectiveness Of, State And Federal Laws Intended To Protect Survivors

2

Finally, as they relate to immigrant survivors of gender-based violence, the California

3 Community Trust Laws do not “obstruct[]” enforcement of federal immigration laws, as the DOJ
4 5 contends, 36 but rather directly align with congressional directives to provide protection and legal

6 relief for immigrant survivors of gender-based violence, as expressed in the Violence Against

7 Women Act of 1994 (“VAWA”), Pub. L. No. 103-322, tit. IV, §§ 40701-40703, 108 Stat. 1796,

8 1902, 1953-1955 (Sept. 13, 1994), and the Trafficking Victims Protection Act of 2000 (“TVPA”),

9 Pub. L. No. 106-386, §§ 107, 1501-1513, 114 Stat. 1464, 1474-1480, 1518-1537 (Oct.28, 2000).
10 For more than two decades, Congress has recognized that immigrant women are uniquely vulnerable 11
to abuse because their abusers can exploit their immigration status as a means of manipulation and 12 13 control. To ensure that immigrant women feel safe reporting crimes to local police, Congress has
14 enacted multiple laws that provide assistance and protection to immigrant survivors of gender-based

15 violence, sexual assault, and human trafficking. VAWA’s and TVPA’s immigration provisions were

16 designed to encourage survivors to seek out the array of victim protections provided for in both state

17 and federal laws, including emergency services, and protection orders, and to encourage victims to
18 report crimes, and cooperate with local law enforcement in investigations and prosecutions without
19 fear of being turned over to federal immigration authorities. Both statutes, and their subsequent
20
21 reauthorizations, have enjoyed long-standing and widespread bipartisan support in Congress.37

22

A. Violence Against Women Act

23

In passing VAWA, Congress acknowledged that “[m]any immigrant women live trapped and

24

25 36 See Notice of Motion and Motion for Preliminary Injunction at 1, United States v.

26 California, No. 2:18-cv-00490-JAM-KJN (Mar. 6, 2018). ECF No. 2.

27

37 The most recent reauthorization of VAWA, which included TVPA reauthorization, passed the Senate by a vote of 78-22 and the House of Representatives by a vote of 286-138. See 159 Cong.

28

Rec. H705, H800 (daily ed. Feb. 28, 2013); 159 Cong. Rec. S597, S616 (daily ed. Feb. 12, 2013).

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1 isolated in violent homes, afraid to turn to anyone for help. They fear both continued abuse if they 2 stay with their batterers and deportation if they attempt to leave.” H.R. Rep. No. 103-395, at 26. For

3 some, deportation may involve additional trauma such as forced separation from children. One

4 purpose of VAWA, therefore, was to “permit[] battered immigrant women to leave their batterers
5 without fearing deportation.” Id at 38. 6
VAWA fulfilled this purpose in two important ways. First, it prevented abusers who are U.S. 7
citizens or lawful permanent residents from exploiting their spouses’ lack of immigration status. An 8 9 immigrant married to a citizen or lawful permanent resident formerly had to depend on her spouse to
10 petition for lawful permanent residence on her behalf. This provided a highly effective tool for

11 abusers to deter survivors from reporting abuse. VAWA, however, allowed immigrant survivors of

12 domestic violence and sexual assault to “self-petition” for lawful permanent residence on behalf of

13 themselves and their children without the knowledge or involvement of an abusive spouse or family 14
member. See Pub. L. No. 103-322 § 40701, 108 Stat. at 1953-1955. Second, VAWA permitted 15 16 certain survivors who were already in immigration proceedings to seek cancellation of removal,
17 effectively shielding them from deportation. See id. § 40703, 108 Stat. at 1955.

18

B. Trafficking Victims Protection Act

19

In 2000, Congress strengthened VAWA’s protections for immigrant women with the passage

20 of TVPA. Pub. L. No. 106-386, 114 Stat. 1464. This law not only improved access to VAWA’s
21 existing forms of relief, but also established two additional visa classifications for noncitizens: the 22
“U” visa for immigrant victims of violent crime, 8 U.S.C. § 1101(a)(15)(U), and the “T” visa for 23 24 immigrant victims of severe forms of human trafficking, 8 U.S.C. § 1101(a)(15)(T). In addition,
25 TVPA expanded access to services for noncitizen survivors of gender-based violence and sexual

26 assault and enhanced funding opportunities for local law enforcement to respond to their unique

27 needs. Pub. L. No. 106-386 § 1512, 114 Stat. at 1533.

28 Case No. 2:18-cv-00490-JAM-KJN

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1

Like VAWA, these provisions were designed “to remove immigration laws as a barrier that

2 kept battered immigrant women and children locked in abusive relationships.” Pub. L. No. 106-

3 386 § 1502(a)(1), 114 Stat. at 1518. To that end, TVPA fosters and relies on greater collaboration

4 between law enforcement and immigrant victims of crimes. The purpose of these protections, as
5 stated in the statutory text, is to “strengthen the ability of law enforcement agencies to detect, 6
investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other 7
crimes”; to “encourage law enforcement officials to better serve immigrant crime victims and to 8 9 prosecute crimes committed against aliens”; and to “facilitate the reporting of crimes to law
10 enforcement officials by trafficked, exploited, victimized, and abused aliens who are not in lawful

11 immigration status.” Id. § 1513(a)(2)(A)-(B), 114 Stat. at 1533-1534.

12

Congress thus recognized that local law enforcement succeeds in protecting public health and

13 safety when all members of the community are willing to come forward and cooperate with 14
authorities. It also affirmed that these protections were “in keeping with the humanitarian interests 15 16 of the United States.” Pub. L. No. 106-386 § 1513(a)(2)(A), 114 Stat. at 1533-1534. Far from
17 “stand[ing] as an obstacle to the accomplishment and execution of the full purposes and objectives

18 of Congress,” Arizona, 567 U.S. at 399, California’s Community Trust Laws are in harmony with

19 and further Congress’s expressed goals in VAWA and TVPA.

20

CONCLUSION

21

The Court should deny the United States’ motion for a preliminary injunction and grant

22 California’s motion to dismiss.
23

24

25

26

27

28 Case No. 2:18-cv-00490-JAM-KJN

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DATED: May 18, 2018 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 2:18-cv-00490-JAM-KJN

Respectfully submitted,
By: /s/JAMIE S. GORELICK JAMIE S. GORELICK (pro hac vice) jamie.gorelick@wilmerhale.com CATHERINE M.A. CARROLL catherine.carroll@wilmerhale.com CHRISTOPHER E. BABBITT (SBN: 225813) christopher.babbitt@wilmerhale.com CLAIRE M. BERGERON claire.bergeron@wilmerhale.com SHEILA E. MENZ sheila.menz@wilmerhale.com WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 Telephone: 202 663 6000 Facsimile: 202 663 6363 Attorneys for Amici Curiae

16

Proposed Brief for Tahirih Justice Center,

et al., as Amici Curiae

Case 2:18-cv-00490-JAM-KJN Document 130 Filed 05/21/18 Page 23 of 23

1

APPENDIX

2

LIST OF AMICI CURIAE

3 TAHIRIH JUSTICE CENTER
881 SNEATH LANE
4 SUITE 115
SAN BRUNO, CA 94066
5
ASISTA
6 P.O. BOX 12
SUFFIELD, CT 06078
7
ASIAN PACIFIC INSTITUTE ON GENDER-BASED VIOLENCE
8 500 12TH STREET
SUITE 330
9 OAKLAND, CA 94607

10 CASA DE ESPERANZA
P.O. BOX 40115
11 ST. PAUL, MN 55104

12 IMMIGRATION CENTER FOR WOMEN AND CHILDREN
634 SOUTH SPRING STREET
13 SUITE 727
LOS ANGELES, CA 90014
14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 Case No. 2:18-cv-00490-JAM-KJN

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 Case 2:18-cv-00490-JAM-KJN Document 131 Filed 05/21/18 Page 1 of 21

JONATHAN V. HOLTZMAN (SBN 99795) (jholtzman@publiclawgroup.com)* LINDA M. ROSS (SBN 133874) (lross@publiclawgroup.com)* RENNE PUBLIC LAW GROUP® 350 Sansome Street, Suite 300 San Francisco, CA 94104 Telephone: (415) 848-7200 Facsimile: (415) 848-7230
ZACHARY W. CARTER Corporation Counsel of the City of New York RICHARD DEARING (rdearing@law.nyc.gov) AARON BLOOM (abloom@law.nyc.gov) NOAH KAZIS (nkazis@law.nyc.gov) JOHN MOORE (jomoore@law.nyc.gov) New York City Law Department 100 Church Street New York, NY 10007 Telephone: (212) 356-0840 Facsimile: (212) 356-1148
* Designated counsel for service
Counsel for Proposed Amici Curiae City of New York, 20 local governments, and the United States Conference of Mayors

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, Plaintiff,
v. STATE OF CALIFORNIA, et al.,
Defendants.

)

) Case No. 2:18-cv-00490-JAM-KJN

)

) BRIEF OF AMICI CURIAE

) THE CITY OF NEW YORK, 20 LOCAL

) GOVERNMENTS, AND THE UNITED

) ) )

STATES CONFERENCE OF MAYORS IN OPPOSITION TO PLAINTIFF’S

) PRELIMINARY INJUNCTION MOTION

) AND IN SUPPORT OF DEFENDANTS’

) MOTION TO DISMISS

)

) Hearing Date: June 20, 2018

) Hearing Time: 10:00 a.m.

) )

Location:

Courtroom 6

) ) Judge:

Hon. John A. Mendez

AMICI BRIEF OF LOCAL GOVERNMENTS IN OPPOSITION TO PRELIM. INJ. AND IN SUPPORT OF MOTION TO DISMISS

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1

TABLE OF CONTENTS

2 TABLE OF CONTENTS...............................................................................................................i
3 4 TABLE OF AUTHORITIES ........................................................................................................ii
5 STATEMENT OF INTEREST AND SUMMARY OF ARGUMENT........................................ 1

6 ARGUMENT ................................................................................................................................ 5

7

POLICIES THAT PROTECT SENSITIVE INFORMATION ABOUT IMMIGRANT

8

POPULATIONS ARE ESSENTIAL TO LOCAL GOVERNMENTS’ ABILITY TO

EFFECTIVELY DELIVER SERVICES .................................................................................. 5

9

A.The fear of immigration enforcement can discourage residents from engaging with

10

essential local government services, including police, schools, and medical care. .......... 5

11

B. Local policies to limit information sharing with federal immigration authorities promote

12

trust in local governments, which is necessary to protect public safety and health.......... 9

13 CONCLUSION........................................................................................................................... 13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 i
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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Arizona v. United States,

5

567 U.S. 387 (2012)................................................................................................................ 8

6 City of Chicago v. Sessions, No. 17-2991, 2018 U.S. App. LEXIS 9862 (7th Cir. Apr. 19, 2018) ............................... 6, 10

7 City of Philadelphia v. Sessions,

8

280 F. Supp. 3d 579 (E.D. Pa. 2017) .................................................................................... 11

9 County of Santa Clara v. Trump, 275 F. Supp. 3d 1196 (N.D. Cal. 2017) .................................................................................. 6
10

11

Hispanic Interest Coalition v. Governor of Ala., 691 F.3d 1236 (11th Cir. 2012) .............................................................................................. 8

12 LULAC v. Wilson,

13

908 F.Supp. 755 (C.D. Cal. 1995) .......................................................................................... 8

14 Murphy v. NCAA, Nos. 16-476, 16-477, 2018 U.S. LEXIS 2805 (May 14, 2018) .............................................. 2
15

16

Printz v. United States, 521 U.S. 898 (1997)................................................................................................................ 2

17 Riegel v. Medtronic, Inc.,

18

529 U.S. 598 (2008)................................................................................................................ 3

19 Statutes. Regulations, and Executive Orders

20 8 U.S.C. § 1373(a) ........................................................................................................................ 2

21 13 U.S.C. § 9(a) .......................................................................................................................... 12

22 26 U.S.C. § 6103......................................................................................................................... 12

23 Cal. Gov’t Code § 7284.6(a)(1)(C)............................................................................................... 2
24 Cal. Gov’t Code § 7284.6(a)(1)(D)............................................................................................... 1
25 Chicago Mun. Code § 2-173 ......................................................................................................... 4
26 Cook Cty. Ill., Mun. Code § 46-37(b)........................................................................................... 4
27 Denver Exec. Order 142 (2017).................................................................................................... 4
28 ii

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1 Denver Rev. Mun. Code §§ 28-250 to 28-253.............................................................................. 4

2 Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) ........................................................ 6

3 Madison Res. 17-00125 ................................................................................................................ 4
4 Minneapolis Code of Ordinances Ch. 19 ...................................................................................... 4
5 N.Y.C. Admin. Code § 9-131(h)(1) .............................................................................................. 4 6
N.Y.C. Charter § 8(g) ................................................................................................................... 4 7
N.Y.C. Mayoral Exec. Order 41 (2003)........................................................................................ 4 8
2017 Or. Laws Ch. 724 ................................................................................................................. 4 9
Or. Rev. Stat. § 181A.820............................................................................................................. 4 10
Phila. Exec. Order 5-16................................................................................................................. 4 11 12 Phila. Exec. Order 8-09................................................................................................................. 4
13 Rochester Res. No. 2017-5 ........................................................................................................... 4
14 Tukwila Res. 1900 ........................................................................................................................ 4

15 Other Authorities

16 Americas Society/Council of the Americas & The Fiscal Policy Institute,

Bringing Vitality to Main Street: How Immigrant Small Businesses Help

17

Local Economies Grow, available at: http://www.as-

18

coa.org/sites/default/files/ImmigrantBusinessReport.pdf....................................................... 3

19 Brooke A. Lewis, HPD Chief Announces Decrease in Hispanics Reporting Rape and Violent Crimes Compared to Last Year, Houston Chron. (Apr. 6, 2017),

20

https://bit.ly/2wvUQVV.......................................................................................................... 7

21 Cara Buckley, New York City Police Seek Trust Among Immigrants, N.Y. Times (May 31, 2007)...................................................................................................................... 10
22

23

Cassi Feldman, Despite Trump immigration crackdown, city tells students and families: ‘We stand with you’, Chalkbeat (Jan. 30, 2017),

24

https://bit.ly/2rxttWz............................................................................................................. 10

25 CBS New York, NYPD Memo Emphasizes Commitment to Immigrants (Feb. 22,

2017), https://cbsloc.al/2L0eD2Y ......................................................................................... 10 26

Christopher Smart, Fearful of deportation, unauthorized immigrants in Salt

27

Lake City are not reporting crime, police chief says, The Salt Lake Trib.,

28

Jan. 9, 2018, https://bit.ly/2wDRlx1 ....................................................................................... 7

iii

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1 Dara Lind, Fear Itself: Donald Trump’s Real Immigration Policy, Vox (Sep. 17,

2017), https://bit.ly/2h3IcGo................................................................................................... 6 2

Donald G. McNeil, Jr., Trump, Tell Us About Your Flu Shot, N.Y. Times, Feb.

3

9, 2018, https://nyti.ms/2KRM8EI.......................................................................................... 7

4 Emily Baumgaertner, Spooked by Trump Proposals, Immigrants Abandon

5

Public Nutrition Services, N.Y. Times (Mar. 6, 2018),

https://nyti.ms/2HeoMqg .................................................................................................... 8, 9

6

Emily Bazar, Some Immigrants, Fearful of Political Climate, Shy Away from

7

Medi-Cal, California Healthline, Feb. 16, 2017, https://bit.ly/2KPyQbK .............................. 7

8 Feds: Alabama immigration law caused spike in Hispanic student absences,

9

CNN (May 4, 2012), https://cnn.it/2IbV0U3.......................................................................... 8

10 Int’l Ass’n of Chiefs of Police, Enforcing Immigration Law: The Role of State, Tribal and Local Law Enforcement, at 5, available at http://bit.ly/2ksLZxb ....................... 11

11 Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation.,

12

N.Y. Times (Apr. 30, 2017), https://nyti.ms/2pOOe0Q ......................................................... 7

13 Kari White, et al., Impact of Alabama’s Immigration Law on Access to Health

14

Care Among Latina Immigrants and Children: Implications for National Reform, 104 Am. J. Pub. Health 397 (2014), available at

15

https://bit.ly/2G2U3eS ............................................................................................................ 8

16 Kathleen Roche, et al., Impacts of Immigration Actions and News and the

Psychological Distress of U.S. Latino Parents Raising Adolescents, J.

17

Adolescent Health (forthcoming 2018), available at https://bit.ly/2FAbbrT ......................... 5

18 Kelli Kennedy, Immigration Concerns Drive Legal Immigrants Away from

19

Public Health Care, Christian Sci. Monitor (Jan. 22, 2018), https://bit.ly/2IxTi2z ............................................................................................................... 7

20 Major Cities Chiefs Ass’n, Major Cities Chiefs Association Immigration

21

Position (Oct. 2011), accessed May 4, 2018, https://bit.ly/2IoRh91 .................................... 11

22 Mayor’s Office of Immigrant Affairs, State of Our Immigrant City, March 2018, at 6, available at https://on.nyc.gov/2Iu3Lw6......................................................................... 3
23

Monica Disare, Could fear of Trump’s immigration policies keep New York City

24

students out of school?, Chalkbeat (Mar. 1, 2017), https://bit.ly/2rxW5iu ............................ 9

25 N.Y.C. Dep’t of City Planning, The Newest New Yorkers, 2013, available at

26

http://on.nyc.gov/2drcFH6 ...................................................................................................... 3

27 N.Y.C. Health + Hospitals, Seek Care Without Fear, https://bit.ly/2G4otx1 (last
visited May 7, 2018) ............................................................................................................. 10 28
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1 Nicole Rodriguez, Trump’s Immigration Crackdown Creating a Public Health

Crisis Among Children, Analysts Say, Newsweek, Jan. 4, 2018,

2

https://bit.ly/2E6M93w ........................................................................................................... 7

3 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement

4

in Immigration Enforcement, May 2013, available at https://bit.ly/1Adp6RD.................. 5, 6

5 The President’s Task Force on 21st Century Policing, Final Report (May 2015), at iii, 1, available at https://bit.ly/2KPn5lP ........................................................................... 12

6

Russell B. Toomey, et al., Impact of Arizona’s SB 1070 Immigration Law on

7

Utilization of Health Care and Public Assistance Among Mexican-Origin

Adolescent Mothers and Their Mother Figures, 104 Am. J. Pub. Health S28

8

(2014), available at https://bit.ly/2IbAx1w ............................................................................ 8

9 Tom Dart, Fearing deportation, undocumented immigrants wary of reporting

10

crimes, The Guardian, Mar. 23, 2017, https://bit.ly/2nMHVd7 ............................................. 7

11 Tom K. Wong, Center for American Progress, The Effects of Sanctuary Policies

on Crime and the Economy (Jan. 26, 2017), available at

12

http://ampr.gs/2kxOcHX....................................................................................................... 13

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 v
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1

STATEMENT OF INTEREST AND SUMMARY OF ARGUMENT

2

The undersigned cities and counties outside California—representing nearly 20 million

3 residents from across the country—and the United States Conference of Mayors submit this

4 amici curiae brief to demonstrate and defend the legitimate and powerful interest of state and

5 local governments in maintaining policies that, like the challenged provisions of the California

6 Values Act, limit the information we share with the federal government. While amici support

7 the entirety of California’s request for dismissal of the complaint, this brief focuses particularly

8 on the challenged information-sharing policies because, as local governments, we have decades

9 of experience with similar policies safeguarding sensitive information. Our experience refutes

10 the Department of Justice’s repeated suggestion, in arguing for federal preemption, that such

11 policies are nothing more than an attempt to obstruct federal immigration enforcement. Quite

12 the contrary: amici have found that creating appropriate firewalls between local public service

13 providers and federal immigration enforcement is critical to building the trust with our

14 residents that is required to effectively protect the safety and health of all.

15

Local governments neither set immigration policy, nor determine who enters this

16 country. Our core jobs are to effectively police our neighborhoods—whoever lives in them—to

17 teach our children—whoever their parents might be—and to provide all the other essential

18 public services that keep our cities and counties running. And we know that residents’

19 willingness to report crime and assist the police, complain about unsafe conditions, send their

20 children to school, seek medical treatment, or take advantage of other public services depends

21 on our ability to protect the confidentiality of their personal information.

22

The portions of the California Values Act that the DOJ seeks to enjoin create a shield

23 separating the activities of the state government from federal immigration enforcement. The

24 DOJ challenges, for instance, the statute’s prohibition against sharing an individual’s personal

25 information, including home and work addresses, for immigration enforcement purposes unless

26 that information is publicly available. Cal. Gov’t Code § 7284.6(a)(1)(D); Compl. at ¶ 65. This

27 is quintessentially a provision designed to build trust so that people can share their personal

28 1
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1 information with the government without fear that it will lead to their deportation or the

2 deportation of a family member. And the federal government focuses particular attention on

3 California’s refusal to share the release date of certain detainees, which likewise sends a clear

4 and unmistakable signal to residents that the state government is not a mere instrument of the

5 federal government’s deportation apparatus; such information-sharing will happen only in

6 accordance with California’s own law enforcement needs. See Cal. Gov’t Code

7 § 7284.6(a)(1)(C); DOJ Mem. in Supp. of Prelim. Inj. at 23–29.

8

Federal attempts, such as those here, to conscript local officers into providing sensitive

9 information about local residents unconstitutionally “impress” those officers “into [federal]

10 service” and impermissibly confuse lines of accountability, resulting in local governments

11 “taking the blame” in immigrant communities for federal choices. Printz v. United States, 521

12 U.S. 898, 922, 930 (1997); see also Cal. Mem. in Opp’n to Prelim. Inj. at 14–17. This is

13 particularly so where the federal statute invoked by DOJ—8 U.S.C. § 1373(a)—cannot be seen

14 as “anything other than a direct command” to state and local governments, invalid under the

15 Tenth Amendment. Murphy v. NCAA, Nos. 16-476, 16-477, 2018 U.S. LEXIS 2805, at *39

16 (May 14, 2018) (also finding the distinction “empty” between a law requiring an affirmative

17 obligation and a law imposing a prohibition on state governments).

18

The outcome would not change even if federal preemption, rather than anti-

19 commandeering doctrine, supplied the proper framework for analysis. Contrary to the federal

20 government’s claims, policies that clearly separate local public services from the federal

21 immigration enforcement system—like the challenged provisions of the California Values

22 Act—are neither “intended to uniquely impede the enforcement of the immigration laws” nor

23 “specifically designed to obstruct federal immigration enforcement.” DOJ Mem. in Supp. of

24 Prelim. Inj. at 31, 32. They are instead essential to fulfilling local governments’ fundamental

25 role in serving their residents, as experience confirms that absent the trust engendered by

26 policies protecting personal information, people simply will not seek assistance or cooperate

27 with local governments in the provision of essential services. The basic purpose—and

28 2
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1 demonstrated effect—of such policies is thus to improve public health, safety and welfare, all

2 police powers in “fields of traditional state regulation” that are not lightly to be preempted.

3 Riegel v. Medtronic, Inc., 529 U.S. 598, 618 (2008).

4

Ensuring that all of our residents, including immigrants, can and do access government

5 services is not a minor concern, but rather indispensable to the vitality, prosperity, and safety of

6 our communities, because immigrants play central roles in cities large and small. For example,

7 nearly six out of every ten New York City residents are immigrants or the children of

8 immigrants, and immigrants contributed $195 billion to the City’s gross domestic product in 9 2017.1 In Chicago, immigrants pay $1.6 billion in state and local taxes (and more in federal

10 taxes); additionally, while immigrants make up 20.7 percent of Chicago’s population, they 11 account for 36.4 percent of its entrepreneurs, a remarkable measure of economic dynamism.2 In

12 Tukwila, Washington, 41 percent of the city’s residents were born outside the country and half

13 speak a language other than English at home. Meanwhile, in Philadelphia, immigrants make up

14 13 percent of the City’s population but were responsible for 96 percent of the “Main Street”

15 neighborhood business growth between 2000 and 2013 and 75 percent of the city’s workforce 16 growth since 2000.3

17

Our concern is not—and cannot be—limited to those who have legal status in this

18 country. In New York City alone, roughly 560,000 residents are undocumented and

19 approximately one million residents live in a household where at least one member is 20 undocumented.4 And in broader ways, the well-being of all our residents is connected. No one

21 benefits when large portions of the population are reluctant to obtain vaccinations against

22

23

1 N.Y.C. Dep’t of City Planning, The Newest New Yorkers, 2013, available at

24 http://on.nyc.gov/2drcFH6; Mayor’s Office of Immigrant Affairs, State of Our Immigrant City, March 2018, at 6, available at https://on.nyc.gov/2Iu3Lw6.

25

2 Memorandum from City of Chicago to City of New York (May 16, 2018).

26

3 Americas Society/Council of the Americas & The Fiscal Policy Institute, Bringing Vitality

to Main Street: How Immigrant Small Businesses Help Local Economies Grow, available at:

27 http://www.as-coa.org/sites/default/files/ImmigrantBusinessReport.pdf.

28

4 Mayor’s Office of Immigrant Affairs, supra note 1 at 6.

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1 preventable disease or are afraid to speak to the police because they worry that sharing their

2 personal information might lead to deportation for themselves or their family members.

3

Thus, local governments have adopted policies—some going back decades—motivated

4 by the same concerns and experiences that underlie the California Values Act’s information5 sharing provisions.5 These policies are diverse in approach and scope, as befitting the diverse

6 needs of our jurisdictions, but all are based on the need to maintain trust with communities.

7 Many of these policies, such as New York City’s, protect not only the confidentiality of

8 residents’ immigration status, but also other sensitive information such as sexual orientation, 9 status as a victim of domestic violence or sexual assault, or receipt of public assistance.6 Others

10 are specifically focused on information sharing by law enforcement. The valid and legitimate

11 concerns animating these policies are as simple as they are powerful. Our experience as local

12 governments makes plain that we must build trust with residents if we are to govern effectively.

13 Contrary to the DOJ’s unsupported claims that states and local governments lack any

14 “legitimate interest” in these policies, DOJ Mem. in Supp. of Prelim. Inj. at 32, the policies

15 serve an important and lawful purpose. Indeed, they are critical to effective local governance.

16

17

18

19

20

21

22

23

24

5 See, e.g., N.Y.C. Mayoral Exec. Order 41 (2003); N.Y.C. Admin. Code § 9-131(h)(1);

25

Chicago Mun. Code § 2-173; Cook Cty. Bd. of Comm’rs Res. 07- R-240; Cook Cty. Ill., Mun. Code § 46-37(b); Denver Rev. Mun. Code §§ 28-250 to 28-253; Denver Exec. Order 142

26 (2017); Madison Res. 17-00125; Minneapolis Code of Ordinances Ch. 19; Or. Rev. Stat. § 181A.820; 2017 Or. Laws Ch. 724 (HB 3464); Phila. Exec. Order 8-09; Phila. Exec. Order 5-

27 16; Rochester Res. No. 2017-5; Tukwila Res. 1900.

28

6 See e.g. N.Y.C. Charter § 8(g); N.Y.C. Mayoral Exec. Order 41 (2003).

4

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1

ARGUMENT

2

POLICIES THAT PROTECT SENSITIVE

INFORMATION ABOUT IMMIGRANT

3

POPULATIONS ARE ESSENTIAL TO LOCAL

4

GOVERNMENTS’

ABILITY

TO

EFFECTIVELY DELIVER SERVICES

5

6

A. The fear of immigration enforcement can discourage residents from engaging with essential local government services, including police, schools, and medical

7

care.

8

In immigrant communities, fear of government officials can pose a considerable

9 obstacle to basic government functions. According to one recent study, 40 percent of Latino

10 parents surveyed told their children to avoid medical care, police, and other public services, and 11 almost half told their children to stay away from authorities generally.7 These fears are not

12 limited to those without legal status, because undocumented immigrants are the parents,

13 siblings, and friends of citizens and legal residents. Even parents who were citizens or had

14 permanent resident status were found to have issued similar warnings to their children, at only 15 slightly lower rates.8 Notably, these instructions stemmed directly from immigration-related 16 fears.9 Local governments cannot effectively prevent crime, or halt the spread of communicable

17 diseases, when parents instruct their children to avoid police and doctors.

18

Immigration concerns can cripple a city’s ability to investigate or prosecute crime.

19 Because they fear that police will ask about their immigration status or the status of people they

20 know, 45 percent of Latinos say in surveys that they are less likely to report a crime or offer 21 information about crimes, whether as a witness or a victim.10 This behavior extends throughout

22 entire communities, far beyond undocumented immigrants or even immigrants with legal

23

24

7 Kathleen Roche, et al., Impacts of Immigration Actions and News and the Psychological

Distress of U.S. Latino Parents Raising Adolescents, J. Adolescent Health (forthcoming 2018),

25 available at https://bit.ly/2FAbbrT.

26

8 Id.

9 Id.

27

10 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in

28 Immigration Enforcement, May 2013, available at https://bit.ly/1Adp6RD.

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1 status: 28 percent of Latinos born in the United States—U.S. citizens—say they are less likely

2 to contact police, as the direct victims of a crime, because they fear immigration consequences 3 for those close to them.11 The result is plain. “[T]he failure to obtain that victim and witness

4 cooperation could both hinder law enforcement efforts and allow criminals to freely target

5 communities with a large undocumented population, knowing that their crimes will be less

6 likely to be reported.” City of Chicago v. Sessions, No. 17-2991, 2018 U.S. App. LEXIS 9862,

7 at *15 (7th Cir. Apr. 19, 2018).

8

Recent federal actions and rhetoric have worsened this problem. In January 2017, for

9 example, President Trump issued a sweeping executive order instructing law enforcement

10 agencies to target more immigrants for deportation, encourage state and local government

11 participation in federal immigration enforcement, and unilaterally withdraw all federal funding

12 from whatever jurisdictions the Attorney General deemed “sanctuary jurisdictions.” Exec.

13 Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017). This unprecedented attempt to coerce

14 local governments into serving as federal immigration agents has already been found

15 unconstitutional. County of Santa Clara v. Trump, 275 F. Supp. 3d 1196 (N.D. Cal. 2017).

16 Even so, it sent an unmistakable message to immigrants, raising the specter that any interaction

17 with local authorities could risk immigration consequences. Indeed, in remarks before

18 Congress, acting Immigration and Customs Enforcement Director Tom Homan told

19 undocumented immigrants, “[Y]ou should be uncomfortable … You should look over your 20 shoulder.”12

21

This message was heard loud and clear, sending many residents into the shadows, to the

22 detriment of their own safety and the public’s. In Houston, for example, the number of Latinos

23 reporting rapes dropped by 40 percent compared to the year before, even as non-Latino victims

24

25

26 11 Id.

27

12 Dara Lind, Fear Itself: Donald Trump’s Real Immigration Policy, Vox (Sep. 17, 2017),

28 https://bit.ly/2h3IcGo.

6

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1 reported an increased number of rapes.13 Latinos in Salt Lake City reported 36 percent fewer

2 larcenies and thefts, even as crime reporting among other demographics stayed roughly the 3 same.14 Fears of deportation caused victims to drop their domestic violence cases in cities like 4 Austin, San Antonio, and Denver.15

5

Public health, too, has suffered. Doctors have reported parents cancelling their

6 children’s pediatric appointments and vaccinations over immigration fears,16 or cancelling

7 health insurance coverage altogether.17 Many immigrant patients have applied for public

8 medical coverage but withheld sensitive identifying information from their forms—precisely

9 the kind of information many cities and the California Values Act try to keep confidential—and 10 then are predictably denied for having submitted incomplete applications.18 Nationwide, in one

11 of the worst flu seasons in memory, eight percent fewer Hispanic adults received flu shots this 12 year than in 2016, compared to a two percent decline among all Americans.19 As one legal

13 resident explained to the Associated Press, “We’re afraid of maybe getting sick or getting into 14 an accident, but the fear of my husband being deported is bigger.”20

15

16

17

13 Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation., N.Y.

18 Times (Apr. 30, 2017), https://nyti.ms/2pOOe0Q; Brooke A. Lewis, HPD Chief Announces

Decrease in Hispanics Reporting Rape and Violent Crimes Compared to Last Year, Houston 19 Chron. (Apr. 6, 2017), https://bit.ly/2wvUQVV.

20

14 Christopher Smart, Fearful of deportation, unauthorized immigrants in Salt Lake City are

not reporting crime, police chief says, The Salt Lake Trib., Jan. 9, 2018, https://bit.ly/2wDRlx1.

21

15 Tom Dart, Fearing deportation, undocumented immigrants wary of reporting crimes, The

22 Guardian, Mar. 23, 2017, https://bit.ly/2nMHVd7. 16 Nicole Rodriguez, Trump’s Immigration Crackdown Creating a Public Health Crisis
23 Among Children, Analysts Say, Newsweek, Jan. 4, 2018, https://bit.ly/2E6M93w.

24

17 Emily Bazar, Some Immigrants, Fearful of Political Climate, Shy Away from Medi-Cal,

California Healthline, Feb. 16, 2017, https://bit.ly/2KPyQbK.

25

18 Kelli Kennedy, Immigration Concerns Drive Legal Immigrants Away from Public Health

26 Care, Christian Sci. Monitor (Jan. 22, 2018), https://bit.ly/2IxTi2z. 19 Donald G. McNeil, Jr., Trump, Tell Us About Your Flu Shot, N.Y. Times, Feb. 9, 2018,

27 https://nyti.ms/2KRM8EI.

28

20 Kennedy, supra note 18.

7

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1

These trends are consistent with what local governments have long known: when states

2 and local governments engage in immigration enforcement, immigrant communities disengage

3 from public services. After Arizona enacted SB 1070—which among other things allowed and 4 sometimes required state and local police officers to enforce federal immigration law21—

5 Mexican-origin citizens and non-citizens alike avoided basic preventive health care, including 6 for their children.22 Notably, even the message that states will engage in immigration

7 enforcement is enough to trigger this effect. California’s Proposition 187, for example, would

8 have required all government officials to report any person using public services who was 9 suspected of being an undocumented immigrant to federal immigration enforcement.23 Even

10 though Prop. 187 was immediately enjoined by a federal court, it nonetheless resulted in

11 reduced medical care in immigrant communities—including for highly communicable diseases 12 like tuberculosis.24 Likewise, Alabama’s HB 56 required, among other things, that public 13 schools check the immigration status of all students.25 Again, although this provision was

14 blocked from taking effect, the U.S. Department of Justice observed that 13.4 percent of

15 Hispanic children dropped out of school as a result, while other groups of students were 16 unaffected.26 And in the public health arena, when Indiana began asking women and children

17 receiving nutritional assistance about their immigration status, enrollment immediately 18 plunged.27

19

20

21 Arizona v. United States, 567 U.S. 387, 394 (2012).

22 Russell B. Toomey, et al., Impact of Arizona’s SB 1070 Immigration Law on Utilization 21 of Health Care and Public Assistance Among Mexican-Origin Adolescent Mothers and Their

22 Mother Figures, 104 Am. J. Pub. Health S28 (2014), available at https://bit.ly/2IbAx1w.

23 See LULAC v. Wilson, 908 F.Supp. 755 (C.D. Cal. 1995).

23

24 Kari White, et al., Impact of Alabama’s Immigration Law on Access to Health Care

24 Among Latina Immigrants and Children: Implications for National Reform, 104 Am. J. Pub. Health 397 (2014), available at https://bit.ly/2G2U3eS.

25

25 See Hispanic Interest Coalition v. Governor of Ala., 691 F.3d 1236 (11th Cir. 2012).

26

26 Feds: Alabama immigration law caused spike in Hispanic student absences, CNN (May

4, 2012), https://cnn.it/2IbV0U3.

27

27 Emily Baumgaertner, Spooked by Trump Proposals, Immigrants Abandon Public

28 Nutrition Services, N.Y. Times (Mar. 6, 2018), https://nyti.ms/2HeoMqg. 8

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1

B. Local policies to limit information sharing with federal immigration authorities

promote trust in local governments, which is necessary to protect public safety

2

and health.

3

As the data discussed above illustrates, the mere threat of local participation in federal

4 immigration enforcement efforts drives a wedge between local governments and their residents.

5 But state and local governments can mitigate the fear that drives people away from engaging in

6 essential government services by sending a clear, unequivocal message that we will protect the

7 information that immigrants and their loved ones provide to the police, the public health

8 system, and schools. For example, unlike many other cities, in early 2017 New York City saw

9 no decline in crime reporting associated with ZIP codes with the highest foreign-born or non10 citizen populations.28 This trend extended to crimes like harassment and rape, where a greater

11 chilling effect would be expected if residents were afraid to contact the police because of 12 immigration concerns.29 Crimes continue to be reported—and therefore, dangerous criminals

13 continue to be arrested and prosecuted. New York City clinics and hospitals reported no 14 decrease in outpatient visits across population groups, including by immigrant communities.30

15 Residents continue to get the medical care they need, and communicable diseases are not

16 allowed to spread through the population unchecked. And despite the intense distress of public 17 school students with immigrant family members,31 there was no decrease in New York City 18 school attendance.32 Notably, New York City data showed immense anxiety in immigrant

19 communities during this time period—such as huge spikes in requests for birth certificates and

20 other vital records by families planning for the safety of their children should they be

21 deported—but that anxiety did not cause immigrants to disengage from local service providers.

22

23

28 Memorandum from Sabrina Fong, N.Y.C. Mayor’s Office of Immigrant Affairs to file 24 (May 8, 2018).

25

29 Id.

26

30 Id.

31 Monica Disare, Could fear of Trump’s immigration policies keep New York City students

27 out of school?, Chalkbeat (Mar. 1, 2017), https://bit.ly/2rxW5iu.

28

32 Memorandum from Sabrina Fong, supra note 28.

9

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1

New York City officials attribute these successes to the City’s policies protecting

2 confidential information, including by limiting the information it shares with federal

3 immigration authorities, and the City’s visibly demonstrated independence from immigration

4 enforcement efforts, for instance, its refusal to share the release dates of certain detainees with

5 immigration authorities. Local agencies have systematically communicated these policies to

6 residents as part of sustained efforts to maintain trust with immigrant communities and other 7 vulnerable populations.33 Without such policies, New York City could not credibly assure its

8 immigrant communities that they can confidently and safely interact with government. It has

9 taken decades to build the trust needed to prevent the disruptions to public safety and public

10 health on display elsewhere. The DOJ would have local governments betray that trust

11 overnight. As the Seventh Circuit recently recognized, “[s]uch trust, once destroyed by the

12 mandated cooperation and communication with the federal immigration authorities, would not

13 easily be restored.” City of Chicago, 2018 U.S. App. LEXIS 9862, at *45.

14

Cities and counties across the nation, likewise, have experienced the importance of

15 these kinds of policies. In Cook County, for example, both the county’s prosecutors and its

16 public defenders have provided sworn declarations that forcing the county to provide federal

17 immigration officials with information like notifications of inmate release dates would reduce 18 cooperation with the legal system and increase violent crime.34 According to Philadelphia

19 Police Commissioner Richard Ross, crime has decreased by 17 percent—including a 20 percent

20 drop in violent crime—since 2009 when the city’s mayor issued an executive order requiring

21

22

33 See, e.g., Cassi Feldman, Despite Trump immigration crackdown, city tells students and

23 families: ‘We stand with you’, Chalkbeat (Jan. 30, 2017), https://bit.ly/2rxttWz; N.Y.C. Health

+ Hospitals, Seek Care Without Fear, https://bit.ly/2G4otx1 (last visited May 7, 2018); CBS 24 New York, NYPD Memo Emphasizes Commitment to Immigrants (Feb. 22, 2017),

25

https://cbsloc.al/2L0eD2Y. See also Cara Buckley, New York City Police Seek Trust Among Immigrants, N.Y. Times (May 31, 2007) (showing length of efforts to build trust between

26 police and immigrant communities).

34 Brief of Amicus Curiae Cook County and other Amici in Support of Pl. Motion for 27 Prelim. Injunction, City of Chicago v. Sessions, 264 F. Supp. 3d 933, No. 1:17-cv-5720 (N.D.

28 Ill. 2017).

10

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1 city officers and employees to maintain the confidentiality of residents’ immigration 2 information.35 Philadelphia is currently experiencing its lowest crime rate in four decades for

3 serious crimes such as murder, rape, robbery, and aggravated assault. Moreover, in separate

4 litigation involving the Department of Justice, a federal district court in the Eastern District of

5 Pennsylvania issued findings of fact, after an evidentiary hearing, that without Philadelphia’s

6 policies regarding the disclosure of immigration information, “the overall security and safety of

7 many neighborhoods and communities would suffer” and there would be an increased risk of

8 the “spread of an infectious disease.” City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 611

9 (E.D. Pa. 2017).

10

Drawing a bright line separating local governments’ efforts to provide services from

11 federal activities around immigration enforcement is a well-established best practice,

12 particularly among law enforcement organizations. The International Association of Chiefs of

13 Police has recognized the concern that state and local police cooperation with federal

14 immigration enforcement activities “could have a chilling effect in immigrant communities and

15 could limit cooperation with police by members of those communities,” especially in the realm 16 of domestic violence reporting.36 Similarly, the Major Cities Chiefs Association—whose

17 members include the 69 largest law enforcement agencies in the United States—concluded that

18 local police efforts in support of enforcing federal immigration law “undermines the trust and

19 cooperation with immigrant communities which are essential elements of community oriented 20 policing.”37

21

The President’s Task Force on 21st Century Policing adopted a similar position. The

22 Task Force—formed under the previous administration—engaged with a wide variety of

23 stakeholders from across the country to formulate recommendations designed to “strengthen

24

25

35 Memorandum from City of Philadelphia to City of New York (May 16, 2018).

26

36 Int’l Ass’n of Chiefs of Police, Enforcing Immigration Law: The Role of State, Tribal

and Local Law Enforcement, at 5, available at http://bit.ly/2ksLZxb.

27

37 Major Cities Chiefs Ass’n, Major Cities Chiefs Association Immigration Position (Oct.

28 2011), accessed May 4, 2018, https://bit.ly/2IoRh91. 11

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1 community policing and trust among law enforcement officers and the communities they 2 serve.”38 The Task Force recognized that the ability of local law enforcement to build strong

3 relationships with immigrant communities is necessary for public safety and community well-

4 being. Thus, the President’s Task Force counseled, “whenever possible, state and local law 5 enforcement should not be involved in immigration enforcement.”39 The Task Force

6 recommended, as a matter of good law enforcement practice, that agencies should “decouple”

7 local policing from federal immigration enforcement, including by ending the use of 8 notification requests by the Department of Homeland Security.40 When California and other

9 state and local governments decline requests to notify federal immigration authorities of certain

10 detainees’ release dates, they are implementing policies supported by the best law enforcement

11 thinking nationwide.

12

Congress too has recognized that keeping personal information confidential can serve

13 important functions. For instance, the federal government has used confidentiality guarantees to

14 encourage people to participate in the census and pay federal taxes. See 13 U.S.C. § 9(a);

15 26 U.S.C. § 6103. Congress recognized that these goals could be better achieved by removing

16 the threat that the information people share with the government will be used against them in a

17 context wholly divorced from the reason they shared their information in the first place.

18

This, in the end, is what so-called sanctuary policies try to do. They create a zone free

19 of immigration anxiety in which other essential government interests can be realized. In its rush

20 to condemn the California Values Act, the DOJ misses the law’s basic purpose—a purpose that

21 animates similar local government policies across the nation. Charged with the responsibility

22 for protecting, teaching, and serving all of our residents, we have enacted policies to make clear

23 to our residents that they can engage with local governments, secure in the knowledge that we

24 will protect their confidential information and keep our services separate from federal

25

26

38 The President’s Task Force on 21st Century Policing, Final Report (May 2015), at iii, 1, available at https://bit.ly/2KPn5lP.

27

39 Id. at 18.

28

40 Id.

12

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1 immigration enforcement efforts to the utmost of our ability. Based on our experiences as the

2 front-line providers of government services, we have concluded that these policies are essential

3 to our ability to engage in good and effective governance. They create safer and more 4 prosperous communities.41 Contrary to the DOJ’s suggestions, we—and the State of

5 California—have the most compelling interests at stake: public safety, health, and education.

6 The federal government’s pursuit of its immigration enforcement objectives need not and

7 should not cripple the ability of state and local governments to perform their core jobs serving

8 all residents. The federalist structure of our Constitution, far from requiring that result, is meant

9 to guard against it.

10

CONCLUSION

11

The Court should deny plaintiff’s motion for a preliminary injunction and grant

12 defendants’ motion to dismiss.

13

14

Respectfully submitted,

15

/s/ Linda M. Ross

16 JONATHAN V. HOLTZMAN (SBN 99795)

17

(jholtzman@publiclawgroup.com)

LINDA M. ROSS (SBN 133874)

18

(lross@publiclawgroup.com)

19

RENNE PUBLIC LAW GROUP®

350 Sansome Street, Suite 300

20

San Francisco, CA 94104

Telephone: (415) 848-7200

21

Facsimile: (415) 848-7230

22

Counsel for Proposed Amici Curiae

23

City of New York, 20 local governments, and the

United States Conference of Mayors

24

25

26

27

41 Tom K. Wong, Center for American Progress, The Effects of Sanctuary Policies on

28 Crime and the Economy (Jan. 26, 2017), available at http://ampr.gs/2kxOcHX.

13

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1 ZACHARY W. CARTER

Corporation Counsel 2 of the City of New York

3

100 Church Street New York, New York 10007

4 (212) 356-2500 Counsel for City of New York

5

WILLIAM G. KELLY, Jr. 6 Corporation Counsel

7

City of Albany 24 Eagle Street

8 Albany, NY 12207 (518) 434-5050

9 Counsel for City of Albany

BARBARA J. DOSECK City Attorney 101 West Third Street P.O. Box 22 Dayton, Ohio 45402 (937) 333-4100 Counsel for City of Dayton
KRISTIN M. BRONSON Denver City Attorney 1437 Bannock St., Room 353 Denver, CO 80202 (720) 865-8600 Counsel for City and County of Denver

10 EILEEN M. BLACKWOOD
11 City Attorney and Corporate Counsel City of Burlington
12 149 Church Street, Room 11 Burlington, VT 05451
13 (802) 865-7121
Counsel for City of Burlington 14

15 NANCY E. GLOWA City Solicitor
16 City of Cambridge 795 Massachusetts Avenue
17 Cambridge, MA 02139
(617) 349-4121 18 Counsel for City of Cambridge

19 EDWARD N. SISKEL

20 Corporation Counsel

of the City of Chicago 21 30 N. LaSalle Street, Suite 800

22

Chicago, IL 60602 (312) 744-7764

23 Counsel for City of Chicago

GREGORY L. THOMAS City Attorney 401 Broadway, Suite 101 A Gary, Indiana 40402 (219) 881-1400 Counsel for City of Gary, Indiana
AARON O. LAVINE City Attorney 108 E. Green St. Ithaca, NY 14850 (607) 274-6504 Counsel for City of Ithaca
MICHAEL P. MAY City Attorney for the City of Madison 210 Martin Luther King Jr. Blvd Room 401 Madison, Wisconsin 53703 (608) 266-4511 Counsel for City of Madison

24 KIMBERLY M. FOXX

States Attorney for Cook County 25 69 W. Washington, 32nd Floor

26

Chicago, IL 60602 (312) 603-5440

27 Counsel for Cook County, Illinois

SUSAN L. SEGAL Minneapolis City Attorney 350 S. 5th Street, Rm. 210 Minneapolis, MN 55415 (612) 673-3272 Counsel for City of Minneapolis

28 14
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1 JON COOPER

Director of Law 2 One Public Square, Suite 108

3

Nashville, TN 37201 (615) 862-6341

4 Counsel for Metropolitan Government of Nashville and Davidson County

5

KATHLEEN E. GILL 6 Chief of Staff for Policy and Government

7

Affairs/Corporation Counsel City of New Rochelle

8 515 North Avenue New Rochelle, NY 10801

9 (914) 654-2125

Counsel for City of New Rochelle 10

11 MARCEL S. PRATT City Solicitor
12 City of Philadelphia Law Department 1515 Arch Street, 17th Floor
13 Philadelphia, PA 19102
(215) 686-1776 14 Counsel for City of Philadelphia

15 YVONNE S. HILTON

16 Acting City Solicitor City of Pittsburgh, Department of Law
17 313 City-County Building

414 Grant Street 18 Pittsburgh, PA 15219

19 (412) 255-2001 Counsel for City of Pittsburgh

20

TRACY REEVE 21 Portland City Attorney

22

Portland City Attorney’s Office 1221 SW Fourth Avenue, Suite 430

23 Portland, OR 97240 (503) 823-4047

24 Counsel for City of Portland, Oregon

TIMOTHY R. CURTIN Corporation Counsel of the City of Rochester 30 Church St., Room 400A Rochester, NY 14614 (585) 428-6986 Counsel for City of Rochester, New York
PETER S. HOLMES Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Counsel for City of Seattle
FRANCIS X. WRIGHT, Jr. City Solicitor City of Somerville 93 Highland Avenue Somerville, MA 02143 (617) 625-6600, ext. 4400 Counsel for City of Somerville
RACHEL B. TURPIN City Attorney City of Tukwila 6200 Southcenter Blvd. Tukwila, WA 98188 (206) 433-7199 Counsel for City of Tukwila
JOHN DANIEL REAVES General Counsel The United States Conference of Mayors 1200 New Hampshire Ave. NW, 3rd Floor Washington, DC 20036 Counsel for the United States Conference of Mayors

25

26

27

28 15
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1

Harry Sandick (pro hac vice pending) Email: hsandick@pbwt.com

2 Jamison Davies (pro hac vice pending) Email: jmdavies@ pbwt.com
3 Michael D. Schwartz (pro hac vice pending)

4

Email: mschwartz@pbwt.com PATTERSON BELKNAP WEBB & TYLER LLP

5 1133 Avenue of the Americas

6

New York, New York 10036 Telephone: (212) 336-2000

7

Kevin A. Calia (SB# 227406) 8 Email: kevin@calialaw.com

9 LAW OFFICE OF KEVIN A. CALIA

1478 Stone Point Drive, Suite 100 10 Roseville, CA 95661

11 Telephone: (916) 547-4175

12 Attorneys for Amici Curiae

13

14

UNITED STATES DISTRICT COURT

15

EASTERN DISTRICT OF CALIFORNIA

16 THE UNITED STATES OF 17 AMERICA

18

Plaintiff,

19

v.

20 STATE OF CALIFORNIA, et al.,
21 Defendants.
22

23

Case No. 2:18-cv-00490-JAM-KJN
BRIEF OF AMICI CURIAE ADMINISTRATIVE LAW, CONSTITUTIONAL LAW, CRIMINAL LAW AND IMMIGRATION LAW SCHOLARS IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
NO HEARING NOTICED

24

Complaint Filed: March 6, 2018

25

26

27

28

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1

TABLE OF CONTENTS

2 3 TABLE OF AUTHORITIES ............................................................................................. ii

4 PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT .......................... 1

5 ARGUMENT ..................................................................................................................... 2

6 I. 7
8
9 II.
10
11

THE ADMINISTRATION’S EFFORTS TO FORCE THE ENTANGLEMENT OF LOCAL CRIMINAL JUSTICE SYSTEMS WITH IMMIGRATION ENFORCEMENT ARE HISTORICALLY ANOMALOUS AND CONSTITUTIONALLY SUSPECT .................................. 2
THE STATE’S DECISION TO DISENTANGLE ITS LOCAL CRIMINAL JUSTICE SYSTEM FROM FEDERAL IMMIGRATION ENFORCEMENT IS NOT PREEMPTED BY FEDERAL LAW ......................... 8

12

A. Federal Law Should Not be Construed to Facially Preempt State

Law Where Doing So Would Supersede the Historic Police Powers

13

of the States and Raise Serious Constitutional Questions ........................... 8

14

B. Neither 8 U.S.C. § 1373 Nor the INA Should Be Construed To

15

Preempt SB 54 ........................................................................................... 10

16 CONCLUSION ................................................................................................................ 15 17 18 APPENDIX A .................................................................................................................A-1

19

20

21

22

23

24

25

26

27

28

I

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Arizona v. United States, 5 567 U.S. 387 (2012) ..............................................................................................passim

6 Bond v. United States,

7

134 S. Ct. 2077 (2014) ...................................................................................................8

8 City of Chicago v. Sessions,

9

— F.3d —, 2018 U.S. App. LEXIS 9862 (7th Cir. April 19, 2018) ..............................7

10 City of New York v. United States, 179 F.3d 29 (2d Cir. 1999) ...........................................................................................13
11

12

City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017)..............................................................................7

13

Cnty. of Santa Clara v. Trump,

14

250 F. Supp. 3d 497 (N.D. Cal. 2017), reconsideration denied, 267 F.

15

Supp. 3d 1201 (N.D. Cal. 2017), appeal dismissed as moot sub nom.

City & Cty. of San Francisco v. Trump, 17-16886, 2018 U.S. App.

16

LEXIS 239 (9th Cir. Jan. 4, 2018) .................................................................................7

17 Demore v. Kim, 18 538 U.S. 510 (2003) .....................................................................................................13

19 Galarza v. Szalczyk,

20

745 F.3d 634 (3d Cir. 2014) .....................................................................................6, 14

21 Gregory v. Ashcroft,

22

501 U.S. 452 (1991) .......................................................................................................9

23 Kelley v. Johnson, 425 U.S. 238 (1976) .......................................................................................................3
24

25

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .......................................................................................................9

26

Morales v. Chadbourne,

27

996 F. Supp. 2d 19 (D. R.I. 2014), aff’d 793 F.3d 208 (1st Cir. 2015)..........................6

28

II

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1 Moreno v. Napolitano, 213 F. Supp. 3d 999 (N.D. Ill. 2016)..............................................................................6

2

Murphy v. NCAA,

3

No. 16-476, 2018 U.S. LEXIS 2805 (May 14, 2018) ...........................................passim

4 New York v. United States,
5 505 U.S. 144 (1992) ...........................................................................................9, 12, 14

6 NFIB v. Sebelius, 7 567 U.S. 519 (2012) .......................................................................................................9

8 North Dakota v. United States,

9

495 U.S. 423 (1990) .......................................................................................................9

10 Printz v. United States, 521 U.S. 898 (1997) ...........................................................................................9, 12, 14
11

12 Steinle v. City & Cnty. of San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017)..........................................................................11

13

14

United States v. Morrison, 529 U.S. 598 (2000) .................................................................................................9, 12

15

Vargas v. Swan,

16

854 F.2d 1028 (7th Cir. 1988) ........................................................................................6

17 Statutes 18
8 U.S.C. § 1103(a) ...........................................................................................................4, 5 19 20 8 U.S.C. § 1226 ..........................................................................................................passim

21 8 U.S.C. § 1231 ...........................................................................................................passim

22 8 U.S.C. § 1252c ..................................................................................................................4

23 8 U.S.C. § 1324(c) ...............................................................................................................6

24 8 U.S.C. § 1357(g) ...............................................................................................................4
25 8 U.S.C. § 1373 ...........................................................................................................passim
26

27 Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1751, 100 Stat. 3207 (Oct. 27, 1986)................................................................................................................4

28

III

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1 Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, §§ 7342-43, 102 Stat. 4469-70 (Nov. 18, 1988) ................................................................................................4
2 Cal. Gov’t Code § 7284 .....................................................................................2, 10, 11, 13
3
4 Other Authorities

5 U.S. Const. amend. X..................................................................................................passim

6 Jennifer M. Chacón, Unsecured Borders: Immigration Restrictions, Crime

7

Control and National Security, 39 Conn. L. Rev. 1827 (2007) .....................................4

8 César Cuauhtémoc García Hernández, Creating Crimmigration, 2013 BYU

9

L. Rev. 1457 (2013)........................................................................................................4

10 Anil Kalhan, Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 Ohio St. L.J. 1105 (2013)....................3, 12
11

12

Gillian E. Metzger, Federalism and Federal Agency Reform, 111 Colum. L. Rev. 1, 57 (2011) ............................................................................................................9

13

Robert A. Mikos, Can the States Keep Secrets from the Federal

14

Government?, 161 U. Pa. L. Rev. 103 (2012)..............................................................12

15 S. Karthick Ramakrishnan & Pratheepan Gulasekaram, The Importance of 16 the Political in Immigration Federalism, 44 Ariz. St. L.J. 1431 (2012)........................5

17 Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power

18

over Immigration, 86 N.C. L. Rev. 1557 (2008)............................................................3

19 Yolanda Vázquez, Constructing Crimmigration: Latino Subordination in a

20

“Post-Racial” World, 76 Ohio St. L.J. 599 (2015)........................................................4

21 Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. Const. L. 1084 (2004).........................................................................5
22

23

Tom Wong, The Effects of Sanctuary Policies on Crime and the Economy, Nat’l Immigration Law Ctr. (Jan. 26, 2017).................................................................12

24

Memorandum for Assistant U.S. Attorney, S.D. Cal., from Teresa Wynn

25

Roseborough, Dep. Assistant Attorney General, Office of Legal

26

Counsel, Re: Assistance by State and Local Police in Apprehending

Illegal Aliens (Feb. 5, 1996),..........................................................................................5

27

28

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1 Memorandum for the Att’y Gen., from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Non-preemption of the authority of

2 state and local law enforcement officials to arrest aliens for immigration

3

violations 8 (April 3, 2002). ...........................................................................................5

4 Memorandum for Joseph R. Davis, Ass’t Director, FBI, from Douglas W.

Kmiec, Assistant Attorney General, Office of Legal Counsel, Re:

5

Handling of INS Warrants of Deportation in Relation to NCIC Wanted

6

Person File (Apr. 11, 1989) ............................................................................................5

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

V

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1

PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT

2

The United States’ challenge to the State of California’s decision to disentangle its

3 local criminal justice system from federal immigration enforcement presents a question

4 of statutory construction that is easily answered at this stage of the litigation: Federal
5 statutory law does not preempt Senate Bill 54 on its face. Amici, who are listed in
6 Appendix A, are 83 scholars of administrative law, constitutional law, criminal law, and 7
immigration law. They have an interest in the proper resolution of conflicts between 8
federal immigration law and state law based upon application of fundamental principles 9
of statutory construction and constitutional law. Amici submit this brief to address these 10
fundamental principles and to explain their constitutional and historical foundations. 11
California’s decision to disentangle its law enforcement resources from federal 12 13 immigration enforcement does not threaten federal supremacy in matters of immigration 14 policy. To the contrary, the Administration’s efforts to entangle local criminal justice
15 systems with immigration enforcement are historically anomalous and exceed its

16 statutory and constitutional authority. For most of the Nation’s history, state and local

17 law enforcement played little to no role in the enforcement of federal immigration laws.

18 In the modern era, Congress has authorized state and local officials to participate in

19 enforcing immigration law in limited ways. But Congress has never required state and

20 local governments to do so. Instead, where Congress has created a role for state and local

21 jurisdictions to participate, Congress has consistently taken care to offer them a choice.

22 In enacting SB 54, California has simply chosen to exercise that choice in the negative.

23

Nothing in federal statutory law preempts California’s choice. The United States

24 claims that because parts of SB 54 withhold assistance, they stand as an obstacle to

25 federal immigration enforcement under the detention and removal provisions of the
26 Immigration and Nationality Act (INA), 8 U.S.C. §§ 1226 & 1231. See U.S. PI Mot. 2327
27, 29-31 (discussing Cal. Gov’t Code §§ 7284.6(a)(1)(C)-(D), (a)(4)). And the United 28
States claims that parts of SB 54 directly conflict with 8 U.S.C. § 1373(a), even though

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1 SB 54 contains a savings clause that expressly authorizes state and local officials to share

2 information with federal immigration officials to the extent that Section 1373 limits state

3 law. See id. at 27-28 (discussing Cal. Gov’t Code §§ 7284.6(a)(1)(C) & (D)); see also

4 Cal. Gov’t Code § 7284.6(e) (savings clause). SB 54 need not, and indeed should not, be
5 construed to stand as an obstacle to implementation of the INA or to conflict directly with
6 8 U.S.C. § 1373. The detention and removal provisions of the INA impose obligations 7
on federal officials; they were not intended to disturb state and local authority over the 8
allocation of state and local law enforcement resources. And Section 1373 and SB 54 9
would conflict on their face only if they are read without regard to SB 54’s savings 10
clause, the plain meaning of Section 1373’s terms, and the serious constitutional 11
questions that the United States’ construction of Section 1373 would create, including 12 13 those under the Supreme Court’s recent decision in Murphy v. NCAA, No. 16-476, 2018 14 U.S. LEXIS 2805 (U.S. May 14, 2018), which reaffirmed the ban on federal
15 commandeering of states.

16

At this stage, this Court should not construe SB 54 and federal law to conflict.

17 Rather, where, as here, “[t]here is a basic uncertainty about what the law means and how

18 it will be enforced,” the Supreme Court has instructed that a court “should assume that

19 ‘the historic police powers of the States’ are not superseded.” Arizona v. United States,

20 567 U.S. 387, 400, 415 (2012) (internal citation omitted).

21 22 I. 23 24

ARGUMENT
THE ADMINISTRATION’S EFFORTS TO FORCE THE ENTANGLEMENT OF LOCAL CRIMINAL JUSTICE SYSTEMS WITH IMMIGRATION ENFORCEMENT ARE HISTORICALLY ANOMALOUS AND CONSTITUTIONALLY SUSPECT

25

The United States argues that federal immigration law preempts SB 54

26 based on its view of the INA, which, it argues, “codifies the Executive Branch’s

27 constitutional and inherent authority” to arrest and detain undocumented

28 individuals. U.S. PI Mot. 23. To the contrary, Congress has never granted the

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1 Executive Branch such sweeping power to preempt state and local law. More

2 specifically, Congress has never bestowed upon federal authorities an unchecked

3 right to entangle local criminal justice systems with the Executive Branch’s
4 immigration enforcement in the ways that the United States now demands.
5 Congress’s approach through the INA has been to invite specific, limited 6 cooperation from state and local governments, not to require it.1 7
Across most of United States history, at least after the enactment of the first 8
federal immigration statutes in the late nineteenth century, there has been a sharp 9
demarcation of spheres of responsibility for state and local law enforcement 10
agencies, on the one hand, and federal immigration enforcement authorities, on the 11
other. State and local law enforcement bore much of the responsibility for the 12 13 administration of criminal laws. Indeed, “[t]he promotion of safety of persons and 14 property [has been] unquestionably at the core of [the states’] police power”
15 reserved by the Tenth Amendment. Kelley v. Johnson, 425 U.S. 238, 247 (1976).
16 Enforcement of immigration laws was reserved for federal officials. See Juliet P.
17 Stumpf, States of Confusion: The Rise of State and Local Power over Immigration,

18 86 N.C. L. Rev. 1557, 1571–78 (2008) (describing court decisions distinguishing

19 civil immigration enforcement from criminal enforcement and allocating the

20 former exclusively to the federal government while recognizing the states’ primary

21 role in the latter); Arizona, at 409 (noting that immigration enforcement decisions

22 “touch on foreign relations and must be made with one voice”). 23

24

25 1 See Anil Kalhan, Immigration Policing and Federalism Through the Lens of
26 Technology, Surveillance, and Privacy, 74 Ohio St. L.J. 1105, 112021 (2013) (observing that notwithstanding federal efforts to enlist state and local officials in
27 immigration enforcement, “immigration federalism . . . presumes some level of self-
28 conscious, calibrated, and negotiated choice by states and localities concerning the extent to enmesh their law enforcement agencies with immigration policing activities.”).

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1

In the 1980s and 1990s, Congress enacted several anti-drug statutes that

2 contained immigration-related provisions. For example, as part of the Anti-Drug

3 Abuse Act of 1986, Congress enacted the Narcotics Traffickers Deportation Act,

4 which expanded the categories of individuals who would be deported for

5 controlled substance convictions. See Anti-Drug Abuse Act of 1986, Pub. L. No.

6 99-570, § 1751, 100 Stat. 3207 (Oct. 27, 1986). The Anti-Drug Abuse Act of

7 1988 introduced the term “aggravated felony” and made the commission of such

8 crimes grounds for deportation. See Anti-Drug Abuse Act of 1988, Pub. L. No.
9 100-690, §§ 7342-43, 102 Stat. 4469-70 (Nov. 18, 1988). Around this time,
10 Congress also introduced the first statutory mention of an immigration detainer.
11

See Anti-Drug Abuse Act of 1986, supra, § 1751(d) (creating 8 U.S.C. § 12 13 1357(d)).2

14

These changes to federal law, however, were directed at federal authorities.

15 Congress did not attempt to require states and local governments to assist the

16 Executive Branch with carrying out its duties. In 1996, Congress added Section

17 287(g) to the INA, allowing the Attorney General to enter into written agreements

18 with State or localities that chose to allow their officers to carry out the “function

19 of an immigration officer.” 8 U.S.C. § 1357(g). In addition, Congress authorized

20 states and localities to permit their officers to make civil immigration arrests in

21 certain narrow instances, see 8 U.S.C. § 1252c; 8 U.S.C. § 1103(a)(10), and to

22

23

2 Commentators have observed that policymakers are still struggling to

24

disentangle immigration law from anti-crime legislation, an entanglement that reflected a myth of immigrant criminality “reimagin[ing] noncitizens as criminal

25 deviants and security risks.” César Cuauhtémoc García Hernández, Creating

26

Crimmigration, 2013 BYU L. Rev. 1457, 1458 (2013); Jennifer M. Chacón, Unsecured Borders: Immigration Restrictions, Crime Control and National

27 Security, 39 Conn. L. Rev. 1827 (2007); Yolanda Vázquez, Constructing

Crimmigration: Latino Subordination in a “Post-Racial” World, 76 Ohio St. L.J. 28 599, 63742 (2015).

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1 contract with the Attorney General to house federal immigration detainees if they

2 desired, see 8 U.S.C. § 1103(a)(11)(A). Throughout, Congress never required

3 states and localities to assist the federal government.

4

Nevertheless, after 9/11, the federal Executive Branch began to see state

5 and local law enforcement agencies as a potential “force multiplier” for the

6 enforcement of federal immigration law. The push to involve local criminal
7 agencies in immigration enforcement became more insistent and the Executive
8 Branch began to merge criminal justice concerns with immigration concerns in an
9 attempt to enlist state and local officers in the federal immigration fight.3 In 2002,
10 for example, the Office of Legal Counsel reversed its previous view that state and
11 local officers did not have “inherent authority” to enforce civil immigration laws,
12
13 paving the way for more states and localities to lend their officers to the federal 14 effort.4 However, the 2002 opinion was later discredited by the Supreme Court’s

15

16

3 See Michael J. Wishnie, State and Local Police Enforcement of

17 Immigration Laws, 6 U. Pa. J. Const. L. 1084, 1084-88 (2004) (describing the “federal effort to enlist, or even conscript, state and local police in routine
18 immigration enforcement”); see also S. Karthick Ramakrishnan & Pratheepan

19 Gulasekaram, The Importance of the Political in Immigration Federalism, 44 Ariz. St. L.J. 1431, 1475 (2012) (explaining that linking of immigration and crime
20 suggested that “states and cities could and should be part of the solution”).

21

4 Memorandum for the Att’y Gen., from Jay S. Bybee, Assistant Attorney

22 General, Office of Legal Counsel, Non-preemption of the authority of state and local law enforcement officials to arrest aliens for immigration violations 8 (April

23 3, 2002); cf. Memorandum for Joseph R. Davis, Ass’t Director, FBI, from Douglas

24

W. Kmiec, Assistant Attorney General, Office of Legal Counsel, Re: Handling of INS Warrants of Deportation in Relation to NCIC Wanted Person File (Apr. 11,

25 1989), https://www.scribd.com/document/24732201/DOJ-Memo-on-INS-

26

Warrants-of-Deportation-in-Relation-to-NCIC-Wanted-Person-File-4-11-89; Memorandum for Assistantt U.S. Attorney, S.D. Cal., from Teresa Wynn

27 Roseborough, Dep. Assistant Attorney General, Office of Legal Counsel, Re:

28

Assistance by State and Local Police in Apprehending Illegal Aliens (Feb. 5, 1996), https://www.justice.gov/file/20111/download.

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1 decision in Arizona. In that case, the Supreme Court pointed to only three “limited

2 circumstances” in which Congress had allowed State and local officers to make

3 civil immigration arrests. Arizona, 567 U.S. at 40809.5 It held that Arizona’s
4 attempt (premised on the “inherent authority” argument) to authorize state and
5 local participation beyond the “system Congress created” violated the Supremacy 6 Clause. Id. at 40810 (citations omitted). 7
The Executive Branch has also overreached in its attempt to leverage 8
immigration detainers to enlist the participation of local jail officials in federal 9
immigration enforcement. Before April 1997, the detainer form in use by federal 10
immigration officials did not request detention at all. See Vargas v. Swan, 854 11
F.2d 1028, 1035 (7th Cir. 1988) (appendix showing Form I-247 in use from March 12 13 1983 to April 1997). In 1997, the Executive Branch changed the form, suddenly 14 insisting that local jails receiving detainers were required to detain persons
15 otherwise entitled to release. Form I-247 (Apr. 1997), available at
16 http://bit.ly/2y7qVyS. The federal courts, however, have since held that Congress
17 never authorized mandatory detainer compliance. Galarza v. Szalczyk, 745 F.3d
18 634, 64145 (3d Cir. 2014).6, 7

19

20

21

5 The Arizona Court noted a fourth example of Congress authorizing State

and local officers to perform immigration functions, which pertained to

22 enforcement of criminal anti-harboring laws. 8 U.S.C. § 1324(c).

23

6 The federal government’s use of immigration detainers has resulted in

24

widespread Fourth Amendment violations and violations of the INA. See, e.g., Morales v. Chadbourne, 996 F. Supp. 2d 19, 29 (D. R.I. 2014), aff’d 793 F.3d 208

25 (1st Cir. 2015) (“One needs to look no further than the detainer itself . . . The fact

26

that an investigation had been initiated is not enough to establish probable cause because the Fourth Amendment does not permit seizures for mere

27 investigations.”); Moreno v. Napolitano, 213 F. Supp. 3d 999 (N.D. Ill. 2016)

28

(holding federal detainer practices routinely exceeded immigration officers’ arrest authority under the INA).

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1

While the participation of state and local law enforcement officials in

2 federal immigration efforts, including through the exchange of information and

3 transfers from local jails, is no longer anomalous, states like California retain the
4 authority to consider the consequences of entanglement with federal immigration
5 enforcement and determine that it is in the best interests of their residents to opt
6 out of participating in federal deportation efforts. The United States’ bid to force 7
California to participate in the current Administration’s immigration enforcement 8
plans should fare no better than previous instances of executive branch overreach. 9
Congress has respected the distinct spheres of responsibility of the Federal 10
government and the State and local governments. In all of its legislative 11
enactments concerning civil immigration arrests and detention, Congress has 12 13 refrained from coopting State and local governments. This Court should hold 14 federal authorities to the same principle in this case.

15

16

17

18

19

20

7 A third example of executive branch overreach has been the Trump

Administration’s attempts to attach immigration-related funding conditions to law

21 enforcement grants. See, e.g., Cnty. of Santa Clara v. Trump, 250 F. Supp. 3d 497

22 (N.D. Cal. 2017), reconsideration denied, 267 F. Supp. 3d 1201 (N.D. Cal. 2017), appeal dismissed as moot sub nom. City & Cty. of San Francisco v. Trump,

23 17-16886, 2018 U.S. App. LEXIS 2391401847 (9th Cir. Jan. 4, 2018) (striking

24

down executive order threatening defunding on grounds of, inter alia, separation of powers, Spending Clause violation, and violation of the Tenth Amendment);

25 City of Chicago v. Sessions, — F.3d —, 2018 U.S. App. LEXIS 9862 (7th Cir.

26

April 19, 2018) (affirming, on separation of powers grounds, district court’s grant of nationwide injunction as to funding conditions imposed by Attorney General);

27 City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017) (issuing

28

preliminary injunction as to funding conditions imposed by Attorney General on grounds, inter alia, that such conditions were arbitrary and capricious).

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1 II. 2

THE STATE’S DECISION TO DISENTANGLE ITS LOCAL CRIMINAL JUSTICE SYSTEM FROM FEDERAL IMMIGRATION ENFORCEMENT IS NOT PREEMPTED BY FEDERAL LAW

3 In Arizona, the Supreme Court explained that federal courts should not
4 aggressively wield preemption as a scythe to facially preempt state law. See 567 U.S. at
5 6 400, 415. While state law cannot stand as an obstacle to the implementation of federal 7 statutory law, “[i]n pre-emption analysis, courts should assume that ‘the historic police
8 powers of the States’ are not superseded ‘unless that was the clear and manifest purpose
9 of Congress.’” Id. at 400 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
10 (1947)). This presumption against preemption has particular force where the federal

11 government has brought a facial challenge to state law and “[t]here is a basic uncertainty

12 about what the law means and how it will be enforced.” Id. at 415. Construing 8 U.S.C.

13 § 1373 and the INA to preempt SB 54 on its face would supersede the historic police

14 powers of the states and unnecessarily raise serious constitutional questions under the

15 Tenth Amendment. To avoid these constitutional problems, this Court should decline the 16 United States’ invitation to enter a preliminary injunction against SB 54. 17

18

A. Federal Law Should Not be Construed to Facially Preempt State Law

19

Where Doing So Would Supersede the Historic Police Powers of the States and Raise Serious Constitutional Questions

20 In an era where Congress sets the metes and bounds of federal regulation,
21

statutory interpretation has become a safeguard of federalism. When construing federal 22

23 statutes, federal courts presume that “Congress legislates against the backdrop of certain

24 unexpressed presumptions,” including “those grounded in the relationship between the

25 Federal Government and the States.” Bond v. United States, 134 S. Ct. 2077, 2088

26 (2014) (internal quotation marks omitted). Construing federal statutes in light of these

27 presumptions is crucial to preserving federalism “inasmuch as [the Supreme] Court . . .

28 has left primarily to the political process the protection of the States against intrusive

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1 exercises of Congress’ Commerce Clause powers.” Gregory v. Ashcroft, 501 U.S. 452,

2 464 (1991).8

3

Several background presumptions regarding the federal system have long

4 informed statutory construction. The Tenth Amendment provides that “[t]he powers not

5 delegated to the United States by the Constitution, nor prohibited by it to the States, are
6 reserved to the States respectively, or to the people.” U.S. Const. amend. X. This 7
amendment reserves police powers to the states, including over matters of local criminal 8
justice. See, e.g., United States v. Morrison, 529 U.S. 598, 618 (2000). It also reflects a 9
structural principle that prohibits the federal government from commandeering state 10
legislatures and executive officials or coercing them to implement federal law. See NFIB 11
v. Sebelius, 567 U.S. 519, 576 (2012); Printz v. United States, 521 U.S. 898, 933 (1997); 12 13 New York v. United States, 505 U.S. 144, 175-76 (1992). When construing statutes,
14 federal courts seek to preserve the states’ reserved authority. As the Supreme Court has
15 put it, “Congress does not cavalierly pre-empt” state law. Medtronic, Inc. v. Lohr, 518

16 U.S. 470, 485 (1996). Instead, out of respect for “the States [as] independent sovereigns

17 in our federal system,” courts should presume that federal law does not preempt state law

18 “‘unless that was the clear and manifest purpose of Congress.’” Id. (quoting Rice, 331

19

20

21

8 Today, Congress plays the primary role in deciding whether federal law displaces state law. See North Dakota v. United States, 495 U.S. 423, 435 (1990) (“[T]he

22 Court has . . . adopted a functional approach to claims of governmental immunity,

23

accommodating the full range of each sovereign’s legislative authority and respectful of the primary role of Congress in resolving conflicts between National and State

24 Government.”) (emphasis added). For this reason, doctrines of implied

25

intergovernmental immunity necessarily play a lesser role where federal statutory law governs conflicts between the states and the federal government. Gillian E. Metzger,

26 Federalism and Federal Agency Reform, 111 Colum. L. Rev. 1, 57 (2011) (“Much of the

resultant doctrine of federal intergovernmental immunity has been cut back over time, 27 with such concerns now addressed largely under the aegis of preemption.”). Questions of

28 federal-state conflict are answered today primarily by reference to Congress’s intent, not

by judicial elaboration of the implications of the Supremacy Clause. Id.

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1 U.S. at 230); see also Arizona, 567 U.S. at 400. And rather than adopt a construction that

2 would raise serious constitutional concerns, federal courts will seek to avoid a conflict

3 between federal and state law—particularly where, as here, the United States challenges

4 state law as preempted on its face. See Arizona, 567 U.S. at 415; cf. Murphy, 2018 U.S.

5 LEXIS 2805, at *2324 (explaining that canon of constitutional avoidance does not apply

6 where any plausible interpretation would still violate Tenth Amendment commandeering

7 ban).

8

B. Neither 8 U.S.C. § 1373 Nor the INA Should Be Construed To Preempt

9

SB 54

10

The United States seeks to enjoin several provisions of SB 54, specifically those

11 that prohibit state and local officers from (i) providing notification of inmate release dates

12 in some instances, see Cal. Gov’t Code. § 7284.6(a)(1)(C); (ii) releasing individual’s

13 “personal information,” including their home and work address, see id. §

14 7284.6(a)(1)(D); and (iii) “transferring” individuals to federal immigration officials in

15 some instances, id. § 7284(a)(4). According to the United States, Congress preempted

16 these provisions on their face through 8 U.S.C. § 1373 and 8 U.S.C. §§ 1226 & 1231.

17 But Section 1373 plainly does not require states and localities to assist in immigration
18 enforcement and Sections 1226 and 1231 are detention and removal statutes that impose
19 obligations exclusively on federal officials. Neither Section 1373 nor the detention and
20 removal provisions of the INA should be construed to preempt SB 54. Doing so would 21 supersede the historic police powers of the states and raise serious constitutional 22
questions under the Tenth Amendment. 23
The United States places great weight upon 8 U.S.C. § 1373, arguing that it 24
directly conflicts with SB 54. U.S. PI Mot. 27. Section 1373 provides, 25
“[n]otwithstanding any other provision of Federal, State, or local law, a Federal, State, or 26
local government entity or official may not prohibit, or in any way restrict, any 27 28 government entity or official from sending to, or receiving from [federal immigration

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1 authorities] information regarding the citizenship or immigration status, lawful or

2 unlawful, of any individual.” 8 U.S.C. § 1373(a). Adopting a breathtakingly broad
3 interpretation of this statute, one that would effectively prevent states and localities from
4 declining to share any and all information the federal Executive deems relevant to any
5 “immigration status issue[],” the United States argues that Section 1373 preempts SB 54 6 on its face. See U.S. PI Mot. 28-29. This argument fails for two reasons. 7
First, construing 8 U.S.C. § 1373 as the United States now does is simply 8
implausible. Its statutory construction should be rejected on that basis alone. See 9
Arizona, 567 U.S. at 400 (explaining that courts should presume state law is not 10
preempted on its face when it is plausible to construe statutory law to avoid conflict). 11
SB 54’s savings clause expressly authorizes state and local officials to share information 12 13 with federal immigration officials where such authorization is actually required by 8 14 U.S.C. § 1373. See Cal. Gov’t Code § 7284(e). Even without the savings clause, 15 moreover, SB 54 would not stand as an obstacle to implementation of Section 1373.
16 Contrary to the United States’ current construction, Section 1373 plainly reaches no
17 further than to preempt state or local prohibitions on the sharing of “information

18 regarding . . . citizenship or immigration status.” (emphasis added). As a federal

19 district court has held, there is “no plausible reading” of this statute that would

20 “encompass[] the release date of an undocumented inmate,” much less an individual’s

21 home or work address or anything else the federal Executive deems possibly relevant to

22 immigration status. Steinle v. City & Cnty. of San Francisco, 230 F. Supp. 3d 994, 1015
23 (N.D. Cal. 2017). Section 1373 cannot plausibly be read to preempt facially SB 54’s
24 prohibition on the sharing of an individual’s “personal information,” including a home or 25 work address, Cal. Gov’t § 7284(a)(1)(D); nor can it be read to preempt the other 26 challenged provisions of SB 54 on their face. 27
Reading Section 1373 and SB 54 together in this way avoids a statutory 28
construction that would supersede California’s careful exercise of its core police powers.

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1 California’s legislature determined that SB 54 would improve public safety by promoting

2 cooperation between police and local communities. See Cal. Opp. 2. This determination

3 is not only reasonable,9 it is also well within the core of the State’s prerogative over
4 matters of local criminal justice. As the Supreme Court has put it, there is “no better
5 example of the police power, which the Founders denied the National Government and 6 reposed in the States, than the suppression of violent crime and the vindication of its 7
victims.” Morrison, 529 U.S. at 618. 8
Second, construing Section 1373 to preempt SB 54 on its face would raise serious 9
constitutional questions under structural principles reflected in the Tenth Amendment. 10
As the Supreme Court recently reaffirmed in Murphy, the Constitution “withhold[s] from 11
Congress the power to issue orders directly to the States.” 2018 U.S. LEXIS 2805, at 12 13 *24. The United States’ interpretation of Section 1373 would deny states and localities 14 the ability to supervise their officials and could cripple their ability to “regulate in
15 accordance with the views of the local electorate,” in violation of the constitutional ban
16 on commandeering. See New York, 505 U.S. at 169. In particular, this interpretation of
17 Section 1373 would deny states and localities the prerogative to decline “to provide

18 information that belongs to the State and is available to [state and local officials] only in

19 their official capacity.”10 Printz, 521 U.S. at 932 n.17 (striking down federal statute with

20 information-sharing provision); cf. Murphy, 2018 U.S. LEXIS 2805, at *30 (holding that

21

22

23

9 See, e.g., Tom Wong, The Effects of Sanctuary Policies on Crime and the

Economy, Nat’l Immigration Law Ctr. (Jan. 26, 2017) (finding that “[c]rime is . . .

24 significantly lower in sanctuary counties compared to nonsanctuary counties”), available

25 at https://perma.cc/B57Q-XGTE.

26

10 See Robert A. Mikos, Can the States Keep Secrets from the Federal Government?, 161 U. Pa. L. Rev. 103, 159-64 (2012) (arguing that information-sharing

27 statutes such as Section 1373 violate anti-commandeering principle of Printz); see also

28

Kalhan, supra note 1, 74 Ohio St. L.J. at 1159-62 (arguing the positive benefits of “information federalism”).

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1 Congress can no more “prohibit[] a State from enacting new laws” than it can “compel a

2 State to enact legislation,” because the “basic principle—that Congress cannot issue

3 direct orders to state legislatures—applies in either event”).11 See Cal. Gov’t Code §

4 7284(a)(1)(C)-(D); id. § 7284(e). The United States’ demands for additional information

5 sharing could easily lead to the diversion of the resources of several full-time employees
6 in a large police force or corrections agency. Denying states the authority to adopt
7 reasonable and targeted policies to disentangle local criminal justice systems from federal
8 immigration enforcement in this way would diminish political accountability and would
9 shift regulatory burdens to the states. This forced entanglement of local criminal justice
10 and federal immigration enforcement would, in turn, inflict the very harms that the
11 Supreme Court’s anti-commandeering prohibition is designed to prevent. See Murphy,
12 13 2018 U.S. LEXIS 2805, at *2829 (explaining potential harms that anti-commandeering
14 rule addresses).

15

The United States’ fallback argument is even further off the mark. It argues that

16 8 U.S.C. §§ 1226 and 1231 preempt SB 54 on their face on the theory that those

17 provisions impliedly require states and localities to assist in federal immigration

18 enforcement after an individual is released from local criminal custody. U.S. PI Mot. 25-

19 27, 29-31. But Sections 1226 and 1231 plainly do no such thing. Congress enacted

20 Section 1226(c)(1) in 1996, directing the Attorney General to take certain noncitizens

21 into custody, in response to what it perceived to be a “wholesale failure by the INS” to

22 remove deportable noncitizens who had been convicted of criminal offenses by “fail[ing] 23 to detain those [noncitizens] during their deportation proceedings.” Demore v. Kim, 538 24

25

26

11 Because California has sought to protect only information that has not been

shared with the public, the State has not adopted a “policy of no-voluntary-cooperation 27 that does not protect confidential information generally.” City of New York v. United

28 States, 179 F.3d 29, 37 (2d Cir. 1999) (declining to strike down Section 1373 on its face

but explaining that City’s Tenth Amendment concerns were “not insubstantial”).

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1 U.S. 510, 518-21 (2003) (emphasis added). Congress directed that noncitizens taken into

2 federal custody and placed in removal proceedings upon release from criminal custody
3 are to be mandatorily detained, whereas those apprehended after returning to the
4 community for some time or under other circumstances are to be detained at the
5 discretion of immigration authorities. Compare 8 U.S.C. § 1226(c) with id. § 1226(a). 6 Section 1231(a)(1)(B), which the United States also cites, requires federal immigration 7
authorities to act quickly to remove a noncitizen at the conclusion of removal 8
proceedings. If an order of removal becomes final while a noncitizen is still confined in 9
criminal custody, then the removal period does not begin to run until after the noncitizen 10
is released. Id. § 1231(a)(1)(B)(i)-(iii). The upshot is that sections 1226 and 1231 11
impose obligations on federal officials, but were not intended to disturb the prerogative 12 13 of state and local officials to decide whether they would voluntarily cooperate with 14 requests from federal immigration authorities. Indeed, if they were intended to command 15 the participation of states and localities, they would run afoul of the Tenth Amendment.
16 See Murphy, 2018 U.S. LEXIS 2805, at *2829; Galarza, 745 F. 3d at 644–45 (relying
17 on New York and Printz to find that construing “a federal detainer filed with a state or

18 local [law enforcement agency] [as] a command . . . would violate the anti-

19 commandeering doctrine of the Tenth Amendment.”); Id. at 641 (noting that Congress

20 did not “authorize federal officials to command state or local officials to detain suspected

21 aliens subject to removal”).

22

While the United States suggests that Arizona requires the Court to find a conflict

23 between SB 54 and federal law, the Supreme Court’s holding in that case requires just the

24 opposite. Arizona concerned a state’s attempt to entangle its criminal enforcement

25 system with the enforcement of federal immigration law. See 567 U.S. at 406-10. Here,
26 by contrast, California has decided with SB 54 to disentangle its local criminal justice 27
apparatus from federal immigration enforcement. The question is whether federal 28
statutory law preempts that decision on its face. And, as Arizona instructs, a federal court

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1 answering that question must presume that state law is not preempted unless Congress

2 has clearly indicated otherwise. See id. at 400. Because Congress has not clearly

3 required state and local officials to accede to the Trump Administration’s demands,

4 which themselves raise serious constitutional questions under the Tenth Amendment, this

5 Court should conclude that SB 54 is not preempted.

6

CONCLUSION

7

For these reasons, amici urge the Court to deny the United States’ motion for a

8 preliminary injunction because it has not shown a likelihood of success on the merits of

9 its challenge to SB 54.

10

11 Dated: May 18, 2018

By: /s/ Kevin A. Calia

12

Kevin A. Calia

13

LAW OFFICE OF KEVIN A. CALIA 1478 Stone Point Drive, Suite 100

14

Roseville, CA 95661

15

Email: kevin@calialaw.com Telephone: (916) 547-4175

16

Harry Sandick (pro hac vice pending)

17

Jamison Davies (pro hac vice pending)

18

Michael D. Schwartz (pro hac vice pending)

PATTERSON BELKNAP WEBB & TYLER

19

LLP

20

1133 Avenue of the Americas

New York, New York 10036

21

Telephone: (212) 336-2000

22 Attorneys for Amici Curiae
23

24

25

26

27

28

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1

APPENDIX A*

2 Kathryn Abrams

3

Herma Hill Kay Distinguished Professor of Law University of California, Berkeley School of Law

4

5

Amna Akbar Assistant Professor

6 The Ohio State University, Moritz College of Law

7 Carolina Antonini 8 Adjunct Professor
Georgia State University College of Law 9

10 Sabi Ardalan Assistant Clinical Professor
11 Harvard Law School
12 David Baluarte
13 Associate Clinical Professor of Law 14 Washington and Lee University School of Law

15 Jon Bauer 16 Clinical Professor of Law and Richard D. Tulisano '69 Scholar in Human Rights
University of Connecticut School of Law 17
18 Steven W. Bender Professor and Associate Dean for Planning and Strategic Initiatives
19 Seattle University School of Law
20 Henry Allen Blair
21 Robins Kaplan Distinguished Professor 22 Mitchell Hamline School of Law

23 Linda Bosniak 24 Distinguished Professor of Law
Rutgers Law School 25

26

27

28

* Amici curiae appear in their individual capacities; institutional affiliations and titles are

provided here for identification purposes only.

A-1

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1 Jason Cade Associate Professor
2 University of Georgia School of Law

3 Benjamin Casper Sanchez 4 Director 5 James H. Binger Center for New Americans, University of Minnesota Law School

6 Linus Chan

7

Associate Professor of Clinical Law University of Minnesota

8

Violeta R. Chapin 9 Clinical Professor of Law

10 University of Colorado Law School

11 Matthew H. Charity
12 Professor of Law Western New England University
13

14 Erwin Chemerinsky Dean and Jesse H. Choper Distinguished Professor of Law
15 University of California, Berkeley School of Law
16 Gabriel J. Chin
17 Edward L. Barrett Jr. Chair & Martin Luther King Jr. Professor of Law 18 University of California, Davis School of Law

19 Marisa S. Cianciarulo 20 Professor of Law
Chapman University Fowler School of Law 21
22 Stephen Cody Research Fellow
23 Human Rights Center, University of California, Berkeley

24 Dr. Neil H. Cogan
25 Professor of Law 26 Whittier Law School

27 David S. Cohen

28

Professor of Law Drexel University Thomas R. Kline School of Law

A-2

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1 Marjorie Cohn
2 Professor Emerita 3 Thomas Jefferson School of Law

4 Ericka Curran

5

Clinical Professor Florida Coastal School of Law

6

7

Seth Davis Assistant Professor of Law

8 University of California, Irvine School of Law

9 Frank E. Deale
10 Professor of Law CUNY Law School
11

12 Ingrid Eagly Professor of Law
13 UCLA school of law
14 Stella Burch Elias
15 Professor of Law 16 University of Iowa College of Law

17 Richard H. Frankel 18 Associate Professor
Drexel University Thomas R. Kline School of Law 19
20 Craig B. Futterman Clinical Professor of Law
21 University of Chicago Law School

22 Lauren Gilbert
23 Professor of Law
24 St. Thomas University School of Law

25 Denise Gilman

26

Director, Immigration Clinic University of Texas School of Law

27

28

A-3

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1 Joseph Harbaugh Emeritus Dean and Emeritus Professor
2 College of Law, Nova Southeastern University

3 Dina Francesca Haynes 4 Professor of Law 5 New England Law

6 Geoffrey A. Hoffman

7

Director University of Houston Law Ctr. Immigration Clinic

8

Aziz Huq 9 Frank and Bernice Greenberg Professor of Law

10 University of Chicago Law School

11 Alan Hyde 12 Distinguished Professor
Rutgers University 13
14 Ulysses Jaen Director & Asst. Professor
15 Ave Maria School of Law
16 Kevin R. Johnson
17 Dean and Mabie Apallas Professor of Public Interest Law 18 University of California, Davis School of Law

19 Michael Kagan 20 Professor
University of Nevada, Las Vegas 21
22 Anil Kalhan Associate Professor of Law
23 Drexel University Thomas R. Kline School of Law
24 Jennifer Lee Koh
25 Professor of Law 26 Western State College of Law

27 Hiroko Kusuda

28

Clinic Professor Loyola University New Orleans

A-4

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1 Kevin Lapp
2 Professor of Law 3 Loyola Law School, Los Angeles

4 Christopher N. Lasch

5

Associate Professor University of Denver Sturm College of Law

6

7

Karen Pita Loor Clinical Associate Professor of Law

8 Boston University School of Law

9 Peter Markowitz
10 Professor of Law Cardozo School of Law
11

12 Fatma Marouf Professor of Law
13 Texas A&M University School of Law
14 Julie Marzouk
15 Associate Clinical Professor 16 Chapman University—Fowler School of Law

17 Elizabeth McCormick 18 Associate Clinical Professor of Law
University of Tulsa College of Law 19
20 Vanessa Merton Professor
21 Elisabeth Haub School of Law at Pace University

22 Nancy Morawetz
23 Professor of Clinical Law
24 New York University School of Law

25 Hiroshi Motomura

26

Susan Westerberg Prager Professor of Law School of Law, University of California, Los Angeles (UCLA)

27

28

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1 Elora Mukherjee Associate Clinical Professor of Law
2 Columbia Law School

3 Karen Musalo 4 Professor 5 U.C. Hastings, College of the Law

6 Howard S. (Sam) Myers, III

7

Adjunct Professor of Law University of Minnesota School of Law

8

Zhulmira Paredes 9 Attorney at Law

10 John Marshall Law School

11 William Quigley 12 Professor of Law
Loyola University New Orleans 13
14 Jaya Ramji-Nogales I. Herman Stern Research Professor
15 Temple Law School
16 Andrea V. Ramos
17 Clinical Professor of Law 18 Southwestern Law School

19 Sarah Rogerson 20 Clinical Professor of Law
Albany Law School 21
22 Tom Romero II Associate Professor
23 University of Denver Sturm College of Law

24 Victor Romero

25 Associate Dean for Academic Affairs, Maureen B. Cavanaugh Distinguished Faculty

26

Scholar & Professor of Law Penn State Law (University Park)

27

28

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1 Michael Rooke-Ley Professor of Law Emeritus
2 Nova Southeastern University

3 Carrie Rosenbaum 4 Adjunct Professor 5 Golden Gate University School of Law

6 Rachel E. Rosenbloom

7

Professor of Law Northeastern University School of Law

8

Sarah Sherman-Stokes 9 Associate Director

10 Boston University School of Law

11 Juliet P. Stumpf
12 Robert E. Jones Professor of Advocacy and Ethics Lewis & Clark Law School
13

14 Maureen A. Sweeney Law School Associate Professor
15 University of Maryland Carey School of Law
16 JoAnne Sweeny
17 Associate Professor of Law 18 University of Louisville, Brandeis School of Law

19 David B. Thronson 20 Professor of Law and Associate Dean for Experiential Education
Michigan State University College of Law 21
22 Katharine Tinto Assistant Clinical Professor of Law
23 UC Irvine School of Law

24 Philip L. Torrey
25 Managing Attorney, Harvard Immigration and Refugee Clinical Program 26 Harvard Law School

27 Mary Pat Treuthart

28

Professor of Law Gonzaga University School of Law

A-7

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1 Laurence H. Tribe
2 Carl M. Loeb University Professor and Professor of Constitutional Law 3 Harvard Law School

4 Enid Trucios-Haynes

5

Progessor of Law University of Louisville, Brandeis School of Law

6

7

Diane Uchimiya Professor and Director of the Justice and Immigration Clinic

8 University of La Verne College of Law

9 Julia Vazquez 10 Director, Community Lawyering Clinic
Southwestern Law School 11
12 Leti Volpp Robert D. and Leslie Kay Raven Professor of Law
13 UC Berkeley
14 Robin Walker Sterling
15 Associate Professor 16 University of Denver Sturm College of Law

17 Lindsey Webb 18 Assistant Professor
University of Denver Sturm College of Law 19
20 Jonathan Weinberg Associate Dean for Research and Faculty Development and Professor of Law
21 Wayne State University Law School
22 Deborah M. Weissman
23 Reef C. Ivey II Distinguished Professor of Law 24 University of North Carolina School of Law

25 Richard A. Wilson

26

Professor University of Connecticut School of Law

27

28

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1 Mark E. Wojcik Professor of Law
2 The John Marshall Law School-Chicago 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 18, 2018, I electronically filed the foregoing Motion

3 of Administrative Law, Constitutional Law, Criminal Law and Immigration Law 4 5 Scholars for Leave to File an Amici Curiae Brief in Opposition to Plaintiff’s Motion for a

6 Preliminary Injunction using the CM/ECF system, which will send notification of such

7 filing to all parties of record. 8

9

10

/s/ Kevin A. Calia Kevin A. Calia

11

Attorney for Amici Curiae

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
BRIEF OF AMICI CURIAE
Case No. 2:18-cv-00490-JAM-KJN

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1 Eric H. Holder, Jr.

2

David M. Zionts Ivano M. Ventresca

3

COVINGTON & BURLING LLP 850 10th Street N.W.

4 Washington, D.C. 20001

dzionts@cov.com 5 (202) 662-6000

6 Daniel N. Shallman, SBN 180782

7 Mónica Ramírez Almadani, SBN 234893* COVINGTON & BURLING LLP

8 1999 Avenue of the Stars, Suite 3500

Los Angeles, California 90067-4643 9 dshallman@cov.com

10

mralmadani@cov.com (424) 332-4800

11 *Designated Counsel for Service

12

13

Attorneys for Amicus Curiae The California State Senate

14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE EASTERN DISTRICT OF CALIFORNIA

17

SACRAMENTO DIVISION

18 THE UNITED STATES OF AMERICA,
19
Plaintiff, 20

21

v.

22 THE STATE OF CALIFORNIA; EDMUND GERALD BROWN JR.,

23 Governor of California, in his Official

24

Capacity; and XAVIER BECERRA, Attorney General of California, in his

25 Official Capacity,

26

Defendants.

27

Civil Case No.: 2:18-cv-00490-JAM-KJN
BRIEF OF AMICUS CURIAE THE CALIFORNIA STATE SENATE IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
DATE: June 20, 2018 TIME: 10:00 a.m. COURT: 6 JUDGE: Hon. John A. Mendez

28

AMICUS BRIEF ON BEHALF OF THE CALIFORNIA STATE SENATE IN SUPPORT OF DEFENDANTS

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1

TABLE OF CONTENTS

2

3 INTEREST OF AMICUS CURIAE................................................................................................. 1 4 INTRODUCTION .......................................................................................................................... 1

5 ARGUMENT .................................................................................................................................. 2

6 I. 7 8 II.
9

THE CALIFORNIA VALUES ACT IS A CONSTITUTIONAL EXERCISE OF CALIFORNIA’S SOVEREIGN AUTHORITY................................................................. 2
THE CALIFORNIA VALUES ACT WAS DESIGNED TO BE CONSISTENT WITH FEDERAL LAW AND TO ALLOW FOR APPROPRIATE COOPERATION WITH FEDERAL AUTHORITIES ............................................................................................... 5

10 11 12
III. 13 14 15

A. The Act is expressly consistent with—and goes beyond—the requirements of federal law............................................................................................................... 5
B. The California Values Act carefully balanced competing interests........................ 7
DOJ’S PREEMPTION ARGUMENTS LACK MERIT .................................................... 8
A. The California Values Act does not conflict with Section 1373. ........................... 9
B. The California Values Act does not obstruct the enforcement of federal law...... 10

16

IV.

DOJ MAY NOT USE PREEMPTION TO ENGAGE IN UNCONSTITUTIONAL COMMANDEERING....................................................................................................... 13

17 CONCLUSION............................................................................................................................. 15

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4

Alden v. Maine, 527 U.S. 706 (1999)...............................................................................................................................4

5

Altria Grp. v. Good,

6

55 U.S. 70 (2008).................................................................................................................................12

7 Arizona v. United States,

8

567 U.S. 387 (2012)..................................................................................................................... passim

9

Az. State Legislature v. Az. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015) ...........................................................................................................................4

10 Chamber of Commerce of the U.S. v. Whiting,

11

563 U.S. 582 (2011)...............................................................................................................................9

12 Cipollone v. Liggett Grp., Inc.,

13

505 U.S. 504 (1992).............................................................................................................................12

14

City of New York v. United States, 179 F.3d 29 (2d Cir. 1999).....................................................................................................................4

15 De Canas v. Bica,

16

424 U.S. 351 (1976)...............................................................................................................................9

17 Galarza v. Szalczyk,

18

745 F.3d 634 (3d Cir. 2014).................................................................................................................11

19

Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981).............................................................................................................................14

20 Medtronic, Inc. v. Lohr,

21

518 U.S. 470 (1996)...............................................................................................................................4

22 Morales v. Chadbourne,

793 F.3d 208 (1st Cir. 2015) ................................................................................................................11 23

24

Murphy v. NCAA, Nos. 16-476, 16-477, 2018 WL 2186168 (U.S. May 14, 2018) ..............................................12, 14, 15

25 New York v. United States,

26

505 U.S. 144 (1992).......................................................................................................................13, 14

27 Printz v. United States, 521 U.S. 898 (1997).................................................................................................................13, 14, 15
28

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1 Steinle v. City & Cty. of San Francisco,

2

230 F. Supp. 3d 994 (N.D. Cal. 2017) .................................................................................................10

3

United States v. Lopez, 514 U.S. 549 (1995)...............................................................................................................................4

4 Wyeth v. Levine,

5

555 U.S. 555 (2009)...............................................................................................................................8

6 Statutes
7 Cal. Gov’t Code § 7284.2 ....................................................................................................................2, 3, 7
8 Cal. Gov’t Code § 7284.6 ................................................................................................................3, 5, 6, 9 9 Cal. Gov’t Code § 7282.5 ........................................................................................................................4, 6 10 8 U.S.C. § 1373 ................................................................................................................................. passim 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1

INTEREST OF AMICUS CURIAE

2

The California State Senate (the “Senate”), as the upper house of the California Legislature, is a

3 leader in advancing laws that promote the health and safety of all the State’s residents and local

4 communities as a whole. The Senate furthered these efforts by passing Senate Bill 54, the California

5 Values Act, to ensure that residents are able to cooperate with state and local law enforcement without

6 concern of immigration consequences, including as witnesses, victims willing to come forward, and

7 participants in community criminal justice efforts. The Senate’s legislation also preserves state

8 taxpayers’ money for use in state and local law enforcement, rather than diverting it to federal civil

9 immigration investigations and related enforcement.

10

The Senate has a particular interest in this litigation as the legislative body that originated the

11 California Values Act, and as part of the California Legislature that passed it. Through this lawsuit, the

12 Department of Justice seeks to commandeer California by enjoining provisions of the Act as purportedly

13 preempted. This brief explains how the California Values Act is a constitutional exercise of core

14 sovereign authority and was the product of a careful legislative process. The federal government’s

15 preemption arguments, by contrast, misread the relevant statutes and misapply the relevant precedents.

16

INTRODUCTION

17

Since the early days of this Administration, the President of the United States has launched an

18 assault on immigrant populations in this country and the States and localities that disagree with his

19 policies. From unconstitutionally wielding federal funds as a “weapon” against States,1 to unlawfully

20 slashing beneficial deferred action and similar programs, this Administration has sought to use every

21 tool—lawful or not—to increase deportations and tear apart families. And it seeks to conscript States

22 and localities as part of that cruel effort. Accompanying these harmful and unlawful actions is a rhetoric

23 that vilifies and divides. Indeed, just this week, the President maligned California and its immigrant

24 population—going so far as to call immigrants “animals” that “aren’t people.”2 Fear is this

25

26
1 Harriet Taylor, Trump to Fox News: “I may defund California as ‘a weapon’ to fight illegal immigration,” CNBC.com (Feb.
27 5, 2017), https://tinyurl.com/TaylorCNBC.
2 See Remarks by President Trump at a California Sanctuary State Roundtable, https://www.whitehouse.gov/briefings-
28 statements/remarks-president-trump-california-sanctuary-state-roundtable/.

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1 Administration’s weapon.

2

Against this backdrop of polarizing politics and harmful policies, the California Legislature

3 passed the California Values Act, a constitutional exercise of California’s core sovereign authority to

4 legislate for the health and safety of California residents, prioritize its limited law enforcement

5 resources, and direct the operations of its law enforcement officials. Recognizing that state

6 entanglement in federal immigration enforcement weakens trust between local law enforcement and the

7 communities they serve, thus undermining public safety, the Act focuses the use of California law

8 enforcement resources on matters of state concern. Through a careful, deliberative, and iterative

9 legislative process, the California State Senate, in conjunction with the Assembly and Governor,

10 considered an array of voices and interests in crafting the Act. As part of that process, the Senate paid

11 close attention to federal law. The resulting legislation is not only consistent with the minimum

12 requirements of federal law, but goes further to permit many forms of cooperation with federal law

13 enforcement, reflecting the balanced judgment of the representatives of the people of California.

14

Indeed, as part of this careful legislative process, the Senate even sought the input of Attorney

15 General Sessions. These overtures were met with silence. Rather than engage in respectful dialogue

16 with the Legislature of a sovereign State, the federal government filed a lawsuit based on a meritless

17 legal theory that disrespects our Federal system.

18

ARGUMENT

19 I. 20

THE CALIFORNIA VALUES ACT IS A CONSTITUTIONAL EXERCISE OF CALIFORNIA’S SOVEREIGN AUTHORITY

21

The California Values Act prioritizes California’s limited law enforcement resources by ensuring

22 those resources are devoted to California priorities rather than diverted to do the federal government’s

23 job. The stated purpose of the Act is “to ensure effective policing, to protect the safety, well-being, and

24 constitutional rights of the people of California, and to direct the state’s limited resources to matters of

25 greatest concern to state and local governments.” Cal. Gov’t Code § 7284.2(f). The Legislature found

26 that “[a] relationship of trust between California’s immigrant community and state and local agencies is

27 central to the public safety of the people of California,” and that relationship “is threatened when state

28 and local agencies are entangled with federal immigration enforcement.” Id. § 7284.2(b), (c). A

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1 weakening of that trust causes immigrants to “fear approaching police when they are victims of, and

2 witnesses to, crimes, seeking basic health services, or attending school, to the detriment of public safety

3 and the well-being of all Californians.” Id. § 7284.2(c). The Legislature further found that 4 “[e]ntangling state and local agencies with federal immigration enforcement programs diverts already

5 limited resources and blurs the lines of accountability between local, state, and federal governments” as

6 well as raising constitutional concerns. Id. § 7284.2(d), (e).

7

The Legislature based its findings on a thorough evaluation of evidence showing the benefits to

8 public safety from limiting entanglement between state and local law enforcement and federal civil

9 immigration enforcement. For example, the Senate relied on a federal task force report that concluded

10 that “whenever possible, state and local law enforcement should not be involved in immigration

11 enforcement.” See S. Rules Comm. at 7, available at https://tinyurl.com/y7hvsmn3 (Mar. 30, 2017)

12 (quoting Final Report of the President’s Taskforce on 21st Century Policing (May 2016)). It also cited a

13 study finding “that 44 percent of Latinos are less likely to contact police officers if they have been the

14 victim of a crime because they fear that police officers” may inquire about immigration status. Id. 15 (citing Nik Theodore, Insecure Communities, Latino Perceptions of Police Involvement in Immigration

16 Enforcement, Univ. of Ill. at Chicago (May 2013)).

17

As such, the California Values Act provides that, in general, state and local law enforcement

18 agencies may not use their resources “to investigate, interrogate, detain, detect, or arrest persons for

19 immigration enforcement purposes.” Cal. Gov’t Code § 7284.6(a)(1). Contrary to misrepresentations

20 from this Administration, the California Values Act does not require the “catch and release” of violent

21 criminals. See Remarks by President Trump at a California Sanctuary State Roundtable,

22 https://www.whitehouse.gov/briefings-statements/remarks-president-trump-california-sanctuary-state-

23 roundtable/. Nor does it provide “safe harbor to some of the most vicious and violent offenders on

24 Earth.” Id. Indeed, the Act does not interfere with or obstruct federal law in any way, and even allows 25 for cooperation with federal immigration authorities in dealing with violent criminals. See infra pp. 526 13.

27

A careful review of the Act shows that it allows for cooperation with federal immigration

28 enforcement where the Legislature determined that such cooperation would serve the public interest.

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1 For example, the Act permits cooperation with federal immigration authorities acting pursuant to a

2 judicial warrant for a criminal immigration offense. Cal. Gov’t Code § 7284.6(a)(4). Cooperation is

3 also permissible where an individual is convicted of any one of a number of serious or violent felonies

4 under California law, or various federal offenses. Id. § 7282.5(a)(1), (5). And state and local law

5 enforcement agencies may participate in joint federal task forces so long as the primary purpose of the

6 task force is not immigration enforcement. Id. § 7284.6(b)(3). These provisions reflect California’s

7 interest in preserving its scarce law enforcement resources while prioritizing the health and safety of

8 California residents.

9

The Legislature thus exercised several core functions of state sovereign authority in enacting the

10 California Values Act. First, States have “historic primacy” in matters of health and safety and have

11 “great latitude . . . to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all

12 persons.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 485 (1996) (citation omitted). Here, the

13 California Values Act was enacted to protect the safety and well-being of California residents. In

14 making decisions about how best to protect the well-being of its residents, California exercised core

15 state sovereign authority. See United States v. Lopez, 514 U.S. 549, 564 (1995) (recognizing that

16 “criminal law enforcement” is an area “where States historically have been sovereign”).

17

Second, the Act is an exercise of California’s core historic sovereign power to control the

18 allocation of its own resources. See Alden v. Maine, 527 U.S. 706, 751 (1999) (“Today, as at the time of

19 the founding, the allocation of scarce resources among competing needs and interests lies at the heart of

20 the political process.”).

21

Third, the Act is an exercise of California’s sovereign authority to direct the actions of its

22 officers. “[W]hatever the outer limits of state sovereignty may be, it surely encompasses the right to set

23 the duties of office for state-created officials and to regulate the internal affairs of governmental bodies.”

24 City of New York v. United States, 179 F.3d 29, 36 (2d Cir. 1999) (quoting Koog v. United States, 79

25 F.3d 452, 460 (5th Cir. 1996)). The Supreme Court has emphasized that it is “[t]hrough the structure of

26 its government, and the character of those who exercise government authority, [that] a State defines

27 itself as a sovereign.” Az. State Legislature v. Az. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2673

28 (2015) (quoting Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).

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1 II. 2 3

THE CALIFORNIA VALUES ACT WAS DESIGNED TO BE CONSISTENT WITH FEDERAL LAW AND TO ALLOW FOR APPROPRIATE COOPERATION WITH FEDERAL AUTHORITIES
In exercising these core sovereign prerogatives, the Legislature carefully designed the California

4 Values Act to be consistent with federal law and not to interfere with federal law enforcement. The

5 State Senate and Assembly held hearings, gathered evidence, and subjected the Act to thorough legal

6 analysis. The Act went through many iterations, all focused on achieving a balance to best protect the

7 health, safety, and well-being of all Californians, without impermissible intrusion on federal authority.

8

A. The Act is expressly consistent with—and goes beyond—the requirements of federal

9

law.

10

The only federal law that DOJ claims conflicts with the California Values Act is 8 U.S.C.

11 § 1373. In proposing the California Values Act, the Senate made a deliberate decision not to challenge

12 or contradict this federal statute. Section 1373(b) provides that “no person or agency may prohibit, or in

13 any way restrict . . . with respect to information regarding the immigration status, lawful or unlawful, of

14 any individual” the “[s]ending [to] . . . or requesting or receiving such information from” federal

15 immigration authorities, “[m]aintaining such information,” or “[e]xchanging such information with any

16 other Federal, State, or local government entity.” See also 8 U.S.C. § 1373(a). Correspondingly, and

17 specifically invoking Section 1373, the California Values Act provides:

18

This section does not prohibit or restrict any government entity or official from sending to, or

receiving from, federal immigration authorities, information regarding the citizenship or

19

immigration status, lawful or unlawful, of an individual, or from requesting from federal

20

immigration authorities immigration status information, lawful or unlawful, of any individual, or maintaining or exchanging that information with any other federal, state, or local government

21

entity, pursuant to Sections 1373 and 1644 of Title 8 of the United States Code.

22 Cal. Gov’t Code § 7284.6(e).

23

Not only did the Legislature make clear that the California Values Act adheres to Section 1373,

24 but it went further. Consistent with its balanced approach throughout the Act, the Legislature permitted

25 multiple other forms of information-sharing and participation with federal immigration enforcement,

26 consistent with California’s legitimate interests in public safety and allocation of limited law

27 enforcement resources.

28

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1

For example, the Act allows state and local law enforcement agencies to respond to requests

2 from federal immigration authorities for information about a specific person’s criminal history accessed

3 through the state law enforcement telecommunications system, where otherwise permitted by state law.

4 Cal. Gov’t Code § 7284.6(b)(2). The Act also permits state and local officials to provide the federal

5 government release dates and other personal information if such information is public. Id. 6 § 7284.6(a)(1)(C).

7

Further consistent with the Legislature’s focus on public safety, the Act allows state and local

8 officials to respond to notification requests from the federal government where an individual has been

9 convicted of any serious or violent felony under California law, one of many federal offenses, or a wide

10 range of other felony offenses in the last fifteen years, including over 30 specific state offenses ranging

11 from bribery to stalking. See id. § 7282.5(a). Responses to notification requests are also allowed for

12 individuals listed on the California Sex and Arson Registry (CSAR) and those identified by ICE as

13 subject to outstanding felony arrest warrants. Id. § 7282.5(a)(4), (5).

14

In addition, the Act allows state and local officers discretion to respond to notification requests

15 even in certain situations where an individual is not convicted of a crime. If an individual “is arrested

16 and taken before a magistrate on a charge involving a serious or violent felony . . . or a felony that is

17 punishable by imprisonment in state prison, and the magistrate makes a finding of probable cause as to

18 that charge,” then local law enforcement may respond to notification requests from the federal

19 government. Id. § 7282.5(b).

20

Similarly, state and local officials may transfer individuals to federal immigration authorities in a

21 range of circumstances, including where the individual has been convicted of one of the many offenses

22 for which a response to a notification request is permitted, is registered on CSAR, or has been identified

23 by ICE as subject to outstanding felony arrest warrants. Transfer is also allowed if the United States

24 obtains a judicial warrant or judicial probable cause determination for a federal criminal immigration

25 offense. Id. §§ 7284.4(h)-(i), 7284.6(a)(4).

26

Finally, the Legislature exempted the California Department of Corrections and Rehabilitation

27 from provisions of the Act challenged by DOJ. See id. § 7284.4(a). Thus, none of the provisions of 28 which DOJ complains concerns individuals held in state institutions.

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1

These balanced provisions reflect the California Legislature’s conclusion that the State’s law

2 enforcement resources are best focused on criminal law enforcement—including through partnerships

3 with the federal government—and not on federal civil immigration enforcement, while recognizing

4 circumstances in which coordination with the federal government is in the best interests of the people of

5 California. See id. § 7284.2(f).

6

B. The California Values Act carefully balanced competing interests.

7

The careful balance struck in the California Values Act is the product of a year-long deliberative

8 process in which a diverse array of stakeholders voiced their interests and concerns—an example of

9 federalism in action, working to tailor state laws to state priorities. This thorough and detailed

10 legislative process ensured that the Act reflected the values of Californians, best protected their health

11 and safety, wisely allocated state resources, and ensured consistency with federal law.

12

Multiple committees of the Senate and Assembly reviewed and revised the bill, taking into

13 consideration input from a range of interested parties. For example, based on suggestions raised by law

14 enforcement, the Act was amended to clarify that local law enforcement could participate in a joint task

15 force so long as immigration enforcement was not the primary purpose of the task force. See S. Rules

16 Comm. at 1 (Mar. 30, 2017), available at https://tinyurl.com/y7hvsmn3. The Assembly Committee on

17 the Judiciary found that the Act complied with Section 1373 and was not preempted, because “[n]othing

18 in federal law requires state and local law enforcement officials to assist federal immigration

19 enforcement efforts, or prohibits state and local officials from refusing to do so.” Assembly Comm. on

20 Judiciary at 11 (July 5, 2017), available at https://tinyurl.com/y7hvsmn3.

21

The Senate also paid particular attention to the requirements of federal law. Indeed, the Senate

22 worked with former U.S. Attorney General Eric Holder to evaluate the legal issues in an earlier version

23 of the Act.3 A published white paper concluded that the earlier version was a constitutional exercise of

24 California’s sovereign authority and not preempted by federal law. And, through former Attorney

25 General Holder, the Senate attempted to engage with Attorney General Sessions regarding any potential

26

27 3 The analysis was titled “The California Values Act: A Constitutional Exercise of California’s Sovereign Authority,” and is
available at http://sd24.senate.ca.gov/sites/sd24.senate.ca.gov/files/holder_letter_re_sb_54_06.15.2017_final.pdf. The white
28 paper analyzed the version of the Act passed by the Senate on April 3, 2017.

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Case 2:18-cv-00490-JAM-KJN Document 133 Filed 05/21/18 Page 12 of 21

1 concerns DOJ might have about the Act. On June 19, 2017, former Attorney General Holder sent a

2 letter to Attorney General Sessions, including a copy of the white paper and the proposed legislation.

3 The letter informed the Attorney General of the Senate’s analysis showing that the proposed legislation

4 was constitutional and not preempted by federal law. Mr. Holder also asked Attorney General Sessions

5 to “confirm our assessment that [the bill] is both constitutional and complies with federal law.” Neither

6 the Attorney General nor anyone else at DOJ responded to the letter. Rather than engage in any

7 dialogue with the Senate—through which the federal government could have been a part of the careful

8 and deliberative process that the Senate, Assembly, and Governor of California undertook—DOJ

9 eschewed dialogue. The Attorney General provided his only response to the overtures of the Legislature

10 of a sovereign State in the form of this lawsuit.

11 III. DOJ’S PREEMPTION ARGUMENTS LACK MERIT

12

For many of the same reasons outlined in the white paper that was shared with the Attorney

13 General pre-enactment, no part of the California Values Act is preempted.

14

As an initial matter, the federal government ignores the starting point of any preemption

15 analysis: the presumption against preemption. Courts reviewing the preemptive effect of a federal law

16 begin with the presumption that Congress did not intend to prevent the States from legislating pursuant

17 to their historic police powers. See, e.g., Arizona v. United States, 567 U.S. 387, 400 (2012) (“In

18 preemption analysis, courts should assume that the historic police powers of the States are not

19 superseded unless that was the clear and manifest purpose of Congress.” (quotation marks omitted)).

20 This presumption is particularly strong where, as here, the State has exercised its authority in an area

21 that States have traditionally occupied. See Wyeth v. Levine, 555 U.S. 555, 565 (2009). In passing the

22 California Values Act, the California Legislature regulated in three fields at the heart of state police

23 power: health and safety, prevention of violent crime, and direction of law enforcement. See supra pp.

24 2-4.

25

The California Values Act does not regulate immigration, an area of “broad, undoubted [federal]

26 power.” Arizona, 567 U.S. at 394. The Act does not determine who should lawfully be in the United

27 States, does not take any action against individuals thought to not lawfully be in the United States, and

28 does not purport to grant any individual the right to remain in the United States. See De Canas v. Bica,

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Case 2:18-cv-00490-JAM-KJN Document 133 Filed 05/21/18 Page 13 of 21

1 424 U.S. 351, 355 (1976) (Immigration is “essentially a determination of who should or should not be

2 admitted into the country, and the conditions under which a legal entrant may remain.”). Instead the Act

3 simply governs California’s deployment of its limited law enforcement resources. Because the

4 California Values Act regulates areas of core state sovereignty and leaves federal civil immigration

5 enforcement to the federal government, the presumption against preemption applies with full force.

6

Subject to that presumption, a state law is preempted if “compliance with both federal and state

7 regulations is a physical impossibility” or “the challenged state law stands as an obstacle to the

8 accomplishment and execution of the full purposes and objectives of Congress.” Arizona, 567 U.S. at

9 399-400 (quotation marks omitted). As the Supreme Court explained in a case rejecting preemption of a

10 State’s immigration-related legislation, “a high threshold must be met if a state law is to be preempted

11 for conflicting with the purposes of a federal Act.” Chamber of Commerce of the U.S. v. Whiting, 563

12 U.S. 582, 607 (2011) (plurality op.) (quotation marks omitted). DOJ does not clear that high threshold.

13

A. The California Values Act does not conflict with Section 1373.

14

Despite DOJ’s lengthy recitation of unrelated provisions of immigration law, see Pl.’s Br. at 23-

15 27, the only provision of the Immigration and Nationality Act (INA) with which DOJ actually alleges

16 that the California Values Act conflicts is 8 U.S.C. § 1373(a). Section 1373(a) prevents states and

17 localities from prohibiting government entities and officials from sending to, or receiving from, federal

18 immigration authorities “information regarding the citizenship or immigration status, lawful or unlawful,

19 of any individual.” The California Values Act is plainly consistent with Section 1373(a). See also 8

20 U.S.C. § 1373(b). In language mirroring the federal provision, the Act provides that “[t]his section does

21 not prohibit or restrict any government entity or official from sending to, or receiving from, federal

22 immigration authorities, information regarding the citizenship or immigration status, lawful or unlawful,

23 of an individual . . . pursuant to Section[] 1373 . . . .” Cal. Gov’t Code § 7284.6(e).

24

In the face of this clear text, DOJ resorts to an argument that Section 1373 does not mean what it

25 says. DOJ claims that “information regarding” immigration status stretches to include whether an alien

26 has been released from state or local custody, and even the alien’s “home and work address.” Pl.’s Br.

27 at 28-29. The notion that “information regarding” an individual’s citizenship or immigration status

28 extends to her home and work address has no support in the statutory text, precedent, or common sense.

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1 Likewise, and contrary to DOJ’s position, an individual’s release date does not determine whether “a

2 particular alien is not lawfully present in the United States,” Pl.’s Br. at 28. An unlawfully present alien

3 in state custody is still unlawfully present. Notably, DOJ does not argue that an alien in state custody is

4 lawfully present or that her release transforms her status from lawful to unlawful. In fact, as another

5 district court has held, the “plain language” of Section 1373 is clear that “no plausible reading of

6 information regarding . . . citizenship or immigration status” encompasses an alien’s release date.

7 Steinle v. City & Cty. of San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017).4

8

Particularly in light of the need to “assume that the historic police powers of the States are not

9 superseded unless that was the clear and manifest purpose of Congress,” this Court should reject DOJ’s

10 expansive and unbounded interpretation of Section 1373. See Arizona, 567 U.S. at 400.

11

B. The California Values Act does not obstruct the enforcement of federal law.

12

DOJ also claims that the California Values Act obstructs the enforcement of federal law for two

13 reasons: (1) California’s decision not to transfer individuals in certain situations without a judicial

14 warrant increases the administrative burden on ICE, Pl.’s Br. at 29-31; and (2) California’s refusal to

15 share non-public release date information makes it more difficult for ICE to take individuals into

16 “mandatory detention” during removal proceedings “when the alien is released” from state criminal

17 custody, Pl.’s Br. at 24. These arguments are foreclosed by the INA and judicial precedent.

18

As the Supreme Court has made clear, immigration is an area of primary federal concern, with a

19 limited, optional role for States. See Arizona, 567 U.S. at 394-95. The United States itself has 20 recognized that civil immigration enforcement was designed to be “carried out without depending on

21 state officials.” Br. of United States, Arizona v. United States, 2012 WL 939048, at *43-44 (2012).

22 Therefore, “[l]aws adopted by Congress, such as the INA, are to be enforced by the President and by

23 officers of the United States answerable to him” and “Congress cannot give responsibilities to state

24 officers ‘without the consent of the States.’” Id. (quoting Printz v. United States, 521 U.S. 898, 910-11 25 (1997)).

26

27
4 Because the California Values Act is consistent with Section 1373, the California State Senate takes no position here on the
28 constitutionality of Section 1373.

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Case 2:18-cv-00490-JAM-KJN Document 133 Filed 05/21/18 Page 15 of 21

1

Consistent with Supreme Court precedent and DOJ’s previous views, Congress did not conscript

2 the States into immigration enforcement. For that reason, as courts around the country have held, state

3 and local compliance with immigration detainer requests, which may include requests to transfer

4 individuals, is voluntary. Moreover, without a judicial finding of probable cause, compliance with

5 detainer requests could lead to state and local liability for violating the Fourth Amendment. See, e.g., 6 Galarza v. Szalczyk, 745 F.3d 634, 636 (3d Cir. 2014) (“[I]mmigration detainers do not and cannot 7 compel a state or local law enforcement agency to detain suspected aliens subject to removal.”); Morales 8 v. Chadbourne, 793 F.3d 208, 215-19 (1st Cir. 2015) (holding that detaining an individual pursuant to an 9 immigration detainer without additional probable cause is a clearly established violation of the Fourth

10 Amendment). Just one year ago, the present Administration represented in court that “[d]etainers [a]re

11 [v]oluntary,” and that the role of States in immigration enforcement is one of voluntary cooperation. Br.

12 of United States as Amicus Curiae, Commonwealth of Mass. v. Lunn, No. SJC-12276, 2017 WL 13 1240651, at *22-23 (Mar. 27, 2017); id. at *31 (explaining that State officers “may help the Federal 14 Government” in immigration enforcement in certain circumstances “unless [the] State government has

15 affirmatively cabined its own police power”). It is thus common ground that Congress did not, and

16 could not, require States to detain or transfer people on behalf of federal immigration authorities. The

17 federal government cannot circumvent that reality by claiming that a State’s decision to exercise its

18 acknowledged constitutional authority is implicitly preempted.

19

As with so-called “detainer” requests, nothing in the INA mandates that States share nonpublic

20 release dates with federal immigration authorities—nor is there even a requirement, in the style of

21 Section 1373, that state officials be permitted the discretion to share such information. The only

22 provision DOJ can point to is Section 1373 itself. As discussed above, DOJ’s expansive reading of

23 Section 1373 is at war with the plain statutory text. Congress left a State’s sharing of release date

24 information entirely voluntary, and could have invited constitutional problems had it done otherwise.

25 Given Congress’s decision to carefully limit the information-sharing requirements of Section 1373, the

26 federal government cannot credibly claim that a State’s failure to engage in other types of information27 sharing is preempted. Moreover, even though California need not share such information, it has struck a

28

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1 balance by agreeing to provide the federal government with nonpublic release date information in many

2 situations. See supra pp. 5-7.

3

DOJ’s argument also ignores well-established conflict preemption principles. In assessing

4 conflict preemption, “[t]he purpose of Congress is the ultimate touchstone.” Altria Grp. v. Good, 55 5 U.S. 70, 76 (2008) (internal quotation marks omitted). “When Congress has considered the issue of pre-

6 emption and has included in the enacted legislation a provision explicitly addressing that issue, and

7 when that provision provides a reliable indicium of congressional intent with respect to state authority,

8 there is no need to infer congressional intent to pre-empt state laws from the substantive provisions of

9 the legislation.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 517 (1992). Section 1373 is not a

10 preemption clause, but it does “provides a reliable indicium of congressional intent with respect to state

11 authority,” id.— i.e., that Congress squarely considered the issue of immigration-related information-

12 sharing, and required only that States not limit their officers’ discretionary sharing of information about

13 citizenship or immigration status. Because Congress narrowly crafted the prohibitions on state

14 restrictions on information sharing, “matters beyond th[e] reach” of Section 1373 “are not pre-empted.”

15 See id.

16

The Supreme Court’s recent decision in Murphy v. NCAA, Nos. 16-476, 16-477, 2018 WL

17 2186168 (U.S. May 14, 2018), further undermines DOJ’s attempted use of Section 1373(a) to preempt

18 California law. The Court held that “every form of preemption is based on a federal law that regulates

19 the conduct of private actors, not the States.” Id. at *16. Because the law at issue in Murphy regulated

20 only States, it was “not a preemption provision because there is no way in which th[e] provision can be

21 understood as a regulation of private actors.” Id. The same is true of Section 1373(a)—that provision

22 applies only to “a Federal, State, or local government entity or official.” It does not apply to private 23 actors. “Thus, there is simply no way to understand [Section 1373(a)] . . . as anything other than a direct

24 command to the States,” and therefore it is not a preemption provision. Id.

25

Finally, DOJ’s reliance on the Supreme Court’s decision in Arizona v. United States is

26 misplaced. Arizona concerned the limitations on States’ ability to regulate immigration. There, the

27 Supreme Court held preempted various provisions of Arizona laws establishing an Arizona immigration-

28 enforcement scheme. 567 U.S. at 399-410. One preempted provision authorized state officers to

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Case 2:18-cv-00490-JAM-KJN Document 133 Filed 05/21/18 Page 17 of 21

1 “decide whether an alien should be detained for being removable,” id. at 409, while another criminalized 2 seeking or engaging in work in Arizona based on a person’s federal immigration status, even though

3 such conduct does not constitute a crime under federal law, id. at 403-07. Unlike Arizona’s immigration 4 laws, the California Values Act does not establish an immigration-enforcement scheme—it does not

5 regulate immigration at all. See supra pp. 8-9. The Act is a constitutional exercise of state authority in 6 core areas of state sovereignty such as the health and safety of California residents, allocation of

7 California resources, and supervision of state and local employees. Cf. Br. for United States, Arizona, 8 2012 WL 939048, at *30 (2012) (noting that Arizona statute punishing failure to comply with “federal

9 alien-registration and documentation requirements does not lie within any traditional police power of the

10 state”). California is not making any “unilateral decision[s]” to enforce federal immigration law, or

11 attempting to do so indirectly by regulating individuals on the basis of their federal immigration status.

12 See Arizona, 567 U.S. at 410. The California Values Act implements California’s decision to prioritize 13 its scarce resources in areas other than enforcement of federal immigration law—a choice guaranteed to 14 California by the Constitution and embodied in the INA.

15

Accordingly, this Court should reject DOJ’s position that States must assist in the enforcement of

16 federal civil immigration law, as it disregards well-established principles of federalism and the

17 expressed intent of Congress in the INA.

18 IV. DOJ MAY NOT USE PREEMPTION TO ENGAGE IN UNCONSTITUTIONAL

19

COMMANDEERING

DOJ’s preemption arguments suffer from another, overarching defect: this lawsuit is an effort to

20

impermissibly commandeer the California Legislature and law enforcement officers in violation of the

21

Tenth Amendment. The Tenth Amendment provides that “[t]he powers not delegated to the United

22

States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to

23

the people.” U.S. Const. amend. X. To preserve this system of dual sovereignty, “the Constitution has

24

never been understood to confer upon Congress the ability to require the States to govern according to

25

Congress’ instructions.” New York v. United States, 505 U.S. 144, 162 (1992). Since the Founding,

26

States have constitutionally declined to use their resources to assist federal officials with federal law

27

enforcement. See, e.g., Printz, 521 U.S. at 909-10 (approvingly describing Georgia’s refusal to comply

28

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1 with federal request to hold federal prisoners in state jails at federal expense (citing Act of Sept. 23,

2 1789, 1 Stat. 96)). DOJ’s unfounded preemption claims are nothing more than an attempt to require

3 California to participate in federal law enforcement operations.

4

The Supreme Court has consistently emphasized that the Tenth Amendment prohibits the federal

5 government from compelling state officials or state legislatures “to enact or enforce a federal regulatory

6 program.” Printz, 521 U.S. at 935; see also New York, 505 U.S. at 188. Only when state participation in

7 a federal regulatory program is voluntary has the Court upheld such programs against Tenth Amendment

8 challenges. For example, in Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 288

9 (1981), the Court rejected a Tenth Amendment challenge to the Surface Mining Control and

10 Reclamation Act of 1977 because the States were “not compelled to enforce the [mining] standards, to

11 expend any state funds, or to participate in the federal regulatory program in any manner whatsoever.”

12 Likewise, in New York, the Supreme Court upheld a provision against a similar challenge because States

13 had the option to either regulate the disposal of radioactive waste according to federal standards or

14 permit the federal government to enforce its laws itself. 505 U.S. at 174; id. at 168 (“state residents

15 [who] prefer their government to devote its attention and resources to problems other than those deemed

16 important by Congress . . . may choose to have the Federal Government rather than the State bear the

17 expense of a federally mandated regulatory program”).

18

Just this month, the Supreme Court reaffirmed the anticommandeering principles in Printz, New

19 York, and Hodel. In Murphy, the Court explained that the anticommandeering doctrine is “simply the

20 expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to

21 withhold from Congress the power to issue orders directly to the States.” 2018 WL 2186168, at *10.

22 The Court reiterated that “[w]here a federal interest is sufficiently strong to cause Congress to legislate,

23 it must do so directly; it may not conscript state governments as its agents.” Id. at *11 (quoting New

24 York, 505 U.S. at 178). This anticommandeering rule applies “not only to state officers with

25 policymaking responsibility but also to those assigned more mundane tasks.” Id. (citing Printz, 521 U.S.

26 at 929-30).

27

The Court provided three reasons “why adherence to the anticommandeering principle is

28 important.” Id. at *12. First, the anticommandeering rule “serves as ‘one of the Constitution’s structural

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Case 2:18-cv-00490-JAM-KJN Document 133 Filed 05/21/18 Page 19 of 21

1 protections of liberty.’” Id. (quoting Printz, 521 U.S. at 921). Second, it “promotes political 2 accountability,” which is weakened “if a State imposes regulations only because it has been commanded

3 to do so by Congress.” Id. Finally, “the anticommandeering principle prevents Congress from shifting

4 the costs of regulation to the States.” Id.

5

All three of those principles apply with full force here. The California Legislature has made a

6 choice pursuant to its historic police powers that it is in the best interest of California residents for state

7 resources to be allocated to state priorities. The California Values Act effectuates that purpose by

8 leaving federal immigration enforcement to the federal government—a decision left to California by the

9 Constitution and protected by the anticommandeering doctrine.

10

DOJ’s position, which would hold that California law enforcement officers have no choice but to

11 assist the federal government in civil immigration enforcement, blurs the lines of political

12 accountability. If California law enforcement officials were conscripted into enforcing immigration

13 priorities that Californians disagree with, voters would not “know who to credit or blame.” Id.

14

Finally, DOJ’s lawsuit seeks to “shift[ ] the costs of regulation to the States.” Id. DOJ would

15 like state and local officials to bear the burden of federal immigration enforcement, from providing

16 information to DHS to transferring individuals to DHS custody.

17

For all those reasons, DOJ’s lawsuit is an effort to impermissibly commandeer California. This

18 Court should reject the attempt by DOJ to wield preemption as a sword to intrude on areas of core state

19 sovereignty and divest the California Legislature of its authority and responsibility to legislate for the

20 well-being of the people of the State.

21

CONCLUSION

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This Court should deny DOJ’s motion for a preliminary injunction.

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2 Dated: May 18, 2018 3

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5 Eric H. Holder, Jr.

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David M. Zionts Ivano M. Ventresca

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COVINGTON & BURLING LLP

850 10th Street N.W.

8 Washington, D.C. 20001

dzionts@cov.com 9 (202) 662-6000

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COVINGTON & BURLING LLP
By: /s/ Mónica Ramírez Almadani
Daniel N. Shallman, SBN 180782 Mónica Ramírez Almadani, SBN 234893 COVINGTON & BURLING LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, California 90067-4643 mralmadani@cov.com (424) 332-4800
Attorneys for Amicus Curiae The California State Senate

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CERTIFICATE OF SERVICE

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I hereby certify that on May 18, 2018, I electronically transmitted the foregoing

3 document to the Clerk’s Office using the U.S. District Court for the Eastern District of

4 California’s Electronic Document Filing System (ECF), which will serve a copy of this

5 document upon all counsel of record.

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By: /s/ Mónica Ramírez Almadani

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Mónica Ramírez Almadani

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 Case 2:18-cv-00490-JAM-KJN Document 134 Filed 05/21/18 Page 1 of 27

1 ANTONIO RUIZ, Bar No. 155659

MONICA T. GUIZAR, Bar No. 202480

2 ERIC J. WIESNER, Bar No. 259672

WEINBERG, ROGER & ROSENFELD

3 A Professional Corporation

800 Wilshire Boulevard, Suite 1320

4 Los Angeles, California 90017

Telephone (213) 380-2344

5 Fax (213) 443-5098

E-Mail: aruiz@unioncounsel.net

6

mguizar@unioncounsel.net

ewiesner@unioncounsel.net

7

Attorneys for Amici Curiae California Labor Federation, AFL-CIO,

8 California State Council of Service Employees, et al.

9

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

12

13 THE UNITED STATES OF AMERICA,

Case No. 2:18-cv-00490-JAM-KJN

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Plaintiff,

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v.

16 THE STATE OF CALIFORNIA; EDMUND
17 GERALD BROWN JR., Governor of California, in his Official Capacity; and
18 XAVIER BECERRA, Attorney General of
California, in his official Capacity, 19

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Defendants.

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BRIEF OF AMICI CURIAE CALIFORNIA LABOR FEDERATION, CALIFORNIA STATE COUNCIL OF SERVICE EMPLOYEES, ET AL. IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Date:

June 20, 2018

Time:

10:00 a.m.

Courtroom: 6

Judge:

Hon. John A. Mendez

Action Filed: March 6, 2018

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WEINBERG, ROGER &

30 ROSENFELD
A Professional Corporation

800 Wilshire Blvd, Suite 1320 Los Angeles, California 90017
(213) 380-2344

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AMICI CURIAE BRIEF IN SUPPORT OF DEFENDANTS Case No. 2:18-cv-00490-JAM-KJN

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WEINBERG, ROGER &

30 ROSENFELD
A Professional Corporation

800 Wilshire Blvd, Suite 1320 Los Angeles, California 90017
(213) 380-2344

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TABLE OF CONTENTS

Page(s)

AB 450 PROPERLY REGULATES EMPLOYER CONDUCT TO PREVENT HARM TO WORKERS...................................................................................2

A. AB 450’S NOTICE PROVISIONS PROTECT WORKERS AGAINST ADVERSE EMPLOYMENT CONSEQUENCES ARISING FROM I-9 AUDITS BY PROVIDING SUFFICIENT NOTICE AND AN OPPORTUNITY TO CORRECT DEFICIENCIES .......................................................................................................3

B. AB 450 PROTECTS WORKERS AGAINST ADVERSE EMPLOYMENT CONSEQUENCES AND THE HEALTH IMPACTS OF STRESS FROM UNNECESSARY OR DISCRIMINATORY REVERIFICATION.............................................................6

C. AB 450 PREVENTS UNWARRANTED INTRUSION, REDUCES WORKPLACE STRESS, AND PROTECTS WORKERS FROM EMPLOYER USE OF IMMIGRATION ENFORCEMENT TO RETALIATE AGAINST WORKERS................................8

AB 450 IS NOT AN OBSTACLE TO IMMIGRATION ENFORCEMENT ..............................................................................................................10

A. AB 450 CANNOT INTERFERE WITH AN EMPLOYER’S RIGHT TO CONSENT BECAUSE SUCH A RIGHT DOES NOT EXIST ...........................................................................................................10

B. AB 450’S NOTICE PROVISIONS DO NOT INTERFERE WITH THE I-9 INSPECTION PROCESS ............................................................11

1. There Is No Evidence That AB 450 Has Interfered with Audits .........................................................................................................13

2. Protections for Employees Similar to Those in AB 450 Have Been Enforced in the Collective Bargaining Context with no Negative Impacts on Employers’ Ability to Comply with Federal Labor Law and Immigration Law Obligations....................................................................14

C. AB 450’S REVERIFICATION PROVISION DOES NOT INTERFERE WITH IMMIGRATION ENFORCEMENT ...................................15

CONCLUSION ..................................................................................................................15

i
AMICI CURIAE BRIEF IN SUPPORT OF DEFENDANTS
Case No. 2:18-cv-00490-JAM-KJN

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Federal Cases

4 Agri Processor Co. v. NLRB,

5

514 F.3d 1 (2008)......................................................................................................................14

6 Aramark Facility Srvs. v. SEIU, Local 1877,

530 F.3d 817 (9th Cir. 2008) ....................................................................................................15

7

Chamber of Commerce of the United States v. Whiting,

8

563 U.S. 582 (2011)..................................................................................................................12

9 Davis v. United States,

10

328 U.S. 582 (1946)..................................................................................................................10

11 Day-Brite Lighting, Inc. v. Missouri,

342 U.S. 421 (1952)....................................................................................................................2

12

De Buono v. Nysa-Ila Med. & Clinical Servs. Fund,

13

520 U.S. 806 (1997)....................................................................................................................2

14 Golden Gate Rest. Ass’n v. City of San Francisco,

15

512 F.3d 1112 (9th Cir. 2008) ....................................................................................................2

16 Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707 (1985)....................................................................................................................2

17 Illinois v. Rodriguez,

18

497 U.S. 177 (1990)..................................................................................................................10

19 Katz v. United States,

20

389 U.S. 347 .............................................................................................................................10

21 Metro. Life Ins. Co. v. Mass., 471 U.S. 724 (1985)....................................................................................................................2

22 Paige v. Henry J. Kaiser Co.,

23

826 F.2d 857 (9th Cir. 1987) ......................................................................................................3

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Santillan v. USA Waste of Cal., 853 F.3d 1044 (9th Cir. 2017) ..................................................................................................15
Schneckloth v. Bustamonte, 412 U.S. 218 (1973)..................................................................................................................10
Slaughter-House Cases, 83 U.S. 36 (1873)........................................................................................................................2
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TABLE OF AUTHORITIES (cont’d)

2

Page(s)

3 Sure-Tan, Inc. v. NLRB,

4

467 U.S. 883, 104 S. Ct. 2803 (1984).......................................................................................14

5 Walnut Hill Estate Enters., LLC v. City of Oroville, 2010 U.S. Dist. LEXIS 74084 (E.D. Cal. July 21, 2010) .........................................................11

6

Zap v. United States,

7

328 U.S. 624 (1947)..................................................................................................................10

8 State Cases

9 Feminist Women’s Health Ctr. v. Sup. Ct.,

10

52 Cal. App. 4th 1234 (Cal. 3d 1997).........................................................................................9

11 Hernandez v. Hillsides, Inc.,

47 Cal.4th 272 (Cal. 2009)..........................................................................................................9

12

People v. Shields,

13

205 Cal.App.3d 1065 (1998) ....................................................................................................10

14 In re. Rudolph and Sletten, Inc., Employer,

15

2004 CA ....................................................................................................................................10

16 Salwasser Mfg. Co. v. OSHA Appeals Bd., 214 Cal.App.3d 625 (1989) ......................................................................................................11

17 Thorpe v. Rutland & Burlington R. Co.,

18

27 Vt. 140 (1855)........................................................................................................................2

19 NLRB Cases

20 Aramark Educ. Servs.,

21

355 NLRB No. 11 (2010), abrogated on other grounds by New Process Steel,

L.P. v. NLRB, 130 S. Ct. 2635 (2010).......................................................................................14

22 Operating Engineers Local 3 (Nortech Waste),

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336 NLRB 554 (2001) ..............................................................................................................14

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Washington Beef, Inc., 328 NLRB 612619-620 (1999).................................................................................................14
Constitutions
CAL. CONST. ..............................................................................................................................1, 2
CAL. CONST. Article I, § 1 .............................................................................................................9
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TABLE OF AUTHORITIES (cont’d)

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Page(s)

3 CAL. CONST. Article XIV, § 1 ...................................................................................................1, 2

4 U.S. CONST. Amend. IV .........................................................................................................10, 11
5 Federal Statutes
6 8 U.S.C. § 1324a .........................................................................................................................6, 15
7 8 U.S.C. § 1324b...............................................................................................................................8
8 Immigration Reform and Control Act of 1986 (“IRCA”) ..............................................................14
9 National Labor Relations Act .........................................................................................................14
10
11 State Statutes

12 Cal. Code Regs. § 9881...................................................................................................................12

13 Cal. Gov’t. Code § 7285.1 ................................................................................................................8

14 Cal. Gov’t. Code § 7285.2 ............................................................................................................8, 9

15 Cal. Lab. Code § 90.2 .............................................................................................................4, 5, 11

16 Cal. Lab. Code § 1019.1 ...................................................................................................................8
17 Cal. Lab. Code § 1019.2 .........................................................................................................6, 8, 15
18 Cal. Lab. Code § 1171.5 ...................................................................................................................1
19 S. 1200 a Bill to Amend the Immigration and Nationality Act .......................................................14 20
Rules 21
Fed. R. App. 29(a)(4)........................................................................................................................1 22
Regulations 23
8 C.F.R. § 247a.1(l) ....................................................................................................................6, 15 24 25 8 C.F.R. § 247a.2(b)(1)(viii).......................................................................................................6, 15
26 8 C.F.R. § 274a ...............................................................................................................................15

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1

TABLE OF AUTHORITIES (cont’d)

2

Page(s)

3 Other Authorities

4 Adam Elmahrek, ICE steps up enforcement at businesses in California, L.A.

5

TIMES, Feb. 16, 2018...............................................................................................................13

6 Andrew Khouri, More Workers Say Their Bosses Are Threatening to Have Them

Deported, LA TIMES, Jan. 3, 2018............................................................................................8

7

Elizabeth A. Pascoe, and Laura Smart Richman, Perceived Discrimination and

8

Health: A Meta-Analytic Review, 2018 PMC 531, 554. .............................................................6

9 Hearings Before the S. Comm. on the Judiciary, Subcomm. on Immigration and

10

Refugee Policy, 99th Cong. 1 (1985)(Statement of Thomas R. Donahue,

Secretary Treasurer, AFL-CIO). ...............................................................................................14

11 ICE Guidance for Employers Conducting Internal Employment Eligibility

12

Verification Form I-9 Audits, ICE, June 2015. ........................................................................12

13 ICE Operation in LA results in 212 arrests, 122 notices of inspection, ICE., Feb.

14

16, 2018.....................................................................................................................................13

15

Jason Green, ICE targets 77 Northern California businesses in undocumented worker crackdown, The MERCURY NEWS, Feb. 1, 2018. ....................................................13

16 Memorandum of Understanding Between the Dep’t Homeland Security and Dep’t

17

of Labor Concerning Enforcement Activities at Worksites, Dec. 7, 2011. ............................8, 9

18 Samantha Artiga and Petry Ubri, Living in an Immigrant Family in America: How

Fear and Toxic Stress are Affecting Daily Life, Well-Being & Health, KAISER

19

FOUND., Dec. 13, 2017. ............................................................................................................9

20 U.S. Dep’t of Labor Resources, DOL, April 2016. ........................................................................12

21 U.S. Immigration and Customs Enforcement Fact Sheet: Form I-9 Inspection, ICE,

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Jan. 8, 2018. ........................................................................................................................11, 12

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1

IDENTITY AND INTEREST OF AMICI

2

Amici, California Labor Federation (“Federation”), California State Council of Service

3 Employees (“SEIU California”), et al. submit this brief in opposition to the United States’ motion 4 to enjoin the operation of AB 450.1 The Federation consists of more than 1,200 unions,

5 representing 2.1 million union members and is dedicated to promoting and defending the interests

6 of working people. SEIU California is a non-profit labor organization consisting of over 700,000

7 members and its mission is to improve the lives of working people and their families. The

8 interest of additional amici and their corporate disclosure are attached as Appendix A. California

9 learned that workplace audits and reverification of work authorization were unnecessarily

10 stressful, chaotic, and caused collateral damage to authorized workers. California enacted AB

11 450 to protect workers throughout the State. AB 450 is not an impermissible regulation of federal

12 immigration law.

13

SUMMARY OF ARGUMENT

14

In enacting AB 450, California properly exercised its traditional police powers to protect

15 its workers—an inviolable state interest under the California Constitution. See CAL. CONST. art.

16 XIV, § 1. California’s public policy affords all workers labor protections regardless of

17 immigration status. See Cal. Lab. Code § 1171.5. AB 450 furthers California’s interest in

18 protecting lawful workers from job loss or interruption by regulating certain employer conduct

19 related to immigration status. It also prevents violations of workers’ privacy interests by requiring

20 employers to allow record or property searches only in response to a warrant. Plaintiff United

21 States seeks to strip away those protections. AB 450 does not interfere with the government’s

22 ability to enforce immigration law. Nor does AB 450 prohibit employers from reverifying

23 employee records or from conducting self-audits. Amici therefore respectfully request that this

24 Court deny the United States’ Motion for Preliminary Injunction.

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1 Pursuant to Fed. R. App. 29(a)(4), amici certify that no counsel for a party authored this brief in whole or in part, and no person, other than amici or their counsel made a monetary contribution to the preparation or submission of this brief. All parties have consented to the filing of this amicus brief.
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I. AB 450 PROPERLY REGULATES EMPLOYER CONDUCT TO PREVENT HARM TO WORKERS
The Supreme Court has long recognized that states have great latitude under their police powers to legislate as “to the protection of the lives, limbs, health, comfort, and quiet of all persons.” Slaughter-House Cases, 16 Wall. 36, 62 (1873) (quoting Thorpe v. Rutland & Burlington R. Co., 27 Vt. 140, 149 (1855)). In passing AB 450, the California Legislature acted squarely within its traditional police powers to protect the well-being of its workers, a state interest sacrosanct under the California Constitution, which provides broad leeway to enact regulations for the general welfare and protection of employees within the State. See CAL. CONST. art. XIV, § 1.
AB 450 seeks to ameliorate three primary harms to California employees: (1) adverse employment consequences resulting from an I-9 audit where the employee may have been able to correct any identified deficiencies with sufficient notice and an opportunity to reverify; (2) adverse employment or health consequences resulting from an unnecessary or discriminatory reverification process; and (3) employer use of unnecessary or unjustified investigations, often for retaliatory reasons, resulting in workplace disruptions and adverse health consequences for workers. These are the same harms that States, including California, have addressed for many years through regulation of employment and “matters of health and safety”—regulation that federal courts have upheld time and again in the face of federal preemption challenges. De Buono v. Nysa-Ila Med. & Clinical Servs. Fund, 520 U.S. 806 (1997); see Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 715 (1985) (recognizing the “presumption that state or local regulation of a matter related to health and safety is not invalidated under the Supremacy Clause”); Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 756 (1985) (state law requiring employer health insurance plans to include mental health coverage “is a valid and unexceptional exercise of the Commonwealth’s police power” that does not conflict with federal law); Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952) (state law imposing criminal penalties on employers for deducting wages for employee absences for the purpose of voting does not violate the Constitution); Golden Gate Rest. Ass’n v. City of San Francisco, 512 F.3d 1112 (9th Cir. 2008)
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1 (affirming state law requiring employers to make health care expenditures on behalf of certain

2 employees); Paige v. Henry J. Kaiser Co., 826 F.2d 857 (9th Cir. 1987) (employees’ wrongful

3 discharge claims based on state’s public policy as expressed in its health and safety regulations

4 not preempted by federal labor law). AB 450 addresses each of these harms to employees by

5 regulating the conduct of employers, not that of any government agent.

6 A. 7 8

AB 450’S NOTICE PROVISIONS PROTECT WORKERS AGAINST ADVERSE EMPLOYMENT CONSEQUENCES ARISING FROM I-9 AUDITS BY PROVIDING SUFFICIENT NOTICE AND AN OPPORTUNITY TO CORRECT DEFICIENCIES

9

AB 450 reduces the likelihood that an employer will terminate a lawfully authorized

10 worker by ensuring that the affected employee receives notice of the inspection and has an

11 opportunity to correct any deficiencies identified. When employers fail to inform workers about

12 an I-9 audit or deny them an opportunity to reverify work authorization documents after an audit,

13 lawfully authorized workers may be adversely impacted. It is common for authorized workers,

14 including lawful permanent residents and United States citizens, to be misidentified by

15 immigration authorities as lacking work authorization on the government’s Notice of Suspect 16 Documents (“NSD”).2 For example, Marcine Seid, an immigration attorney, has identified an I-9

17 audit in which one employee had lawful permanent residency and another who was a naturalized 18 United States citizen both were listed on the NSD provided to their employer.3

19

Another example of this harm occurred in 2014 when factory workers in Southern

20 California were fired due to an alleged government audit.4 Some workers had complained to the

21 employer about payment irregularities, such as failure to pay overtime, the lack of available

22 drinking water in the factory, and lack of sufficient restroom breaks. In late 2014, the employer

23 summarily fired its workers ostensibly because immigration authorities informed the employer

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2 Declaration of Marcine A. Seid, Attorney, ¶ 4 attached herein in Appendix B. The NSD is a notice that may be issued on completion of an I-9 audit to an employer that advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, U.S. Immigration and Customs Enforcement (“ICE”) has determined that an employee is unauthorized to work. Id.; see also NSD discussion infra at Part II.B.
3 Id.
4 Employee intake questionnaires and attorney interview notes (Dec. 2014) (on file with the author).
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1 that none of its workers had “papers” to work in the United States. Despite questions, the

2 employer refused to provide the workers with any information. Had the workers been provided

3 with notice and an opportunity to correct any alleged deficiencies in their documentation, at least

4 some of these terminations might have been avoided. Also, and most troubling, these workers

5 could not know if an I-9 audit had actually occurred or if the employer was using an audit as an

6 excuse to retaliate against the workers for complaining.

7

A recent example clearly demonstrates how AB 450 addresses these concerns. A

8 California employer was the subject of an I-9 audit that commenced in January of 2018. On or

9 about May 3, 2018, ICE issued the NSD identifying fifteen workers as lacking work

10 authorization. The employer complied with AB 450, provided the required notice of audit results

11 to the affected employees, and gave them an opportunity to resubmit documents. Eleven of those

12 workers resubmitted documents establishing authorization to work to the employer. On or about

13 May 16, 2018, ICE issued a notice to the employer acknowledging that it had incorrectly

14 identified nine workers on the original NSD as lacking authorization to work and requested that 15 the employer reverse any adverse action taken against those workers. 5Without AB 450, these

16 workers may never have had the chance to show that they were authorized to work.

17

Another common situation that the § 90.2 notice provision addresses is employees who

18 have let their employment authorization documents (“EAD”) expire because their employers do

19 not regularly reverify and they are reluctant to spend money unnecessarily on substantial renewal 20 fees.6 These employees, who remain eligible to lawfully work, are able to obtain the necessary

21 documents to satisfy I-9 requirements if provided the opportunity, but employers often did not

22 give them that chance. The following are examples of instances where employees received

23 advice not to renew work authorization documents in order to save money, which would put them

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5 Correspondence between local union and employer, and Change to Notice of Inspection Results dated May 16, 2018 (on file with the author).
6 The current USCIS filing fee to renew employment authorization documents is $410. See USCIS Application for Employment Authorization available at https://www.uscis.gov/i-765 (last visited May 11, 2018).
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1 in especially precarious positions in I-9 audits where there had been no notice and opportunity to

2 renew before an adverse employment decision could be taken7:

3

Angela works as a janitor in Southern California.8 Angela has been in work authorized

4 Temporary Protected Status (“TPS”) since 2000. The TPS designation was routinely extended by

5 Congress over the last eighteen years. Each time TPS designation for her native country was

6 extended, Angela was required to pay a fee to re-register her TPS status and another fee to renew

7 her EAD. Angela was routinely advised by her immigration lawyer not to renew her EAD in

8 order to save money, especially if her employer was not checking to reverify expired work

9 authorization documents.

10

Luis Fuentes is an organizer with a union in Southern California. Many of the members

11 that he represents are immigrant workers and he often attends legal clinics hosted by well-

12 respected non-profit organizations that provide immigration services and legal representation. He

13 also connects with other local and national immigrant rights organizations to keep abreast of 14 issues that may impact immigrant workers.9 When the federal government announced the

15 termination and last extension of TPS designation for certain countries earlier this year, Mr.

16 Fuentes observed non-profit providers, immigration lawyers, and immigrant rights advocates

17 discuss the option of advising workers not to renew their work authorization documents in order

18 to save money on the costs of those fees.

19

Providing notice to employees about the initiation and results of an I-9 audit allows them

20 to seek legal advice and correct any potential problems that may exist with their work

21 authorization documents. In doing so, § 90.2 helps ensure compliance with federal law, prevents

22 needless interruption to or loss of employment, and prevents employers from concocting a

23 fictional I-9 audit to retaliate against workers.

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7 The names used in case examples are pseudonyms in order to protect the identity of the workers. 8 Telephone interview notes of worker with Monica Guizar, Attorney, Weinberg, Roger and Rosenfeld (May 9, 2018) (on file with the author). 9 Declaration of Luis Fuentes attached herein under Appendix B.
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B. AB 450 PROTECTS WORKERS AGAINST ADVERSE EMPLOYMENT CONSEQUENCES AND THE HEALTH IMPACTS OF STRESS FROM UNNECESSARY OR DISCRIMINATORY REVERIFICATION AB 450’s codification of Labor Code § 1019.2, protects current workers from unnecessary
reverification at times or in manners not required by federal law. See 8 U.S.C. §1324a (requiring verification at time of hire); 8 C.F.R. §247a.2(b)(1)(viii) (enumerating situations in which reverification is not required); 8 C.F.R. §247a.1(l) (defining constructive knowledge). When employers improperly reverify work authorization documents of current work-authorized employees, it can result in loss of work and unjust termination. Some authorized workers are required to take time off work to visit agencies—in some cases multiple times—to provide proof of authorization even though not required by law.
By limiting unwarranted reverification, §1019.2 reduces the likelihood that reverification will be misused. The perception that they are subject to reverification for discriminatory reasons can have significant negative health impacts. See ELIZABETH A. PASCOE AND LAURA SMART RICHMAN, PERCEIVED DISCRIMINATION AND HEALTH: A META-ANALYTIC REVIEW (National Institutes of Health 2009) (“perceived discrimination has a significant negative effect on both mental and physical health. Perceived discrimination also produces significantly heightened stress responses and is related to participation in unhealthy and nonparticipation in healthy behaviors.”), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2747726/. The following case examples demonstrate this harm:
Rosa works for a large healthcare provider in Southern California. She is a United States citizen born in Gilroy, California.10 Rosa’s employer reverified her work authorization documents, even though not required to do so by law, and questioned why the name on her Social Security card listed only one last name while her driver’s license listed two last names. Rosa explained that her card listed only her maiden name, while her driver’s license also listed her last name through marriage. Her employer instructed Rosa to visit the Social Security Administration (“SSA”) and obtain a document that proved she was the same person. She went to the SSA, obtained a document explaining that she was the same person and that her Social Security number 10 Worker email statement to Union SEIU UHW forwarded to Monica Guizar, Weinberg, Roger and Rosenfeld (May 3, 2018) (on file with the author).
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1 was hers, and submitted it to her employer. Her employer refused to accept the document,

2 demanded she provide more proof of work authorization and stated that she was undocumented.

3

Rosa then brought her birth certificate, her baptism certificate, and other documents to

4 prove her identity and that she was a United States citizen. Her employer refused to accept the

5 additional documents. When those documents were not accepted, Rosa again visited the SSA’s

6 office, added her married surname to her name, and obtained a new Social Security card

7 reflecting her maiden and married surnames. She then presented the new card with both last

8 names, her birth certificate, her mother’s birth certificate (who was born in Denver, Colorado),

9 and her father’s citizenship paperwork to her employer. The employer refused to accept the

10 documents and told Rosa that she “could have purchased” her Social Security card “anywhere.”

11

Rosa’s employer suspended her from work. She immediately contacted an attorney. She

12 also informed a friend in management that she had scheduled an appointment with an attorney.

13 On the second day of Rosa’s suspension, her employer contacted her, told her that the “whole

14 thing was a misunderstanding,” and immediately reinstated her. The stress from this incident, the

15 potential of losing her job, and the accusation of being undocumented exacerbated Rosa’s

16 existing medical condition and resulted in her hospitalization.

17

Jenny is a lawful permanent resident who works as a janitor in Southern California.11

18 Jenny’s employer incorrectly transcribed her information on the I-9 form at the time of hire.

19 Based on this error, the employer later claimed that Jenny was not authorized to work and fired

20 her. Her union filed a grievance and assisted her with informing the employer of its error,

21 providing proof that Jenny was a lawful permanent resident and demanding that she be reinstated.

22 Ultimately, Jenny spent six months out of work because her employer refused to believe that she

23 was authorized to work. Federal law does not require (and prohibits) reverification of lawful

24 permanent residents.

25

When workers in lawful work status are improperly questioned by employers about their

26 work authorization, are not believed to have proper work status despite having presented proper

27 documentation, or are presumed to be undocumented, they suffer harm. Prior to AB 450’s

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11 Grievance and correspondence between the union and the employer (on file with the author).
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1 codification at Lab. Code § 1019.2, if workers could not provide evidence that an unnecessary

2 reverification of employment authorization had been conducted based on employer animus,

3 discriminatory intent, or retaliation for having engaged in protected activity, they were left with

4 little recourse. See, e.g., 8 U.S.C. § 1324b (prohibits document abuse if made for the purpose or

5 with intent of discriminating against an individual); Cal. Lab. Code § 1019.1 (prohibits

6 reverification using an unfair immigration-related practice).

7 C. 8

AB 450 PREVENTS UNWARRANTED INTRUSION, REDUCES WORKPLACE STRESS, AND PROTECTS WORKERS FROM EMPLOYER USE OF IMMIGRATION ENFORCEMENT TO RETALIATE AGAINST WORKERS

9

Beginning in 2017, threats by California employers to call immigration authorities to their

10 place of business to arrest workers has been on the rise.12 AB 450’s addition of California

11 Government Code sections 7285.1 and 7285.2 prevent employers from using immigration

12 enforcement as a tool to retaliate against workers. The following case example demonstrates this

13 harm:

14

Anthony and his co-workers work for an Italian restaurant in Southern California.13

15 Anthony and his co-workers initiated a campaign to improve working conditions at their

16 workplace based on wage payment irregularities and lack of accommodations for breastfeeding

17 employees. The workers filed wage claims, prepared a petition, and delivered it to their employer

18 demanding payment of unpaid wages and to improve working conditions. After the action, the

19 restaurant manager approached Anthony and said: “Soon I’m going to get rid of all of you.”

20 Anthony asked: “How?” The manager told Anthony that he was going to call immigration on the

21 workers.

22

Indeed, the federal government agrees that immigration enforcement should not be used

23 by employers to retaliate against workers or interfere with labor disputes. See Revised

24 Memorandum of Understanding (“MOU”) Between the Department of Homeland Security and

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Department of Labor Concerning Enforcement Activities at Worksites (Dec. 7, 2011), available
12 Andrew Khouri, More Workers Say Their Bosses Are Threatening to Have Them Deported, L.A. TIMES, Jan. 3, 2018, available at http://www.latimes.com/business/la-fi-immigrationretaliation-20180102-story.html (last visited May 11, 2018). 13 Telephonic interview with Manuel Villanueva, Workplace Justice Organizer Restaurant Opportunities Center of Los Angeles ROC-LA (May 8, 2018) (notes on file with author).
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1 at https://www.dol.gov/asp/media/reports/DHS-DOL-MOU.pdf; see also Addendum to Revised

2 MOU (May 2016) available at https://www.dol.gov/sites/default/files/documents/MOU-

3 Addendum.pdf. By regulating employer conduct with respect to searches of “nonpublic areas of

4 a place of labor” or of “the employer’s employee records,” AB 450 makes it more difficult for

5 employers to use immigration enforcement to intimidate and retaliate against workers, which can

6 result in workplace stress. Reducing workplace stress is a significant health concern that directly

7 implicates the state’s police power to legislate for the protection of workers. The stress caused by

8 workplace searches is likely to impact immigrant employees with particular force even when they

9 are lawfully permitted to work in the U.S. See, e.g., SAMANTHA ARTIGA & PETRY UBRI, LIVING

10 IN AN IMMIGRANT FAMILY IN AMERICA: HOW FEAR AND TOXIC STRESS ARE AFFECTING DAILY

11 LIFE, WELL-BEING, & HEALTH (The Henry J. Kaiser Family Foundation 2017) (describing results

12 of extensive public health study indicating that “immigrant families, including those with lawful

13 status, are experiencing resounding levels of fear and uncertainty” in the current political

14 climate), available at https://www.kff.org/disparities-policy/issue-brief/living-in-an-immigrant-

15 family-in-america-how-fear-and-toxic-stress-are-affecting-daily-life-well-being-health/.

16

Searches of personnel files, which may contain embarrassing or non-flattering information

17 that workers would not want shared, also implicate employees’ individual right to privacy, an

18 especially strong state interest in California, where the state constitution explicitly enumerates it

19 as an “inalienable right[].” CAL. CONST. art. I, § 1. California courts recognize this right in the

20 private employment setting. See, e.g., Hernandez v. Hillsides, Inc., 47 Cal.4th 272, 287 (Cal.

21 2009); Feminist Women’s Health Ctr. v. Sup. Ct., 52 Cal. App. 4th 1234, 1244-45 (Cal. 3d 1997).

22 Section 7285.2 reduces the likelihood that employers will allow employees’ private information,

23 unrelated to authorization to work, to be inspected by authorities. AB 450 prevents employers

24 from allowing unlawful intrusions, searches, reduces workplace stress, and makes it difficult for

25 employers to use enforcement as a tool to retaliate.

26 //

27 //

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30 ROSENFELD
A Professional Corporation

800 Wilshire Blvd, Suite 1320 Los Angeles, California 90017
(213) 380-2344

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II. AB 450 IS NOT AN OBSTACLE TO IMMIGRATION ENFORCEMENT

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A. AB 450 CANNOT INTERFERE WITH AN EMPLOYER’S RIGHT TO CONSENT BECAUSE SUCH A RIGHT DOES NOT EXIST
The U.S. argues that AB 450’s Government Code provisions interfere with an employer’s “right to consent to a police search.” P.I. at 1. But no such right exists. The Fourth Amendment only protects the right to be free from unreasonable searches and seizure. See, e.g., Illinois v. Rodriguez, 497 U.S. 177, 183 (1990). This generally means searches must be pursuant to a warrant, “subject only to a few specifically established and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 347, 357). Nothing in the Fourth Amendment’s text nor any case law interpreting it establishes a right to consent to searches. AB 450 cannot interfere with a right that does not exist.
It is true that law enforcement may conduct a search where the subject of the search has provided voluntary consent to do so. See, e.g., Schneckloth, 412 U.S. at 219 (1973); Davis v. United States, 328 U.S. 582, 593-94 (1946); Zap v. United States, 328 U.S. 624, 630 (1947). The validity of consent searches implies that individuals have a constitutionally-protected right to refuse consent, a right that AB 450 clearly promotes. See, e.g., Schneckloth, 412 at 227 (“While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.”) (emphasis supplied). That there exists a right to refuse consent, however, does not mean that the opposite is true, i.e., that there is a right to affirmatively consent to a search. Concluding that the Fourth Amendment provides a right to consent to searches is illogical and unsupported by authority.
The United States misleadingly cites People v. Shields, 205 Cal.App.3d 1065, 1068 (1998). Shields addresses the police’s ability to temporarily detain employees in their workplace after an employer consents to a search of the premises and held that the employer cannot consent to the employee’s detention. The quoted passage regarding the employer’s “right to consent” is dicta referring to the reality that it is an employer who controls access to a property, and not employees (unless they are authorized to act on behalf of the employer). Likewise, in In re. Rudolph and Sletten, Inc., Employer, 2004 CA OSHA App. Bd. LEXIS 2, at *5 (Cal. OSHA
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1 Mar. 30, 2004), the California OSHA Board merely recognized consent as an exception to the

2 Fourth Amendment warrant requirement, and determined whether such consent had been

3 provided in the particular factual circumstances presented.

4

The two cases the United States cites for the proposition that “law enforcement entities

5 may rely on consent and need not normally procure judicial warrants before fulfilling their

6 regulatory mandates” are also inapposite. PI at 16. Both cases involve employers refusing to

7 provide consent to searches and the agencies procuring judicial warrants. See Walnut Hill Estate

8 Enters., LLC v. City of Oroville, 2010 U.S. Dist. LEXIS 74084 (E.D. Cal. July 21, 2010)

9 (upholding validity of warrants for fire inspection after employer refused consent); Salwasser

10 Mfg. Co. v. OSHA Appeals Bd., 214 Cal.App.3d 625 (1989) (upholding validity of Cal. OSHA

11 inspection warrant after employer refused consent). These cases do not support the claim that

12 obtaining consent is the “normal” procedure and obtaining a warrant is some kind of

13 aberration. To the contrary, they reaffirm that obtaining a warrant is something law enforcement

14 routinely does to comply with the requirements of the Fourth Amendment.

15

The Fourth Amendment prohibits unreasonable searches. AB 450 does not subject

16 anyone to an unreasonable search and thus, does not violate the Fourth Amendment. Employers

17 do not have a right to consent to a search, and thus restrictions on their ability to provide such

18 consent do not interfere with federal law.

19 B. 20

AB 450’S NOTICE PROVISIONS DO NOT INTERFERE WITH THE I-9 INSPECTION PROCESS

21

AB 450’s requirement that employers notify employees of I-9 inspections and the results

22 of those inspections reflects California’s exercise of its broad authority to regulate the

23 employment relationship for the benefit of all employees. See Cal. Lab. Code § 90.2. ICE

24 initiates the I-9 inspection process by serving a Notice of Inspection (NOI) on an employer which

25 compels the production of Forms I-9. See U.S. Immigration and Customs Enforcement Fact

26 Sheet: Form I-9 Inspection review, available at https://www.ice.gov/factsheets/i9-inspection (last

27 visited March 19, 2018). The NOI will usually identify the date, time, and location for turning

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A Professional Corporation

800 Wilshire Blvd, Suite 1320 Los Angeles, California 90017
(213) 380-2344

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1 over I-9 forms and other documentation that ICE requests. Id. AB 450 does not interfere with

2 this process and solely requires employers to notify employees that the NOI has been served.

3

California has for decades required all employers to post important information pertinent

4 to a variety of employee rights in the workplace. Employers must provide notice to employees

5 regarding issues ranging from workers’ compensation benefits and medical treatment, see 8 Cal.

6 Code Regs. § 9881, in effect since 1989, to safety rules and regulations, see Cal. Lab.

7 Code§ 6328, in effect since 1973. The U.S. Department of Labor (DOL) itself acknowledges on

8 its website that employers must comply with both federal and state requirements regarding

9 workplace postings. See DOL website, available at

10 https://www.dol.gov/whd/resources/posters.htm/ (last visited on May 10, 2018). AB 450’s

11 employee notice provision is firmly in line with the myriad other state posting requirements that

12 alert employees of their rights and responsibilities with respect to their employment.

13

After the audit, the employer is informed of the results, often via a NSD. The NSD

14 provides employers and any identified employees an opportunity to present additional

15 documentation to demonstrate work authorization “if they believe the finding is in error.” Id. AB

16 450 places no requirements on the employer with respect to compliance with the NOI. Instead,

17 AB 450 only directs employers to notify an affected employee of the audit’s results in relation to

18 him or her and of the opportunity to demonstrate work authorization before any adverse action is

19 taken.

20

AB 450’s notice requirements are in line with the federal government’s own guidance

21 encouraging employer transparency with its employees, particularly when it comes to audits of I-

22 9 records and reverification of employees’ work authorization. See ICE Guidance for Employers

23 Conducting Internal Employment Eligibility Verification Form I-9 Audits, available at

24 https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf (last visited on

25 March 19, 2018) (recommending a transparent process for interacting with employees and

26 informing workers whether an audit is “in response to a government directive”); see also

27 Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 608-09 (2011) (finding that

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30 ROSENFELD
A Professional Corporation

800 Wilshire Blvd, Suite 1320 Los Angeles, California 90017
(213) 380-2344

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1 Arizona’s requirement that employers use E-Verify to determine whether employees were eligible

2 to work was not preempted where the federal government had encouraged the use of E-Verify).

3

Plaintiff fails to demonstrate how AB 450’s notice provisions have interfered with its

4 ability to enforce immigration law. See, e.g., Declaration of Thomas D. Homan ¶ 84 (speculating

5 that the notice provision “may create confusion on behalf of an employer,” but providing no

6 evidence that such confusion has ever actually occurred). Instead, the government has touted its

7 immigration enforcement efforts in California, including serving hundreds of NOI’s on employers

8 to audit I-9 records. See U.S. Immigration and Customs Enforcement, News Releases ICE

9 operation in LA results in 212 arrests, 122 notices of inspection (Feb. 16, 2018) available at

10 https://www.ice.gov/news/releases/ice-operation-la-results-212-arrests-122-notices-inspection

11 (last visited April 2, 2018); see also Jason Green, ICE targets 77 Northern California businesses

12 in undocumented worker crackdown, THE MERCURY NEWS, Feb. 1, 2018, available at

13 https://www.mercurynews.com/2018/02/01/ice-targets-77-northern-california-businesses-in-

14 crackdown-on-illegal-workers/ (last visited April 2, 2018); Adam Elmahrek, ICE steps up

15 enforcement at businesses in California, targeting employers and workers, THE LOS ANGELES

16 TIMES, Feb. 16, 2018, available at http://www.latimes.com/local/lanow/la-me-ln-ice-audits-

17 20180216-story.html (last visited April 2, 2018).

18

1. There Is No Evidence That AB 450 Has Interfered with Audits

19

The United States has not provided evidence to show AB 450 interferes with enforcement,

20 and actual audits conducted since its enactment demonstrate this is not the case. See eg., infra at

21 Part I.A. For example, employers served with NOIs in 2018 complied with the AB 450 notice 22 requirements and provided said I-9 forms and other documentation to ICE.14 On or about April 9, 23 2018, ICE completed one of these audits and served the NSD on one of these employers.15 The 24 employer complied with AB 450’s notice requirements with respect to the NSD.16

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800 Wilshire Blvd, Suite 1320 Los Angeles, California 90017
(213) 380-2344

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14 Correspondence between employers and four separate unions (Jan. 29, 2018 and Jan. 30, 2018) (on file with the author). 15 Correspondence between employer and unions (April 9, 2018) (on file with author). 16 Id.
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1

2. Protections for Employees Similar to Those in AB 450 Have Been Enforced in

the Collective Bargaining Context with no Negative Impacts on Employers’

2

Ability to Comply with Federal Labor Law and Immigration Law Obligations

3

During the Congressional legislative debate ultimately resulting in the passage of the

4 Immigration Reform and Control Act of 1986 (“IRCA”), organized labor ensured that Congress

5 did not ignore the importance of labor protections and advocated for discrimination protections in 6 the employer sanctions law. See S. 1200 a Bill to Amend the Immigration and Nationality Act to 7 Effectively Control Unauthorized Immigration to the United States, and for Other Purposes:

8 Hearings Before the S. Comm. on the Judiciary, Subcomm. on Immigration and Refugee Policy,

9 99th Cong. 1 (1985) (Statement of Thomas R. Donahue, Secretary Treasurer, AFL-CIO). Since 10 IRCA’s enactment, worker advocates and labor unions have had to ensure workers’ rights are 11 protected as employers comply with IRCA. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 104 S. Ct.

12 2803 (1984); Agri Processor Co. v. NLRB, 514 F.3d 1 (2008).

13

For example, immigration issues such as work authorization impact terms and conditions

14 of employment. Under federal labor law, these topics trigger certain employer bargaining 15 obligations under the National Labor Relations Act. See Aramark Educ. Servs., 355 NLRB No. 11

16 (2010) (employer has 8(a)(5) obligation to bargain with union before implementing policy

17 requiring workers to correct SSA no-matches), abrogated on other grounds by New Process Steel,

18 L.P. v. NLRB, 130 S. Ct. 2635 (2010); Operating Engineers Local 3 (Nortech Waste), 336 NLRB 19 554, 570 (2001) (employee questioned about work authorization enjoys Weingarten rights, and 20 employer has 8(a)(5) obligation to bargain with the Union concerning IRCA matters);

21 Washington Beef, Inc., 328 NLRB 612619-620 (1999) (where employer received INS notice that

22 employees did not possess valid work authorization documents, employer had 8(a)(5) bargaining

23 obligation concerning length of time employees must be given to reverify work authorization,

24 except where employee admitted lack of work authorization).

25

As a result, since IRCA’s enactment, labor unions have represented workers in

26 government audits, enforcement actions, and reverification of work authorization to ensure

27 protections similar to those in AB 450. Id. Some unions have collective bargaining language

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30 ROSENFELD
A Professional Corporation

800 Wilshire Blvd, Suite 1320 Los Angeles, California 90017
(213) 380-2344

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1 addressing these issues that in some cases are similar to AB 450’s requirements.17 Unions have

2 consistently enforced this type of collective bargaining language.

3 C. 4

AB 450’S REVERIFICATION PROVISION DOES NOT INTERFERE WITH IMMIGRATION ENFORCEMENT

5

Labor Code § 1019.2 does not prohibit employer self-audits or reverification. Nor does it

6 prohibit employer compliance with federal law. 8 U.S.C. § 1324a; 8 C.F.R. § 274a; 8 C.F.R. §

7 274a.2(b)(1)(viii); 8 C.F.R. § 274a.1(l)(defines constructive knowledge); see also Aramark

8 Facility Srvs. v. SEIU, Local 1877, 530 F.3d 817 (9th Cir. 2008). AB 450’s provision ensures

9 that employers are not putting employees through unnecessary verification when not required by

10 law. See Santillan v. USA Waste of Cal., 853 F.3d 1044, 1045-46 (9th Cir. 2017) (holding that an

11 employer did not have a legitimate business interest to make reinstatement contingent on

12 verifying authorization to work because said verification was not required by law).

13

III. CONCLUSION

14

AB 450 is a valid exercise of the State’s police powers to legislate employment

15 regulations for the protection of workers. The law addresses concrete harms to employees

16 without causing any interference with immigration enforcement activities. The Motion for a

17 Preliminary Injunction should be denied.

18 Dated: May 18, 2018
19 20 21 22 23 24 25

WEINBERG, ROGER & ROSENFELD A Professional Corporation
/S/ Monica T. Guizar By: ANTONIO RUIZ
MONICA T. GUIZAR ERIC J. WIESNER
Attorneys for Amici California Labor Federation, AFL-CIO; and California State Council of Service Employees

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A Professional Corporation

800 Wilshire Blvd, Suite 1320 Los Angeles, California 90017
(213) 380-2344

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17 California Labor Federation model collective bargaining language on immigration issues (on file with the author).
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1

APPENDIX A: IDENTITY AND INTEREST OF AMICI CURIAE

2

3

California Labor Federation, AFL-CIO is a labor federation that consists of more than

4 1,200 unions, representing 2.1 million union members in manufacturing, retail, construction,

5 hospitality, public sector, health care, entertainment and other industries. The California Labor

6 Federation (“Federation”) is dedicated to promoting and defending the interests of working

7 people and their families for the betterment of California’s communities. From legislative

8 campaigns to grassroots organizing, its affiliates are actively engaged in every aspect of

9 California’s economy and government. The Federation’s three main areas of work include:

10 Legislative Action, Political Action, and Economic Action. The Federation’s achievements have

11 included restoring daily overtime pay, raising the minimum wage and passing the nation’s first

12 Paid Family Leave law.

13

California State Council of Service Employees (“SEIU California”) is a non-profit labor

14 organization affiliated with the Service Employees International Union (“SEIU”) consisting of

15 over 700,000 members in California. SEIU California’s mission is to improve the lives of

16 working people and their families and lead the way to a more just and humane society. SEIU

17 fights for jobs with decent wages, healthcare, pensions, better working conditions, and more

18 opportunities. The SEIU California strives to build greater unity among all SEIU locals in

19 California and to mobilize its membership to pursue an action-oriented, issue-driven agenda.

20 SEIU California accomplishes its mission through: Member and Public Education, Member

21 Mobilization, Voter Registration, “Get out the Vote” efforts, Legislative Advocacy in the Capitol

22 and in Districts, and Activists’ Training. SEIU California works in the areas of healthcare, long-

23 term care, public services (both state workers and local), and building services.

24

Asian Americans Advancing Justice- Los Angeles (“Advancing Justice – LA”) is the

25 nation’s largest legal and civil rights organization for Asian Americans, Native Hawaiians, and

26 Pacific Islanders (NHPI). Founded in 1983 as the Asian Pacific American Legal Center,

27 Advancing Justice - LA serves more than 15,000 individuals and organizations every year.

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Through direct services, impact litigation, policy advocacy, leadership development, and capacity
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APPENDIX A: IDENTITY AND INTEREST OF AMICI CURIAE

Case 2:18-cv-00490-JAM-KJN Document 134 Filed 05/21/18 Page 23 of 27

1 building, Advancing Justice - LA focuses on the most vulnerable members of Asian American

2 and NHPI communities, including immigrant workers who face exploitation in the workplace,

3 while also building a strong voice for civil rights and social justice. Advancing Justice - LA is

4 based in downtown Los Angeles, with satellite offices in Orange County and Sacramento.

5

Legal Aid at Work (“LAAW”) is a nonprofit legal organization, based in San Francisco,

6 California, whose mission is to protect and expand the employment and civil rights of

7 underrepresented workers and community members. LAAW does this by engaging in impact

8 litigation, direct legal services, legislative advocacy and community education. Through its

9 National Origin and Immigrants' Rights Program, LAAW advocates on behalf of immigrant

10 workers who face discrimination and exploitation in the workplace because of their national

11 origin.

12

The Maintenance Cooperation Trust Fund (“MCTF”) is a California statewide

13 watchdog organization working to abolish illegal and unfair business practices in the janitorial

14 industry. The MCTF exposes unlawful operations, encourages accountability, promotes

15 responsible business practices, and helps level the playing field in the interest of clients,

16 employers, workers and the general public. Since its inception in 1999, the MCTF has assisted in

17 the collection of more than $26 million in unpaid wages for more than 5,000 janitors working in

18 many industries in California. Many of the workers we have assisted are immigrant workers who

19 are unfamiliar with their rights and protections as workers in the state of California. We have

20 assisted workers when they face retaliation from employers for reporting a wage and hour

21 violation, an injury, or a health hazard at work. Many times the retaliation is in the form of a

22 threat to report them or a family member to Immigration Customs and Enforcement or to re-

23 verify their immigration status. In order to ensure compliance with employment laws in the

24 janitorial industry, it is imperative that the rights of all workers are enforced regardless of

25 immigration status. We are interested in supporting policies that promote the enforcement of the

26 rights of immigrant workers and also for their well-being and sense of inclusion as community

27 members.

28

30 WEINBERG, ROGER &

ROSENFELD

A Professional Corporation

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1

United Food and Commercial Workers International Union (“UFCW”) is a labor

2 organization which represents working men and women across the United States. UFCW’s 1.3

3 million members work in a range of industries, with a majority working in retail food,

4 meatpacking and poultry, food processing and manufacturing, and non-food retail. UFCW’s

5 objective is the elevation of its members and assistance to other persons engaged in the

6 performance of work for the purpose of improving wages, hours, benefits, and working

7 conditions. UFCW also endeavors to advance and safeguard full employment, economic security,

8 and social welfare of its members and of workers generally.

9

UNITE HERE represents workers throughout the U.S. and Canada who work primarily

10 in the hotel, gaming, and food service industries.

11

DISCLOSURE STATEMENT

12

Amici that are non-profit organization have no parent corporations and no publicly traded

13 stock.

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Case 2:18-cv-00490-JAM-KJN Document 134 Filed 05/21/18 Page 25 of 27
DECLARATION OF MARLINE A. SEID
I, Marcine A. Seid, hereby declare as follows:
1. Iam an attorney licensed to practice law. Iam the principal attorney of the Seid Law Group located in Palo Alto, California. Imake this declaration upon my personal knowledge, and, if called as a witness,Icould competently testify to the facts hereinafter stated.
2. 1have been practicing immigration law for over twenty years. Iadvise and represent start-ups, emerging high technology companies, medium sized companies, and multi-national companies in the Silicon Valley and throughout the 50 States. My experience includes consulting on 1-9 employment verification issues, advising employers in the implementation of compliance policies and procedures, and representing employers in agency immigration worksite investigations.
3. In my experience representing employers in immigration worksite investigations and 1-9 inspections, upon the conclusion of the audit, there are always employees that the Department of Homeland Security ("DHS") mistakenly identifies as lacking work authorization and incorrectly places on a Notice of Suspect Documents ("NSD") list. Employers learn of the mistake upon reverification of employees listed on the NSD.
4. For example, in an 1-9 audit involving a Northern California employer thatIadvised, employees in work authorized and lawful permanent resident status were incorrectly listed on the NSD. One employee had lawful pennanent residency. Another employee was a naturalized United States citizen and other employees had valid work authorization to lawfully work in the United States.
5. AlthoughIhave provided an example from only one case, there are many other cases in which DHS inaccurately lists work authorized employees on the NSD. To my knowledge and based on my experience, the inaccurate identification of work authorized employees on the NSD is the norm rather than the exception. Many of these employees are lawful permanent residents and even U.S. Citizens who are often incorrectly placed on the NSD by DHS.
Ideclare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Executed this 3 day of May 2018 in Palo Alto, California.
Marcine A, Seid, Esq.

DOCSNT\SERSCA\ 140990\966120.v1-5/2/18

19 (Appendix B)

Case 2:18-cv-00490-JAM-KJN Document 134 Filed 05/21/18 Page 26 of 27
DECLARATION OF LUIS FUENTES I, Luis Fuentes, hereby declare as follows: 1. Iam an organizer employed with a local union affiliated with the Service Employees International Union ("SEIU") in Southern California. 2. Many of the members that our local union represents are immigrant workers. 3. As part of my job,Ioften attend legal clinics hosted by well-respected non-profit organizations that provide immigration services and legal representation to immigrants.Ialso connect with other local and national immigrant rights organizations to keep abreast of issues that may impact immigrant workers. 4. Earlier this year, when the federal government announced the termination and last extension of the Temporary Protected Status ("TPS") designation for certain countries,I observed non-profit providers, immigration lawyers, and immigrant rights advocates discuss the option of advising workers not to renew their work authorization documents in order to save money on the costs of those fees. Ideclare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Executed this 17th day of May 2018 in Los Angeles, Californi
Luis Fuentes
20 (Appendix B)

Case 2:18-cv-00490-JAM-KJN Document 134 Filed 05/21/18 Page 27 of 27

1 CERTIFICATE OF SERVICE
2

Case Name: The United States of America v.

3

The State of California, et al.

No. 2:18-cv-00490-JAM-KJN

4

5

I hereby certify that on May 18, 2018, I electronically filed the following documents with

6 the Clerk of the Court by using the CM/ECF system:

7 BRIEF OF AMICI CURIAE CALIFORNIA LABOR

8

FEDERATION, CALIFORNIA STATE COUNCIL OF

SERVICE EMPLOYEES, ET AL. IN SUPPORT OF

9

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION

FOR PRELIMINARY INJUNCTION

10

I certify that all participants in the case are registered CM/ECF users and that service will 11

be accomplished by the CM/ECF system. 12

I declare under penalty of perjury under the laws of the State of California the foregoing is 13

true and correct and that this declaration was executed on May 18, 2018, at Los Angeles, 14

California. 15

16

Melanie Garion

Declarant

17

/s/ Melanie Garion Signature

18

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20

21

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25

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27 140990\968823

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CERTIFICATE OF SERVICE Case No. 2:18-cv-00490-JAM-KJN

 
 Case 2:18-cv-00490-JAM-KJN Document 135 Filed 05/21/18 Page 1 of 17

1 LATHAM & WATKINS LLP

Robert W. Perrin (SBN 194485)

2

robert.perrin@lw.com

Sarah F. Mitchell (SBN 308467)

3

sarah.mitchell@lw.com

Michael A. Hale (SBN 319056)

4

michael.hale@lw.com

355 South Grand Avenue, Suite 100

5 Los Angeles, California 90071

Telephone: (213) 485-1234

6 Facsimile: (213) 891-8763

7 Attorneys for Amicus Curiae Anti-Defamation League
8

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11

12 UNITED STATES OF AMERICA,

13
Plaintiff, 14

15

v.

16 STATE OF CALIFORNIA, et al.,

17

Defendants.

Case No. 2:18-cv-00490-JAM-KJN
The Honorable John A. Mendez
ANTI-DEFAMATION LEAGUE’S AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

18

Date: June 20, 2018

19

Time: 10:00 a.m. Dept.: Courtroom 6, 14th Floor

20 Complaint Filed: March 6, 2018

21

Trial Date: Not yet set

22

23

24

25

26

27

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1 I.
2 II.
3 4 5 6 7 8
III. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS INTRODUCTION ......................................................................................................... 2
ARGUMENT................................................................................................................. 3
A. The California Statutes at Issue Are Aimed at Protecting Victims and Witnesses of Crimes..................................................................................... 3
B. The United States’ Requested Injunction Suppresses Reporting of Crimes and Compromises Community Safety..................................................... 4
C. The United States’ Requested Injunction Directly and Disproportionately Harms Immigrant Communities and Leaves Them More Vulnerable to Hate Crimes. ............................................................. 7
CONCLUSION............................................................................................................ 11

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1

TABLE OF AUTHORITIES

2

Page(s)

3

CASES

4 Galarza v. Szalczyk,

5

745 F.3d 634 (3d Cir. 2014) .................................................................................................. 5

6 Mendia v. Garcia, 768 F.3d 1009 (9th Cir. 2014)............................................................................................... 5
7 STATUTES
8 18 U.S.C. § 249(a)...................................................................................................................... 8
9
10 Cal. Gov’t Code § 7284.6 ........................................................................................................... 3
11 Cal. Gov’t Code § 7285.1 ........................................................................................................... 3
12 Cal. Gov’t Code § 7285.2 ........................................................................................................... 3

13 Cal. Gov’t Code § 12532 ............................................................................................................ 3

14 Cal. Lab. Code § 90.2 ................................................................................................................. 3

15 Cal. Lab. Code § 1019.2 ............................................................................................................. 3

16

REGULATIONS

17 8 C.F.R. § 245.24 ....................................................................................................................... 5

18 OTHER AUTHORITIES

19 ADL, Comparison of FBI Hate Crime Statistics (2016-2000) (Nov. 2017),

20 https://www.adl.org/sites/default/files/documents/Final%20PDF%20FBI%20

Hate%20Crime%20Statistics%20Comparison%202000-

21

2016%20%282%29.pdf ........................................................................................................ 9

22 ADL, Executive Order on So-Called “Sanctuary Cities” Puts All Communities at

23

Risk, ADL Says (Jan. 25, 2017), https://www.adl.org/news/press-

releases/executive-order-on-so-called-sanctuary-cities-puts-all-communities-

24

at-risk-adl ............................................................................................................................. 8

25 ADL, Hate Crimes, https://www.adl.org/what-we-do/combat-hate/hate-crimes (last visited May 14, 2018).................................................................................................... 8
26

27

28

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1 ADL, Testimony of Jonathan A. Greenblatt CEO and National Director Anti-

Defamation League Before the Senate Judiciary Committee Hearings on

2

Responses to Increase in Religious Hate Crimes (May 2, 2017),

3

https://www.adl.org/sites/default/files/documents/Final%20ADL%20statemen

t%20Senate%20Judiciary%20Committee%20on%20combatting%20religious

4

%20hate%20crime.pdf........................................................................................................ 10

5 Bureau of Justice Statistics, Majority of Hate Crime Victimizations Go

Unreported to Police (June 29, 2017),

6

https://www.bjs.gov/content/pub/press/hcv0415pr.cfm ....................................................... 10

7 Carolina Moreno, Houston Police Announce Decrease in Latinos Reporting Rape,

8

Violent Crimes (Apr. 10, 2017),

http://www.huffingtonpost.com/entry/houston-police-announces-decrease-in-

9 latinos-reporting-rape-violent-crimes_us_58ebd5fae4b0df7e204455f4 ................................. 6

10 Chris Magnus, Tuscon’s Police Chief: Sessions’s Anti-Immigrant Policies Will Make Cities More Dangerous, N.Y. TIMES (Dec. 6, 2017)..................................................... 6
11

12

Eyder Peralta, You Say You’re an American, but What If You Had to Prove It or Be Deported?, NPR (Dec. 22, 2016), http://www.npr.org/sections/thetwo-

13

way/2016/12/22/504031635/you-say-you-re-an-american-butwhat-if-you-had-

to-prove-it-or-be-deported#foot1........................................................................................... 5

14 German Lopez, A New FBI Report Says Hate Crimes – Especially Against

15

Muslims – Went up in 2016, VOX (Nov. 13, 2017).

https://www.vox.com/identities/2017/11/13/16643448/fbi-hate-crimes-2016 ........................ 8 16

17 H.R. REP. NO. 111-86 ................................................................................................................. 8

18 Int’l Ass’n of Chiefs of Police, Police Chiefs Guide to Immigration Issues 28 (July 2007),

19

http://www.theiacp.org/Portals/0/pdfs/Publications/PoliceChiefsGuidetoImmi

gration.pdf ............................................................................................................................ 9

20

James Queally, Fearing Deportation, Many Domestic Violence Victims Are

21

Steering Clear of Police and Courts, L.A. TIMES (October 9, 2017),

22

http://www.latimes.com/local/lanow/la-me-ln-undocumented-crime-reporting20171009-story.html............................................................................................................. 6

23 Jason McGahan, Day Laborers Have Become an Easy Target for Anti-Immigrant

24

Vigilantes, LA WEEKLY (Jan. 10, 2017), http://www.laweekly.com/news/day-

laborers-have-become-an-easy-target-for-anti-immigrant-vigilantes-7803494..................... 10 25

Jeanine Braud, et al., U Visas for Immigrant Victims of Hate Crimes: A Practice

26

Guide for Advocates, U.C. BERKELEY PUB. L. AND LEGAL THEORY RESEARCH

27

PAPER SERIES 20 (June 26, 2014), https://ssrn.com/abstract=2459315 ................................... 9

28 Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation, N.Y. TIMES (Apr. 30, 2017), https://nyti.ms/2qkt2wM........................................................... 6

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1 Katayoun Kishi, Assaults Against Muslims in U.S. Surpass 2001 Level, PEW

RESEARCH CENTER (Nov. 15, 2017), http://www.pewresearch.org/fact-

2

tank/2017/11/15/assaults-against-muslims-in-u-s-surpass-2001-level.................................... 9

3 L.A. Cty. Comm’n on Human Relations, 2015 Hate Crime Report,

4

http://www.lahumanrelations.org/hatecrime/reports/2015%20Hate%20Crime

%20Report%20PDF%20(1).pdf............................................................................................ 8

5

Liz Robbins, New Weapon in Day Laborers’ Fight Against Wage Theft: A

6

Smartphone App, N.Y. TIMES (Mar. 1, 2016),

https://www.nytimes.com/2016/03/02/nyregion/new-weapon-in-day-laborers-

7

fight-against-wage-theft-a-smartphone-app.html ................................................................. 10

8 Matthew Scheider, Community Policing Nugget, COPS OFFICE, USDOJ (Feb.

9

2008),

http://web.archive.org/web/20170311171441/https:/cops.usdoj.gov/html/dispa

10

tch/february_2008/nugget.html ............................................................................................. 4

11 Megan Casidy, Phoenix Police: Armed robber targets day laborers with promise

12

of work, THE REPUBLIC (July 30, 2015), http://www.azcentral.com/story/news/local/phoenix/2015/07/30/phoenix-

13

police-armed-robber-lobo-bandit-targets-day-laborers-promise-

work/30918721................................................................................................................... 10

14 Michael Shively, et al., Understanding Trends in Hate Crimes Against

15

Immigrants and Hispanic-Americans, NAT’L INST. OF JUSTICE (Dec. 27,

2013), https://www.ncjrs.gov/pdffiles1/nij/grants/244755.pdf ......................................... 9, 10 16

17

National Immigrant Women’s Advocacy Project, Promoting Access to Justice for Immigrants and Limited English Proficient Crime Victims in an Age of

18

Increased Immigration Enforcement: Initial Report from a 2017 National

Survey, at 35 (May 3, 2018), http://library.niwap.org/wp-

19 content/uploads/Immigrant-Access-to-Justice-National-Report.pdf. ...................................... 6

20 Patrick McGreevy, Hate Crimes Rise in California, State Report Says, L.A.

TIMES (July 3, 2017), http://www.latimes.com/politics/essential/la-pol-ca-

21

essential-politics-updates-hate-crimes-rise-in-california-with-1499106658-

22

htmlstory.html ...................................................................................................................... 9

23 Ric Anderson, Q+A: ADL Leader Says That as Trump Surged, So Did Hate Crimes, LAS VEGAS SUN (Dec. 22, 2016),

24

https://lasvegassun.com/news/2016/dec/22/qa-adl-leader-says-that-as-trump-

surged-so-did-hat .................................................................................................................. 8 25

26

Ryan Lucas, Hate Crimes up in 2016, FBI Statistics Show, NATIONAL PUBLIC RADIO (Nov. 13, 2017), https://www.npr.org/2017/11/13/563737883/hate-

27

crimes-up-in-2016-fbi-statistics-show ................................................................................... 9

28

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1 Sanctuary Cities Don’t ‘Breed Crime.’ They Encourage People to Report Crime,

THE WASHINGTON POST (Apr. 24, 2018),

2

https://www.washingtonpost.com/news/monkey-

3

cage/wp/2018/04/24/sanctuary-cities-dont-breed-crime-they-encourage-

people-to-report-crime/?noredirect=on&utm_term=.2a830008f040....................................... 7

4 Sefano Camino, Giovanni Mastrobuoni, & Antonio Nicolo, Silence of the

5 Innocents: Illegal Immigrants’ Underreporting of Crime and their

Victimization, IZA (Oct. 2016),

6

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2861091 .............................................. 5

7 Stephen Lee, Policing Wage Theft in the Day Labor Market, 4 U.C. IRVINE L.

8

REV. 655 (2014) .................................................................................................................. 10

9 Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, CTR. FOR AM. PROGRESS (Jan. 26, 2017),

10

https://www.americanprogress.org/issues/immigration/

reports/2017/01/26/297366/the-effects-of-sanctuary-policies-on-crime-and-

11

the-economy ......................................................................................................................... 7

12 United States, UNIVISIONNEWS (June 14, 2017),

13

https://www.univision.com/univision-news/united-states/six-months-of-hate-

how-anti-immigrant-sentiment-is-affecting-latinos-in-the-united-states................................. 8

14 USCIS, Victims of Criminal Activity: U Nonimmigrant Status (Aug. 2017),

15

https://www.uscis.gov/humanitarian/victims-human-trafficking-other-

crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-

16

activity-u-nonimmigrant-status (last visited May 14, 2018)................................................... 5

17

18

19

20

21

22

23

24

25

26

27

28

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1

IDENTITY AND INTEREST OF AMICUS CURIAE

2

Amicus curiae Anti-Defamation League (“ADL”) is a non-profit organization that fights

3 anti-Semitism and all forms of bigotry, defends democratic ideals, and protects civil rights for

4 all. ADL has regional offices across the country, including five offices in California.

5

ADL is a leading organization in preventing and responding to hate crimes, having

6 drafted the nation’s first model hate crime law and having led a large coalition advocating for the

7 passage of the federal Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. ADL

8 has also been recognized as a leading resource on effective responses to violent bigotry and

9 building bridges of communication, understanding, and respect among diverse communities. To

10 support those aims, ADL trains law enforcement on issues including hate crimes and implicit

11 bias.

12

ADL is uniquely situated to assist the Court in evaluating the United States’ requested

13 preliminary injunction. Specifically, ADL can provide perspective on the likely suppressive

14 effect of the injunction on the reporting and prevention of crimes, including hate crimes. ADL’s

15 arguments thus further demonstrate, beyond the parties’ briefing, why this Court should deny the

16 preliminary injunction.

17

Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), ADL states that no party’s

18 counsel authored this brief in whole or in part, and no party, party’s counsel, or other person

19 contributed money intended to fund the preparation or submission of this brief.

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

The preliminary injunction that the United States seeks is not only unconstitutional, but

3 deliberately seeks to undo the protections that California law provides to its most vulnerable

4 communities and residents. Enjoining the provisions of California’s duly enacted Senate Bill 54

5 (“SB 54”), Assembly Bill 450 (“AB 450”), and Assembly Bill 103 (“AB 103”) – as the United

6 States requests – would force California to set aside critical protections designed to build trust

7 and cooperation between law enforcement officials and immigrant and minority communities.

8 The resulting erosion of trust between police and citizens would leave a large segment of the

9 population more vulnerable to crimes, especially hate crimes. Indeed, the effects of the

10 injunction would be felt most acutely by those members of society most in need of protection.

11

California’s laws are carefully crafted to comply with federal immigration law, yet at the

12 same time guarantee that citizens are not deterred from reporting crimes or otherwise engaging

13 with local law enforcement because of fears that the authorities will question their immigration

14 status. The goal is to ensure that local law enforcement is focused on deterring and responding

15 to crimes rather than on whether the victim, witness, or offender is an immigrant. In addition to

16 conserving limited resources, California’s statutes are thus designed to assist local law

17 enforcement – i.e., to advance police-community relations and encourage community members

18 to come forward to report crimes, and turn to police for protection without the fear that their

19 immigration or citizenship status will subject them to legal action themselves.

20

As California officials and law enforcement leaders around the nation have attested, there

21 is a demonstrable risk that both documented and undocumented immigrants would be dissuaded

22 from engaging with local enforcement efforts, including efforts to combat hate crime, if the

23 requested injunction is entered. In the wake of the anti-immigrant rhetoric and policies

24 advocated by the current Administration, members of immigrant groups already justifiably fear

25 that the police will report their immigration information – or that of a family member or friend –

26 to Immigration and Customs Enforcement (“ICE”), thereby resulting in detention and/or

27 deportation. As a consequence, many individuals are avoiding contact with law enforcement,

28 causing immediate irreparable harm to communities in California and across the country.

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1

In the experience of ADL, this break-down of trust and cooperation between police and

2 minority communities leaves communities more vulnerable to hate crimes. Moreover, the

3 resulting lawlessness compromises the safety of all citizens and residents, as the elimination of

4 trust in local law enforcement makes it much harder for law enforcement to get the information

5 they need from immigrant communities to prevent crime, including in particular hate crime.

6 Accordingly, ADL submits this amicus brief in support of California and urges this Court to

7 deny the United States’ request for a preliminary injunction. Only denial of the injunction can

8 prevent the immediate and irreparable harm that will otherwise ensue from the consequent

9 erosion of trust and cooperation between immigrant communities and law enforcement.

10 II. ARGUMENT

11

A. The California Statutes at Issue Are Aimed at Protecting Victims and

12

Witnesses of Crimes.

13

Contrary to the United States’ assertions, the California laws at issue were not “intended

14 to uniquely impede the enforcement of the immigration laws” (Plaintiff’s Motion for a

15 Preliminary Injunction at 32); rather, they were enacted to secure the enforcement of state

16 criminal law, in particular by encouraging victims and witnesses to come forward and report

17 crime, and to protect the rights of vulnerable communities in California.

18

Specifically, SB 54 was enacted to facilitate the reporting of crimes and strengthen

19 community policing efforts by defining when law enforcement agencies (“LEAs”) may use their

20 resources to assist the federal government with immigration enforcement. See Cal. Gov’t Code §

21 7284.6. AB 450 was enacted to protect the privacy rights of California workers when the federal

22 government seeks to conduct inspections. See Cal. Gov’t Code §§ 7285.1, 7285.2; Cal. Lab.

23 Code §§ 90.2, 1019.2. And, AB 103 was enacted to protect the welfare and due process rights of

24 those detained in California for civil immigration-enforcement purposes. See Cal. Gov’t Code §

25 12532. These statutes are designed to build trust between LEAs and immigrant communities in

26 California by eliminating the fear that any interaction with law enforcement will inevitably lead

27 to deportation, while also allowing LEAs to engage with federal immigration enforcement when

28

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1 serious crime is at issue. Moreover, they help protect the safety, well-being, and rights of all

2 people in California.

3

The statutes, along with other policies and statutes in California, are thus expressly aimed

4 at fostering cooperation and communication between law enforcement and the public. This is

5 the cornerstone of “community policing,” which is based on forging partnerships between law

6 enforcement and community members and groups. The U.S. Department of Justice itself has

7 affirmed that the value of community policing efforts depends in the first instance on

8 establishing trust between the community and law enforcement, because “[c]itizens who do not

9 trust the police are less likely to report crime and participate in developing solutions to

10 problems.”1 A critical element of developing this trust – and the animating purpose behind the

11 adoption of the state laws that the United States now challenges – is creating an environment in

12 which both victims and witnesses are willing to come forward and actively participate in

13 criminal investigations. California’s protective statutes are designed to do just that, i.e., to

14 encourage community members – regardless of their immigration or citizenship status – to

15 contact and cooperate with local police without fear of deportation or other immigration

16 consequences. Public safety throughout this nation depends on all community members having

17 this trust.

18

B. The United States’ Requested Injunction Suppresses Reporting of Crimes

19

and Compromises Community Safety.

20

If the Court grants the United States’ motion for a preliminary injunction, the California

21 statutes would be dead letters, and the community safety and trust that California has fostered

22 over decades of community policing would be replaced by suspicion and fear. By undermining

23 critical protective statutes and coercing local law enforcement agencies to enforce a federal

24 immigration program, the requested injunction would drive a wedge between police officers and

25 the residents they protect. Immigrants and members of communities with large immigrant

26

27 1

Matthew Scheider, Community Policing Nugget, CMTY. ORIENTED POLICING SERVS.

OFFICE, U.S. DEP’T OF JUSTICE (Feb. 2008),

28 http://web.archive.org/web/20170311171441/https:/cops.usdoj.gov/html/dispatch/february_2008/

nugget.html.

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1 populations would reasonably fear that their interaction with law enforcement would necessarily

2 lead to unwanted interaction with ICE. As a result, both undocumented and documented

3 immigrants will be unwilling to report crimes and to assist in police investigations out of

4 justifiable fear that contact with local police will lead to their detention and/or deportation, or

5 that of a family member of friend.2

6

California’s recognition that enforcement of state criminal law should be delinked, where

7 possible, from the enforcement of federal immigration law simply echoes what the federal

8 government itself has previously acknowledged. Indeed, federal agencies have expressly

9 affirmed the importance of encouraging undocumented victims to report criminal activity and

10 cooperate in the prosecution of crimes. As but one example, 8 C.F.R. § 245.24 provides an

11 incentive for undocumented immigrants who are victims of certain enumerated crimes to report

12 those crimes, and thereby become eligible to apply for lawful immigration status. U.S.

13 Citizenship and Immigration Services has stated that the purpose of this provision is “to

14 strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic

15 violence, sexual assault, trafficking of aliens and other crimes, while also protecting victims of

16 crimes.”3

17

Consistent with these observations, research has confirmed that the fear of retribution

18 following interaction with law enforcement has serious practical implications for community

19 safety.4 Indeed, this Administration’s immigration-related policies have exacerbated fears and

20

2

Fears of being treated as undocumented are well-founded. At times, ICE civil detainer

21 requests have been directed towards U.S. Citizens. See Mendia v. Garcia, 768 F.3d 1009, 1011

(9th Cir. 2014) (U.S. citizen spent two years in pre-trial detention as a result of the detainer);

22 Galarza v. Szalczyk, 745 F.3d 634, 636–38 (3d Cir. 2014) (U.S. citizen held in jail for three days

pursuant to erroneous detainer); Eyder Peralta, You Say You’re an American, but What If You

23 Had to Prove It or Be Deported?, NPR (Dec. 22, 2016), http://www.npr.org/sections/thetwo-

way/2016/12/22/504031635/you-say-you-re-an-american-butwhat-if-you-had-to-prove-it-or-be-

24 deported#foot1 (from October 2007 through July 2015, 693 detainers issued to local LEAs were

lifted or resolved with the outcome “United States Citizen Interviewed”).

25 3

USCIS, Victims of Criminal Activity: U Nonimmigrant Status (Aug. 2017),

26 https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminalactivity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status (last visited

27 May 14, 2018).

4

See, e.g., Sefano Camino, Giovanni Mastrobuoni, & Antonio Nicolo, Silence of the

28 Innocents: Illegal Immigrants’ Underreporting of Crime and Their Victimization, IZA (Oct.

2016), https://ssrn.com/abstract=2861091.

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1 anxieties, and thus already changed the landscape of the community’s interaction with law

2 enforcement. Since last year, there has been decreased crime reporting in the Latino

3 community.5 For example, in Houston and Los Angeles, rape reports by Latinos went down by

4 42.8 and 25 percent, respectively, from 2016.6 Reports of spousal abuse by Latino victims have

5 declined by 18, 13, and 3.5 percent in San Francisco, San Diego, and Los Angeles, respectively,

6 as compared to 2016, while reporting among non-Latinos has remained the same.7 The decline

7 in reports of sexual assault, in particular, has led to increased difficultly in investigating and

8 prosecuting domestic violence.8 In a 2017 survey of law enforcement personnel across the

9 country, officers reported a “decline in cooperation and a rise in fear of law enforcement” among

10 immigrant communities.9 This decline in cooperation “is leading to increased recidivism by

11 perpetrators of a range of crimes in their communities, including domestic and sexual violence

12 crimes.”10 The overall effect of enjoining California’s protective statutes would not be a

13 reduction in crime, but rather an increase in crime, as the necessary trust and cooperation

14 between the police and local communities is reduced.

15

Moreover, contrary to the United States’ assertions, there is demonstrable evidence that

16 “sanctuary” policies, such as the policies that animate the statutes at issue, reduce crime. For

17 example, one study completed in early 2017 compared counties with a “sanctuary” policy – i.e.,

18 counties that do not assist federal immigration enforcement officials by holding people in

19

5
20

See Chris Magnus, Tuscon’s Police Chief: Sessions’s Anti-Immigrant Policies Will Make

Cities More Dangerous, N.Y. TIMES (Dec. 6, 2017), https://nyti.ms/2nBbnTZ.

21 6

Carolina Moreno, Houston Police Announce Decrease in Latinos Reporting Rape,

Violent Crimes (Apr. 10, 2017), http://www.huffingtonpost.com/entry/houston-police-

22 announces-decrease-in-latinos-reporting-rape-violent-crimes_us_58ebd5fae4b0df7e204455f4.

7
23

James Queally, Fearing Deportation, Many Domestic Violence Victims Are Steering

Clear of Police and Courts, L.A. TIMES (October 9, 2017),

24 http://www.latimes.com/local/lanow/la-me-ln-undocumented-crime-reporting-20171009story.html.

25 8

Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation, N.Y.

TIMES (Apr. 30, 2017), https://nyti.ms/2qkt2wM.

26 9

National Immigrant Women’s Advocacy Project, Promoting Access to Justice for

27 Immigrants and Limited English Proficient Crime Victims in an Age of Increased Immigration Enforcement: Initial Report from a 2017 National Survey, at 35 (May 3, 2018),

28 http://library.niwap.org/wp-content/uploads/Immigrant-Access-to-Justice-National-Report.pdf.

10

Id. at 54.

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1 custody beyond their release date – with non-sanctuary counties that were similar on a broad

2 range of demographic characteristics. The study concluded that “[t]here are, on average, 35.5

3 fewer crimes committed per 10,000 people in sanctuary counties compared to nonsanctuary

4 counties.”11 Additionally, a recent survey of undocumented Mexican nationals in San Diego

5 County found that that “if local law enforcement officials were working together with ICE, 60.8

6 percent said they are less likely to report a crime they witnessed, and 42.9 percent said they are

7 less likely to report being a victim of crime.”12 Research has shown that “enlisting local law

8 enforcement agencies to enforce federal immigration law can drive undocumented immigrants

9 deeper into the shadows.”13

10

If the United States’ requested injunction is granted, the harms that will occur from the

11 breakdown of community policing and crime reporting will be immediate and irreparable. It will

12 be difficult – if not impossible – for local police to rebuild the bonds of trust and cooperation

13 with immigrant communities.

14

C. The United States’ Requested Injunction Directly and Disproportionately

15

Harms Immigrant Communities and Leaves Them More Vulnerable to Hate

16

Crimes.

17

By forcing California to set aside its statutes aimed at building trust between police and

18 citizens, the United States will leave a large segment of the population particularly vulnerable to

19 crimes, especially hate crimes.

20

Forty-five states – including California – and the District of Columbia have shown their

21 commitment to protecting minority groups by enacting hate crime legislation based on, or similar

22

23

24 11 Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, CTR. FOR

AM. PROGRESS (Jan. 26, 2017), 25 https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-of-

sanctuary-policies-on-crime-and-the-economy.

26 12

Tom K. Wong, Sanctuary Cities Don’t ‘Breed Crime.’ They Encourage People to Report

27 Crime, THE WASHINGTON POST (Apr. 24, 2018), https://www.washingtonpost.com/news/monkey-cage/wp/2018/04/24/sanctuary-cities-dont-

28 breed-crime-they-encourage-people-to-report-crime/?noredirect=on&utm_term=.2a830008f040.

13

Id.

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1 to, a model statute drafted by ADL.14 The landmark Matthew Shepard and James Byrd Jr. Hate

2 Crimes Prevention Act of 2009 (“HCPA”) created a new federal law which criminalizes willfully

3 causing bodily injury when the crime was committed because of the actual or perceived race,

4 color, religion, or national origin of the victim, or the crime was committed because of actual or

5 perceived religion, national origin, gender, sexual orientation, gender identity, or disability, and

6 the crime affected interstate or foreign commerce or occurred within federal special maritime

7 and territorial jurisdiction. 18 U.S.C. § 249(a). The purpose of the HCPA is to create more

8 effective response to and prevention of hate crimes, which “are disturbingly prevalent, [] pose a

9 significant threat to the full participation of all Americans in our democratic society,” and “are

10 significantly under-reported.”15 This Congressional commitment to protecting the most

11 vulnerable communities in our society will be directly undermined, and irreparably harmed, by

12 enjoining the California statutes at issue.

13

ADL has closely monitored and exposed the increasingly hateful anti-immigrant, anti-

14 Latino, and anti-Muslim rhetoric that has surrounded the national debate on immigration

15 reform.16 During the period since the 2016 presidential election, individuals have reported

16 increased hate incidents and hate crimes targeting Latinos based on perceived immigration

17 status.17 Indeed, studies have shown that reported hate crimes have been on the rise.18 For

18 14 ADL, Hate Crimes, https://www.adl.org/what-we-do/combat-hate/hate-crimes (last
19 visited May 14, 2018).

15
20

H.R. REP. NO. 111-86 at 5.

16 ADL, Executive Order on So-Called “Sanctuary Cities” Puts All Communities at Risk,

21 ADL Says (Jan. 25, 2017), https://www.adl.org/news/press-releases/executive-order-on-so-

called-sanctuary-cities-puts-all-communities-at-risk-adl; Ric Anderson, Q+A: ADL Leader Says

22 That as Trump Surged, So Did Hate Crimes, LAS VEGAS SUN (Dec. 22, 2016),

https://lasvegassun.com/news/2016/dec/22/qa-adl-leader-says-that-as-trump-surged-so-did-hat.

23 17

Jessica Weiss, Six Months of Hate: How Anti-immigrant Sentiment Is Affecting Latinos in

24 the United States, UNIVISIONNEWS (June 14, 2017), https://www.univision.com/univisionnews/united-states/six-months-of-hate-how-anti-immigrant-sentiment-is-affecting-latinos-in-the-

25 united-states.

18 See, e.g., German Lopez, A New FBI Report Says Hate Crimes – Especially Against

26 Muslims – Went up in 2016, VOX (Nov. 13, 2017).

https://www.vox.com/identities/2017/11/13/16643448/fbi-hate-crimes-2016 (according to FBI

27 statistics, reported hate crimes in 2016 increased by nearly 5 percent); L.A. Cty. Comm’n on

Human Relations, 2015 Hate Crime Report,

28 http://www.lahumanrelations.org/hatecrime/reports/2015%20Hate%20Crime%20Report%20PD

F%20(1).pdf (finding that crimes targeting Latino/as jumped 69 percent in Los Angeles County

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1 example, California saw an 11.2 percent increase in reported hate crimes from 2015 (before the

2 anti-immigrant rhetoric of the election campaign) to 2016, with the majority of the reported hate

3 crimes in California in 2016 occurring on the basis of race, ethnicity, or national origin.19 The

4 FBI reported in November 2017 that, nationally, hate crimes rose nearly 5 percent from 2015 to

5 2016, including a 19 percent increase in anti-Muslim hate crimes.20

6

People within immigrant communities are especially vulnerable to hate crime.21 One

7 study found that “[i]n a national survey of 464 immigration service providers conducted in 2012

8 [], advocates reported that 73% of hate crime victims they had served were targeted on the basis

9 of immigration status/nationality.”22 Both documented and undocumented immigrants, and even

10 members of minority communities that may be perceived as immigrants, face an increased

11 danger of hate crimes.

12

While the increased number of reported hate crimes is already troubling, the data

13 certainly underrepresents the number of hate crimes occurring across the U.S. Out of 15,254

14 law enforcement agencies that participated in FBI’s Hate Crime Statistics Act data collection in

15 2016, less than 12 percent reported one or more hate crimes to the FBI.23 Data obtained by the

16 Bureau of Justice Statistics’ National Crime Victimization Survey show that, from 2011 to 2015,

17 in 2015); Michael Shively, et al., Understanding Trends in Hate Crimes Against Immigrants and
18 Hispanic-Americans, NAT’L INST. OF JUSTICE (Dec. 27, 2013), https://www.ncjrs.gov/pdffiles1/nij/grants/244755.pdf (“From 2010 to 2011, there was a
19 statistically significant increase in the prevalence of harassment or bullying targeting Hispanics because of their ethnicity.”).

20 19 Patrick McGreevy, Hate Crimes Rise in California, State Report Says, L.A. TIMES (July 3, 2017), http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-hate-
21 crimes-rise-in-california-with-1499106658-htmlstory.html.

20
22

Ryan Lucas, Hate Crimes up in 2016, FBI Statistics Show, NATIONAL PUBLIC RADIO

(Nov. 13, 2017), https://www.npr.org/2017/11/13/563737883/hate-crimes-up-in-2016-fbi-

23 statistics-show; Katayoun Kishi, Assaults Against Muslims in U.S. Surpass 2001 Level, PEW RESEARCH CENTER (Nov. 15, 2017), http://www.pewresearch.org/fact-tank/2017/11/15/assaults-

24 against-muslims-in-u-s-surpass-2001-level.

21 Int’l Ass’n of Chiefs of Police, Police Chiefs Guide to Immigration Issues 28 (July 2007), 25 http://www.theiacp.org/Portals/0/pdfs/Publications/PoliceChiefsGuidetoImmigration.pdf.

22
26

Jeanine Braud, et al., U Visas for Immigrant Victims of Hate Crimes: A Practice Guide

for Advocates, U.C. BERKELEY PUB. L. AND LEGAL THEORY RESEARCH PAPER SERIES 20 (June

27 26, 2014), https://ssrn.com/abstract=2459315.

23 ADL, Comparison of FBI Hate Crime Statistics (2016-2000) (Nov. 2017),

28 https://www.adl.org/sites/default/files/documents/Final%20PDF%20FBI%20Hate%20Crime%20

Statistics%20Comparison%202000-2016%20%282%29.pdf.

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1 the majority (54 percent) of hate crime victimizations in the U.S. were not reported to the

2 police.24

3

Moreover, the most likely victims of hate crimes are also those least likely to report those

4 crimes.25 These individuals are often immigrants who face cultural and language barriers, along

5 with fear of deportation or reprisal if they report incidents to the police.26 Immigrant victims of

6 crime often do not recognize the victimization they face as a crime and, even when a victim

7 overcomes substantial barriers and reports a crime, “the crime may not be recognized as bias

8 motivated by the local police because of lack of training or language difficulties.”27

9

These barriers extend beyond the fear of reporting violent crimes to infect every aspect of

10 immigrant life. Indeed, people within immigrant communities are particularly susceptible to

11 economic crimes, including wage theft and other employer abuses.28 Day laborers are easy

12 targets for unscrupulous employers, who hire them and then disappear before paying their day’s

13 wages.29 Workers who are robbed of their wages are often afraid to report the theft because of

14 their immigration status. As Professor Stephen Lee of the University of California, Irvine School

15 of Law stated, “[D]istrust of the police effectively neutralizes the potential of wage theft statutes

16 when enforced against employers who hire unauthorized immigrant workers.”30

17 24 Bureau of Justice Statistics, Majority of Hate Crime Victimizations Go Unreported to
18 Police (June 29, 2017), https://www.bjs.gov/content/pub/press/hcv0415pr.cfm.

25
19

ADL, Testimony of Jonathan A. Greenblatt CEO and National Director Anti-Defamation

League Before the Senate Judiciary Committee Hearings on Responses to Increase in Religious

20 Hate Crimes (May 2, 2017), https://www.adl.org/sites/default/files/documents/Final%20ADL%20statement%20Senate%20Ju

21 diciary%20Committee%20on%20combatting%20religious%20hate%20crime.pdf.

26

Id.

22 27

Michael Shively, et al., Understanding Trends in Hate Crimes Against Immigrants and

23 Hispanic-Americans, NAT’L INST. OF JUSTICE (Dec. 27, 2013), https://www.ncjrs.gov/pdffiles1/nij/grants/244755.pdf.

24 28 Liz Robbins, New Weapon in Day Laborers’ Fight Against Wage Theft: A Smartphone

App, N.Y. TIMES (Mar. 1, 2016), https://nyti.ms/2mJBnst.

25 29

Stephen Lee, Policing Wage Theft in the Day Labor Market, 4 U.C. IRVINE L. REV. 655

26 (2014).

30 Id. at 665. Day laborers are also especially vulnerable to robberies and anti-immigration

27 vigilantes. See, e.g., Jason McGahan, Day Laborers Have Become an Easy Target for Anti-

Immigrant Vigilantes, LA WEEKLY (Jan. 10, 2017), http://www.laweekly.com/news/day28 laborers-have-become-an-easy-target-for-anti-immigrant-vigilantes-7803494; Megan Cassidy,

Phoenix Police: Armed Robber Targets Day Laborers with Promise of Work, THE REPUBLIC

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1

If the United States’ requested preliminary injunction is entered, victims and witnesses

2 will hesitate to contact law enforcement when doing so may subject them or their family

3 members to possible detention or deportation in the absence of statutory protections. Combined

4 with the current atmosphere surrounding the immigration debate, this lack of community

5 engagement will leave vast portions of the population especially vulnerable to hate crimes and

6 other criminal attacks. Offenders will specifically target victims in immigrant communities

7 without fear of prosecution. Indeed, it effectively will create an underclass of people – primarily,

8 although by no means exclusively, in the Latino community – who have no meaningful access to

9 police services. These effects of the United States’ actions are immediate and irreparable – law

10 enforcement officials around the nation have spent countless hours building relationships with

11 immigrant communities that now are being threatened or destroyed.

12 III. CONCLUSION

13

For the foregoing reasons, ADL requests that the Court deny the United States’ Motion

14 for a Preliminary Injunction.

15

16 DATED: May 18, 2018 17 18 19 20 21

LATHAM & WATKINS LLP
By /s/ Robert W. Perrin Robert W. Perrin Sarah F. Mitchell Michael A. Hale
355 S. Grand Ave., Suite 100 Los Angeles, CA 90071 (213) 485-1234

22

ANTI-DEFAMATION LEAGUE

23

Steven M. Freeman

Melissa Garlick

24

605 Third Avenue

25

New York, NY 10158

(212) 885-7700 26

27

Attorneys for Anti-Defamation League

28 (July 30, 2015), http://www.azcentral.com/story/news/local/phoenix/2015/07/30/phoenix-policearmed-robber-lobo-bandit-targets-day-laborers-promise-work/30918721.

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 Case 2:18-cv-00490-JAM-KJN Document 136 Filed 05/21/18 Page 1 of 21

1 Jonathan Weissglass (SBN 185008)

Law Office of Jonathan Weissglass 2 410 12th Street, Suite 250-B

3

Oakland, CA 94607 Telephone: 510-836-4200

4 E-mail: jonathan@weissglass.com

5 Nicholas Espíritu* (SBN 237665)
Jana Whalley* (SBN 318367) 6 National Immigration Law Center
7 3450 Wilshire Boulevard, #108-62 Los Angeles, CA 90010
8 Telephone: 213-639-3900 Email: espiritu@nilc.org
9 Email: whalley@nilc.org

10 Attorneys for Amici Curiae
11 *Application for admission forthcoming
12

13

14

UNITED STATES DISTRICT COURT

15

EASTERN DISTRICT OF CALIFORNIA

16 THE UNITED STATES OF AMERICA,

Case No. 18-cv-00490-JAM-KJN

17

Plaintiff,

BRIEF OF NATIONAL

18

v.

IMMIGRATION LAW CENTER AND 79 OTHER ORGANIZATIONS AS

19 THE STATE OF CALIFORNIA; EDMUND

AMICI CURIAE IN SUPPORT OF DEFENDANTS’ OPPOSITION TO

20 GERALD BROWN JR., Governor of California, PLAINTIFF’S MOTION FOR A

in his Official Capacity; and XAVIER

PRELIMINARY INJUNCTION

21 BECERRA, Attorney General of California, in

22 his Official Capacity,

Date: June 20, 2018 Time: 10:00 a.m.

23

Defendants.

Judge: Hon. John A. Mendez

24

25

26

27

28

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1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES .......................................................................................................... ii

3 DISCUSSION ..................................................................................................................................1

4

I. THE REQUESTED INJUNCTION WOULD HARM INDIVIDUALS,

FAMILIES, COMMUNITIES, AND THE PUBLIC ................................................1 5

A. SB 54............................................................................................................1 6

B. AB 450 .........................................................................................................6 7

C. AB 103 .........................................................................................................9 8

II. THE COURT’S DECISION WILL RESONATE WELL BEYOND

9

THIS CASE ..............................................................................................................13

10 CONCLUSION..............................................................................................................................15

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

Page(s)

3

FEDERAL CASES

4 Fuentes v. INS,

5

765 F.2d 886 (9th Cir. 1985),

vacated by Fuentes v. INS,

6

844 F.2d 699 (9th Cir. 1988) .............................................................................................7

7 Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984)...................................................................................................................7
8

9

CALIFORNIA STATUTES

10 Gov. Code §7284.2(b)......................................................................................................................2

11 Gov. Code §7284.6(a)(1)(D)..........................................................................................................14

12 Labor Code §90.2.............................................................................................................................9

13

OTHER STATE LEGISLATIVE MATERIALS AND EXECUTIVE ORDERS

14 Ill. EO 15-2(1) (issued Jan. 5, 2015)..............................................................................................14
15 Mass. SB 1305 ...............................................................................................................................15
16 Mich. HB 4720...............................................................................................................................15 17
Mich. HB 4721...............................................................................................................................15 18
N.Y. EO 170 (issued Sep. 15, 2017)..............................................................................................14 19
N.Y. AB 7430 ................................................................................................................................15 20
N.Y. AB 8776 ................................................................................................................................15 21
N.Y. SB 1215 .................................................................................................................................15 22 23 N.Y. SB 4075.................................................................................................................................15
24 N.Y. SB 7849.................................................................................................................................15
25 Or. Rev. Stat. §180.805..................................................................................................................14

26 Pa. HB 1302 ...................................................................................................................................15

27 Pa. HB 1604 ...................................................................................................................................15

28

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1

MISCELLANEOUS

2 ABC7 Eyewitness News, Domestic-violence victim calls 911 and is nearly deported, May 12, 2011 .............................................................................................................................5
3

4 American Association of Pediatrics, AAP Statement on Protecting Immigrant Children, Jan. 25, 2017 ..............................................................................................................................6

5

Attorney General of Washington,

6

Guidance Concerning Immigration Enforcement (Apr. 2017)................................................14

7 The Atlantic, How Fear of Deportation Puts Stress on Families, Mar. 22, 2017 ...........................5

8 CIVIC Complaint (Apr. 11, 2017)...........................................................................................12, 13

9

Detention Watch Network, A Toxic Relationship: Private Prisons and U.S. Immigration

10

Detention (Dec. 2016)..............................................................................................................13

11 Detention Watch Network and National Immigrant Justice Center, Lives in Peril: How

12

Ineffective Inspections Make ICE Complicit in Detention Center Abuse (Oct. 2015).............13

13 DHS OIG, Concerns about ICE Detainee Treatment and Care at Detention Facilities (OIG-18-32; Dec. 11, 2017)...............................................................................................10, 11
14

15

DHS OIG, Management Alert on Issues Requiring Immediate Action at the Theo Lacy Facility in Orange, California (OIG-17-43-MA; Mar. 6, 2017) .............................................10

16

Human Impact Partners, Family Unity, Family Health: How Family-Focused Immigration

17

Reform Will Mean Better Health for Children and Families (June 2013) ................................6

18 Immigrant Legal Resource Center, The Rise of Sanctuary (Jan. 2018)...................................13, 15

19 Los Angeles Times, Latinos are reporting fewer sexual assaults amid a climate of fear in

20

immigrant communities, LAPD says, Mar. 21, 2017 .................................................................3

21 Los Angeles Times, Noncriminals swept up in federal deportation program, Apr. 25, 2011 .............................................................................................................................5
22

23 Los Angeles Times, Police chiefs across the country support sanctuary cities because they keep crime down, Mar. 6, 2017..................................................................................................3

24

National Employment Law Project, Workers’ Rights on ICE: How Immigration Reform

25

Can Stop Retaliation and Advance Labor Rights | California Report (Feb. 2013)...................7

26 National Public Radio, Man Reports Car Stolen, Ends Up In Deportation Limbo,

27

Feb. 16, 2016..............................................................................................................................5

28 NBC Los Angeles, New Front in the Immigration Fight: Ice Cream Carts, Feb. 18, 2011 ...........5

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1 New York State Office of the Attorney General,

Setting the Record Straight on Local Involvement in Federal Civil Immigration

2

Enforcement: The Facts and the Laws (May 2017)...................................................................2

3 New York Times, Immigration Crackdown Also Snares Americans, Dec. 13, 2011......................5

4

National Day Laborer Organizing Network, Our Litigation ...........................................................5

5

President’s Task Force on 21st Century Policing,

6

Final Report of the President’s Task Force on 21st Century Policing (May 2015)..................2

7 Press Release, Legislators, Gov. Brown, and AG Rosenblum File Bill to Protect Privacy of

8

Oregonians, May 31, 2017 ......................................................................................................14

9 Lisseth Rojas-Flores, et al., Trauma and psychological distress in Latino citizen

children following parental detention and deportation, Psychological Trauma: Theory,

10

Research, Practice, and Policy, 9(3) (May 2017) ......................................................................6

11 San Jose Inside, More Silicon Valley Employers Threatening Workers with Deportation,

12

Records Show, Jan. 31, 2018 .....................................................................................................7

13 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in

Immigration Enforcement, Dep’t of Urban Planning and Policy, University of Illinois

14

at Chicago (May 2013) ..............................................................................................................2

15 Time, “No One Is Safe.” How Trump’s Immigration Policy Is Splitting Families Apart,

16

Mar. 8, 2018 ...............................................................................................................................3

17 Urban Institute, Implications of Immigration Enforcement Activities for the Well-Being of Children in Immigrant Families: A Review of the Literature, Sep. 2015..................................6
18
19 Washington Post, ICE chief tells lawmakers agency needs much more money for immigration arrests, June 13, 2017 ...........................................................................................3
20

21

22

23

24

25

26

27

28

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1

DISCUSSION

2

Amici curiae are 80 organizations that advocate for the rights of immigrants and their

3 families and work on related issues. Amici oppose the federal government’s request for a

4 preliminary injunction against portions of three California laws – SB 54, AB 450, and AB 103.

5 The three laws seek to ensure that the State maintains its proper role in immigration enforcement

6 and does not participate in overly aggressive and inhumane immigration enforcement actions that

7 federal officials admit are intended to intimidate. The laws, among other things, advance public

8 safety, prevent the mistreatment of undocumented individuals (and others who are believed to be

9 undocumented), protect workers and workplace standards, and protect the health and safety of

10 immigrant detainees. As part of deciding whether to grant the preliminary injunction the federal

11 government seeks, the Court must assess the public interest. In this case, immigrants, their

12 families, and their communities, as well as the public at large, have a significant stake in

13 permitting the three laws at issue to continue to operate in their entirety. The experiences and

14 stories in Part I of this brief demonstrate, on behalf of communities in California and throughout

15 the country, why the public interest counsels against enjoining any part of the challenged

16 statutes. Part II addresses legislation in state and local jurisdictions outside of California, and 17 shows that the ramifications of this Court’s decision will extend nationwide.1

18 I. 19

THE REQUESTED INJUNCTION WOULD HARM INDIVIDUALS, FAMILIES, COMMUNITIES, AND THE PUBLIC

20

A. SB 54

21

SB 54 is the centerpiece of California’s effort to protect public safety and promote its

22 residents’ health and general welfare, which are at risk from federal immigration enforcement.

23 The law, including the three provisions challenged here – restrictions on the disclosure of

24 personal information, release dates, and transfer of individuals to federal immigration authorities

25 – seeks to disentangle state and local law enforcement from immigration enforcement.

26

27 1 No counsel for a party authored this brief in whole or in part, and no person other than amici or
28 their counsel made a monetary contribution to the preparation or submission of this brief. All
parties consented to the filing of this brief.
1
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1

SB 54 is informed by the well-supported view that it is a detriment to public safety to

2 have state and local law enforcement at the forefront of enforcing federal immigration laws. See

3 Gov. Code §7284.2(b). The President’s Task Force on 21st Century Policing, consisting of law

4 enforcement, academic, and non-profit members, engaged law enforcement officials, community

5 leaders, nongovernmental organizations, and others to address how police practices can reduce

6 crime and build public trust. President’s Task Force on 21st Century Policing, Final Report of

7 the President’s Task Force on 21st Century Policing (May 2015), at iv-v, available at

8 https://tinyurl.com/y9yd7kgy. The Task Force found:

9

Immigrants often fear approaching police officers when they are victims

of and witnesses to crimes and when local police are entangled with federal

10

immigration enforcement. At all levels of government, it is important that laws,

11

policies, and practices not hinder the ability of local law enforcement to build the strong relationships necessary to public safety and community well-being. It is

12

the view of this task force that whenever possible, state and local law enforcement

should not be involved in immigration enforcement.

13

14 Id. at 18. The Task Force recommended that the U.S. Department of Homeland Security

15 (“DHS”) “terminate the use of the state and local criminal justice system, including through

16 detention, notification, and transfer requests, to enforce civil immigration laws against civil and

17 nonserious criminal offenders.” Id.; see also New York State Office of the Attorney General,

18 Setting the Record Straight on Local Involvement in Federal Civil Immigration Enforcement:

19 The Facts and the Laws (May 2017), at 1, available at https://tinyurl.com/yc8qmjby (limiting

20 local law enforcement involvement in federal civil immigration matters “can enhance public

21 safety” by enabling law enforcement “to focus their limited resources on combatting serious and

22 violent crime” as well as “by facilitating greater community cooperation with the justice

23 system”). In SB 54, California has followed this well-considered approach.

24

There is a great deal of evidence supporting this tack. One randomized study of Latinos

25 living in four major U.S. cities, including Los Angeles, found that approximately 45 percent

26 were less likely to contact law enforcement to report a crime against them or someone else out of

27 fear that the interaction would lead to an inquiry about the immigration status of themselves or

28 others. Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in

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1 Immigration Enforcement, Dep’t of Urban Planning and Policy, University of Illinois at Chicago

2 (May 2013), available at https://tinyurl.com/ks5gadz; see also Los Angeles Times, Latinos are

3 reporting fewer sexual assaults amid a climate of fear in immigrant communities, LAPD says,

4 Mar. 21, 2017, available at https://tinyurl.com/kds27av (reporting that Los Angeles Police Chief

5 tied plummeting reports of sexual assault and domestic violence by Latinos to concerns that

6 immigrants could risk deportation by interacting with police). On the other hand, cities that have

7 made efforts to build trust and cooperation with immigrant communities can point to success

8 stories where undocumented individuals have come forward to report crime and public safety is

9 served. See Los Angeles Times, Police chiefs across the country support sanctuary cities

10 because they keep crime down, Mar. 6, 2017, available at https://tinyurl.com/zyu6zu8 (citing

11 examples where undocumented immigrants helped police, including in Los Angeles).

12

The fear of immigration enforcement is real, and has affected numerous people, as media

13 reports indicate. See, e.g., Time, “No One Is Safe.” How Trump’s Immigration Policy Is

14 Splitting Families Apart, Mar. 8, 2018, available at https://tinyurl.com/yadkcg7l (2017

15 immigration detainees “included community leaders, doting parents and children: a 10-year-old

16 girl with cerebral palsy in San Antonio; a grandmother described as the “backbone” of a Navy

17 veteran’s family; a father of two in Detroit who had lived in the U.S. since he was 10 years old”).

18 Indeed, Oxnard, California schools even ask parents to provide administrators with guardianship

19 instructions in the event of deportation. Id. Moreover, the current federal approach to

20 deportation is actually intended to inflict widespread mental distress and trauma – including on

21 families with mixed-legal status and U.S. citizen children. See, e.g., Washington Post, ICE chief

22 tells lawmakers agency needs much more money for immigration arrests, June 13, 2017,

23 available at https://tinyurl.com/y84pn5ke (“‘If you’re in this country illegally and you

24 committed a crime by entering this country, you should be uncomfortable,’ Acting Director

25 Thomas Homan told the House Appropriations Committee’s Homeland Security Subcommittee.

26 ‘You should look over your shoulder, and you need to be worried.’”).

27

The following stories illustrate the fear of deportation resulting from local law

28

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1 enforcement engaging in immigration enforcement:2

2

Mario entered the U.S. in the early 1990s and built a life for himself and his partner in the

3 Sacramento area. They were able to buy a house and start raising two children, both born here.

4 Unfortunately, they lost their home due to foreclosure in 2011, and his wife moved the children

5 to Arizona to live with family there. Mario remained in California where he worked and

6 provided for the family as a day laborer. On a trip to visit his family that same year, the local

7 police in Arizona pulled him over for a broken tail light, called immigration authorities, and put

8 them on the phone with Mario. They asked Mario questions about his nationality and

9 immigration status. A police officer told Mario that normally he would have let him off with a

10 citation, but because “immigration was involved,” he was taking him to jail for immigration

11 agents to pick him up. Mario spent about one week in jail waiting for immigration agents to pick

12 him up. No criminal charges were ever filed against him. Once immigration agents picked him

13 up, he was detained in another jail in Phoenix because U.S. Immigration and Customs

14 Enforcement (“ICE”) agents said they did not have room in the processing center. He was held

15 in a freezing holding cell with dozens of other people. Another inmate asked Mario to move,

16 and began physically assaulting Mario when he did not move. After a few more days, Mario was

17 brought to the local field office where he was processed for removal proceedings and ordered to

18 appear in immigration court. Mario ultimately won cancellation of removal before an

19 Immigration Judge. He now works at a warehouse for a non-profit organization in the Bay Area.

20 Mario feels safer in California than in Arizona in part due to laws like SB 54.

21

Yaquelin lives in Richmond, California, and is a recipient of Deferred Action for

22 Childhood Arrivals (“DACA”), youth soccer coach, part-time community college student, and

23 full-time employee at a non-profit that organizes to get job opportunities and child custody for

24 previously incarcerated individuals. In 2016, her uncle was a 38-year-old construction worker

25 who lived in North Carolina. He was on probation for a DUI conviction. He had been compliant

26 and only had a week left of probation when ICE came to his house; his probation officer was just

27

28 2 Documentation for all advocate and immigrant stories in this brief is on file with the NILC Legal Department. Some individuals did not want their full names used.
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1 down the street from the house, on the corner, when ICE arrived. Yaquelin’s uncle was

2 subsequently deported. The only criminal record he had was the DUI.

3

Many individuals have been caught up in immigration proceedings because of encounters

4 with local police. For instance, reports of domestic violence have resulted in police turning

5 victims over to ICE. See, e.g., ABC7 Eyewitness News, Domestic-violence victim calls 911 and

6 is nearly deported, May 12, 2011, available at https://abc7.com/archive/8128621 (“A woman [in

7 Los Angeles] was placed in deportation proceedings after calling 911 for help.”); Los Angeles

8 Times, Noncriminals swept up in federal deportation program, Apr. 25, 2011, available at

9 https://tinyurl.com/644o4bh (San Francisco woman “finally worked up the courage to call

10 police” about domestic abuse and was turned over to immigration authorities).

11

Other individuals have been referred to ICE due to a wide variety of local police matters,

12 including two in San Bernardino County: One, who had lived in this country since 1990 and is

13 the father of two U.S. citizen children, had a sheriff turn him over to ICE after an arrest for

14 driving without a license; the other is a street vendor who is the mother of five U.S citizen

15 children and who was arrested by a sheriff for selling goods without a license and has been held

16 in immigration detention and away from her children for months. See National Day Laborer

17 Organizing Network (“NDLON”), Our Litigation, available at https://tinyurl.com/y8f3me6v.

18 Another individual was referred to ICE by the San Francisco Police Department after he reported

19 his car stolen, and ended up in an ICE detention center. National Public Radio, Man Reports Car

20 Stolen, Ends Up In Deportation Limbo, Feb. 16, 2016, available at https://tinyurl.com/y7kd75b4.

21 A Los Angeles woman was cited by local law enforcement for pushing her vending cart within

22 500 feet of a school and ended up facing deportation. NBC Los Angeles, New Front in the

23 Immigration Fight: Ice Cream Carts, Feb. 18, 2011, available at https://tinyurl.com/ybc9hby6.

24 Nor is the issue limited to undocumented immigrants – citizens have been caught up in

25 immigration enforcement as well. As the New York Times reported: “In a spate of recent cases

26 across the country, American citizens have been confined in local jails after federal immigration

27 agents, acting on flawed information from Department of Homeland Security databases,

28 instructed the police to hold them for investigation and possible deportation.” New York Times,

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1 Immigration Crackdown Also Snares Americans, Dec. 13, 2011, available at

2 https://tinyurl.com/y6vp6lbv.

3

These examples show only a small number of the ways in which individuals, families,

4 and communities have been adversely affected by immigration enforcement. Media reports and

5 experts have identified numerous effects. See, e.g., The Atlantic, How Fear of Deportation Puts

6 Stress on Families, Mar. 22, 2017, available at https://tinyurl.com/y7sul625 (describing effects

7 on undocumented immigrants and their families, which often include U.S. citizens, such as

8 problems in school and anxiety); Lisseth Rojas-Flores, et al., Trauma and psychological distress

9 in Latino citizen children following parental detention and deportation, Psychological Trauma:

10 Theory, Research, Practice, and Policy, 9(3) (May 2017), at 352-361 (finding PTSD symptoms

11 for children of detained and deported parents significantly higher than children whose parents

12 were legal permanent residents or undocumented without immigration enforcement contact);

13 American Association of Pediatrics, AAP Statement on Protecting Immigrant Children, Jan. 25,

14 2017, available at https://tinyurl.com/ybymftlx (reacting to stepped-up immigration enforcement

15 by noting: “When children are scared, it can impact their health and development.”); Human

16 Impact Partners, Family Unity, Family Health: How Family-Focused Immigration Reform Will

17 Mean Better Health for Children and Families (June 2013), available at http://bit.ly/1eU6dmk

18 (discussing consequences of immigration detention and deportation policy on individuals’

19 physical and mental health and children’s educational and behavioral outcomes as documented

20 by numerous academic studies); Urban Institute, Implications of Immigration Enforcement

21 Activities for the Well-Being of Children in Immigrant Families: A Review of the Literature, Sep.

22 2015, available at https://tinyurl.com/y9bw3x66.

23

SB 54 seeks to minimize the harms described above while not conflicting with the federal

24 immigration enforcement scheme. It is in the public interest to keep in place SB 54 in its entirety

25 to protect against those harms.

26

B. AB 450

27

As explained in the State’s brief, AB 450 was intended to ensure that California’s

28 longstanding worker protections include protecting immigrant workers, particularly from

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1 employer retaliation. Defs’ Opp. at 5:7-20. These concerns are very real. The National

2 Employment Law Project (“NELP”) issued a report that concluded: “Employers and their agents

3 have far too frequently shown that they will use immigration status as a tool against labor

4 organizing campaigns and worker claims.” National Employment Law Project, Workers’ Rights

5 on ICE: How Immigration Reform Can Stop Retaliation and Advance Labor Rights | California

6 Report (Feb. 2013), at 1, available at https://tinyurl.com/y7rro9ne; see also San Jose Inside,

7 More Silicon Valley Employers Threatening Workers with Deportation, Records Show, Jan. 31,

8 2018, available at https://tinyurl.com/y9a4uyrz (reporting that workers filed 95 complaints

9 alleging immigration-related workplace retaliation with the California Labor Commissioner in

10 2017 – up from 20 in 2016). Case law recognizes this threat as well. See, e.g., Sure-Tan, Inc. v.

11 NLRB, 467 U.S. 883, 886-87 (1984) (after union prevailed in election, employer inquired

12 whether employees had valid immigration papers and reported undocumented workers to federal

13 government); Fuentes v. INS, 765 F.2d 886, 887 (9th Cir. 1985) (employer reported

14 undocumented workers to federal government after they sued for minimum wage violations),

15 vacated by Fuentes v. INS, 844 F.2d 699 (9th Cir. 1988). NELP found that “in many cases,

16 employers have improperly conducted I-9 [the form federal law requires employers to use to

17 verify workers’ employment authorization] self-audits just after employees have filed workplace-

18 based complaints, or in the midst of labor disputes or collective bargaining, creating a climate of

19 fear.” NELP, Workers’ Rights on ICE at 4. NELP documented a dozen case studies of employer

20 retaliation throughout California, including re-verification of I-9 forms. Id. at 5-10.

21

The following stories show the potential for retaliation and how AB 450 can decrease the

22 threat of employer retaliation and help vindicate workers’ rights:

23

MM, a kitchen worker at Burma Superstar restaurant in Oakland, is one of three

24 immigrant kitchen workers who filed a class action to challenge extensive wage and hour

25 violations at the worksite. Navarrete v. Burma Superstar Oakland, Inc., Case No. RG16830336

26 (Alameda County Superior Court). Shortly after the case was filed, the employer distributed a

27 mandatory arbitration agreement, a meal and rest period waiver, and a new Form I-9

28 employment eligibility verification form to all kitchen workers, even though the employer

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1 already had completed I-9 forms on file. The employer informed the workers that they were

2 required to sign and return the documents or their employment would be terminated. The

3 plaintiffs asserted that the employer's actions intimidated and deterred potential class members

4 from pursuing their rights in the case. The Court agreed that the actions were improper and

5 enjoined I-9 reverification of any existing employees during the pendency of the case.

6

Luis worked as a security guard at a wood framing yard in Lancaster for more than ten

7 years. As a condition of employment, his employer required him to live in a trailer on the

8 property, which enabled him to guard the property seven days a week. Although Luis was

9 required to be at the worksite every day, he was only paid for the hours of work when the yard

10 was open to the public and was never paid at the overtime rate, regardless of the number of hours

11 he worked in a workday or week. After Luis filed a wage claim with the California Division of

12 Labor Standards Enforcement (“DLSE”), his supervisor demanded that Luis present an

13 identification card and Social Security Number – which the employer had not requested for 10

14 years. The supervisor threatened that if Luis did not provide this documentation by the next day,

15 the supervisor would call immigration authorities and Luis would have to face the consequence.

16 The supervisor also forced Luis to vacate the on-site shipping container in which he had been

17 residing. Given the threat of immigration-based retaliation, Luis ended his employment.

18

Valerie worked as a server and hostess at a restaurant in Santa Monica. After about a

19 year, the employer hired a new supervisor who was verbally abusive towards employees,

20 including Valerie, and who frequently came to work drunk. When Valerie attempted to talk to

21 the supervisor about his behavior, he threatened to change her schedule to less desirable shifts.

22 Valerie reported this behavior to the general manager and, when the abusive behavior continued,

23 made a second complaint. After that complaint, the supervisor approached Valerie and informed

24 her that the owner of the restaurant had received a call from the Internal Revenue Service to

25 report an issue with Valerie’s Social Security Number. Although the supervisor did not present

26 any documentation to Valerie related to the ostensible issue with her Social Security Number, the

27 supervisor fired Valerie without giving her any opportunity to correct the purported discrepancy.

28

R.G. worked for a house cleaning service in the County of Santa Clara as a housekeeper.

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1 After several months of her employer failing to pay her wages consistently, R.G. left her job and

2 was not fully paid the wages owed. She filed a wage claim with DLSE. Soon after, R.G.’s

3 former supervisor confronted R.G.’s husband at his workplace and told him that if R.G. did not

4 abandon her wage claim, she and her husband would have problems with immigration

5 authorities. She also warned R.G.’s husband that he and R.G. were the only people who would

6 end up suffering and threatened that she had an attorney investigating them. The supervisor also

7 contacted R.G.’s cousin and threatened that R.G. would regret it if she did not withdraw her

8 wage claim. Despite the anxiety these threats caused her, R.G. pursued her wage claim, as well

9 as a claim for retaliation, and was ultimately awarded unpaid wages and penalties. But the

10 employer has refused to pay and to post the required notices at the worksite.

11

Moreover, AB 450’s requirement that employers post notice of inspections of I-9 records

12 (Labor Code §90.2) also fulfills the important purpose of providing more information to workers

13 in the I-9 audit process, as the following story indicates:

14

O.A. has worked in the service industry at the same Los Angeles-based business for eight

15 years. In February 2018, officers with “ICE” written on their jackets showed up at the business.

16 O.A. was not working that day but within minutes of their arrival, her friend called to tell her that

17 ICE was at their workplace. Everyone was worried and in a panic, wondering why the officers

18 had come, whether the company knew ahead of time, and jumping to conclusions because they

19 did not know what was going on. Many workers believed a raid was taking place because they

20 had heard that a lot of raids were happening in other parts of California. O.A. and her coworkers

21 did not know what was happening at first. Some were crying. Later, they found out that the

22 officers had brought a letter saying they were going to audit the company. As required by AB

23 450, the company posted notices informing the workers that an audit was taking place. Although

24 having ICE at their workplace was scary for O.A. and her coworkers, understanding that ICE

25 was there to conduct an audit, rather than a raid, helped to reduce their fear.

26

C. AB 103

27

AB 103 serves to protect immigrants in civil detention facilities; the bill was enacted out

28 of concern about the horrible conditions of some facilities. See Defs’ Opp. at 6:17-23.

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1

These conditions are well-documented. Even reports from the DHS Office of Inspector

2 General have found significant problems in detention facilities. An inspection of the Theo Lacy

3 Facility, which the Orange County Sheriff’s Department operates and which houses hundreds of

4 ICE detainees, found “a host of potential food safety problems, which could endanger the health

5 of detainees.” DHS OIG, Management Alert on Issues Requiring Immediate Action at the Theo

6 Lacy Facility in Orange, California (OIG-17-43-MA; Mar. 6, 2017), at 3, available at

7 https://tinyurl.com/yayrmwfo. The food safety issues include serving spoiled meat. The

8 inspection also “found trash, mildew, and mold in the shower stalls” and “individual detainee

9 cells that did not appear to be well-maintained or clean.” Id. at 6-7. Moreover, the facility “is

10 not properly documenting its detainee classification process, and its housing reclassifications do

11 not comply with ICE detention standards.” Id. at 7. The inspection therefore “found detainees

12 identified by ICE as high risk who were housed in the least restrictive barracks and detainees

13 identified by ICE as medium/low risk housed in more restrictive modular housing.” Id. at 8.

14 The facility also violates ICE’s standards for disciplinary segregation: Detainees who are

15 punished for breaking rules are “isolated for 24 hours a day in a cell with no access to visitors,

16 recreation, or group religious services”; are “released briefly every other day to shower”; are not

17 permitted recreation, visitation, religious guidance, or access to telephones; and are allowed only

18 one book from the library for their entire stay in isolation of up to 30 days – even though ICE

19 standards require at least one hour of recreation five times per week, “opportunities for general

20 visitation, religious guidance, and limited access to telephones and reading material.” Id. at 9.

21 Finally, detainees’ grievances are not properly documented. Id. at 9-10.

22

Another report summarized problems at four other detention facilities. DHS OIG,

23 Concerns about ICE Detainee Treatment and Care at Detention Facilities (OIG-18-32; Dec. 11,

24 2017), available at https://tinyurl.com/ya7lrwq8. The inspections found “significant issues” at

25 the four facilities that “undermine the protection of detainees’ rights, their humane treatment, and

26 the provision of a safe and healthy environment.” Id. at 3. Those issues in brief are:

27

Upon entering some facilities, detainees were housed incorrectly based on their

criminal history. Further, in violation of standards, all detainees entering one

28

facility were strip searched. Available language services were not always used to

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1

facilitate communication with detainees. Some facility staff reportedly deterred

detainees from filing grievances and did not thoroughly document resolution of

2

grievances. Staff did not always treat detainees respectfully and professionally,

3

and some facilities may have misused segregation. Finally, we observed potentially unsafe and unhealthy detention conditions.

4

5 Id. Some of these issues are similar to ones at the Theo Lacy Facility in Orange, California.

6

Nor are these problems limited to what ICE itself has detected. An attorney provides the

7 following description of a detention facility with which she is familiar:

8

Kelsey Provo is a managing attorney at the Esperanza Immigrant Rights Project in Los

9 Angeles. She has represented about 30 clients detained at the Adelanto immigrant detention

10 center (“Adelanto”) on their immigration cases since 2015. She has experienced many obstacles

11 while trying to represent her clients, most of whom suffer serious mental illnesses.

12

Kelsey has had to wait four to five hours to meet with her clients at Adelanto. Her

13 colleagues experience similar delays. Numerous times, Kelsey has shown up at a hearing only to

14 be told that her client has been in the hospital and therefore unavailable. There is also a lack of

15 privacy during Kelsey’s meetings with her clients. Kelsey can hear what people are saying in

16 adjacent rooms, or from the hallway outside of the rooms. This is problematic, particularly when

17 Kelsey needs to discuss confidential matters with her clients, including mental health issues and

18 certain claims in which her clients acted as informants and could be in danger from cartels or

19 gangs. There is even less privacy when the limited number of visitation rooms are filled up, and

20 Kelsey is forced to meet with her clients in the “no contact” room, which consists of a long line

21 of about 10 booths and to talk to her clients through glass using two-way telephones.

22

Telephones are supposed to be available so that attorneys can use translation services

23 when meeting with clients. But in the West wing of Adelanto, there are about eight or ten

24 meeting rooms and only one phone. In the East wing, there are three meeting rooms with one

25 phone, and that phone sometimes does not work. Kelsey speaks English and Spanish, but some

26 of her clients do not speak either of those languages. For those clients, if she cannot use a phone,

27 she is forced to speak in English, which they struggle to understand. She has had this issue with

28 every single client she has represented that does not speak English or Spanish.

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1

Over the past year, Kelsey has observed conditions become markedly worse. In

2 particular, the attitude of deportation officers has changed. Officers are unresponsive when she

3 tries to discuss issues like medical treatment for her clients. She believes that officers no longer

4 feel like they need to respond to her. This has led to her clients not receiving the treatment they

5 require, which causes her clients to feel physically ill and unable to help with their cases.

6

A detainee in the Musick Jail Facility in Irvine experienced the following:

7

Ana (not her real name), is a 37-year-old native of Guatemala who fled her abusive ex-

8 partner in September 2017 and requested asylum in the U.S. in November 2017. Ana and her

9 family were tortured for more than 19 years by her ex-partner, who almost killed her multiple

10 times before she fled. The expert who testified at Ana’s trial stated that Ana’s was one of the

11 worse cases of abuse she had seen in her 20 years’ experience. Ana was detained for almost six

12 months at the Musick Jail Facility in Irvine while waiting to be granted asylum. Ana struggled

13 with severe mental health issues, including depression, anxiety, and PTSD. She was suicidal

14 several times throughout the representation because she could not understand why she was

15 incarcerated. Ana began to experience symptoms similar to having a stroke, as she had suffered

16 one once before when she was still in Guatemala. After Ana shared her condition to the nurse at

17 the detention center, she was given Tylenol only. When she asked if she could have more time

18 to exercise and walk around outside, she was told that this was not a vacation, but a jail. Ana

19 had no money when she arrived and was unable to communicate with her brother in Belize who

20 was taking care of her children because she could not afford to pay the high fees for long

21 distance calls. Ana was very depressed because she had not spoken with her children in months.

22 Detainees were given moldy cheese sandwiches to eat, and guards would rip or destroy

23 documents while conducting random searches of their rooms. A guard ripped one of Ana’s

24 pictures, but she was afraid to report it because guards were known to retaliate against detainees

25 who complained about conditions.

26

Non-governmental organizations have also found significant issues. Community

27 Initiatives for Visiting Immigrants in Confinement (“CIVIC”) filed a complaint with DHS about

28 the prevalence of reports of sexual abuse, assault, and harassment in detention facilities. CIVIC

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1 Complaint (Apr. 11, 2017), available at https://tinyurl.com/y8y5nqt7. Included in the complaint

2 are allegations with respect to facilities that would be covered by AB 103. See id. at 7-10.

3 Detention Watch Network, a national coalition, along with the National Immigrant Justice

4 Center, found that ICE’s inspections are wholly inadequate to ensure human rights and due

5 process. Detention Watch Network and National Immigrant Justice Center, Lives in Peril: How

6 Ineffective Inspections Make ICE Complicit in Detention Center Abuse (Oct. 2015), available at

7 https://tinyurl.com/yboqclen.

8

Detention Watch Network has also documented (including by sworn declarations) such

9 problems at private detention facilities that contract with ICE as “inadequate medical care,

10 mistreatment and abuse in its many forms, poor quality of food and sanitation, language access

11 concerns, and lack of accountability for problems at the facilities.” Detention Watch Network, A

12 Toxic Relationship: Private Prisons and U.S. Immigration Detention (Dec. 2016), at 3, available

13 at https://tinyurl.com/yag39ckt.

14

Through AB 103, California provides for reasonable reviews of detention facilities to

15 guard against the harms described above.

16 II. THE COURT’S DECISION WILL RESONATE WELL BEYOND THIS CASE

17

This case has significant ramifications for jurisdictions around the country that have

18 taken action or are considering taking action to protect their communities, including immigrant

19 communities, in ways that are similar to the challenged statutes. Indeed, the statutory provisions

20 the federal government seeks to enjoin are only some of the efforts by states and localities to

21 ensure that their role in immigration enforcement is proper and consistent with the priorities of

22 their jurisdictions. A January 2018 report by the Immigrant Legal Resource Center identified

23 several states that by legislation or executive order restricted the use of their resources on

24 immigration enforcement and cooperation. Immigrant Legal Resource Center, The Rise of

25 Sanctuary (Jan. 2018), at 20 (“ILRC Report”), available at https://tinyurl.com/yafeobpw. The

26 ILRC Report also found that numerous localities have enacted various policies in the

27 immigration area, some of which are similar to the challenged provisions here and others of

28 which concern different issues. Id. at 9, 18-19. The Washington Attorney General likewise

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1 collected sample language from jurisdictions around the country that have addressed

2 immigration issues. Attorney General of Washington, Guidance Concerning Immigration

3 Enforcement (Apr. 2017), at 53-87, available at https://tinyurl.com/yah49ta8. Although often

4 referred to as “sanctuary” policies, that term misses two important reasons for state and local

5 action. First, as the Washington Attorney General put it in explaining why he issued guidance

6 about the law on immigration enforcement: “effective implementation of the policies set forth in

7 this guidance can help foster a relationship of trust between local agencies and immigrants that

8 will promote public safety for all Washingtonians.” Id. at 1. Second, adopting polices can help

9 guide how to respond to federal immigration enforcement requests. Id. Such efforts can help

10 avoid inconsistency and confusion.

11

Of particular note, many state and local governments have enacted or are considering

12 legislation or executive action similar to the three challenged provisions of SB 54.

13

State Action. In 2017, Oregon enacted legislation that restricts the state’s use of personal

14 information to enforce federal immigration laws. Or. Rev. Stat. §180.805 (similar to Cal. Gov.

15 Code §7284.6(a)(1)(D)). The Governor, Attorney General, and Oregon legislators believed that

16 “consistency and clarity statewide” was important. Press Release, Legislators, Gov. Brown, and

17 AG Rosenblum File Bill to Protect Privacy of Oregonians, May 31, 2017, at 2, available at

18 https://tinyurl.com/y9hlh7fd. In 2015, the Governor of Illinois issued an Executive Order that

19 prohibits state law enforcement agencies from “communicating an individual’s release

20 information or contact information.” Ill. EO 15-2(1) (issued Jan. 5, 2015). In doing so, the

21 Governor noted that “law enforcement agencies rely on the trust of the communities they serve”

22 and that immigrants are less likely to report crime if they fear contacting law enforcement. A

23 2017 New York Executive Order prohibits state employees from disclosing information other

24 than citizenship and immigration status to federal immigration authorities for the purposes of

25 civil immigration enforcement, unless required by law. N.Y. EO 170 (issued Sep. 15, 2017)

26 (noting importance of immigrants reporting crime).

27

Pending Legislation. Other states are considering legislation similar to SB 54. One or

28 more bills are pending in Michigan, New York, and Pennsylvania that have provisions analogous

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1 to each of the three challenged provisions of SB 54: restrictions on providing release dates,

2 providing information, and transferring detainees. Mich. HB 4720, §3(1)(a)(iii), (iv), (5) (last

3 checked May 17, 2018); N.Y. AB 7430 (adding N.Y. Exec. Law §§234(1)(a)(3)-(5), (b), (e), (5),

4 235(2) (last checked May 17, 2018); N.Y. AB 8776 (adding N.Y. Exec. Law §319-a(1)(a)(iii),

5 (iv)(d) (last checked May 17, 2018); N.Y. SB 7849 (identical to N.Y. AB 8776); Pa. HB 1302,

6 §4(a)(1)(iii), (iv), (e) (last checked May 17, 2018); Pa. HB 1604, §4(a)(1)(iii), (iv), (e) (last

7 checked May 17, 2018).

8

In addition to the Michigan and New York legislation above, those states have other

9 legislation pending that concerns some of the challenged provisions of SB 54. Mich. HB 4721,

10 §3(2) (restricting the provision of release dates and other personal information for civil

11 immigration purposes) (last checked May 17, 2018); N.Y. SB 4075 (adding N.Y. Exec. Law

12 §319-c) (restrictions on providing information to federal immigration authorities) (last checked

13 May 17, 2018); N.Y. SB 1215 (adding N.Y. Exec. Law §§71-b(2)(a)(ii)), 243-a(2)(a)(ii)), (c)(ii)

14 (restrictions on providing release dates) (last checked May 17, 2018).

15

There is also a Massachusetts bill pending that would place restrictions on providing

16 release dates and transferring individuals in local custody. Mass. SB 1305 (adding Mass. Gen.

17 Laws ch. 126, §§41(10), 42) (last checked May 17, 2018).

18

Local Action. Local governments have also taken action in this sphere. The ILRC

19 Report found that 169 counties have a policy against sharing release dates or other information

20 about detainees. ILRC Report at 9. That report also identified two cities – Middlesex County,

21 New Jersey, and Atlanta, Georgia – as examples of localities that prohibit their enforcement

22 personnel from transferring detainees to ICE without a warrant. Id. at 18, 19.

23

As the discussion above demonstrates, states and localities are striving for consistent

24 policies on immigration enforcement that support their concern about promoting public safety

25 and other state and local interests.

26

CONCLUSION

27

For the reasons stated above and in Defendants’ opposition brief, the Court should deny

28 the motion for preliminary injunction.

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1 Dated: May 18, 2018

Respectfully submitted,

2

/s/ Jonathan Weissglass

3

Jonathan Weissglass

4

Law Office of Jonathan Weissglass

410 12th Street, Suite 250-B

5

Oakland, CA 94607

Telephone: 510-836-4200

6

E-mail: jonathan@weissglass.com

7 Nicholas Espíritu

8

Jana Whalley

National Immigration Law Center

9

3450 Wilshire Boulevard, #108-62

Los Angeles, CA 90010

10

Telephone: 213-639-3900

11

Email: espiritu@nilc.org

Email: whalley@nilc.org

12 Attorneys for Amici Curiae
13

14

15

16

17

18

19

20

21

22

23

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MANATT, PHELPS & PHILLIPS, LLP ESRA A. HUDSON, Bar No. CA 202881 EHudson@manatt.com DIANA I. IORLANO, Bar No. CA 193359 DIorlano@manatt.com JADE H. LEUNG, Bar No. CA 279651 JLeung@manatt.com MICHAEL G. NORDON, Bar No. CA 317078 MNordon@manatt.com 11355 West Olympic Boulevard Los Angeles, California 90064-1614 Telephone: (310) 312-4000 Facsimile: (310) 312-4224 Attorneys for Amici PICO CALIFORNIA; NATIONAL COUNCIL OF JEWISH WOMEN-CALIFORNIA; FRANCISCAN ACTION NETWORK; RABBI JONATHAN D. KLEIN
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

THE UNITED STATES OF AMERICA, Plaintiff,
v. THE STATE OF CALIFORNIA; EDMUND GERALD BROWN JR., Governor of California, in his Official Capacity; and XAVIER BECERRA, Attorney General of California, in his Official Capacity,
Defendants.

Case No. 2:18-cv-00490-JAM-KJN BRIEF OF AMICI CURIAE FAITH-BASED ORGANIZATIONS IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PRELIMINARY INJUNCTION Judge: Hon. John A. Mendez NO HEARING NOTICED

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TABLE OF CONTENTS Page
IDENTITY AND INTEREST OF AMICI CURIAE ........................................................... 1 ARGUMENT ...................................................................................................................... 3 A. The Federal Government’s Current Immigration Enforcement Tactics Are
Indiscriminately Aggressive and Inconsistent With Basic Religious Tenets.......... 3 B. Amici Have a Religious Imperative to Provide Sanctuary in the Face of
Unethical Government Action ................................................................................ 4 1. Sanctuary Cities Originated From Religious Principles ............................. 5 2. Houses of Worship Have Provided Sanctuary for Centuries ...................... 6 3. Modern American Religious Communities Have Adopted
Principles of Sanctuary in Support of Immigrants ...................................... 7 4. Religious Sanctuary Is Particularly Critical Due to the Current
Administration’s Recent Enforcement Actions in Sensitive Locations ..................................................................................................... 8 C. The Challenged Statutes Help to Prevent Abuse of Power Based on Immigration Status .................................................................................................. 9 D. Enjoining the Challenged Statutes Will Do Great Harm to Religious Communities ......................................................................................................... 10 1. All Immigrants Are Harmed by the Climate of Fear ................................ 10 2. Immigration Detention and Deportation Traumatize American Families ..................................................................................................... 13 3. Amici Will Be Harmed by Indiscriminate Removal of Undocumented Immigrants ....................................................................... 14 CONCLUSION ................................................................................................................. 15
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TABLE OF AUTHORITIES
Page
CASES
Bastidas v. INS, 609 F.2d 101 (3d Cir. 1979)......................................................................................................13
Manning v. Powers, 281 F. Supp. 3d 953 (C.D. Cal. 2017) ........................................................................................4
Richland Park Homeowners Ass’n v. Pierce, 671 F.2d 935 (5th Cir. 1982).....................................................................................................13
Sammartano v. First Judicial Dist. Ct., 303 F.3d 959 (9th Cir. 2002).......................................................................................................3
Winter v. NRDC, Inc., 555 U.S. 7 (2008) ........................................................................................................................3
STATUTES
8 U.S.C.A. § 1324 .............................................................................................................................7
8 U.S.C.A. § 1324(B)(iv) ..................................................................................................................7
8 U.S.C.A. § 1324(C)........................................................................................................................7
OTHER AUTHORITIES
Associated Press, Alien Sanctuary Movement’s State Unclear a Year After Court Case, N.Y. Times, July 7, 1987 ..................................................................................................7
Burke, Sheila, Sessions: No Tears Over Tennessee Immigration Raid, Seattle Times, May 8, 2018.....................................................................................................................3
Castillo, Andrea, Immigrant Arrested by ICE after Dropping Daughter Off at School, Sending Shockwaves Through Neighborhood, L.A. Times, March 3, 2017 .............................................................................................................................................9
Catholic Church, Catechism of the Catholic Church, 2d ed., § 1902 ...............................................5
Catholic Church, Catechism of the Catholic Church, 2d ed., § 2242 ...............................................5
Connolly, Daniel, Manual Duran’s Arrest Was Retaliation for News Coverage, Lawyers Say, Commercial Appeal, April 16, 2018.....................................................................4
Cox, J. Charles, The Sanctuaries and Sanctuary Seekers of Mediaeval England 1 (George Allen Sons, 1911)..........................................................................................................6
Esquivel, Paloma, and James Queally, A U.S. Citizen Says Her Rights Were Violated After She Was Detained by Immigration Authorities in San Bernardino, Los Angeles Times, May 26, 2017 .......................................................................11
Ewing, Walter, Immigration Impact, The Federal Government Is Using Immigration Raids as Retaliation Against California, Immigration Impact, American Immigration Council (Feb. 8, 2018)...........................................................................4
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TABLE OF AUTHORITIES (Continued)

Page

Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017) .............................................................3

Gandara, Patricia, and Jongyeon Ee, UCLA Civil Rights Project, U.S. Immigration Enforcement Policy and Its Impact on Teaching and Learning in the Nation’s Schools (Feb. 28, 2018).............................................................................................................11

Geltzer, Joshua, and Seth Wayne, America Should Stop Deporting Peaceful Immigrant Advocates, The Hill, April 18, 2018 .........................................................................4

Gonzales, Richard, Trump Administration Doubles Worksite Investigations To Combat Illegal Immigration, NPR, May 14, 2018 .....................................................................4

Hagan, Jacqueline M., et al., Social Effects of Mass Deportations by the United States Government, 2000–10, 34 Ethnic & Racial Studies 1374, 1378 (Aug. 2011) .........................................................................................................................................10

http://www.picocalifornia.org/100days/ ...........................................................................................8

Human Rights Watch, Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States (Dec. 2009) ....................................................14

Kausch, Katie, Roby Sanger Had Just Finished Dropping His Children Off at School Thursday Morning When He Was Arrested by ICE, Patch.com, Jan. 25, 2018 .............................................................................................................................................9

Klein, Gary, Novato Man Arrested in Federal Immigration Bust, Marin Independent Journal, March 14, 2018.........................................................................................9

Pasquarella, Jennie, ACLU of Southern California, California’s Senate Just Approved a Bill to Protect Its Residents From Trump’s Deportation Forces (April 5, 2017)...........................................................................................................................13

Pew Research Center, Frequency of Prayer .....................................................................................5

Pew Research Center, Importance of Religion in One’s Life............................................................5

Pew Research Center, The Religious Affiliation of U.S. Immigrants: Majority Christian, Rising Share of Other Faiths (May 17, 2013) .........................................................14

Pew Research Center, Religious Landscape Study ...........................................................................4

PICO National Network, Organizing for the Resistance ..................................................................7

Queally, James, ICE Agents Make Arrests at Courthouses, Sparking Backlash From Attorneys and State Supreme Court, L.A. Times, March 16, 2017 ................................11

Queally, James, Latinos Are Reporting Fewer Sexual Assaults Amid a Climate of Fear in Immigrant Communities, LAPD Says, L.A. Times, March 21, 2017...........................11

Rabben, Linda, Sanctuary and Asylum 39 (2016) ............................................................................6

Rabin, Nina, Disappearing Parents: Immigration Enforcement and the Child Welfare System, 44 Conn. L. Rev. 99, 122-24 (2011) ..............................................................13

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TABLE OF AUTHORITIES (Continued)

Page

Rhodan, Maya, and Elizabeth Dias, Immigration Agents Arrested Men Outside a Church. But Officials Say It Was Just a Coincidence, Time, Feb. 17, 2017 ..............................9

Shoichet, Catherine E., ICE Raided a Meatpacking Plant. More Than 500 Kids Missed School the Next Day, CNN, April 12, 2018..................................................................10

St. John, Paige, and Joel Rubin, ICE Held an American Man in Custody for 1,273 Days. He’s Not the Only One Who Had to Prove His Citizenship, L.A. Times, April 27, 2018 ...........................................................................................................................11

U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests .....................................................................................................................8

Ulloa, Jazmine, ICE Is Increasing Presence in California Because of ‘Sanctuary State’ Law, Says Trump Immigration Chief, L.A. Times, Jan. 3, 2018 ......................................4

Wessler, Seth, Applied Research Center, Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System 38 (Nov. 2011) ...............................................................................................................................13

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I. IDENTITY AND INTEREST OF AMICI CURIAE1
Proposed amici curiae are the following U.S. faith-based organizations and persons whose
work includes advocating for or providing aid and resources to recent U.S. immigrants and their
families: PICO California;2 Franciscan Action Network (“FAN”);3 National Council of Jewish
Women-California (“NCJW”);4 and Rabbi Jonathan D. Klein, Executive Director of Clergy and
Laity United for Economic Justice (“CLUE”)5 (collectively, “Amici”).6
In the United States, faith plays a significant role in the lives of most recent immigrants
and their families, and faith-based organizations historically have played a leading role in serving
their needs. Amici have an interest in and derive benefits, spiritual and otherwise, from helping
those less fortunate within our society, including those in immigrant communities. Amici count
many thousands of immigrants within their congregations, and minister to them and their
families. Christians, Jews, and Muslims alike are taught, among other things, the following:
“When a stranger resides with you in your land, you shall not do him wrong. The stranger who
resides with you shall be to you as the native among you, and you shall love him as yourself . . .”
(Leviticus 19:33-34); “You shall neither mistreat a stranger nor oppress him, for you were
strangers in the land of Egypt” (Exodus 22:21); “Do not neglect to show hospitality to strangers . .
. ” (Hebrews 13:2); and “Show kindness to . . . orphans, and the needy, and to the neighbor that is
a stranger” (Qur’an 4:36).
1 This brief is filed with consent of all parties. No party’s counsel authored this brief in whole or in part, no party or party’s counsel contributed money that was intended to fund preparation or submission of this brief, and no person other than the amici curiae or their counsel contributed money that was intended to fund preparation or submission of this brief. 2 PICO California is a statewide network of faith-based organizations working to create innovative solutions to problems facing urban, suburban, and rural communities. PICO California comprises 19 nonprofit organizations made up of 480 congregations, schools, and neighborhood institutions representing 450,000 families. 3 Franciscan Action Network is a grassroots organization amplifying the justice efforts of Franciscans and Franciscan-hearted people around the country. The Franciscan Action Network sees the interconnectedness of all creation and the common origin of humanity as rooted in God’s loving design for the earth and all people. 4 National Council of Jewish Women is a grassroots organization of 90,000 volunteers and advocates who turn progressive ideals into action. NCJW works for “comprehensive, humane, and equitable immigration, refugee, asylum, and naturalization laws, policies, and practices that facilitate and expedite legal status and a path to citizenship for more individuals.” 5 Rabbi Jonathan D. Klein is the Executive Director of Clergy and Laity United for Economic Justice. CLUE’s mission is to join economically disadvantaged communities in their struggles for justice. CLUE collaborates with over 600 religious leaders and 1,200 laypeople in the Los Angeles and Orange County areas. 6 A complete list of over 90 individual clergymen and -women who join the Amici in support of this brief has been attached as an addendum to this brief and filed concurrently.
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As part of their faith-based work, Amici advocate for and provide resources and aid to immigrant families. These faith communities are willing to take on significant legal and physical risk to serve as sanctuaries for immigrants for their material and spiritual needs. Amici have committed to this work because they have firsthand knowledge of the adverse impacts that worker exploitation, family separation, detention, and deportation have on immigrant families in the United States.
By this action, the Federal Government has challenged the state of California’s implementation of certain state statutes regulating voluntary access to and voluntary transfer of information, documents, or detainees to federal immigration enforcement officers. The Federal Government challenges the Immigration Worker Protection Act, the Dignity Not Detention Act, and the California Values Act (collectively, the “Challenged Statutes”). The effect of the Challenged Statutes is to ensure the state and individual Californians are not forced to be complicit in federal immigration actions that the current administration has admitted are calibrated to create an atmosphere of fear and intimidation. The Challenged Statutes address the enormous humanitarian costs associated with mistreatment of undocumented individuals, lengthy and unexplainable detentions, and traumatic deportations. At the same time, the Challenged Statutes enable millions of individuals in differing congregations to live out their respective, and shared, religious principles.
Enjoining the Challenged Statutes will harm Amici, members of their congregations, and the public overall, by eliminating the state laws that allow California citizens to avoid voluntary cooperation with aggressive and hostile immigration enforcement tactics that are anathema to their religious principles. Faith-based organizations provide sanctuary and services to people of faith and serve needy populations, as they are directed to do by scripture and religious law. The Challenged Statutes enable citizens, including faith-based organizations, to provide sanctuary services to immigrants without being conscripted to assist federal enforcement efforts, consistent with the core tenets and divine mission of the Amici organizations. If Amici are viewed by immigrants as working hand in hand with federal immigration officials, immigrants will be scared off from availing themselves of food, shelter, and other sanctuary services.
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Amici submit this brief to provide the Court with their distinct perspective on why the injunction is contrary to the public interest. This brief will first note the troubling shift in the Federal Government’s deportation tactics, and why Amici are compelled through their religious beliefs to assist those negatively affected by these new policies. The history of sanctuary will be discussed, as well as its growing necessity in response to the current administration’s ultraaggressive deportation campaign. Finally, Amici will explain why the Challenged Statutes are necessary to protect against federal abuse, and will highlight the harm immigrant and religious communities alike will suffer if the government’s injunction is granted. Amici present a clear picture of the reasons that an injunction is contrary to the public interest. II. ARGUMENT
The Supreme Court has directed that public interest is to be prominently considered in actions such as this implicating government policy or regulation. Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008) (“In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.”). In analyzing whether the public interest would be served by a preliminary injunction, a court primarily looks to the impact of the judgment on third parties. Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002), abrogated on other grounds by Winter, 555 U.S. 7. The Court should give great weight to the effect of the requested injunction on immigrants and their faith communities.
A. The Federal Government’s Current Immigration Enforcement Tactics Are Indiscriminately Aggressive and Inconsistent With Basic Religious Tenets.
Under the current administration, the Federal Government has effectively eliminated actual immigrant prioritization, and instead signaled to its immigration agents that all undocumented individuals in the United States should be considered a target.7 Under this new enforcement system, all undocumented workers seeking to provide for their families are now targeted for deportation.8 Administrative officials have been explicit about the fact that they will use enforcement resources as a retaliatory tool against policies the Federal Government does not
7 Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017). 8 Sheila Burke, Sessions: No Tears Over Tennessee Immigration Raid, Seattle Times, May 8, 2018, available at https://www.seattletimes.com/business/sessions-no-tears-over-tennessee-immigration-raid/.
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like or individuals whose speech it does not favor.9 Further, the Federal Government has
dramatically increased the number of worksite investigations in an attempt to fulfill the president’s campaign promises of mass deportations.10
The new immigration enforcement policies are tearing apart immigrant communities,
leaving few remaining safeguards in place to protect those most vulnerable. Enforcement of the
Federal Government’s new immigration system will continue to result in abuses and violations of
individuals’ basic human rights. These tactics are directly in contrast to the Amici organizations’
religious tenets, in which the concept of sanctuary is key.
B. Amici Have a Religious Imperative to Provide Sanctuary in the Face of Unethical Government Action.
Amici and other faith communities have a religious imperative to minister to the
downtrodden, including undocumented immigrants, against dehumanizing immigration
enforcement. Courts have recognized that there is a public interest in protecting the ability for
individuals and entities to conduct their lives according to their religious tenets and moral
convictions. See, e.g., Manning v. Powers, 281 F. Supp. 3d 953, 965 (C.D. Cal. 2017) (holding
there is a “significant public interest” in enforcing plaintiff’s First Amendment rights to engage in
religious activity). Religion is a dominant influence on the values and principles of the American
people. A recent major study showed that approximately 76% of adults in America identified with a major religion,11 and 77% of the adults surveyed expressed that religion is “very
9 Daniel Connolly, Manual Duran’s Arrest Was Retaliation for News Coverage, Lawyers Say, Commercial Appeal, Apr. 16, 2018, available at https://www.commercialappeal.com/story/news/2018/04/16/memphis-police-arrestmanuel-duran-retaliation-news-coverage-lawyers-say/519896002/; Walter Ewing, Immigration Impact, The Federal Government Is Using Immigration Raids as Retaliation Against California, Immigration Impact, American Immigration Council, Feb. 8, 2018, available at http://immigrationimpact.com/2018/02/08/government-immigrationraids-california/; Joshua Geltzer and Seth Wayne, America Should Stop Deporting Peaceful Immigrant Advocates, The Hill, Apr. 18, 2018, available at http://thehill.com/opinion/judiciary/383803-america-should-stop-deportingpeaceful-immigrant-advocates; Jazmine Ulloa, ICE Is Increasing Presence in California Because of ‘Sanctuary State’ Law, Says Trump Immigration Chief, L.A. Times, Jan. 3, 2018, available at http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-ice-is-increasing-presence-incalifornia-1514999654-htmlstory.html. 10 Richard Gonzales, Trump Administration Doubles Worksite Investigations To Combat Illegal Immigration, NPR, May 14, 2018, available at https://www.npr.org/sections/thetwo-way/2018/05/14/611154085/trump-administrationdoubles-worksite-investigations-to-combat-illegal-immigrati?utm_source=dlvr.it&utm_medium=twitter. 11 Pew Research Center, Religious Landscape Study, available at http://www.pewforum.org/religious-landscapestudy/.
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important” or “somewhat important” in their life.12 In addition, 55% of adults surveyed pray at
least once a day, and approximately 33% look to religious teachings and beliefs most often for guidance on questions of right and wrong.13
In giving moral and religious guidance, religious texts across major religions instruct that individuals have an obligation to welcome the stranger and serve those in need.14 The Challenged
Statutes protect Amici’s ability to conduct themselves in a manner consistent with the basic tenets
of their religious faith. When these religious principles come in conflict with an unjust secular
law, religious followers are obligated to challenge the legitimacy of such law. As succinctly
explained in the Catholic Catechism:
“Authority does not derive its moral legitimacy from itself. It must not behave in a despotic manner, but must act for the common good as a moral force based on freedom and a sense of responsibility[.]”15
“The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel. . . . We must obey God rather than men.”16 The Challenged Statutes ensure that Amici and other faith communities are able to act in
accordance with their own moral religious principles.
1. Sanctuary Cities Originated From Religious Principles. The notion of a sanctuary city is as old as the Bible itself. According to the Old
Testament, God commanded the Israelites to designate cities of refuge so that “anyone who kills a
person accidentally and unintentionally may flee there and find protection from the avenger of
12 Pew Research Center, Importance of Religion in One’s Life, available at http://www.pewforum.org/religiouslandscape-study/importance-of-religion-in-ones-life/. 13 Pew Research Center, Frequency of Prayer, available at http://www.pewforum.org/religious-landscapestudy/frequency-of-prayer/. 14 Christianity teaches the following: “When a stranger sojourns with you in your land, you shall not do him wrong . . . [he] shall be as native among you, and you shall love him as yourself.” Leviticus 19:33. Judaism preaches that its followers should do the following: “Defend the weak and the fatherless; uphold the cause of the poor and the oppressed.” Psalm 82:3-4. Islam instructs that the righteous are those “who feed the poor, the orphan and the captive for the love of God, saying: We feed you for the sake of God Alone; we seek from you neither reward nor thanks.” Qur’an 76:8-9. 15 Catholic Church, Catechism of the Catholic Church, 2d ed., § 1902, available at http://www.vatican.va/archive/ccc_css/archive/catechism/p3s1c2a2.htm. 16 Id. at § 2242, available at http://www.vatican.va/archive/ccc_css/archive/catechism/p3s2c2a4.htm.
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blood.” Joshua 20:2-4. “Any[one] who killed someone accidentally could flee to these designated cities . . . prior to standing trial before the assembly.” Joshua 20:9.
These cities of refuge were places where those who committed crimes unknowingly or out of desperation would have a chance to live their life in peace, at least until the individual could stand trial. In contrast, the current administration’s immigration enforcement tactics do not reflect the due process protections echoed throughout society’s oldest religious texts. The Challenged Statutes protect the biblical notion of a city or state of sanctuary against a federal government’s immigration deportation process that threatens the basic human needs of immigrants and violates Amici’s religious tenets.
2. Houses of Worship Have Provided Sanctuary for Centuries. Beyond sanctuary cities, for centuries houses of worship have themselves traditionally served as places of sanctuary for the most vulnerable. The first Christian emperor, Constantine, embraced the institution of sanctuary in the fourth century.17 Medieval European states wrote sanctuary into their legal codes as early as the year 392 AD, specifying what areas of the church constituted sanctuary.18 Muslim religious practices from the same era similarly recognized that places of worship served as sanctuaries, and the tombs of saints and mosques offer shelter to refugees even in the modern day.19 To some religious leaders, crime was the consequence of man’s fall from grace, and the house of worship stood for mercy to sinners,20 and sanctuary was recognized as a “necessary remedy for [the] barbarous state of society.”21 The very tradition of sanctuary was the expression of the love and mercy preached in religious texts, implemented in opposition to violent and aggressive secular policies.
17 Linda Rabben, Sanctuary and Asylum 39 (2016), available at https://canvas.uw.edu/courses/1114024/files/39866784/download?verifier=SKV2zd1RvUXNMUG6cuYk7v3DqhUa 297YRIvCvZ8v&wrap=1. 18 Id. 19 Id. at 43. 20 Id. at 41. 21 J. Charles Cox, The Sanctuaries and Sanctuary Seekers of Mediaeval England 1 (George Allen Sons, 1911).
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3. Modern American Religious Communities Have Adopted Principles of Sanctuary in Support of Immigrants.
The tradition of sanctuary continues in America today. In the 1980s, churches and synagogues provided sanctuary to tens of thousands of undocumented Central American immigrants who sought refuge from political persecution and civil wars in Guatemala, El Salvador, and Nicaragua, in what was known as the Sanctuary Movement. The Sanctuary Movement led faith communities to declare their churches, synagogues, mosques, and other houses of worship as public sanctuaries for immigrants and refugees. The immigrants were given shelter, food and drink, medical care, and sometimes legal advice, and most important, they were treated like human beings during times of need.
Amici and other groups that open up their houses of worship as sanctuaries are doing so at great risk to themselves and to individuals within the faith community. Religious institutions and religious leaders are not exempt from federal immigration law which prohibits harboring illegal aliens.22 Harboring undocumented immigrants is punishable by heavy fine, life in prison, or death, in some circumstances.23 For example, the Federal Government has prosecuted Sanctuary Movement leaders in the past, indicting eleven religious leaders between 1985 and 1987 on criminal counts of conspiracy, and of concealing, harboring, and transporting illegal aliens.24
Despite the risk, PICO National Network, in partnership with United We Dream and Church World Service, has announced a coalition of more than 800 congregations committed to providing sanctuary for immigrants.25 Religious communities, such as Amici PICO California,
22 See 8 U.S.C.A. § 1324. There is a narrow exception in the law for religious organizations to “encourage, invite, call, allow, or enable an alien who is present in the United States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer, . . . provided the minister or missionary has been a member of the denomination for at least one year.” See 8 U.S.C.A. § 1324(C). 23 Id. at § 1324(B)(iv). 24 Associated Press, Alien Sanctuary Movement’s State Unclear a Year After Court Case, N.Y. Times, July 7, 1987, available at https://www.nytimes.com/1987/07/07/us/alien-sancutary-movement-s-state-unclear-a-year-after-courtcase.html. 25 PICO National Network, Organizing for the Resistance, available at https://www.piconetwork.org/takeaction/organizing-for-the-resistance.
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have also shown passion for this cause in reaction to the current administration’s promise of aggressive deportation campaigns.26
For religious communities, providing sanctuary to those less fortunate is more than volunteer work; it is a fundamental tenet of their faith. As Father Brendan Busse, S.J. Associate Pastor at Dolores Mission Catholic Church, explains: “Our care for vulnerable families, our assistance, our service, our offerings are not just acts of generosity but acts of worship.” He added that “[a]ll of us” are affected by the Federal Government’s deportation tactics, “not just 10% or 50% or 90% . . . but all of us.” He continued by explaining that the faith community considers sanctuary an act “toward sacrifice and love – toward authentic and redemptive worship.”27 Father Busse stresses that providing sanctuary to immigrants is a vital component of living a sincere religious life.
4. Religious Sanctuary Is Particularly Critical Due to the Current Administration’s Recent Enforcement Actions in Sensitive Locations.
While federal administrative enforcement guidelines include, on paper, some protections for vulnerable populations, currently those guidelines have been effectively abandoned. For example, Immigration and Customs Enforcement has enacted a policy that immigration enforcement actions are not to occur at sensitive locations, such as schools or places of worship, unless (1) exigent circumstances exist, (2) other law enforcement actions have led officers to a sensitive location, or (3) prior approval is obtained from a supervisory official.28 Enforcement actions covered by this policy include apprehensions, arrests, interviews, searches, and surveillance.29 However, under the current administration, immigration-related apprehensions and arrests at sensitive locations have occurred with great frequency. Recent immigration enforcement actions at sensitive locations include the following: February 8, 2017, two
26 Amicus PICO California organized “100 Days of Resistance” to “fight the dangerous agenda touted by President Trump’s administration,” available at http://www.picocalifornia.org/100days/. 27 Father Brendan Busse, S.J., is an Associate Pastor at Dolores Mission Catholic Church in the Boyle Heights neighborhood in Los Angeles, California. 28 U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests, available at https://www.ice.gov/ero/enforcement/sensitive-loc. 29 Id.
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undocumented immigrants arrested in Virginia immediately outside of a church;30 March 3, 2017,
an undocumented immigrant arrested in California less than two blocks from his daughter’s elementary school;31 January 25, 2018, two undocumented immigrants arrested in New Jersey after dropping their children off at school;32 and March 14, 2018, an undocumented immigrant in California arrested as he was dropping off his child at an elementary school.33
In each of the aforementioned incidents, there was no apparent exigent circumstance or
prior law enforcement action that led officers to the sensitive location. The government’s failure
to respect traditional boundaries heightens Amici’s moral and religious objections to these
aggressive enforcement tactics, and threatens Amici’s ability to perform essential humanitarian
services to minister to this vulnerable population.
C. The Challenged Statutes Help to Prevent Abuse of Power Based on Immigration Status.
Each one of the Challenged Statutes affirms this principle in a different way. The
Immigrant Worker Protection Act affirms that Amici should “welcome the stranger” and are not
required to voluntarily assist the Federal Government in its enforcement of aggressive
immigration laws by turning over their employees unless proper procedures have been followed.
In addition, by requiring that employers give adequate advance notice of inspections, the act also
ensures that Amici, or anyone observing their religious calling, will not be made complicit in a
surprise raid, and reduces the chances that immigrants are scared away from receiving food,
shelter, and other basic necessities. Further, the act combats exploitation of undocumented
workers by employers who threaten to voluntarily turn in undocumented workers to federal
30 Maya Rhodan and Elizabeth Dias, Immigration Agents Arrested Men Outside a Church. But Officials Say It Was Just a Coincidence, Time, Feb. 17, 2017, available at http://time.com/4674729/immigrations-church-sensitive-policyconcerns/. 31 Andrea Castillo, Immigrant Arrested by ICE after Dropping Daughter Off at School, Sending Shockwaves Through Neighborhood, L.A. Times, March 3, 2017, available at http://www.latimes.com/local/lanow/la-me-immigrationschool-20170303-story.html. 32 Katie Kausch, Roby Sanger Had Just Finished Dropping His Children Off at School Thursday Morning When He Was Arrested by ICE, Patch.com, Jan. 25, 2018, available at https://patch.com/new-jersey/edisonmetuchen/metuchen-dad-arrested-ice-after-school-drop-advocates-say. 33 Gary Klein, Novato Man Arrested in Federal Immigration Bust, Marin Independent Journal, March 14, 2018, available at http://www.marinij.com/government-and-politics/20180314/novato-man-arrested-in-federalimmigration-bust.
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immigration enforcement agents unless the workers agree to work under exploitative or illegal conditions.
The Dignity Not Detention Act authorizes the California Attorney General to review and inspect immigration detention facilities to examine the conditions of confinement, the due process provided to detainees, and the circumstances around apprehension and transfer to the detention facility. In keeping with common theology, this statute ensures that the state is witness to whether vulnerable immigrants in its territory are given food, shelter, and basic human rights.
The California Values Act prohibits state and local law enforcement officers from voluntarily providing certain identifying information about individuals or directly transferring the individual to immigration officials, unless immigration officials provide a warrant or probable cause determination, or in limited circumstances where the individual was convicted of certain crimes. Like the other statutes, this law codifies the religious principle of welcoming the downtrodden and vulnerable, by not actively sending them to those who would cast them out of the state and out of the country.
The Challenged Statutes protect the religious principle of caring for those most often exploited. The cumulative effect of the Challenged Statutes is to provide the opportunity to give sanctuary, which is why Amici support the statutes.
D. Enjoining the Challenged Statutes Will Do Great Harm to Religious Communities. 1. All Immigrants Are Harmed by the Climate of Fear.
Amici have thousands of productive immigrants within their congregations, proving immigration status plays no role in an individual’s ability or willingness to positively contribute to their social, religious, and local communities. However, facing the possibility of deportation, immigrants have shied away from public places, houses of worship, schools, and health services, and social services staff confirm declines in client participation.34 Parents in hiding are unable to
34 Jacqueline M. Hagan et al., Social Effects of Mass Deportations by the United States Government, 2000–10, 34 Ethnic & Racial Studies 1374, 1378 (Aug. 2011), available at https://www.researchgate.net/publication/232844424_Social_Effects_of_Mass_Deportations_by_the_US_Governme nt; Catherine E. Shoichet, ICE Raided a Meatpacking Plant. More Than 500 Kids Missed School the Next Day, CNN,
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attend school meetings to discuss services for their children, and are too afraid to submit applications for financial aid so their children may attend college.35 Many immigrants spend
most of their nonworking hours in their homes because it is the safest way to avoid detection.
Such fear inhibits immigrants and their families from patronizing local businesses and other public establishments and from regularly frequenting their places of worship.36 The Challenged
Statutes help to dissipate this climate of fear that prevents immigrants from fully participating in,
and contributing to, American communities.
A preliminary injunction would also allow continued harm to those supporting
undocumented immigrants, even if they themselves have legal immigration status or are citizens.
Individuals who have legal status or citizenship, but may outwardly appear to be “foreign,” are at
risk of being swept up in immigration raids and detained, losing basic due process protections until they are able to prove their citizenship.37
Likewise, a preliminary injunction would also continue to destroy trust between
individuals in immigrant communities and local law enforcement, such that immigrants would no longer feel comfortable reporting crimes or utilizing the legal system to protect against abuse.38
The Amici can personally attest to the specific harm posed to those they serve by the
requested injunction. A few examples are illustrative.
Apr. 12, 2018, available at https://www.cnn.com/2018/04/12/us/tennessee-immigration-raid-schoolsimpact/index.html. 35 Patricia Gandara and Jongyeon Ee, UCLA Civil Rights Project, U.S. Immigration Enforcement Policy and Its Impact on Teaching and Learning in the Nation’s Schools (Feb. 28, 2018), available at https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/u.s.-immigrationenforcement-policy-and-its-impact-on-teaching-and-learning-in-the-nations-schools/EMBARGOED-Immigrationenforcement-on-schools.pdf. 36 Jacqueline M. Hagan , supra. 37 Paige St. John and Joel Rubin, ICE Held an American Man in Custody for 1,273 Days. He’s Not the Only One Who Had to Prove His Citizenship, L.A. Times, April 27, 2018, available at http://www.latimes.com/local/lanow/la-mecitizens-ice-20180427-htmlstory.html; Paloma Esquivel and James Queally, A U.S. Citizen Says Her Rights Were Violated After She Was Detained by Immigration Authorities in San Bernardino, L.A. Times, May 26, 2017, available at http://www.latimes.com/local/lanow/la-me-aclu-ice-plascencia-20170524-story.html. 38 James Queally, Latinos Are Reporting Fewer Sexual Assaults Amid a Climate of Fear in Immigrant Communities, LAPD Says, L.A. Times, March 21, 2017, available at http://www.latimes.com/local/lanow/la-me-ln-immigrantcrime-reporting-drops-20170321-story.html; James Queally, ICE Agents Make Arrests at Courthouses, Sparking Backlash From Attorneys and State Supreme Court, L.A. Times, March 16, 2017, available at http://www.latimes.com/local/lanow/la-me-ln-ice-courthouse-arrests-20170315-story.html.
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As Pastor Trena Turner explains, in addition to the tragic stories Americans hear on the news or read in the papers concerning swift deportation of community members, there are countless cries and screams Americans do not hear or do not see. Specifically, what the public often fails to consider are the “silent screams of those that have been tragically violated and then robbed of their ability to cry out against their attackers.”39 Pastor Turner uses “Mary” as just one example to highlight the harms those within faith communities are suffering as a result of current immigration policies. Mary is a U.S. citizen living with an undocumented partner. Mary is reluctant to bring any attention from law enforcement to her or her household as she fears such would result in the immediate deportation of her partner. This means Mary no longer feels comfortable using the legal system or the protections of the law for herself or her loved ones. Pastor Turner stresses that Mary’s fear of deportation is not just a fear that impacts “immigrant brothers and sisters,” but one that has a “rippling effect into all of our lives.”
Joseph Tomás Mckellar, the Co-Director of Amici PICO California, has countless stories like Mary’s. Joseph provides two stories as examples of the fear immigrants face under the Federal Government’s indiscriminate deportation system. “Mario” is a father of six children and a standout member at his Catholic church in Los Angeles, California. Mario had a troubled past, but learned from his mistakes and has stayed out of trouble for 30 years, working full-time and volunteering at his church and his children’s schools. Yet Mario still lives in constant fear that he will be pulled away from his family without notice. He wakes up every morning “look[ing] out of his window to make sure ICE isn’t waiting for him.” Mario cannot bring himself to explain to his young children that their father could be taken away from them at any moment under the current administration.40
Joseph also recalls a story from March 2017, of a young mother of two, Esperanza, who was pulled over in Central California and cited for a minor traffic violation. Instead of releasing her with just the traffic ticket, local law enforcement informed the young woman that they had
39 Pastor Trena Turner is a pastor at Victory in Praise Church in Stockton, California, and also serves as the Executive Director of Faith in the Valley. Pastor Turner uses the name “Mary” instead of the young woman’s real name because of the woman’s fear of her undocumented partner being targeted and deported. Pastor Turner provided a written statement to Joseph Tomás Mckellar, the Co-Director of PICO California, on May 14, 2018. 40 “Mario” is used out of privacy and to protect the real identity of the individual Joseph describes above.
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voluntarily passed her information to ICE agents because she was undocumented. Within minutes, two ICE agents arrived at her home to arrest and deport her. Fearing for the safety of her young family, she never returned to her home. Esperanza’s life was torn apart at that moment, and she remains in hiding to this day.41
2. Immigration Detention and Deportation Traumatize American Families.
Courts have repeatedly recognized that there is a public interest in maintaining stable families and communities. Federal courts have found that uprooting families can be an injury to the public interest. See, e.g., Richland Park Homeowners Ass’n v. Pierce, 671 F.2d 935, 943 (5th Cir. 1982). “The family and relationships between family members occupy a place of central importance in our nation’s history and are a fundamental part of the values which underlie our society.” Bastidas v. INS, 609 F.2d 101, 105 (3d Cir. 1979) (finding insufficient consideration was given to a father’s affectionate relationship with his young son in determining whether to suspend deportation proceedings).
The current immigration enforcement system puts many families, including documented and undocumented immigrants alike, at risk of harm, as many undocumented immigrants are a part of families with mixed immigration status. Even before deportation, detention of a family member often is traumatizing for a family. Detained immigrants are transported an average of 370 miles, making regular contact with their children and families virtually impossible.42 Unlike jails or prisons, immigration detention centers often do not have adequate services in place to facilitate visitation by family or counsel, or even telephonic appearances for court hearings.43 Detainees may be transferred to various facilities during the course of their proceedings, and
41 The story of the young woman also appeared in numerous media outlets, including an article by the ACLU: Jennie Pasquarella, ACLU of Southern California, California’s Senate Just Approved a Bill to Protect Its Residents From Trump’s Deportation Forces (April 5, 2017), available at https://www.aclu.org/blog/immigrants-rights/deportationand-due-process/californias-senate-just-approved-bill-protect-its. 42 Seth Wessler, Applied Research Center, Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System 38 (Nov. 2011), available at https://11042-presscdn-0-63-pagely.netdnassl.com/wp-content/uploads/indres/081512shatteredfamilies.pdf. 43 Nina Rabin, Disappearing Parents: Immigration Enforcement and the Child Welfare System, 44 Conn. L. Rev. 99, 122-24 (2011).
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family members are not regularly informed of their loved one’s whereabouts.44 Those who work in the immigration system acknowledge that it is common for a person to “disappear” once they have been picked up by ICE.45 This can have severe adverse effects on their parental rights as well, particularly for “disappearing fathers.” Some in the welfare system are quick to write off these fathers and cease efforts to track them down, resulting in termination of parental rights.46
These elements of the immigration detention process are particularly harmful to the family unit. With no information, no services for the detainees or the families of detainees, and no resources, immigrant families must lean heavily on their social networks and religious communities, including Amici, to handle the repercussions of the sudden disappearance of a family member.
3. Amici Will Be Harmed by Indiscriminate Removal of Undocumented Immigrants.
Immigrants are active and cherished participants in religious communities, and their indiscriminate removal will harm the faith community. While the Catholic Church has suffered declining attendance in the United States in recent years, the overall percentage of Catholics has held fairly steady, largely because of the growth of the U.S. Hispanic population.47 It is estimated that 83% of undocumented immigrants are Christian,48 and the majority of Muslims and Hindus in the United States are immigrants.49 As a result, the indiscriminate removal of immigrants is likely to adversely affect Christian, Muslim, and Hindu communities, among others. Not only will attendance numbers decrease if members are detained or deported, but more important, the sense of community and dedication to a religion is diminished when houses of worship cannot provide their members with the sanctuary that is a cornerstone of their faith. The very tenets of living a religious life will be disturbed by the Federal Government’s requested injunction.
44 Human Rights Watch, Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States (Dec. 2009), available at www.hrw.org/sites/default/files/reports/us1209webwcover_0.pdf. 45 Rabin, supra, 44 Conn. L. Rev. at 119. 46 Id. 47 Pew Research Center, The Religious Affiliation of U.S. Immigrants: Majority Christian, Rising Share of Other Faiths (May 17, 2013), available at http://www.pewforum.org/2013/05/17/the-religious-affiliation-of-us-immigrants/ 48 Id. 49 Id.
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Amici have thousands of immigrants within their congregations and have seen how these

individuals positively impact their social, religious, and local communities. Recent immigrants

contribute to local communities by providing new perspectives that enhance society’s cultural

fabric, as well as add to the nation’s productivity. At a basic level, houses of worship can help

immigrants adjust to America by providing a network of information, including everything from

how to find employment and housing, to how to apply for a Social Security card, to how

insurance works in this country. Mosques, temples, and church networks serve as unofficial work

referral systems where worshippers can learn about jobs or identify those they may hire

themselves. New immigrants who are part of a congregation may learn about applying for

college or where to obtain medical attention. In these ways, the house of worship is a center of

the community for immigrants. It is a place where immigrants can seek sanctuary, honor their

cultural traditions, learn new languages, cement their faith, find spouses, and raise families.

Indiscriminate deportations deprive our communities and nation of diversity of thought and

enrichment of culture, and threaten the stability of the nation’s religious communities.

III. CONCLUSION

The Challenged Statutes provide important benefits to those who are most vulnerable in

our society and to those who serve them. By offering some protections for its citizens to avoid

being complicit in arbitrary deportations, and by ratcheting down the atmosphere of fear created

by federal immigration enforcement tactics, the Challenged Statutes also ensure that the public

will continue to benefit from the substantial contributions of recent immigrants. This effect is

consistent with, and a reflection of, the sacred religious principle of sanctuary. Because the

Challenged Statutes are in the public interest and the Federal Government cannot establish the

factors necessary to support an injunction, the motion for preliminary injunction should be

denied. Dated: May 18, 2018

Respectfully submitted,

/s/Esra Acikalin Hudson Esra A Hudson MANATT, PHELPS & PHILLIPS, LLP Counsel For Amici Curiae

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CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amici curiae state that no amicus has a parent corporation and that no publicly held corporation owns 10% or more of the stock of any amicus.
/s/ Esra Acikalin Hudson Council for Amici Curiae
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CERTIFICATE OF COMPLIANCE I certify that pursuant to Judge Mendez’s Minute Order entered on April 11, 2018, this brief substantially complies with Federal Rule of Appellate Procedure 29(a), and the brief itself does not exceed 15 pages.
/s/ Esra Acikalin Hudson Council for Amici Curiae
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CERTIFICATE OF SERVICE I hereby certify that on May 18, 2018, I electronically filed the foregoing amici curiae brief with the Clerk of the Court for the United States District Court for the Eastern District of California. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Parties may access this filing through the Court’s CM/ECF system.
/s/ Esra Acikalin Hudson Council for Amici Curiae
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MANATT, PHELPS & PHILLIPS, LLP ESRA A. HUDSON, Bar No. CA 202881 EHudson@manatt.com DIANA I. IORLANO, Bar No. CA 193359 DIorlano@manatt.com JADE H. LEUNG, Bar No. CA 279651 JLeung@manatt.com MICHAEL G. NORDON, Bar No. CA 317078 MNordon@manatt.com 11355 West Olympic Boulevard Los Angeles, California 90064-1614 Telephone: (310) 312-4000 Facsimile: (310) 312-4224 Attorneys for Amici PICO CALIFORNIA; NATIONAL COUNCIL OF JEWISH WOMEN-CALIFORNIA; FRANCISCAN ACTION NETWORK; RABBI JONATHAN D. KLEIN
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

THE UNITED STATES OF AMERICA, Plaintiff,
v. THE STATE OF CALIFORNIA; EDMUND GERALD BROWN JR., Governor of California, in his Official Capacity; and XAVIER BECERRA, Attorney General of California, in his Official Capacity,
Defendants.

Case No. 2:18-cv-00490-JAM-KJN ADDENDUM TO BRIEF OF AMICI CURIAE FAITH-BASED ORGANIZATIONS IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PRELIMINARY INJUNCTION Judge: Hon. John A. Mendez NO HEARING NOTICED

The following California clergymen and women, and organizations, have joined the foregoing amici curiae brief:
 Joseph Tomás McKellar, PICO California  Pastor Trena Turner, Faith in the Valley and Victory In Praise Church  Bishop Rufus Turner, Victory In Praise Church  Pastor Daren Barron, World Conquerors Church

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 Rev. Kathryn Galicia, St. Francis Episcopal Church  Rev. Deacon Nancy Key, St. James Episcopal Cathedral  Rev. Carolyn Woodall, St. Anne’s Episcopal Church  The Reverend Nick Lorenzetti, St. Paul’s Church  Bishop David Rice, Episcopal Diocese of San Joaquin  The Rev. John Kirkley, St. James Episcopal Church  Nancy Pennekamp, Night Ministry, Open Cathedral  Rev. Patricia Brigham, Faith in Action Bay Area  Rev. Michael Kwiecien, O. Carm. St. Teresa Roman Catholic Church  Reverend Theresa Cho, St. John’s Presbyterian Church  Rev. Anthony Jenk Taylor, Memorial United Methodist Church  Deacon Sergio Gomez, Catholic Church  Rev. Vanessa Southern, The First Unitarian Universalist Society of San Francisco  Reverend Monique Ortiz-Abrate, St. Mary and St. Martha Lutheran Church  Rev. Angela Brown, JD Glide Memorial United Methodist Church  Rev. Sadie Stone, Bethany United Methodist Church  Rev. Victor Floyd, Calvary Presbyterian, Metropolitan Community Churches  Rev. Deborah Alvarez-Rodriguez, Jones Memorial United Methodist Church  Rev. Michael Yoshii, Buena Vista United Methodist Church  Rev. Judi Wortham-Sauls, Holman UMC  Gala King, Buena Vista United Methodist Church  Rev. Mike Friedrich, United Methodist Church, Bay District  Rev. Emily Lin, Chinese Community UMC  Ms. Donna Pedroza, Buena Vista UMC*  The Rev. Davidson Bidwell-Waite, Faith in Action, San Francisco  Rev. Valerie Duecker, Congregational Church of San Mateo  Rev. Lindsey Kerr, United Methodist Church

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 Mandy Bratt, Community Leader, Oakland Community Organizations and Kehilla

Community Synagogue*

 Rev. Deborah Lee, Interfaith Movement for Human Integrity

 Dr. Sharon Fennema, Pacific School of Religion

 Father Richard Smith, Faith in Action Bay Area

 Rev. Canon Dr. Ellen Clark-King*

 Rev. Dr. Barbara Barkley, Clayton Valley Presbyterian Church

 Reverend Doctor Karen Stoyanoff, Unitarian Universalist Church in Anaheim

 Rev. Dr. Eileen Altman, First Congregational Church of Palo Alto, UCC

 Michele Chun, United Methodist Church

 Rev. Joann Lee, Calvary Presbyterian Church

 Rev. Randi Walker Pacific School of Religion

 Elder Glenda Pawsey, St.John’s Presbyterian Church, Berkeley

 Rev. Dr. Jay Johnson, Pacific School of Religion

 Lillianna Bastianon, St. John of God

 Rev. Robert McGrath, UCC

 Louise Fortmann, University Lutheran Chapel

 Ms. Julie Dowd, University of San Francisco

 Dr. Thomas Dolan, Inland Congregations United for Change (ICUC)

 Pastor Kevin McDowell, The Carpenter House Church

 The Rev. Cn Anna Carmichael, Episcopal Diocese of San Joaquin

 Ms. Stephanie Leonoudakis-Golder, First Presbyterian Church of Burlingame

 Michael Fischer, Coordinator, Immigration and Refugee Action Group, Congregation

B’nai Tikvah

 The Rev. Thomas Jackson, St. Cyprian’s Episcopal Church

 The Rev. Gary Ost, St. Aidan’s Episcopal Church

 Rabbi Amy Eilberg, Faith in Action Bay Area

 Elder Gayle Humphrey, Walnut Creek Community of Christ

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Case 2:18-cv-00490-JAM-KJN Document 137 Filed 05/21/18 Page 27 of 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MANATT, PHELPS & PHILLIPS, LLP
ATTORNEYS AT LAW LOS ANGELES

 Sister Mary Ann Clifford, Sisters of Mercy

 Kevin Malone, San Diego Organizing Project

 Pastor David Brazil, Agape Fellowship

 Rev. Dr. Laura Rose, First Congregational of Alameda, United Church of Christ

 Rev. Dr. Kevin Modesto

 Rev. Dr. Diana Gibson, Multifaith Voices for Peace & Justice*

 The Rev. Laurel Mathewson

 Rabbi Marvin Goodman, Peninsula Sinai Congregation*

 The Reverend Dr. Allison Tanner, Lakeshore Avenue Baptist Church

 The Rev. Dr. Arlene Nehring, Eden United Church of Christ

 Mr. Patrick Kennedy, Greater Long Beach Interfaith Community Organization

 Robert Lane, Faith Alliance for a Moral Economy*

 Pastor Thurnell Clayton, Stockton New Life Worship Center C.O.G.I.C

 Rev. Stephanie Johnson, Trinity Lutheran Church

 Rev. John Oda, Lake Park United Methodist Church

 The Rev. Lyle Beckman, San Francisco Night Ministry

 Seminary Student Kofi Baah-Arhin, Church For The Fellowship Of All Peoples

 Rev. Marilyn Chilcote, St. John’s Presbyterian Church in Berk

 Rev. Robert McKenzie

 The Rev. Michael Fincher, St. Gregory’s Episcopal Church

 Rev. Michael Ratajczak, St. Thomas More Catholic Church

 Millie Phillips, First UU Society San Francisco*

 Amy Allen

 Rev. Ben Meyers, Unitarian Universalists of San Mateo

 Venerable Tenzin Chogkyi, Land of Medicine Buddha

 The Rev. Anna Lange-Soto, Episcopal Churches of El Buen Pastor & NS de Guadalupe

 Rev. Connie Winter-Eulberg, St. Andrews Lutheran

 Rev. Rodger Brayfindley, First United Methodist Church

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Case 2:18-cv-00490-JAM-KJN Document 137 Filed 05/21/18 Page 28 of 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MANATT, PHELPS & PHILLIPS, LLP
ATTORNEYS AT LAW LOS ANGELES

 Rev. Lynette Morlan, Episcopal Church of St. Anne  Pastor Dee Emmert, Atonement Lutheran Church  Pastor Curtis Smith, Destiny Christian Center  Rabbi David J. Cooper, Kehilla Community Synagogue*  Ann Lew  True North Organizing Network  Pilgrim United Church of Christ  Pastor Erik Goehner, Holy Trinity Lutheran Church

Dated: May 18, 2018

Respectfully submitted,
/s/Esra Acikalin Hudson Esra A Hudson Diana I. Iorlano Jade H. Leung Michael G. Nordon MANATT, PHELPS & PHILLIPS, LLP 11355 W. Olympic Blvd. Los Angeles, CA 90064 (310) 312-4000 / Fax (310) 312-4224 Counsel For Amici Curiae

*organization name provided for identification purposes only, does not indicate joinder by entity.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MANATT, PHELPS & PHILLIPS, LLP
ATTORNEYS AT LAW LOS ANGELES

CERTIFICATE OF SERVICE I hereby certify that on May 18, 2018, I electronically filed the foregoing addendum to the brief of amici curiae with the Clerk of the Court for the United States District Court for the Eastern District of California. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Parties may access this filing through the Court’s CM/ECF system.
/s/ Esra Acikalin Hudson Council for Amici Curiae

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 Case 2:18-cv-00490-JAM-KJN Document 138 Filed 05/21/18 Page 1 of 26

1 BRADLEY S. PHILLIPS (State Bar No. 85263) bradley.phillips@mto.com
2 GREGORY D. PHILLIPS (State Bar No. 118151) gregory.phillips@mto.com
3 MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue, 50th Floor
4 Los Angeles, CA 90071 T: (213) 683-9100
5 F: (213) 687-3702 Brad.Phillips@mto.com
6
Counsel for Amici Curiae 7

8

9

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

10

SACRAMENTO DIVISION

11 UNITED STATES OF AMERICA,

Case No. 2:18-cv-00490-JAM-KJN

12

Plaintiff,

13
vs.

PROPOSED BRIEF OF AMICI CURIAE OF IMMIGRATION, LABOR AND

14

EMPLOYMENT LAW SCHOLARS IN

THE STATE OF CALIFORNIA, EDMUND SUPPORT OF DEFENDANTS’

15 GERALD BROWN JR., Governor of

OPPOSITION TO PLAINTIFF’S

16

California, in his official capacity; and XAVIER BECERRA, Attorney General of

MOTION FOR PRELIMINARY INJUNCTION RE: AB 450

17 the State of California, in his official
capacity,
18
Defendants.
19

Date: None Time: None
Judge: Hon. John A. Mendez

Complaint Filed: March 6, 2018 20

21

22

23

24

25

26

27

28

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1

TABLE OF CONTENTS

2 Page
3 IDENTITY AND INTERESTS OF AMICI......................................................................... 1

4 SUMMARY OF ARGUMENT............................................................................................ 1

5 ARGUMENT........................................................................................................................ 2

6

I. The United States’ Presentation of the Legislative Purposes and Objectives of IRCA

7

Is Incomplete ................................................................................................................. 2

8 II. AB 450 Is Not Conflict Preempted ............................................................................... 5

9

A. AB 450’s Purpose Is to Ensure Workers Are Aware of Their Rights and Feel Safe

10

Exercising Them........................................................................................................ 6

11 B. California Possesses Expansive Authority to Regulate the Employment

12

Relationship to Protect Workers................................................................................ 8

13 C. AB 450 Does Not Pose an Obstacle to IRCA ......................................................... 10

14

1. IRCA Provides Immigration Authorities with a Comprehensive Set of

Investigatory Tools and Does Not Rely on Voluntary Access to Implement the

15

Federal Scheme .................................................................................................... 10

16

2. Limiting Voluntary Access Will Help Ensure Bona Fide Investigations and

17

Reduce Retaliation ............................................................................................... 12

18 III. AB 450 Is Not Barred by the Intergovernmental Immunity Doctrine ........................ 13

19 CONCLUSION .................................................................................................................. 15 20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

Page(s)

3 FEDERAL CASES

4 Arizona v. United States,

5

567 U.S. 387 (2012) ........................................................................................... 2, passim

6 Baker & Drake, Inc. v. Pub. Serv. Comm’n of Nev. (In re Baker & Drake,

Inc.),

7

35 F.3d 1348 (9th Cir. 1994) ...................................................................................... 2, 6

8 Boeing Co. v. Movassaghi,

9

768 F.3d 832 (9th Cir. 2014) ........................................................................................ 14

10 Chamber of Commerce v. Whiting,

11

563 U.S. 582 (2011) ........................................................................................................ 9

12 DeCanas v. Bica, 424 U.S. 351 (1976) ........................................................................................................ 8

13

Does I thru XXIII v. Advanced Textile Corp.,

14

214 F.3d 1058 (9th Cir. 2000) ........................................................................................ 7

15 Goldstein v. California,

16

412 U.S. 546 (1973) .................................................................................................... 2, 6

17 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) ........................................................................................................ 3
18

19 I.N.S. v. Delgado, 466 U.S. 210 (1984) ................................................................................................ 11, 12

20

Illinois v. Rodriguez,

21

497 U.S. 177 (1990) ...................................................................................................... 13

22 Int’l Molders’ Allied Workers’ Local Union No. 164 v. Nelson,

23

799 F.2d 547 (9th Cir. 1986) ........................................................................................ 11

24 Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam) ................................................................................... 2
25

26

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ........................................................................................................ 8

27

28

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1 Nat’l Ctr. for Immigrants’ Rights v. I.N.S.,

2

913 F.2d 1350 (9th Cir. 1990), rev’d on other grounds, 502 U.S. 183 (1991) .......................................................................................................................... 1, 5

3 North Dakota v. United States,

4

495 U.S. 423 (1990) ...................................................................................................... 14

5 Puente Ariz. v. Arpaio,

6

No. CV-14-01356-PHX-DGC, 2017 WL 1133012 (D. Ariz. Mar. 27,

2017) ............................................................................................................................... 5

7

Puente Ariz. v. Arpaio,

8

Nos. 15-15211, 15-15213, 15-215, 2016 WL 1181917 (9th Cir. filed

9

Mar. 2, 2016)................................................................................................................... 4

10 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .................................................................................................... 5, 8
11

12

Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004) ........................................................................................ 7

13 Silkwood v. Kerr–McGee Corp.,

14

464 U.S. 238 (1984) ........................................................................................................ 6

15 Sure-Tan, Inc. v. NLRB,

16

467 U.S.884 (1984) ......................................................................................................... 8

17 Total TV v. Palmer Commc’ns, Inc., 69 F.3d 298 (9th Cir.1995) ............................................................................................. 6
18

19

United States v. City of Arcata, 629 F.3d 986 (9th Cir. 2009) ........................................................................................ 14

20 United States v. Matlock,

21

415 U.S. 164 (1974) ...................................................................................................... 13

22 Wyeth v. Levine,

23

555 U.S. 555 (2009) ........................................................................................................ 1

24 STATE CASES

25 Del. Valley Field Servs. v. Ramirez,

26

105 A.3d 396 (Del. Super. Ct. 2012), aff’d sub nom. Del. Valley Field Servs. v. Melgar-Ramirez, 61 A.3d 617 (Del. 2013) ...................................................... 9

27 Grocers Supply, Inc. v. Cabello,

28

390 S.W.3d 707 (Tex. App. 2012).................................................................................. 9

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1 Salas v. Sierra Chemical Co.,

2

59 Cal. 4th 407 (2014) ................................................................................................ 8, 9

3 Sanchez v. Dahlke Trailer Sales, Inc., 897 N.W.2d 267 (Minn. 2017)........................................................................................ 9
4 FEDERAL STATUTES
5
6 8 U.S.C. § 1324a(e)-(f) ......................................................................................................... 3

7 8 U.S.C. § 1324a(h)(2) ......................................................................................................... 9

8 8 U.S.C. § 1357 .................................................................................................................. 12

9 IRCA, Pub. L. No. 99-603 § 111(d) ........................................................................ 1, passim
10 STATE STATUTES
11 Cal. Gov’t Code § 7285.1(a) .............................................................................................. 13 12
Cal. Gov’t Code § 7285.2(a)(2).......................................................................................... 11 13
Cal. Lab. Code § 90.2 ......................................................................................................... 11 14 15 Cal. Lab. Code §§ 1019-1019.1............................................................................................ 6
16 FEDERAL REGULATIONS

17 8 C.F.R. § 274.2.................................................................................................................. 11

18 LEGISLATIVE MATERIALS

19 H.R. Rep. No. 99-682, pt. 1, at 8-9 (1986) ........................................................................... 5
20 H.R. Rep. No. 99-682, pt. 1, at 46 (1986) ........................................................................ 5, 9 21
H.R. Rep. No. 99-682, pt. 2, at 8-9 (1986) ....................................................................... 1, 4 22
S. Rep. No. 99-132, at 8 (1985)............................................................................................ 5 23 24 S. Rep. No. 99-132, at 18-26 (1985) .................................................................................... 3
25 S. Rep. No. 99-132, at 108 (1985)........................................................................................ 4

26 TREATISES

27 11A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure 2948

28

(2d ed. 1995) ................................................................................................................... 2

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1 OTHER AUTHORITIES

2 Andrew Khouri, More Workers Say Their Bosses Are Threatening to Have

3

Them Deported, L.A. Times (Jan. 3, 2018),

http://www.latimes.com/business/la-fi-immigration-retaliation-

4

20180102-story.html ....................................................................................................... 7

5 Bernard Bell, United States v. California: A Preliminary Assessment of the

6

Challenge to California’s “Immigrant Worker Protection Act,” Yale J.

on Reg. Notice & Comment Blog (Mar. 31, 2018),

7

http://yalejreg.com/nc/united-states-v-california-a-preliminary-

8

assessment-of-the-challenge-to-californias-immigrant-workerprotection-act-by-bernard-w-bell/ ................................................................................. 13

9

Catherine Fisk, The Anti-Subordination Principle of Labor and Employment

10

Law Preemption, 5 Harv. L. & Pol’y Rev. 17, 19 (2011)............................................. 10

11 Gillian E. Metzger, Federalism and Federal Agency Reform, 111 Colum. L.

12

Rev. 1, 57 (2011)........................................................................................................... 14

13 ICE Administrative Removal Warrants (MP3), Fed. Law Enforcement

Training Ctr., https://www.fletc.gov/audio/ice-administrative-removal-

14

warrants-mp3 (last visited May 15, 2018) .................................................................... 12

15 I-9 Central: Inspections, U.S. Citizenship & Immigration Services,

16

https://www.uscis.gov/i-9-central/retain-store-form-i-

9/inspection/inspections (last visited May 14, 2018).................................................... 11 17

18

Inspection Process, U.S. Immigration and Customs Enforcement (Jan. 8, 2018), https://www.ice.gov/factsheets/i9-inspection .................................................... 11

19 Justin Miller, Trump’s Immigration Crackdown Is Dangerous for Workers

20

(Not Just Immigrants), Am. Prospect (Jan. 31, 2017),

21

http://prospect.org/article/trump%E2%80%99s-immigration-crackdowndangerous-workers-not-just-immigrants......................................................................... 7

22 Kathleen Kim, The Trafficked Worker as Private Attorney General: A

23

Model for Enforcing the Civil Rights of Undocumented Workers.................................. 7

24 Kati L. Griffith, The Power of a Presumption: California as a Laboratory

25

for Unauthorized Immigrant Workers’ Rights, 50 U.C. Davis L. Rev.

1279 (2017) ..................................................................................................................... 8

26

Kati L. Griffith, When Federal Immigration Exclusion Meets Subfederal

27

Workplace Inclusion: A Forensic Approach to Legislative History, 17 N.

28

Y.U. J..................................................................................................................... 4, 8, 10

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1 Lawrence Tribe, Intergovernmental Immunities in Litigation, Taxation and

2

Regulation: Separation of Powers Issues in Controversies about Federalism, 89 Harv. L. Rev. 682, 682, 701-11 (1976) ................................................ 15

3 Memorandum of John Kelly, Sec’y, U.S. Dep’t of Homeland Security,

4

Enforcement of the Immigration Laws to Serve the National Interest 2

5

(Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforc

6

ement-of-the-Immigration-Laws-to-Serve-the-National-Interest.pdf............................. 5

7 Memorandum of John Morton, Dir., U.S. Immigration and Customs

8

Enforcement on Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011), https://www.ice.gov/doclib/secure-

9

communities/pdf/domestic-violence.pdf......................................................................... 5

10 Michael J. Wishnie, Emerging Issues for Undocumented Workers, 6 U. Pa.

11

J. Lab. & Emp. L. 497 (2004) ....................................................................................... 10

12 Revised Memorandum of Understanding Between the Departments of Homeland Security and Labor Concerning Enforcement Activities at

13

Worksites (Dec. 7, 2017), https://www.dol.gov/asp/media/reports/DHS-

14

DOL-MOU.pdf ............................................................................................................... 5

15 Statement of President Reagan Upon Signing S. 1200, Nov. 10, 1986, reprinted in 1986 U.S.C.C.A.N. 5856-1, 5856-1 ............................................................ 3
16

17

18

19

20

21

22

23

24

25

26

27

28

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1

IDENTITY AND INTERESTS OF AMICI

2

Amici curiae are 26 scholars of immigration, labor and/or employment law who

3 have an interest in the proper construction of federal immigration law and its interaction

4 with labor and employment law. Amici, who are listed in Appendix A, respectfully submit

5 this brief to address critical issues of statutory interpretation and the resolution of alleged

6 conflicts between federal immigration law and state and local efforts to protect workers.

7 SUMMARY OF ARGUMENT
8 Policymakers today face significant challenges balancing the demands of a
9 changing economy with the promotion of the health, safety and security of a diverse
10 workforce. State and local governments have long been regulatory pioneers in this area,
11 to the benefit of the nation. In California, where immigrants comprise one-third of the
12 labor force, legislators have enacted AB 450 (the “Immigrant Worker Protection Act”)
13 out of a concern that employer participation in anticipated immigration round-ups would
14 unacceptably threaten the State’s ability to realize its labor and employment goals.
15 Though the specific provisions of AB 450 are far from radical, they have drawn the ire of
16 the current administration. Alleging that AB 450 offends the Supremacy Clause, the
17 United States has moved this Court to preliminarily enjoin California’s new law.
18 The “touchtone in every pre-emption case” is Congress’s purpose, Wyeth v.
19 Levine, 555 U.S. 555, 565 (2009) (citation omitted), not that of the Executive Branch. In
20 this brief, amici have compiled important information about the purposes and objectives
21 of the Immigration Reform and Control Act of (1986) (“IRCA”). Our research shows that
22 IRCA was a “carefully crafted political compromise,” Nat’l Ctr. for Immigrants’ Rights
23 v. I.N.S., 913 F.2d 1350, 1366 (9th Cir. 1990), rev’d on other grounds, 502 U.S. 183
24 (1991), designed to balance a range of interests, including the protection of
25 undocumented workers, whose exploitation up to that point had had a “depressing effect
26 on working conditions” for all, H.R. Rep. No. 99-682, pt. 2, at 8-9 (1986).
27

28

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1

By reducing the power disparity between employers and employees when it comes

2 to dealing with immigration authorities, AB 450 ensures that immigrant workers are

3 better able to enforce their labor rights. In this way, AB 450’s provisions are not

4 anathema to Congress’s objectives, but rather reconcilable with them.

5

To prevail on a claim of conflict preemption, the United States must do more than

6 suggest that AB 450 makes the job of immigration authorities “more difficult.” Baker &

7 Drake, Inc. v. Pub. Serv. Comm’n of Nev. (In re Baker & Drake, Inc.), 35 F.3d 1348,

8 1354 (9th Cir. 1994). Preemption is found only in “those situations where conflicts will

9 necessarily arise.” Goldstein v. California, 412 U.S. 546, 554 (1973). AB 450 is a

10 legitimate exercise of California’s police powers. The federal scheme does not rely on

11 immigration authorities having voluntary access to workplaces. The Court should find

12 that the United States has not met its burden to show a likelihood of success on its

13 preemption claim.

14

Further, the Court should not expand the doctrine of intergovernmental immunity

15 in the way the United States requests. States need room to innovate to meet the labor and

16 employment challenges of our time. A preliminary injunction is an “extraordinary and

17 drastic remedy, one that should not be granted unless the movant, by a clear showing,

18 carries the burden of persuasion,” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per

19 curiam) (quoting 11A C. quoting 11A C. Wright, A. Miller & M. Kane, Federal Practice

20 and Procedure 2948 (2d ed. 1995)). The Court should deny the United States’ motion.

21

ARGUMENT

22 I. 23

The United States’ Presentation of the Legislative Purposes and Objectives of IRCA Is Incomplete

24

In order to succeed on a claim that AB 450 is preempted because it conflicts with

25 federal law, the United States must show that it “stands as an obstacle to the

26 accomplishment and execution of the full purposes and objectives of Congress.” Arizona

27 v. United States, 567 U.S. 387, 399-400 (2012) (citation omitted). The United States

28 would have the Court believe that IRCA’s purpose—like that of the current

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1 administration’s—is singularly focused on maximizing immigration enforcement in the

2 workplace. Mot. for Prelim. Inj. 11-2, ECF No. 2-1 (“PI Motion”). However, as amici

3 explain below, Congress’s purpose in enacting IRCA was far more nuanced than the

4 United States suggests, reflecting a balance of a range of interests. Arizona, 567 U.S. at

5 405. Notably, Congress focused its sanctions on employers and deliberately did not

6 impose additional penalties on employees; it recognized that marginalizing

7 undocumented workers “who already face the possibility of employer exploitation”

8 would incentivize employers to hire them and depress working conditions generally,

9 thereby undermining IRCA’s success. Id. at 399. To evaluate the United States’ claim

10 properly, the Court must assess these “purposes and objectives of Congress” by engaging

11 in an examination of IRCA’s text and legislative history. Id. at 399 (citation omitted).

12

Congress enacted IRCA in 1986 to “combat[] the employment of [unauthorized

13 immigrants][.]” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).

14 The measure was the product of a lengthy legislative process dating back to 1971. S. Rep.

15 No. 99-132, at 18-26 (1985) (discussing the 15-year history of IRCA). Upon signing the

16 bill, President Reagan described IRCA as “one of the longest and most difficult

17 legislative undertakings of recent memory.” Statement of President Reagan Upon

18 Signing S. 1200, Nov. 10, 1986, reprinted in 1986 U.S.C.C.A.N. 5856-1, 5856-1.

19

A primary goal of IRCA was to reduce the economic incentives for employers to

20 hire undocumented workers. One way in which IRCA sought to achieve this goal was to

21 impose a graduated series of civil and criminal sanctions on employers who knowingly

22 employ undocumented workers. See 8 U.S.C. § 1324a(e)-(f). Congress also believed,

23 however, that it was important to allocate funds to vigorous enforcement of labor

24 standards in workplaces where undocumented workers were employed. IRCA, Pub. L.

25 No. 99-603 § 111(d) (appropriating funds for enforcement activities of Department of

26 Labor’s Wage and Hour Division to “deter the employment of unauthorized [immigrants]

27 and remove the economic incentive for employers to exploit and use such

28 [immigrants]”). Congress made clear that it was also not displacing state and federal

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1 power “to remedy unfair practices committed against undocumented employees for . . .

2 engaging in [protected] activit[y].” H.R. Rep. No. 99-682, pt. 2, at 8-9 (1986).

3

An empirical analysis of IRCA’s legislative history by an amicus confirms that

4 labor concerns were at the center of the debate. See Kati L. Griffith, When Federal

5 Immigration Exclusion Meets Subfederal Workplace Inclusion: A Forensic Approach to

6 Legislative History, 17 N.Y.U. J. Legis. & Pub. Pol’y 881, 909-14 (2014) (finding that a

7 “systematic review of IRCA’s legislative history supports the . . . view that labor

8 concerns were a main tenet of IRCA’s purposes”). Legislators had concerns about the

9 impact of unauthorized migration on authorized workers as well as about the treatment of

10 unauthorized workers. Id. They “more often than not linked the treatment of unauthorized

11 workers with their concern for authorized workers,” id. at 910, noting the harmful effects

12 of the existence of an “exploitable underclass . . . fearful of reporting job-related abuse

13 and who have virtually nowhere to turn,” id. at 915 (quoting S. Rep. No. 99-132, at 108

14 (1985)).

15

Consistent with this understanding, when designing the federal scheme, Congress

16 deliberately chose not to impose additional penalties on workers for unauthorized work

17 or commit to unyielding enforcement of the immigration laws against workers.

18 Congress’s decision not to impose criminal penalties on undocumented workers

19 “reflect[ed] a considered judgment that making criminals out of [noncitizens] . . . who

20 already face the possibility of employer exploitation because of their removable status”

21 would exacerbate their weak bargaining position and “be inconsistent with federal policy

22 and objectives.” Arizona, 567 U.S. at 405. Congress also made the federal scheme

23 versatile, allowing for the exercise of prosecutorial discretion to accommodate, among

24 other interests, the legislative goals of IRCA. See Amicus Brief of the United States in

25 Puente Ariz. v. Arpaio, Nos. 15-15211, 15-15213, 15-215, 2016 WL 1181917, at *19 (9th 26 Cir. filed Mar. 2, 2016).1 Finally, Congress limited the uses to which the new system of

27 1 For example, in 2011, the Department of Homeland Security entered into a
28 Memorandum of Understanding (MOU) with the U.S. Department of Labor to reduce the

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1 employment verification could be put, to prevent the verification system from being

2 utilized as a “paper trail . . . for the purpose of apprehending undocumented

3 [immigrants].” Puente Ariz. v. Arpaio, No. CV-14-01356-PHX-DGC, 2017 WL 1133012,

4 at *6-8 (D. Ariz. Mar. 27, 2017) (quoting H.R. Rep. No. 99-682, pt. 1, at 8-9 (1986)).

5

Congress intended through IRCA to “balance[] specifically chosen measures

6 discouraging illegal employment with measures to protect those who might be adversely

7 affected.” Nat’l Ctr. for Immigrants’ Rights, 913 F.2d at 1366. Congress adopted this

8 approach in lieu of a “massive increase[] in enforcement—in neighborhoods and work

9 places,” an approach legislators believed would be unacceptably “intrusive[.]” S. Rep.

10 No. 99-132, at 8 (1985); see also H.R. Rep. No. 99-682, pt. 1, at 46 (1986) (employer

11 sanctions “most humane, credible and effective way to respond”). IRCA is a “political

12 compromise . . . at every level.” Nat’l Ctr. for Immigrants’ Rights, 913 F.2d at 1366.

13 II. AB 450 Is Not Conflict Preempted

14

AB 450 was enacted to promote the health, safety, and well-being of workers,

15 particularly those at the margins of the economy. In this way, its provisions can be

16 harmonized with the objectives of IRCA. Moreover, because AB 450 is an exercise of

17 California’s historic police powers, the Court should hesitate to disturb it. See Rice v.

18 Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Even if the Court finds some tension

19

20 risk that unscrupulous employers could inappropriately use immigration enforcement to

undermine efforts to enforce labor standards. Revised Memorandum of Understanding

21 Between the Departments of Homeland Security and Labor Concerning Enforcement

Activities at Worksites (Dec. 7, 2017), https://www.dol.gov/asp/media/reports/DHS22 DOL-MOU.pdf. A separate memorandum from 2011 provided that immigrants engaged in

23

a protected activity to vindicate labor rights or who “may be in a non-frivolous dispute with an employer” would be considered for the favorable exercise of prosecutorial

24

discretion. Memorandum of John Morton, Dir., U.S. Immigration and Customs Enforcement on Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June

25 17, 2011), https://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf. That memorandum has been revoked by the current administration. Memorandum of John

26 Kelly, Sec’y, U.S. Dep’t of Homeland Security, Enforcement of the Immigration Laws to

Serve

the

National

Interest

2

(Feb.

20,

2017),

27 https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-

Immigration-Laws-to-Serve-the-National-Interest.pdf (rescinding all prior existing

28 conflicting directives, memoranda or field guidance re: prosecutorial discretion).

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1 between AB 450 and federal law, that is not a sufficient basis to invalidate the measure.

2 Silkwood v. Kerr–McGee Corp., 464 U.S. 238, 256 (1984); In re Baker & Drake, 35 F.3d

3 at 1354 (conflict preemption requires more than showing that state law makes realization

4 of federal objectives “more difficult”). Rather, the United States must show that AB 450

5 actually obstructs the legislative purposes of IRCA. See Arizona, 567 U.S. at 399-400;

6 Goldstein, 412 U.S. at 554 (preemption only available in “those situations where

7 conflicts will necessarily arise”); Total TV v. Palmer Commc’ns, Inc., 69 F.3d 298, 304

8 (9th Cir.1995) (“hypothetical conflict is not a sufficient basis for preemption”). Because

9 the United States has not demonstrated that AB 450 obstructs the operation of federal law

10 or IRCA’s purposes, its preemption challenge should fail.

11

A. AB 450’s Purpose Is to Ensure Workers Are Aware of Their Rights

and Feel Safe Exercising Them 12

13

AB 450’s purpose is “to ensure that all California workers, regardless of

14 immigration status, enjoy the protections afforded them under state law[.]” Assembly

15 Committee on Appropriations, Analysis of AB 450 (May 17, 2017), Request for Judicial

16 Notice (“RJN”) Ex. I, ECF No. 78. When enacting AB 450, legislators were aware that

17 California law extends labor protections, rights and remedies to all workers in the State,

18 regardless of immigration status. See Senate Committee on Labor and Industrial

19 Relations, Analysis of AB 450 (June 28, 3017), RJN Ex. J. At the time, California law

20 also prohibited employers from engaging in unfair immigration-related practices, such as

21 contacting immigration authorities about workers in retaliation for exercising their labor

22 rights or re-verifying their employment authorization. Cal. Lab. Code §§ 1019-1019.1.

23 Concerned about reports of recent worksite immigration round-ups and their impact on

24 undocumented workers’ practical ability to enforce their labor rights, California sought to

25 fortify its regime by introducing greater parity in the relationship between employers and

26 employees when dealing with immigration authorities and ensuring that “affected

27 workers . . . [are] cognizant of their rights during [federal enforcement] actions.”

28 Assembly Committee on Appropriations, Analysis of AB 450, RJN Ex. I.

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1

It is not a new revelation that the specter of immigration enforcement against

2 workers can severely undercut the integrity of labor and employment laws. As one of the

3 amici has explained, undocumented workers “play an important role [as private attorneys

4 general] in the furtherance of substantive legal norms and societal values.” Kathleen

5 Kim, The Trafficked Worker as Private Attorney General: A Model for Enforcing the

6 Civil Rights of Undocumented Workers, 2009 U. Chi. Legal F. 247, 300-04 (2009)

7 (describing cases in which undocumented workers have come forward to report

8 violations of workplace laws to the benefit of the broader public). Courts have recognized

9 the in terrorem effect that the exposure to immigration enforcement action can have on

10 noncitizen workers’ willingness to play this role. See, e.g., Rivera v. NIBCO, Inc., 364

11 F.3d 1057, 1064-66 (9th Cir. 2004) (upholding protective order prohibiting discovery

12 into plaintiffs’ immigration status on grounds that such discovery would undermine the

13 “public interest in enforcing Title VII and [the California Fair Employment and Housing

14 Act]”); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068-69, 1073 (9th

15 Cir. 2000) (permitting plaintiffs to proceed anonymously and recognizing the public

16 interest in plaintiffs enforcing their statutory rights). Nevertheless, recent shifts in federal 17 policy have increased the vulnerability of undocumented workers at the workplace.2

18 Reports of retaliation by employers against workers on the basis of their immigration 19 status are on the rise.3 In enacting AB 450, California has attempted to alleviate some of

20 the in terrorem effect of worksite immigration operations and reduce the ability of

21 employers to use immigration enforcement as a tool for retaliation by working within the

22 confines of the law to insist that employers not affirmatively facilitate the arrest and

23 detention of their employees while they are at work.

24

25

2 See Justin Miller, Trump’s Immigration Crackdown Is Dangerous for Workers

(Not Just Immigrants), Am. Prospect (Jan. 31, 2017),

26 http://prospect.org/article/trump%E2%80%99s-immigration-crackdown-dangerous-

workers-not-just-immigrants.

27

3 See, e.g., Andrew Khouri, More Workers Say Their Bosses Are Threatening to

Have Them Deported, L.A. Times (Jan. 3, 2018), http://www.latimes.com/business/la-fi-

28 immigration-retaliation-20180102-story.html.

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1

B. California Possesses Expansive Authority to Regulate the Employment

Relationship to Protect Workers

2

3

As the Supreme Court observed before the enactment of IRCA in DeCanas v.

4 Bica, 424 U.S. 351 (1976), there is a strong tradition of states acting within their police

5 powers to “regulate the employment relationship to protect workers within the state.” Id.

6 at 356. California’s “interest in reducing immigration status effects on state [] workplace

7 protections undoubtedly emanates” from these historic police powers. Kati L. Griffith,

8 The Power of a Presumption: California as a Laboratory for Unauthorized Immigrant

9 Workers’ Rights, 50 U.C. Davis L. Rev. 1279, 1295-96 (2017) (considering preemption

10 dimensions of California measures that seek to protect unauthorized immigrant workers,

11 among others). In preemption cases, courts “start with the assumption that the historic

12 police powers of the States were not to be superseded by the Federal Act unless that was

13 the clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485

14 (1996) (quoting Rice, 331 U.S. at 230). This is particularly true where, as here, the

15 “field” at issue is one “which the States have traditionally occupied.” Id.

16

Even after the passage of IRCA, numerous courts have rejected the claim that

17 federal law preempts state labor and employment laws that offer protections to

18 unauthorized workers. See Griffith, A Forensic Approach to Legislative History, at 890

19 (identifying 21 cases where judges did not find any conflict between subfederal

20 workplace protections and IRCA). For example, in Salas v. Sierra Chemical Co., 59 Cal. 21 4th 407 (2014), the California Supreme Court upheld a state statute extending employee 22 protections to unauthorized workers, including lost pay compensation for the period 23 predating an employer’s discovery of an employee’s ineligibility to work. Addressing the 24 issue of obstacle preemption, the court found that permitting unauthorized workers to 25 enjoy the protections of state law was in keeping with IRCA’s purpose of “eliminating 26 employers’ economic incentives to hire such workers.” Id. at 425-26 (citing Sure-Tan, 27 Inc. v. NLRB, 467 U.S.884 (1984)). In the court’s judgment, “[i]t would frustrate rather 28 than advance the policies underlying federal immigration law to leave unauthorized

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1 workers so bereft of state labor law protections that employers have a strong incentive to

2 ‘look the other way’ and exploit a black market for illegal labor.” Id. at 426.

3

In the workers’ compensation context, “courts have exhaustively discussed the

4 interplay of their jurisdiction’s workers’ compensation laws and IRCA” and found, based

5 on similar reasoning, that IRCA does not bar unauthorized workers from receiving

6 benefits. Del. Valley Field Servs. v. Ramirez, 105 A.3d 396, 405 (Del. Super. Ct. 2012),

7 aff’d sub nom. Del. Valley Field Servs. v. Melgar-Ramirez, 61 A.3d 617 (Del. 2013). The

8 Minnesota Supreme Court thus observed that compliance with a workers’ compensation

9 anti-retaliation statute would not obstruct federal law since “IRCA is premised on the

10 conclusion that ‘[e]mployment is the magnet that attracts [immigrants] here illegally’”

11 and “enforcing labor laws . . . furthers . . . IRCA’s goal of discouraging employers from

12 hiring unauthorized [immigrants].” Sanchez v. Dahlke Trailer Sales, Inc., 897 N.W.2d

13 267, 277 (Minn. 2017) (quoting H.R. Rep. No. 99-682, pt. 1, at 46 (1986)) (emphasis in

14 original). Similarly, Delaware Superior Court explained in Ramirez, workers’

15 compensation or other labor and employment protections could not be considered

16 prohibited “sanction[s]” under 8 U.S.C. § 1324a(h)(2) simply because they extended to 17 undocumented workers. Ramirez, 105 A.3d at 406.4

18

In sum, courts are hesitant to find that state laws protecting workers are preempted

19 by IRCA, even where they apply to or are specifically designed to protect undocumented

20 workers. See Grocers Supply, Inc. v. Cabello, 390 S.W.3d 707, 718-24 (Tex. App. 2012)

21 (“To conclude otherwise . . . would be a ‘freewheeling’ judicial inquiry that would

22 undercut the principle that it is Congress . . . that preempts state law.”) (quoting Chamber

23 of Commerce v. Whiting, 563 U.S. 582, 607 (2011)). The main situations in which courts

24 have found state action to be in conflict with IRCA have involved employee

25

4 According to the court, “[t]o construe [the statute] . . . otherwise” would have

26 absurd results, precluding “state and local officials [from even] being []able to impose

even a traffic fine upon a person who has employed an undocumented [immigrant].” Id.

27 For a penalty “to fall within the purview of § 1324a(h)(2), the benefits must have been

awarded . . . as a means of penalizing employers for employing [undocumented

28 immigrants].” Id. (emphasis in original).

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1 reinstatement or lost pay compensation for the period after an employer has discovered a

2 worker’s unauthorized status, see Griffith, A Forensic Approach to Legislative History, at

3 889; Michael J. Wishnie, Emerging Issues for Undocumented Workers, 6 U. Pa. J. Lab. &

4 Emp. L. 497, 505 (2004), or state law attempts to impose penalties on workers for

5 unauthorized work, see Arizona, 567 U.S. at 402-06.

6

There is another reason why state and local efforts to protect undocumented

7 workers should be given special solicitude on a preemption challenge. As an amicus has

8 argued, the “employee-protective purpose” of local laws that extend to immigrant

9 workers “should restrain courts from deciding that federal law preempts local laws[.]”

10 Catherine Fisk, The Anti-Subordination Principle of Labor and Employment Law

11 Preemption, 5 Harv. L. & Pol’y Rev. 17, 19 (2011). This is because IRCA does not

12 operate in a vacuum, but against a backdrop of protective labor legislation, including at

13 the federal level. Thus, any preemption analysis should consider not only federal

14 immigration law, but the policies reflected in federal labor law as well. Id. at 625-27.

15

C. AB 450 Does Not Pose an Obstacle to IRCA

16

1. IRCA Provides Immigration Authorities with a Comprehensive Set

of Investigatory Tools and Does Not Rely on Voluntary Access to

17

Implement the Federal Scheme

18

In its motion, the United States makes an unsupported claim that Congress

19 designed a federal scheme for immigration enforcement, “including in the context of

20 worksite inspections, that is premised on the private property owner’s ability to consent

21 to inspections of their property and employee records.” PI Motion at 11-12 (emphasis

22 added). There is a vast difference between stating that immigration agents are permitted

23 to rely on consent to access private property and records and suggesting that the federal

24 scheme needs or is based on such consent. A closer examination of the federal scheme

25 reveals that voluntary consent is in fact not necessary; Congress’s full intent can be

26 realized through the many tools that immigration authorities have been given.

27

As discussed above, IRCA’s primary regulatory focus was on employers, not

28 employees. With respect to employers, IRCA requires employers to verify the

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1 employment eligibility of employees and to maintain a record of the Form I-9 and related

2 documents for a specified period of time. See, e.g., 8 C.F.R. § 274.2. When federal

3 authorities conduct an inspection, they typically do so by serving a Notice of Inspection 4 (NOI).5 AB 450 contains no restriction on employers providing I-9 and other documents

5 in response to a NOI—in fact, AB 450 specifically exempts such documents from its

6 subpoena or warrant requirement. Cal. Gov’t Code § 7285.2(a)(2). AB 450 simply

7 requires employers to provide notice to employees of a NOI—something that employers

8 have always been authorized to do—and provide employees for whom a deficiency has 9 been identified an opportunity to correct the deficiency. Cal. Lab. Code § 90.2.6

10

When immigration authorities need to conduct an inspection of a place of business

11 unrelated to I-9 documents and without prior notice, they may seek a subpoena or

12 warrant. The United States claims that the Immigration and Nationality Act (INA)

13 provides no procedure for procuring a judicial warrant, PI Motion at 13, but federal law

14 actually does allow immigration authorities to obtain a judicial warrant for a worksite

15 operation. In fact, to obtain a warrant, immigration authorities need not even meet the

16 relatively more stringent requirements for obtaining a search warrant in the criminal law

17 context. They can obtain a judicial warrant by meeting a more relaxed “hybrid standard

18 of probable cause.” Int’l Molders’ Allied Workers’ Local Union No. 164 v. Nelson, 799

19 F.2d 547, 552 (9th Cir. 1986) (describing standard for “Blackie’s warrant”). In the main

20 case cited by the United States for the proposition that immigration authorities should be

21 able to obtain unfettered access to worksites without a warrant, the INS had a warrant.

22 See I.N.S. v. Delgado, 466 U.S. 210, 212 (1984) (stating that worksite surveys INS

23

5 I-9 Central: Inspections, U.S. Citizenship & Immigration Services,

24

https://www.uscis.gov/i-9-central/retain-store-form-i-9/inspection/inspections (last visited May 14, 2018). Alternatively, they may utilize subpoenas or warrants to inspect

25

documents without providing three-days notice. Id. 6 With respect to employees for whom a deficiency has been identified, ICE

26 already instructs employers to provide them with notice and an opportunity to respond.

See Form I-9 Inspection Process, U.S. Immigration and Customs Enforcement (Jan. 8,

27 2018), https://www.ice.gov/factsheets/i9-inspection (“The employer should provide the

employee with a copy of the notice, and give the employee an opportunity to present ICE

28 with additional documentation to establish their work eligibility.”).

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1 conducted in January and September 1977 were conducted “pursuant to two warrants”).

2 That federal authorities would prefer not to have to make the necessary showing to get a

3 warrant before descending upon a business is unsurprising. But there is no doubt that

4 they can obtain warrants with relative ease.

5

2. Limiting Voluntary Access Will Help Ensure Bona Fide

Investigations and Reduce Retaliation 6

7

The United States appears to be less concerned with AB 450’s impact on its ability

8 to investigate employers and more concerned with maximizing its ability to enter

9 worksites so that it can engage in routine immigration enforcement against workers. PI

10 Motion at 11-12 (citing 8 U.S.C. § 1357 and citing Delgado and Zepeda, both pre-IRCA

11 cases). Those activities fall under a different part of the INA that regulates immigration

12 officers and agents, not employers or their employees. See, e.g., 8 U.S.C. § 1357.

13

When immigration authorities enter workplaces to apprehend workers, they

14 sometimes do so with non-judicial administrative warrants or no warrant at all. Unlike a

15 judicial warrant, an administrative warrant does not authorize immigration officials to

16 enter non-public parts of a business. See, e.g., ICE Administrative Removal Warrants

17 (MP3), Fed. Law Enforcement Training Ctr., https://www.fletc.gov/audio/ice-

18 administrative-removal-warrants-mp3 (last visited May 15, 2018) (“primary difference”

19 between criminal warrant and administration warrant “is that, unlike a criminal warrant . .

20 ., a removal warrant does not authorize the ICE officer to enter . . . an REP [reasonable

21 expectation of privacy] area to execute the warrant”). However, administrative warrants

22 can be confused with criminal warrants. AB 450 helps to ensure that employers do not

23 provide voluntary access to authorities in the mistaken belief that an administrative

24 warrant authorizes them to enter nonpublic areas of a business.

25

When immigration officials have no warrant, commentators have observed that

26 the consent doctrine may be “insufficiently protective” because individuals from whom

27 consent is sought, such as the front desk clerk at a business, may lack knowledge of the

28 ability to refuse the request. Bernard Bell, United States v. California: A Preliminary

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1 Assessment of the Challenge to California’s “Immigrant Worker Protection Act,” Yale J.

2 on Reg. Notice & Comment Blog (Mar. 31, 2018), http://yalejreg.com/nc/united-states-v-

3 california-a-preliminary-assessment-of-the-challenge-to-californias-immigrant-worker-

4 protection-act-by-bernard-w-bell/. “Consent doctrine is even more problematic [where, as

5 here] the person who consents is not the target of the search.” Id. (citing Illinois v.

6 Rodriguez, 497 U.S. 177, 181, 186 (1990) and United States v. Matlock, 415 U.S. 164,

7 171 (1974)). Employers “may have no interest in ensuring that the government has an

8 adequate justification for conducting a search . . . confident that any untoward effects will

9 not be directed at the company.” Id.

10

By extending its protections to all “places of labor,”7 AB 450 benefits some of the

11 most vulnerable workers in the state, i.e., those whose employers would not otherwise be 12 aware of their procedural rights or be inclined to exercise them.8 It ensures that

13 investigations by immigration authorities have adequate justification and reduces the in

14 terrorem effect of exploitative or haphazard immigration enforcement on the

15 enforcement of labor and employment laws in the state.

16 III. AB 450 Is Not Barred by the Intergovernmental Immunity Doctrine

17

The United States also argues that AB 450 violates the doctrine of

18 intergovernmental immunity. PI Motion at 14-18. This Court should decline the United

19 States’ invitation to expand intergovernmental immunity beyond conventional

20 understandings of its reach.

21

22

23

7 The United States suggests that “places of labor” could be read to include locations within 25 miles of the international border, where immigration authorities can

24

have access to “private lands, but not dwellings, for the purpose of patrolling the border,” or locations that authorities must be able to enter in the event of exigent circumstances.

25 ECF No. 2-1 at 14 n.8. But in both of those cases, authorities need neither a warrant nor

“voluntary consent” to enter. Cal. Gov’t Code § 7285.1(a). AB 450 is therefore irrelevant.

26

8 The United States’ argument that AB 450 will impede investigations into human

smuggling or trafficking, PI Motion at 16-17, is misplaced. Those involved in smuggling

27 or trafficking are unlikely to consent to a search even without AB 450, and to the extent

that authorities learn of criminal activity, they may enter private property with a search

28 warrant.

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1

In the modern era, “[t]he Court has . . . adopted a functional approach to claims of

2 governmental immunity, accommodating of the full range of each sovereign’s legislative

3 authority and respectful of the primary role of Congress in resolving conflicts between

4 the National and State governments.” North Dakota v. United States, 495 U.S. 423, 435

5 (1990). The federal government can assert immunity only from regulation that

6 discriminates against the federal government directly or, in the case of contractors or

7 suppliers, indirectly through those “with whom [the federal government] deals.” Id. at

8 435-38. AB 450 plainly does not regulate the federal government directly. Cf. United

9 States v. City of Arcata, 629 F.3d 986 (9th Cir. 2009). AB 450 also does not regulate the

10 federal government indirectly. Employers subject to AB 450 are not being regulated

11 because of their status as government contractors or suppliers, North Dakota, 495 U.S. at

12 438; they are being regulated because of California’s desire to improve the condition of

13 all workers, which necessarily implicates all employers in the state. Cf. Boeing Co. v. 14 Movassaghi, 768 F.3d 832 (9th Cir. 2014).9

15

“Claims to any further degree of immunity must be resolved under principles of

16 congressional pre-emption.” North Dakota, 495 U.S. at 435. That is because it is

17 Congress, not the courts, that plays the “primary role” in deciding whether the

18 accomplishment of federal purposes requires displacing state law today. Id.; Gillian E.

19 Metzger, Federalism and Federal Agency Reform, 111 Colum. L. Rev. 1, 57 (2011)

20 (“Much of the resultant doctrine of federal intergovernmental immunity has been cut

21 back over time, with such concerns now addressed largely under the aegis of

22 preemption.”). Since Congress was well aware of how to preempt state law and chose not

23

24

9 The United States suggests that employers subject to AB 450 are like the contractor in Boeing Co. because AB 450 “imposes penalties on private employers . . . to

25 the extent they voluntarily cooperate with the United States,” and therefore, intergovernmental immunity should extend to them. PI Motion at 14-15. But AB 450

26 clearly applies to all employers. Compliance with AB 450 imposes no special hardship on them. Even those who would prefer not to follow AB 450 cannot be compared to

27 government contractors or suppliers because, unlike contractors or suppliers, they have

no legal relationship to or obligation to perform functions for the federal government 28 absent a NOI, subpoena, or warrant.

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1 to do so here, no further elaboration of the implications of the Supremacy Clause is

2 necessary. See generally Lawrence Tribe, Intergovernmental Immunities in Litigation,

3 Taxation and Regulation: Separation of Powers Issues in Controversies about

4 Federalism, 89 Harv. L. Rev. 682, 682, 701-11 (1976) (expressing doubt about judicial

5 branch’s ability to determine when a tax or regulation is “really” a burden on a federal

6 instrumentality and calling for “attention to the question of who should decide”—to

7 which he answers: Congress).

8

CONCLUSION

9

AB 450 was crafted to promote the well-being of workers in California without

10 conflicting with federal law. Amici urge the Court to decline the United States’ request

11 for a preliminary injunction.

12

13 Dated: May 18, 2018

MUNGER, TOLLES & OLSON LLP

14

By: __/s/ Bradley S. Phillips______________ 15

Bradley S. Phillips

16

350 South Grand Avenue, 50th Floor

Los Angeles, CA 90071

17

T: (213) 683-9100

F: (213) 687-3702

18

Brad.Phillips@mto.com

19 Counsel for Amici Curiae
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1

CERTIFICATE OF SERVICE

2 I hereby certify that on the 18th day of May, 2018, I electronically transmitted the
3 foregoing document to the Clerk's Office using the CM/ECF System for filing. Notice of
4 this filing will be sent by e-mail to all parties by operation of the Court's electronic filing
5 system or by mail as indicated on the Notice of Electronic Filing.
6

7

Dated: May 18, 2018

Los Angeles, CA

8

/s/ Bradley S. Phillips Bradley S. Phillips

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-16-

2:18-cv-00490-JAM-KJN

PROPOSED BRIEF OF AMICI CURIAE IN SUPP. OF OPP’N TO MOT. FOR PRELIM. INJ.

Case 2:18-cv-00490-JAM-KJN Document 138 Filed 05/21/18 Page 24 of 26

1

APPENDIX A1

2 Annie Lai

3

Assistant Clinical Professor of Law UC Irvine School of Law

4 Kathleen Kim

5

Professor of Law Loyola Law School

6 Emily Robinson

7

Co-Director, Immigrant Justice Clinic Loyola Law School

8 Catherine L. Fisk

9

Barbara Nachtrieb Armstrong Professor of Law University of California, Berkeley School of Law

10 William B. Gould IV

11

Charles A. Beardsly Professor of Law, Emeritus Stanford Law School

12 Bill Ong Hing

13

Professor of Law and Migration Studies University of San Francisco School of Law

14 Sameer Ashar

15

Clinical Professor of Law UC Irvine School of Law

16 Caitlin Barry

17

Assistant Professor of Law Director, Farmworker Legal Aid Clinic

18 Villanova University, Charles Widger School of Law

19

Kristina M. Campbell Jack and Lovell Olender Professor of Law

20

Co-Director, Immigration and Human Rights Clinic UDC David A. Clarke School of Law

21 Scott Cummings

22

Professor of Law UCLA School of Law

23 Keith Cunningham-Parmeter

24

Professor of Law Willamette University College of Law

25 Ruben J. Garcia

26

Professor of Law University of Nevada, Las Vegas

27

28

1 Amici curiae appear in their individual capacities; institutional affiliations and titles are provided here for identification purposes only.

-17-
APPENDIX A

2:18-cv-00490-JAM-KJN

Case 2:18-cv-00490-JAM-KJN Document 138 Filed 05/21/18 Page 25 of 26

1 Shannon Gleeson, PhD
2 Associate Professor of Labor Relations, Law and History Cornell University School of Industrial and Labor Relations
3 Jennifer Gordon
4 Professor of Law Fordham University School of Law
5 Kati Griffin
6 Associate Professor Cornell University School of Industrial and Labor Relations
7 Stephen Lee
8 Associate Dean for Faculty Research and Development Professor of Law
9 UC Irvine School of Law 10 Jennifer J. Lee
Assistant Clinical Professor of Law 11 Temple University Beasley School of Law 12 Beth Lyon
Clinical Professor of Law 13 Cornell Law School 14 Angela D. Morrison
Associate Professor of Law 15 Texas A&M University School of Law 16 Maria L. Ontiveros
Professor of Law 17 University of San Francisco School of Law 18 James Gray Pope
Professor of Law 19 Rutgers Law School 20 Nina Rabin
Clinical Professor of Law 21 University of Arizona, James E. Rogers College of Law 22 Leticia M. Saucedo
Professor of Law 23 UC Davis School of Law 24 Hina Shah
Director, Women’s Employment Rights Clinic 25 Associate Professor of Law
Golden Gate University School of Law 26 27 Noah D. Zatz
Professor of Law 28 UCLA School of Law
-18-
APPENDIX A

2:18-cv-00490-JAM-KJN

Case 2:18-cv-00490-JAM-KJN Document 138 Filed 05/21/18 Page 26 of 26

1 Michael J. Wishnie
2 William O. Douglas Clinical Professor of Law Yale Law School
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-19-
APPENDIX A

2:18-cv-00490-JAM-KJN

 
 Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 1 of 16

1 KARL A. RACINE Attorney General for the
2 District of Columbia LOREN L. ALIKHAN
3 Solicitor General ROBYN M. BENDER
4 Deputy Attorney General VALERIE M. NANNERY
5 TAYLOR MOROSCO (STATE BAR NO. 316401) Assistant Attorneys General
6 Office of the Attorney General for the District of Columbia
7 441 4th Street, NW, Suite 630 South Washington, D.C. 20001
8 Telephone: 202-442-9867 Facsimile: 202-741-0499
9 Email: taylor.morosco@dc.gov Attorneys for Amici Curiae
10 IN THE UNITED STATES DISTRICT COURT
11 FOR THE EASTERN DISTRICT OF CALIFORNIA
12

13

14

15 THE UNITED STATES OF AMERICA,

2:18-cv-490-JAM-KJN

16

Plaintiff, BRIEF OF THE DISTRICT OF

COLUMBIA AND THE STATES OF

17

v.

CONNECTICUT, DELAWARE,

HAWAII, ILLINOIS, NEW JERSEY,

18

NEW MEXICO, OREGON, AND

THE STATE OF CALIFORNIA; EDMUND WASHINGTON AS AMICI CURIAE IN

19 GERALD BROWN JR., Governor of

SUPPORT OF DEFENDANTS’

California, in his Official Capacity; and

OPPOSITION TO PLAINTIFF’S

20 XAVIER BECERRA, Attorney General of MOTION FOR A PRELIMINARY

California, in his Official Capacity,

INJUNCTION

21

Defendants. Date:

June 20, 2018

22

Time:

10:00 a.m.

Courtroom: 6

23

Judge:

The Honorable John A. Mendez

Action Filed: March 6, 2018

24

25

26

27

28

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 2 of 16

1

STATEMENT OF INTEREST OF AMICI CURIAE

2

The District of Columbia and the States of Connecticut, Delaware, Hawaii, Illinois, New

3 Jersey, New Mexico, Oregon, and Washington (collectively, “the Amici States”) submit this brief

4 as amici curiae in support of Defendants’ opposition to the federal government’s motion for a

5 preliminary injunction. The Amici States and their political subdivisions have adopted different

6 approaches to policing based on their own determinations about what measures will best meet the

7 needs of their residents. As relevant here, some jurisdictions have adopted, or are considering

8 adopting, lawful policies designed to improve public safety by focusing local law enforcement

9 agencies on crime prevention rather than the enforcement of federal immigration law. In so doing,

10 these jurisdictions seek to build and maintain relationships of trust between their residents and law

11 enforcement, thereby enhancing public safety for all.

12

The Amici States are concerned by the federal government’s lawsuit against the State of

13 California, which is based on an interpretation of federal immigration law that would impermissibly

14 intrude on the sovereign authority of states to regulate law enforcement, enhance public safety, and

15 allocate their limited resources. This suit is only the latest in a series of threats by the federal

16 government against states and political subdivisions that do not wish to devote state and local

17 resources to federal civil immigration enforcement. By seeking to make an example of California,

18 the federal government threatens the sovereign authority of all the Amici States to adopt polices

19 they deem important to the safety and well-being of their communities.

20

Contrary to the federal government’s arguments, the issue at the heart of this case is not

21 whether a state law “obstructs” federal law. Rather, the issue is whether the federal government can

22 use any and all means to compel states to assist the federal government in its civil immigration

23 enforcement efforts—something that the federal government itself has long maintained is

24 voluntary, not required.

25

Together, the Amici States seek to protect their prerogative—indeed, their responsibility—to

26 enact and implement policies that promote public safety, prevent crime, and facilitate positive and

27 productive interactions between local law enforcement and all their residents, regardless of

28 immigration status.

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

1

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 3 of 16

1

BACKGROUND

2

On January 25, 2017, President Donald J. Trump issued an Executive Order requiring the

3 Attorney General of the United States to “ensure that jurisdictions that willfully refuse to comply

4 with 8 U.S.C. § 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants,” and

5 ordering the Attorney General to “take appropriate enforcement action against any entity that

6 violates 8 U.S.C. 1373.”1 Exec. Order No. 13768 § 9(a), 82 Fed. Reg. 8799, 8801. The County of

7 Santa Clara and the City and County of San Francisco immediately challenged Section 9(a) of the

8 Executive Order and, on April 25, 2017, the U.S. District Court for the Northern District of

9 California entered a nationwide preliminary injunction against it. County of Santa Clara v. Trump,

10 250 F. Supp. 3d 497, 540 (N.D. Cal. 2017). On November 20, 2017, the same court found that

11 Section 9(a) violated the separation of powers doctrine and the Fifth and Tenth Amendments and

12 entered a nationwide permanent injunction against it. County of Santa Clara v. Trump, 275 F. Supp.

13 3d 1196, 1219 (N.D. Cal. 2017), appeal docketed No. 17-17480 (9th Cir. Dec. 14, 2017).

14 Specifically, the court held that “[t]he Executive Order’s threat to pull all federal grants from

15 jurisdictions that refuse to honor detainer requests or to bring ‘enforcement action’ against them

16 violates the Tenth Amendment’s prohibitions against commandeering.” Id. at 1216.

17

At the same time, the United States Department of Justice (“DOJ”) has repeatedly threatened

18 states and local jurisdictions with subpoenas and the loss of federal funding if they fail to both

19 certify and confirm that their laws, policies, and practices do not violate Section 1373. Since April

20 2017, DOJ has sent dozens of letters to states and local jurisdictions threatening the loss of grant

21 funding if the states and local jurisdictions did not verify compliance with Section 1373. 2 In

22

1 As one federal judge aptly noted, the phrase “sanctuary jurisdiction” is a misnomer. City

23 of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 610 (E.D. Pa. 2017), appeal docketed No. 181103 (3d Cir. Jan. 18, 2018). None of the jurisdictions with policies targeted by the Attorney

24 General provides “a sanctuary for anyone involved in criminal conduct, nor . . . a sanctuary as to any law enforcement investigation, prosecution, or imprisonment after having been found guilty of

25 a crime.” Id. Accord City of Chicago v. Sessions, 888 F.3d 272, 281 (7th Cir. 2018) (the term “’sanctuary’” cities or states is . . . commonly misunderstood”).

26

2 See U.S. Dep’t of Justice, Office of Pub. Affairs, “Department of Justice Sends Letters to

Nine Jurisdictions Requiring Proof of Compliance with 8 U.S.C. § 1373” (Apr. 21, 2017), available 27 at https://www.justice.gov/opa/pr/department-justice-sends-letter-nine-jurisdictions-requiring-

proof-compliance-8-usc-1373; See U.S. Dep’t of Justice, Office of Pub. Affairs, “Justice

28

(continued…)

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

2

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 4 of 16

1 addition, beginning in mid-2017, DOJ announced that in order to receive future federal grants,

2 states and local jurisdictions would be required to agree to allow their personnel and facilities to be

3 used for federal civil immigration enforcement, in addition to agreeing to certify compliance with

4 Section 1373.3

5

In August and September 2017, the State of California, and the Cities of Chicago, Los

6 Angeles, Philadelphia, and San Francisco brought suits in their respective jurisdictions seeking

7 declarative and injunctive relief regarding the new conditions on federal grants, including the

8 requirement that jurisdictions certify compliance with Section 1373.4 On September 15, 2017, a

9 district judge in the Northern District of Illinois issued a nationwide preliminary injunction against

10 two of the new conditions, City of Chicago v. Sessions, 264 F. Supp. 3d 933, 951 (N.D. Ill. 2017),

11 and the U.S. Court of Appeals for the Seventh Circuit recently affirmed, City of Chicago v. Sessions,

12 888 F.3d 272 (7th Cir. 2018). On November 15, 2017, a district judge in the Eastern District of

13 Pennsylvania concluded that Philadelphia would likely succeed on the merits of its claim that two

14 of the conditions violate the Tenth Amendment’s anti-commandeering principles and noted that

15

16 Department Sends Letters to 29 Jurisdictions Regarding Their Compliance with 8 U.S.C. 1373” (Nov. 15, 2017), available at https://www.justice.gov /opa/pr/justice-department-sends-letters-29-
17 jurisdictions-regarding-their-compliance-8-usc-1373; U.S. Dep’t of Justice, Office of Pub. Affairs, “Justice Department Demands Documents and Threatens to Subpoena 23 Jurisdictions As Part of
18 8 U.S.C. 1373 Compliance Review,” (Jan. 24, 2018), available at https://www.justice. gov/opa/pr/justice-department-demands-documents-and-threatens-subpoena-23-jurisdictions-part-
19 8-usc-1373; U.S. Dep’t of Justice, Office of Pub. Affairs, “Justice Department Sends 1373 Compliance Letter to City of Oakland, Document Request and Subpoena Threat to Two Other
20 Jurisdictions,” (Apr. 13, 2018), available at https://www.justice.gov/opa/pr/justice-departmentsends-1373-compliance-letter-city-oakland-document-request-and-subpoena.

21

3 U.S. Dep’t of Justice, “Backgrounder on Grant Requirements,” (July 25, 2017), available

at https://www.justice.gov/opa/press-release/file/984346/download. DOJ added a similar condition 22 and preference for applicants that participate in federal civil immigration enforcement as

“considerations” used to assess applicants for grants from the Community Oriented Policing 23 Services (“COPS”) program under 34 U.S.C. § 10381(b)(1)-(22). See U.S. Dep’t of Justice, Office

of Cmty. Oriented Policing Servs., 2017 COPS Hiring Program (CHP) Application Guide, 27, 29,

24 72, available at https://cops.usdoj.gov/pdf/2017AwardDocs/chp/app_guide.pdf.

25

4 See Compl., California v. Sessions, N.D. Cal. No. 17-CV-4701, ECF No. 1 (filed Aug. 14,

2017); Compl., City of Chicago v. Sessions, N.D. Ill. No. 17-CV-5720, ECF No. 1 (filed Aug. 7,

26 2017); Compl., City of Philadelphia v. Sessions, E.D. Pa. No. 17-CV-3894, ECF No. 1 (filed Aug. 30, 2017); Compl., City of Los Angeles v. Sessions, C.D. Cal. No. 17-CV-7215, ECF No. 1 (filed

27 Sept. 29, 2017); Compl., City and County of San Francisco v. Sessions, N.D. Cal. No. 17-CV-4642, ECF No. 1 (filed Aug. 11, 2017). Los Angeles also challenged the addition of certain immigration

28 enforcement criteria to the “considerations” for COPS grants.

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

3

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 5 of 16

1 Section 1373 may “thwart policymakers’ ability to extricate their state or municipality from

2 involvement in a federal program.” City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 651 (E.D.

3 Pa. 2017) (internal quotation marks omitted), appeal docketed No. 18-1103 (3d Cir. Jan. 18, 2018).

4

On April 11, 2018, a judge in the Central District of California granted partial summary

5 judgment to Los Angeles, holding that imposing new immigration enforcement considerations on

6 the availability of grants provided through the Community Oriented Policing Services (“COPS”)

7 program was ultra vires, violated the Spending Clause, and was arbitrary and capricious under the

8 Administrative Procedure Act. City of Los Angeles v. Sessions, 293 F. Supp. 3d 1087, 1098-1100

9 (C.D. Cal. 2018), appeal docketed No. 18-55599 (9th Cir. May 7, 2018). The court noted that, in

10 imposing immigration enforcement considerations, the federal government “upset the

11 constitutional balance between state and federal power by requiring state and local law enforcement

12 to partner with federal authorities. These conditions infringe upon the state police power.” Id. at

13 1096.

14

Undeterred by the mounting losses across the nation, in March 2018, the federal government

15 sued the State of California, its governor, and its attorney general, and sought a preliminary

16 injunction against three state laws enacted by the California legislature in furtherance of the safety

17 and best interests of its residents. Of particular concern to the Amici States is the federal

18 government’s challenge to the California Values Act, Cal. Gov’t Code § 7284 et seq., also known

19 as Senate Bill 54 (“SB 54”), which sets forth the circumstances in which state and local law

20 enforcement agencies may participate in federal immigration enforcement activities. Regardless of

21 whether the Amici States would adopt similar laws, they believe that SB 54 was an appropriate

22 exercise of California’s legislative judgment and does not conflict with the Immigration and

23 Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. or Section 1373.

24

25

26

27

28

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

4

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 6 of 16

1

ARGUMENT

2 I. The Federal Government’s Interpretation Of The INA And Section 1373 Mandates

State Cooperation With Federal Civil Immigration Enforcement Efforts And Intrudes

3

On State Prerogatives.

4

The Constitution “establishes a system of dual sovereignty between the States and the Federal

5 Government,” Gregory v. Ashcroft, 501 U.S. 452, 457 (1991), and “the Tenth Amendment confirms

6 that the power of the Federal Government is subject to limits that may, in a given instance, reserve

7 power to the States.” New York v. United States, 505 U.S. 144, 157 (1992). “[T]he principle that

8 the Constitution created a Federal Government of limited powers, while reserving a generalized

9 police power to the States, is deeply ingrained in our constitutional history.” See United States v.

10 Morrison, 529 U.S. 598, 618 n.8 (2000) (internal quotation marks and brackets omitted). Our

11 system of federalism gives states substantial autonomy to formulate policies and practices to protect

12 their communities, including how to expend their limited resources.5

13

Based on the needs of their residents, jurisdictions across the nation have adopted laws or

14 policies that place lawful limits on the extent to which state and local law enforcement agencies

15 become involved in the enforcement of federal civil immigration laws. See N.Y. State Office of the

16 Attorney General, et al., Setting the Record Straight on Local Involvement in Federal Civil

17 Immigration Enforcement: The Facts and The Laws 3 (May 2017) (“Local Involvement”).6 Such

18 limitations “reflect [the jurisdiction’s] local judgment of what policies and practices are most

19 effective for maintaining public safety and community health.” County of Santa Clara, 250 F. Supp.

20 3d at 525-26; accord City of Chicago, 888 F.3d at 280-81. These laws—including the provisions

21 of SB 54 under challenge here—enhance public safety, are a proper exercise of states’ police

22 powers, and do not conflict with the INA or Section 1373. The federal government’s argument to

23 the contrary rests on an overbroad reading of the INA and Section 1373 that tramples on federalism

24 principles and commandeers the states into carrying out federal civil immigration enforcement.

25

26

5 While these considerations are muted with regard to the District of Columbia, see U.S.

Const. art. I, § 8, cl. 17, they apply with full force to California and the Amici States.

27

6 Available at https://oag.ca.gov/system/files/attachments/press_releases/setting_the_

28 record_straight.pdf.

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

5

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 7 of 16

1

A. Policies that limit the participation of state and local officials in federal

immigration enforcement, like California’s SB 54, reflect states’ judgments about

2

how to enhance public safety.

3

State and local government officials are in the best position to make judgments about how to

4 allocate scarce resources to serve the particular public safety needs of their local communities.

5 Those officials frequently recognize that using state and local law enforcement agencies to enforce

6 federal civil immigration laws can divert critical resources—including the time and attention of

7 officers—away from other pressing needs. For example, the chief of police of a New York town

8 observed that “[o]ur department is set up to do basic law enforcement . . . and really not to

9 specialize in immigration work . . . . We’re leaving that up to the people that are being paid to do

10 immigration work.” Local Involvement, supra, at 14. Similarly, the Law Enforcement Immigration

11 Task Force, comprised of sheriffs, police chiefs, and police commissioners from across the country,

12 recently noted that:

13

State and local law enforcement agencies face tight budgets and often do not have

the capacity or resources to duplicate the federal government’s work in enforcing

14

federal immigration laws. Rather than apprehending and removing immigrants who

have no criminal background or affiliation and are merely seeking to work or reunite

15

with family, it is more important for state and local law enforcement to focus limited

resources and funding on true threats to public safety and security. 16

17 Id. at 13. That is especially so given that immigrants are generally less likely to engage in criminal

18 conduct than other members of the community.7

19

State and local governments also have the best perspective on what policies will encourage

20 trust and cooperation between law enforcement officers and the communities they serve. Hundreds

21 of jurisdictions have concluded that public safety is promoted by adopting lawful policies that avoid

22 excessive entanglement between local police and enforcement of federal immigration laws. See

23 Local Involvement, supra, at 3. These jurisdictions have concluded that the safety of a community

24

7 See, e.g., Bianca E. Bersani & Alex R. Piquero, Examining Systematic Crime Reporting

25 Bias Across Three Immigrant Generations: Prevalence, Trends, and Divergence in Self-Reported and Official Reported Arrests, 33 J. of Quantitative Criminology 835, 838 (2017) (“[R]esearch

26 dating back more than a century documents a pattern whereby the foreign-born are involved in crime at significantly lower rates than their peers.”); Alex Mowrasteh, Immigration Myths – Crime

27 and the Number of Illegal Immigrants (Mar. 20, 2017) (finding that the incarceration rates of immigrants—both legal and undocumented—are “far below those of native-born Americans”),

28 available at https://www.cato.org/blog/immigration-myths-crime-number-illegal-immigrants.

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

6

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 8 of 16

1 increases when all residents—regardless of immigration status—feel comfortable reporting crimes

2 and interacting with local police without fear of immigration consequences. In contrast, the

3 perception that local law enforcement officials serve as agents of federal immigration authorities

4 can undermine the trust between law enforcement and the community. For example, “[i]n the case

5 of domestic violence or crimes of that nature, the reluctance to report that is endemic to such

6 offenses could be magnified in communities where reporting could turn a misdemeanor into a

7 deportation.” City of Chicago, 888 F.3d at 280. As a police chief in Maryland explained, “the

8 reluctance of folks to come forward because they are undocumented and fear deportation is a much

9 greater public safety problem than having people here who may be undocumented but are not

10 committing other crimes.” Local Involvement, supra, at 15.

11

Many prominent law enforcement organizations have also taken the position that it is best to

12 avoid conscripting local agencies into enforcing federal civil immigration laws. The Major Cities

13 Chiefs Association, which represents the 68 largest law enforcement agencies in the United States,

14 has voiced concern that the enforcement of federal civil immigration laws by local police

15 “undermines the trust and cooperation with immigrant communities which are essential elements

16 of community oriented policing.” Major Cities Chiefs Ass’n, Immigration Policy.8 As recently as

17 June 2017, the Association impressed upon members of Congress that “[t]he role of local police

18 officers relating to immigration enforcement should be left to local government.”9

19

Indeed, the federal government’s own 21st Century Policing Task Force reached the same

20 conclusion in 2015. After explaining that building relationships with immigrant communities based

21 on trust “is central to overall public safety,” it recommended “[d]ecoupl[ing] federal immigration

22 enforcement from routine local policing for civil enforcement and nonserious crime.” Final Report

23

8 Available at https://www.majorcitieschiefs.com/pdf/news/2013_immigration_ policy.pdf.

24

9 Ltr. from Chief J. Thomas Manger, President, Major Cities Chiefs Ass’n, to U.S. Reps.

25 Goodlatte & Conyers (June 26, 2017), available at https://www.nilc.org/wpcontent/uploads/2017/07/MC-Chiefs-Oppose-HR3003-2017-06-26.pdf; see also Major Cities

26 Chiefs Ass’n, “U.S. Mayors, Police Chiefs Concerned with Sanctuary Cities Executive Order” (Jan. 25, 2017) (“We must be able to continue to protect the safety of all of our residents while ensuring

27 that local law enforcement is focused on community policing.”), available at https://www.majorcitieschiefs.com/pdf/news/ mcca_mayors_pr_on_eo_12517.pdf.

28

(continued…)

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

7

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 9 of 16

1 of The President’s Task Force on 21st Century Policing 18 (May 2015)10; see also id. (“[W]henever

2 possible, state and local law enforcement should not be involved in immigration enforcement.”).

3 The Task Force also recommended that “[t]he U.S. Department of Homeland Security . . . terminate

4 the use of the state and local criminal justice system, including through detention, notification, and

5 transfer requests, to enforce civil immigration laws against civil and non-serious criminal

6 offenders.” Id.

7

These veteran law enforcement officials and experts have concluded that policies prioritizing

8 local issues over enforcement of federal civil immigration law enhance public safety. As they have

9 explained, such policies can help to ensure that local law enforcement agencies have the resources

10 they need to protect against genuine threats to public safety and maintain the trust and support of

11 their communities in doing so. It is against this backdrop that California enacted SB 54 to “ensure

12 effective policing, to protect the safety, well-being, and constitutional rights of the people of

13 California, and to direct the State’s limited resources to matters of greatest concern to state and

14 local governments.” Cal. Gov’t Code § 7284.2(f).

15

What is more, SB 54 is also a reasonable way to protect the state and its law enforcement

16 agencies from monetary liability for unlawfully detaining individuals requested to be transferred to

17 federal immigration authorities after their period of state custody expires. While the INA itself

18 “does not require or contemplate the use of a judicial warrant for civil immigration enforcement,”

19 Mot. for Prelim. Inj. & Mem. of Law in Support at 30, ECF. No. 2-1, that does not obviate the need

20 for due process before a state law enforcement officer can deprive an individual of his or her liberty.

21 SB 54 makes clear that local law enforcement agencies may transfer individuals to federal

22 immigration authorities only when doing so does not violate federal, state, or local law, or when

23 federal immigration authorities demonstrate that there is probable cause to believe that the

24 individual in custody has committed a criminal offense. See Cal. Gov’t Code § 7282.5. Measures

25 like this protect states from liability under 42 U.S.C. § 1983. See Local Involvement at 9 (listing

26 monetary awards to individuals who alleged they were held unlawfully pursuant to requests from

27

28

10 Available at https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

8

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 10 of 16

1 federal immigration authorities); see also Cal. Gov’t Code § 7284.2(e) & (f) (finding that state and

2 local participation in federal immigration enforcement raises concerns about the constitutional

3 rights of California residents).

4

B. SB 54 is an appropriate exercise of California’s police powers.

5

States and local jurisdictions have the primary responsibility for ensuring the safety of their

6 communities and preventing crime. See Morrison, 529 U.S. at 618 (“[W]e can think of no better

7 example of the police power . . . reposed in the States[] than the suppression of violent crime and

8 vindication of its victims.”); see also Kelley v. Johnson, 425 U.S. 238, 247 (1976) (“The promotion

9 of safety of persons and property is unquestionably at the core of the State’s police power”). In

10 addition, the allocation of state resources is at the core of a state’s sovereign authority. See Alden

11 v. Maine, 527 U.S. 706, 751 (1999). As the Seventh Circuit recently noted, states are well within

12 their police power to prioritize safety and enforcement of state and local criminal law over the

13 enforcement of federal civil immigration law. City of Chicago, 888 F.3d at 282 (“The choice as to

14 how to devote law enforcement resources—including whether or not to use such resources to aid

15 in federal immigration efforts—would traditionally be one left to state and local authorities.”).

16

SB 54 is the product of the careful balance that California legislators struck to enact a law

17 that enhances public safety, secures the constitutional rights of the state’s residents, and protects

18 the public fisc. The federal government’s argument that the INA and Section 1373 render SB 54

19 invalid overreads those federal statutes and encroaches on state sovereignty.

20

First, contrary to the federal government’s contention, provisions that limit the involvement

21 of local law enforcement agencies in federal civil immigration enforcement, such as SB 54, do not

22 prevent the enforcement of civil immigration law. Indeed, as the Seventh Circuit recently noted, it

23 is a red herring for the federal government to characterize the issue here as whether states and local

24 jurisdictions can be allowed to “impede” “obstruct” or “undermine” federal immigration

25 enforcement. City of Chicago, 888 F.3d at 282. Federal civil immigration enforcement authorities

26 operate freely within California, as in the Amici States, and SB 54 does not change that.

27

State and local law enforcement agencies also remain free to cooperate with federal

28 immigration authorities to protect their communities from individuals who commit serious crimes

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

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1 and are removable under federal law. In practice, this cooperation takes many forms. For example,

2 as a matter of routine, local law enforcement agencies send fingerprints of individuals in their

3 custody to the Federal Bureau of Investigation (“FBI”). See City of Chicago, 888 F.3d at 281. The

4 FBI then provides that information to Immigration and Customs Enforcement, which can identify

5 undocumented individuals in custody and procure judicial warrants to obtain transfer of custody.

6 See id. at 282. Moreover, SB 54, like similar policies in other states, see Local Involvement at 20,

7 does not apply to state correctional facilities, which house those convicted of the most serious

8 crimes. See Cal. Gov’t Code § 7284.4(a). Even when individuals who pose a threat to the

9 community are held in local jails, SB 54 does not prevent local law enforcement agencies from

10 cooperating with federal civil immigration enforcement authorities. Cal. Gov’t Code § 7282.5

11 (permitting law enforcement officials to cooperate with immigration authorities when an individual

12 who is the target of federal civil immigration enforcement has been convicted of any of hundreds

13 of felonies and misdemeanors (including serious or violent felonies), is the subject of an

14 outstanding federal felony arrest warrant, or a magistrate has found probable cause to charge the

15 individual with a serious or violent felony). As the Seventh Circuit recognized, a jurisdiction’s

16 decision to cooperate with federal immigration authorities “for the persons most likely to present a

17 threat to the community” but to “refuse such coordination where the threat posed by the individual

18 is lesser[] reflects the decision by state and local authorities as how best to further the law

19 enforcement objectives of their communities with the resources at their disposal.” City of Chicago,

20 888 F.3d at 281.

21

Next, while the power to regulate immigration is a federal power, Arizona v. United States,

22 567 U.S. 387, 394 (2012); Sturgeon v. Bratton, 95 Cal. Rptr. 3d 718, 732 (2009), that power does

23 not include the authority to dictate or supersede state laws that relate to internal state regulation of

24 public safety and the allocation of state resources—which are unquestionably within the power of

25 the States—when those state laws and regulations do not regulate immigration. See Az. Dream Act

26 Coal. v. Brewer, 855 F.3d 957, 961 (9th Cir. 2017), cert. denied, 138 S. Ct. 1279 (2018); Sturgeon,

27 95 Cal. Rptr. 3d at 732. Here, SB 54 regulates state law enforcement agencies, not immigration,

28 i.e., it does not regulate who should or should not be admitted into the country, who may be

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

10

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 12 of 16

1 removed from the country, or the conditions under which individuals may remain in the country.

2 Nor does it run afoul of any particular federal statute. Section 1373 prohibits laws and regulations

3 that restrict any government official or agency from sharing “information regarding the citizenship

4 or immigration status, lawful or unlawful, of any individual,” but SB 54 specifically does not

5 restrict or prohibit such information-sharing. See Cal. Gov’t Code § 7284.6(e). And the INA

6 permits state officials to cooperate in immigration enforcement, but it never requires it.

7

Finally, the federal government is interpreting the INA and Section 1373 broadly to

8 supersede the historic police powers of the States—something that was not the clear or manifest

9 purpose of Congress in enacting these laws. See Gregory, 501 U.S. at 461. Despite the federal

10 government’s arguments to the contrary, the question here is not whether Congress has preempted

11 state laws regarding law enforcement or the well-being of their residents. Congress was not

12 legislating in a field that the states have traditionally occupied. See generally Wyeth v. Levine, 555

13 U.S. 555, 565 (2009). As was the case in Bond v. United States, 134 S. Ct. 2077 (2014), the federal

14 government’s reading of federal law here would “alter sensitive federal-state relationships.” Id. at

15 2091. The Court should reject this interpretation because it would intrude on the states’ police

16 power.

17

With the instant suit, the federal government attempts to curtail states “from experimenting

18 and exercising their own judgment in an area to which States lay claim by right of history and

19 expertise.” Lopez, 514 U.S. at 583 (Kennedy, J., concurring). Because state and local governments

20 have primary responsibility for ensuring the safety of their communities and preventing crime, see

21 Morrison, 529 U.S. at 618, they should be allowed to exercise their own discretion of how to best

22 do that. No matter what a state or local jurisdiction decides—whether to communicate or cooperate

23 with federal immigration officials or not—it should be the state or local jurisdiction that determines

24 those policies. They are the ones that know their communities’ needs and how best to address them.

25

26

27

28

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

11

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 13 of 16

1

C.

The federal government’s interpretation of the INA and Section 1373 are

inconsistent with anti-commandeering principles.

2

3

The Court should reject the federal government’s interpretation of the INA and Section 1373

4 for the additional reason that it would result in impermissible commandeering of the States. Under

5 the federal government’s view, states must make their officers and resources available to enforce

6 the federal government’s interpretation of federal civil immigration law on the federal

7 government’s terms. Mot. for Prelim. Inj. & Mem. of Law in Support at 24, ECF 2-1. While

8 California voluntarily cooperates with federal civil immigration enforcement in many ways, the

9 federal government wants more. The federal government complains that California has not made

10 available other limited resources—local law enforcement officers, including school police and

11 security departments, and local jails that are run by local law enforcement agencies—to facilitate

12 the location and detention of individuals who do not pose a threat to public safety. Yet the federal

13 government’s enumerated powers do not include the power to regulate state law enforcement and

14 thus its attempt here to “regulate[s] the ‘States as States,” FERC v. Mississippi, 456 U.S. 742, 763

15 n.28 (1982), is inconsistent with Tenth Amendment jurisprudence.

16

“The Federal government may not compel the States to enact or administer a federal

17 regulatory program.” New York, 505 U.S. at 188. While Congress may induce states through

18 funding mechanisms to take actions that Congress cannot directly compel, id. at 167; South Dakota

19 v. Dole, 483 U.S. 203 (1987), the federal government “may neither issue directives requiring the

20 States to address particular problems, nor command the States’ officers, or those of their political

21 subdivisions, to administer or enforce a federal regulatory program.” Printz v. United States, 521

22 U.S. 898, 935 (1997). “That is true whether Congress directly commands a State to regulate or

23 indirectly coerces a State to adopt a federal regulatory system as its own.” Nat’l Fed’n Indep. Bus.

24 v. Sebelius, 567 U.S. 519, 578 (2012). The Supreme Court recently confirmed that the anti-

25 commandeering doctrine prohibits the federal government from issuing direct orders to states—

26 either compelling them to do something or prohibiting state legislatures from enacting new laws.

27 Murphy v. Nat’l Collegiate Athletic Assn., No. 16-1477, 2018 WL 2186168, at *13 (U.S. May 14,

28 2018).

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

12

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 14 of 16

1

In the immigration context, a judge in the Northern District of California recently held that

2 to the extent an executive order conditioned all federal grants on state and local authorities honoring

3 civil immigration detainer requests, the order was “unconstitutional under the Tenth Amendment

4 because it seeks to compel the state and local jurisdictions to enforce a federal regulatory program

5 through coercion.” County of Santa Clara, 275 F. Supp. 3d at 1216. There, just the risk of losing

6 federal grant monies and the threat of an “enforcement action” was enough to run afoul of the anti-

7 commandeering principle of the Tenth Amendment. Id. Here, the federal government has gone a

8 step further and brought an action to enjoin a state from carrying out a law enacted within its

9 sovereign authority on the view that federal law can control what state resources should be available

10 for federal immigration enforcement. That is flatly contrary to precedent.

11

The federal government’s position also stands in stark contrast with the long-time

12 understanding that any cooperation or participation by states in federal civil immigration

13 enforcement is completely voluntary. See Galarza v. Szalczyk, 745 F.3d 634, 639-42 (3d Cir. 2014)

14 (holding that civil detainers are requests and a local law enforcement agency is not required to

15 comply with them); Miranda-Olivares v. Clackamas County, No. 12-cv-2317, 2014 WL 1414305,

16 at *5-8 (D. Or. Apr. 11, 2014) (same); Morales v. Chadbourne, 996 F. Supp. 2d 19, 40 (D.R.I.

17 2014) (same). The federal government acknowledges as much in its motion for preliminary

18 injunction, see Mot. for Prelim. Inj. & Mem. of Law in Support at 25, ECF 2-1, while at the same

19 time arguing that refusing to respond to every request from federal civil immigration enforcement

20 authorities amounts to “obstruction,” id. at 27. Yet, the federal government’s requests for

21 information themselves must be voluntary “requests” precisely because the federal government

22 cannot command states to comply with them under the Tenth Amendment. Galarza, 745 F.3d at

23 643-45; Ochoa v. Campbell, 266 F. Supp. 3d 1237 (E.D. Wash. 2017); Mercado v. Dallas County,

24 Texas, 229 F. Supp. 3d 501 (N.D. Texas 2017); Orellana v. Nobles County, 230 F. Supp. 3d 934

25 (D. Minn. 2017); County of Santa Clara, 275 F. Supp. 3d at 1216.

26

In City of New York v. United States, 179 F.3d 29 (2d Cir. 1999), the Second Circuit rejected

27 a Tenth Amendment facial challenge to Section 1373 because, the court said, “Congress has not

28 compelled state and local governments to enact or administer any federal regulatory program. Nor

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

13

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 15 of 16

1 has it affirmatively conscripted states, localities, or their employees into the federal government’s

2 service.” Id. at 35. The Supreme Court’s recent decision in Murphy calls that holding into question

3 because it suggests that no such affirmative command is necessary and the anti-commandeering

4 doctrine is implicated when the federal government purports to prohibit states from regulating in

5 an area within their police powers. 2018 WL 2186168, at *13. But even if City of New York remains

6 valid after Murphy, the federal government’s interpretation of the INA and Section 1373 here

7 imposes affirmative duties on California to cede control over its resources and personnel in order

8 to enforce the federal government’s interpretation of federal law. The federal government’s

9 construction of the INA and Section 1373 raises serious Tenth Amendment concerns with respect

10 to California, and it plainly serves as a shot across the bow to other jurisdictions that choose to limit

11 their involvement in federal civil immigration enforcement. It is an immediate threat to every other

12 state: comply or suffer the consequences.

13

Courts have called into doubt the constitutionality of applying the statute in a way that

14 prevents states from allocating and controlling their own resources. See City of Chicago, 264 F.

15 Supp. 3d at 949 (“If a state or local government cannot control the scope of its officials’

16 employment by limiting the extent of their paid time spent cooperating with the INS, then Section

17 1373 may practically limit the ability of state and local governments to decline to administer or

18 enforce a federal regulatory program.”); City of Philadelphia, 280 F. Supp. 3d at 651 (explaining

19 that imposing affirmative immigration-related obligations “implicate[s] the Tenth Amendment and

20 its built-in anti-commandeering principles”). This Court should similarly reject the federal

21 government’s interpretation due to anti-commandeering concerns.

22

23

24

25

26

27

28

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

14

Case 2:18-cv-00490-JAM-KJN Document 139 Filed 05/21/18 Page 16 of 16

1

CONCLUSION

2

This Court should deny Plaintiff’s motion for a preliminary injunction.

3

4 Dated: May 18, 2018

Respectfully Submitted,

5

KARL A. RACINE

Attorney General for the

6

District of Columbia

LOREN L. ALIKHAN

7

Solicitor General

ROBYN M. BENDER

8

Deputy Attorney General

9

/s/ Taylor Morosco

k

TAYLOR MOROSCO

10

VALERIE M. NANNERY

Assistant Attorneys General

11

Attorneys for the District of Columbia

12

GEORGE JEPSEN

Attorney General

13 State of Connecticut

55 Elm Street

14 Hartford, CT 06106

15

MATTHEW P. DENN Attorney General State of Delaware Department of Justice Carvel State Building, 6th Floor 820 North French Street Wilmington, DE 19801

16

RUSSELL A. SUZUKI

Attorney General

17 State of Hawaii

425 Queen Street

18 Honolulu, HI 96813

LISA MADIGAN Attorney General State of Illinois 100 W. Randolph St. Chicago, IL 60601

19

GURBIR S. GREWAL

Attorney General

20 State of New Jersey

RJ Hughes Justice Complex

21 25 Market Street, Box 080

Trenton, NJ 08625-0080

22

ELLEN F. ROSENBLUM

23 Attorney General

State of Oregon

24 1162 Court Street NE

Salem, OR 97301

25

HECTOR BALDERAS Attorney General State of New Mexico 408 Galisteo St. Santa Fe, NM 87501
ROBERT W. FERGUSON Attorney General State of Washington P.O. Box 40100 Olympia, WA 98504-0100

26

27

28

Brief of the District of Columbia, et al., as Amici Curiae in Support of Defendants

15

 
 Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 1 of 20

1

CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW

Peter A. Schey (Cal. Bar No. 58232)

2 Carlos Holguín (Cal. Bar No. 90754)

3 256 South Occidental Boulevard Los Angeles, CA 90057

4 Telephone: (213) 388-8693

5 Facsimile: (213) 386-9484 Email: pschey@centerforhumanrights.org

6

crholguin@centerforhumanrights.org

7
Attorneys for Amici Curiae
8

9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11

12 UNITED STATES OF AMERICA,

13
Plaintiff,
14

15

vs

16 STATE OF CALIFORNIA, ET AL.,
17
Defendants.
18

19
/ / /
20

)

) Case No. CV 2:18-cv-490-JAM-KJN

)

) LEGAL SERVICES PROVIDERS AMICI

) CURIAE BRIEF

)

) NO HEARING NOTICED

)

) Honorable John A. Mendez

)

_

)

)

21 / / /

22

23

24

25

26

27

28

Legal Services Providers Amici Brief

Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 2 of 20

1

TABLE OF CONTENTS

2

3 I. INTRODUCTION...................................................................................................... 1
4
5 II. INTEREST AND IDENTITY OF AMICUS CURIAE ............................................. 1

6
7 III. ARGUMENT ........................................................................................................... 2

8

1. WHEN VIEWED FROM THE PERSPECTIVE OF HOW IMPLEMENTATION AND OPERATION

9

OF AB 450 AND FEDERAL LAW ACTUALLY IMPACT LOW-INCOME IMMIGRANTS, THE

10

IMMIGRATION WORKER PROTECTION ACT IS NOT FEDERALLY PREEMPTED................... 2

11

12

2. WHEN VIEWED FROM THE PERSPECTIVE OF HOW IMPLEMENTATION AND OPERATION

OF AB 103 AND FEDERAL LAW IMPACT LOW-INCOME IMMIGRANTS, AB 103 IS NOT

13

FEDERALLY PREEMPTED ................................................................................................ 6

14

15

3. WHEN VIEWED FROM THE PERSPECTIVE OF HOW IMPLEMENTATION AND OPERATION

OF SB 54 AND FEDERAL LAW ACTUALLY IMPACT LOW-INCOME IMMIGRANTS, SB 54 IS

16

NOT FEDERALLY PREEMPTED ......................................................................................... 9

17

18 IV. CONCLUSION ...................................................................................................... 14
19

20 / / /
21

22

23

24

25

26

27

28

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Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 3 of 20

1

TABLE OF AUTHORITIES

2
Cases
3
4 Arizona v. United States, 567 U.S. 387, 419 (2012) ................................................. 8, 14

5 Duncan Roy et al. v. County of Los Angeles et. al, 2018 U.S. Dist. LEXIS 27268 (C.D. Cal. 2018)................................................................................................................... 14
6

7
8 Statutes 9 California Government Code § 7285.1(a) ....................................................................... 3

10 California Government Code § 7285.2(a) ....................................................................... 3
11 California Government Code § 12532(b)(1) ................................................................... 8
12
California Government Code § 12532(b)(1)(A)-(C)................................................... 7, 8
13
California Government Code § 7282.5.......................................................................... 10
14
15 California Government Code § 7284.6(a)(1)(C) ............................................................. 9
16 California Government Code §§ 7310-7311 ................................................................... 7

17 California Government Code §12532(a) ......................................................................... 7
18 California Government Code §7284.6(a)(1)(A)-(E) ....................................................... 9
19
California Lab. Code § 1019.2(a)............................................................................ 4, 5, 6
20
California Labor Code §90.2(a)(1).................................................................................. 3
21
22 8 U.S.C. § 1373 ............................................................................................................... 9
23 8 U.S.C. § 1373(a)..................................................................................................... 9, 10

24 8 U.S.C. §1373 .............................................................................................................. 11
25 INA § 274(b)(3)............................................................................................................... 5
26
INA § 274A ................................................................................................................. 4, 6
27
INA § 274A (b)(1)(A) ..................................................................................................... 5
28
INA § 274A.(b)(2)........................................................................................................... 6

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Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 4 of 20
1 INA § 274A(b)(1)(A)(i)-(ii). ........................................................................................... 5
2
3 Regulations 4 8 C.F.R. § 274a................................................................................................................ 5 5 8 C.F.R. § 274a.2(b)(2)(ii) .............................................................................................. 3
6
8 C.F.R. § 274a.2(b)(B)(d)(vii) ....................................................................................... 5
7
8 C.F.R. § 274a2(b)(B)(d)(vii) ........................................................................................ 5
8
9 INA § 274(b)(3)(B)(i)-(ii) ............................................................................................... 5 10 Other authorities 11 Santa Ana: Ordinance No. NS-2908, Dec. 20, 2016, Sec. 6…………………………11
12
Mike McPhate: California Today: Worries Over Deportation, N.Y. TIMES, 13 April 5, 2017…………………………………………………………………………12 14 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in 15 Immigration Enforcement, Univ. Ill. at Chicago, 7 (May 2013) ………………. 12
16
17 / / /
18 19 20 21 22 23 24 25 26 27 28
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Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 5 of 20

1

I. INTRODUCTION

2

The United States seeks to enjoin enforcement of certain provisions of California

3
law enacted through Assembly Bill 450, Assembly Bill 103, and Senate Bill 54
4
5 (“challenged California statutes”). The Amici will focus on the real life experiences of

6 their low-income clients as they navigate the intersection of the implementation by
7
California of the challenged statutes and by the Department of Homeland Security
8
9 (“DHS”) of federal law. Viewed through this lens, it becomes apparent that the

10 California statutes are not preempted by federal law, primarily because the California
11
statutes do not constitute legislation in a field that is exclusively occupied by the
12
13 federal government, does not conflict with federal laws, and do not stand as an obstacle

14 to the federal government’s enforcement of immigration law.

15
II. INTEREST AND IDENTITY OF AMICUS CURIAE
16

17

Amici are the Center for Human Rights and Constitutional Law, the Legal Aid

18 Foundation of Los Angeles, the Legal Aid Society of Orange County, El Rescate, the
19
International Institute of Los Angeles, the Legal Aid Foundation of Santa Barbara
20
21 County, the Public Law Center, and La Raza Centro Legal. Amici are non-profit

22 programs providing free legal services to low-income California residents, including
23
immigrants. The proper resolution of this case is a matter of utmost concern to these
24

25 programs because of its impact on their clients, many of who are immigrants or U.S.

26 citizens with immigrant family members.
27

28 LEGAL SERVICES PROVIDERS AMICI BRIEF

1

Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 6 of 20

1

The proposed Amici’s clients are mandated to comply with California and federal

2
laws. Some of the Amici programs have clients that have been, are being, or may in the
3

4

future be detained by the Immigration and Customs Enforcement (“ICE”), the

5 immigration enforcement arm of the DHS, and some have immigrant clients who are

6
workers with rights and obligations under the challenged California statutes and
7

8

applicable federal laws.

9

The proposed Amici will show that their immigrant clients’ treatment, rights and

10
obligations under the challenged California statutes, in no way adversely impacts their
11

12 clients’ treatment, rights and obligations under relevant federal immigration laws.

13

In short, when viewed through the lens of the actual implementation and

14
operation of AB 450, AB 103 and SB 54, and of relevant federal immigration laws, as
15

16 experienced by those the laws are intended to impact, immigrants and those enforcing

17 the state and federal laws regarding these immigrants are in full compliance with both
18
the challenged state statutes and applicable federal laws. This strongly indicates federal
19
20 law does not preempt the challenged California statutes.

21

III. ARGUMENT

22

1. When viewed from the perspective of how implementation and operation of

23

AB 450 and federal law actually impact low-income immigrants, the

24

Immigration Worker Protection Act is not federally preempted

25

The Immigrant Worker Protection Act (“AB 450”) prohibits employers from

26
voluntarily cooperating with federal immigration officials in certain circumstances.
27

28 2017 Cal. Stat. c. 492. AB 450 added §§7285.1-.2 to Government Code to prohibit

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Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 7 of 20

1 employers’ “voluntary consent to an immigration enforcement agent … enter[ing] any
2
nonpublic areas of a place of labor” without a warrant, Cal. Gov’t Code § 7285.1(a), or
3
4 “voluntary consent to … access… employee records” without a subpoena, a judicial

5 warrant, or notice of inspection. Cal. Gov’t Code § 7285.2(a).
6
In Amici’s clients’ experiences, ICE requests and picks up copies of I-9 forms
7
8 and their attachments. These documents are not reviewed at the location of the

9 business but at ICE offices where databases are accessed to determined whether
10
employees whose I-9 forms are being reviewed are authorized to be employed, whether
11
12 false documents have been used to gain employment, and whether the employer has

13 properly completed the I-9 forms. AB 450 will not interfere with this process.
14
In Amici’s clients’ experiences, ICE always commences I-9 audits of employers
15
16 by serving a Notice of Inspection. Therefore, implementation of this provision of AB

17 450 will not deter ICE from conducting I-9 audits of Amici’s clients’ I-9 records in the

18
custody of their employers.
19

20

AB 450 also added § 90.2 to the Labor Code to require posting notice of any

21 immigration-related inspections of I-9 forms or other employment records within 72

22
hours of receiving a notice of the inspection. Cal. Labor Code §90.2(a)(1).
23

24

As required by 8 C.F.R. § 274a.2(b)(2)(ii), it is Amici’s clients’ experience that

25 ICE routinely provides a minimum of three days notice, and usually a few weeks
26
notice, to Amici’s clients’ employers, before conducting I-9 audits. As noted above, in
27
28 practice ICE almost always serves employers with a Notice of Inspection well before

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Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 8 of 20

1 the actual inspection takes place. Some of Amici’s clients are already provided the type
2
of notices referred to in § 90.2. Many labor union contracts require such notices.
3
4 Employers very often advise Amici’s clients of pending I-9 audits as the employers and

5 Amici’s clients wish to review and update their I-9 forms prior to copying the I-9
6
forms and supporting documents to provide to ICE for its review. Indeed, providing
7
8 Amici’s clients with notice of a pending I-9 audit gives them an opportunity to update

9 their I-9 records, facilitating and making more efficient ICE’s audit.
10
Section 90.2 will not in any material way alter Amici’s client’s rights or
11
12 obligations – or their employers’ rights and obligations – under federal law. Amici are

13 aware of no actions by DHS to implement any federal law, regulation, or policy
14
impacting their clients’ actions or decisions that is prohibited or changed by what §
15
16 90.2 requires.

17

AB 450 prohibits Amici’s clients’ employers from “re-verifying the employment

18
eligibility of a current employee at a time or in a manner not required by specified
19

20 federal law.” Cal Lab. Code § 1019.2(a). This state law will not interfere in any way

21 with ICE’sI-9 functions. The law clearly remains that Amici’s clients’ employers shall
22
not: “Hire, or to recruit or refer for a fee, for employment in the United States an alien
23
24 knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with

25 respect to such employment …” 8 U.S.C. § 1324a(1).
26
Under INA § 274A Amici’s clients’ employers are required to “attest … on a
27
28 form … that [they have] verified that the individual is not an unauthorized alien,” by

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Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 9 of 20

1 examining certain documents designated by the DHS Secretary. INA § 274A (b)(1)(A).
2
If an Amici client provides a document that reasonably appears on its face to be
3
4 genuine, nothing in federal law Amici is aware of based on its clients’ experiences

5 requires the employer to solicit the production of any other document from Amici’s

6
clients. This is consistent with the terms of INA § 274A(b)(1)(A)(i)-(ii).
7

8

The INA requires Amici’s clients’ employers to retain verification forms and to

9 make them available for inspection by DHS officers. INA § 274(b)(3). Nothing in AB
10
450 changes this. Amici’s clients’ employers also retain verification documents for
11
12 three years after the date of recruiting or referral, in the case of hiring of an individual

13 three years after the date of such hiring, or one year after the date the individual’s
14
employment is terminated, whichever is later. This is required by INA §
15
16 274(b)(3)(B)(i)-(ii) and 8 C.F.R. § 274a. Nothing in AB 450 changes this.

17

Upon employment authorization expiration, Amici’s clients’ employers who are

18
complying with federal law re-verify on the Form 1-9 to reflect that Amici’s clients are
19

20 still authorized to work in the United States. This is required by 8 C.F.R. §

21 274a2(b)(B)(d)(vii). Amici’s clients’ employers generally re-verify the document’s
22
identification number and expiration date, on the Form I-9 and sign the attestation.
23
24 This practice is required by 8 C.F.R. § 274a.2(b)(B)(d)(vii). Nothing in AB450

25 changes this.
26
Under California Labor Code § 1019.2(a) (AB 450) no changes are made
27
28 regarding what documents Amici’s clients’ employers must review and attest to permit

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Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 10 of 20

1 gainful lawful employment. Rather AB 450 reinforces current federal regulations, the

2
United States Code, and established employer-employee protocols.
3

4

California Labor Code § 1019.2(a) does not nullify Amici’s clients’ employers’

5 duties to ensure lawful employment, or to comply with documentation review,

6
attestation, and documentation retention.
7

8

Under INA § 274A Amici’s clients are still required to attest and establish that

9 they are citizens or nationals of the United States, immigrants lawfully admitted for
10
permanent residence, or immigrants authorized under the Act or by the Attorney
11
12 General to be hired, recruited, or referred for such employment. Amici’s clients must

13 and do still comply with the documentation requirements set out at in INA §

14
274A(b)(1)-(2), and 8 C.F.R. § 274a.
15

16

From the perspective of Amici’s clients’ rights and obligations, AB 450 does not

17 conflict or interfere with the enforcement of federal statutes or rules as they regulate
18
Amici’s clients’ right to be employed and obligations upon being hired and while they
19
20 remain employed. In their interactions with the State and federal governments, Amici’s

21 clients and their employers have rights that can be honored and obligations that can be

22
fulfilled created by state and federal laws that are not in conflict.
23

24

2. When viewed from the perspective of how implementation and operation of

AB 103 and federal law impact low-income immigrants, AB 103 is not

25

federally preempted

26
Sections 6 and 12 of Assembly Bill 103 (AB 103) added Chapter 17.8 and
27

28 §12532 to the Government Code, respectively. 2017 Cal. Stat. c. 17, §§6, 12. Under

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Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 11 of 20

1 §12532, state governmental officials must review “detention facilities in which
2
noncitizens are being housed or detained for purposes of civil immigration proceedings
3
4 in California,” California Government Code §12532(a), and report on the conditions of

5 confinement, the standard of care and due process provided to detainees, and the
6
circumstances of the detainees’ apprehension and transfer to the facility. Id.
7
8 §12532(b)(1). Under Chapter 17.8, municipal government or law-enforcement

9 agencies with no contract to house adult or minor noncitizen detainees for civil-
10
immigration purposes may not enter such contracts, and municipal government or law-
11
12 enforcement agencies with such contracts may not enter into new contracts to expand

13 the number of contract beds used in locked detention facilities. California Government

14
Code §§ 7310-7311.
15

16

The relevant portion of § 12532 states the review of detention facilities shall

17 include, but not be limited to the following:

18
(A) A review of the conditions of confinement, (B) A review of the
19

20

standard of care and due process provided to the individuals …, (C) A

21

review of the circumstances around their apprehension and transfer to

22
the facility.
23

24 California Government Code § 12532(b)(1)(A)-(C)

25

Amici’s clients housed in non-federal contracted facilities awaiting removal

26
proceedings will be in the functionally same position with regards to the federal
27

28

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Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 12 of 20

1 government’s arrest, removal, and deportation determinations with or without the

2
enactment of CAL. California Government Code § 12532(b)(1)(A)-(C).
3

4

In Arizona v, United States, the Court held that States cannot make unilateral

5 determinations “about the removability of immigrants” wholly separate from federal
6
officials, and that any attempt to do so creates an obstacle to the full purpose and
7
8 objective of Congress. Arizona v. United States, 567 U.S. 387, 419 (2012).

9

California Government Code § 12532(b)(1) is not conflict preempted and does

10
not parallel section 6 of Arizona’s law, purporting to allow state officials to decide that
11

12 an immigrant should be held for deportation, and then arrest the immigrant.

13

Unlike Arizona, California state officials are not engaging in a unilateral role to

14
override the federal government’s detention of Amici’s immigrant clients or
15

16 challenging the federal government’s decision on removability. ICE already contracts

17 with for-profit companies and non-profit groups to detain Amici’s clients in California

18
and may continue to do so.
19

20

Under AB 103 ICE agents currently possess the same authority to engage in the

21 arrest and detention of Amici’s clients who are subject to arrest and detention under
22
federal law as they possessed prior to the enactment of AB 103. Amici’s clients do not
23
24 have a greater or lesser defense to deportation under AB 103, or a greater or lesser

25 opportunity for release on bond.
26
Amici’s clients who may be detained for ICE in California facilities may in the
27
28 long run benefit by having due process abuses curbed through the issuance of reports

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.

Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 13 of 20

1 contemplated by AB 103, but their basic rights and obligations under federal law will

2
remain unchanged. There is therefore no conflict between AB 103 and federal law.
3

4

3. When viewed from the perspective of how implementation and operation of

SB 54 and federal law actually impact low-income immigrants, SB 54 is not

5

federally preempted

6
Senate Bill 54 (“SB 54”), the California Values Act, in limited ways restricts
7
8 state and local law enforcement from voluntarily cooperating with federal agencies

9 with regards certain California immigrants. These include providing release dates
10
except in the cases of serious crimes, detaining individuals based on unconstitutional
11
12 federal hold requests, providing individuals’ home or work addresses to immigration

13 officials, and making or intentionally participating in arrests based on civil
14
immigration warrants. California Government Code §7284.6(a)(1)(A)-(E). None of
15
16 these requirements violate any existing federal laws with which Amici’s clients or their

17 police or jailers must comply.
18
Under 8 U.S.C. § 1373 entities or officials detaining Amici’s clients may not
19
20 prohibit or restrict the sending to or receiving from DHS, “information regarding the

21 citizenship or immigration status,” of any individual. 8 U.S.C. § 1373(a). Nothing in
22
SB 54 changes Amici’s clients’ rights or protections from such federally mandated
23
24 disclosures.

25

Under amended California Government Code § 7284.6(a)(1)(C), California law

26
enforcement agencies shall not use their resources to investigate, interrogate, detain,
27

28 detect, or arrest persons for immigration enforcement purposes, including providing

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Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 14 of 20
1 information regarding a person’s release date unless that information is available to the
2
public, or is in response to a notification request from immigration authorities in
3
4 accordance with Section 7282.5. Responses are never required, but are permitted under
5 this subdivision, provided that they do not violate any local law or policy.
6
8 U.S.C. § 1373(a) does not address policies limiting other forms of information
7
8 sharing with DHS regarding Amici’s clients. As before, Amici’s clients’ citizenship and
9 immigration status will still be shared with federal entities.
10
Pursuant to California Government Code § 7282.5, local law enforcement will
11
12 continue to provide, to the extent they currently do so, release dates of Amici’s clients
13 in a wide range of circumstances involving all serious crimes against persons and
14
property. These crimes include virtually every serious crime any one may be convicted
15
16 of in California. Cities and police departments throughout California as a matter of
17 policy already provide less information to DHS than SB 54 contemplates. The level of
18
cooperation with ICE SB 54 allows is far more than the limited way in which federal
19
20 law requires cooperation as set forth in 8 U.S.C. § 1373 (local jurisdictions must
21 respond to requests for citizenship and immigration status of a named individual).
22
Before SB 54 was enacted, when Amici’s clients were arrested and taken before
23
24 a magistrate on a charge involving a serious crime, and the magistrate made a finding
25 of probable cause, law enforcement officials could and sometimes would cooperate
26
with immigration officials. With the enactment of California Government Code §
27
28 7282.5(b), this will not change much for Amici’s clients. Law enforcement officials
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Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 15 of 20

1 may and do continue to cooperate with immigration officials when an Amici client is
2
arrested and a probable cause determination is made by a judge or magistrate regarding
3
4 the commission of a serious crime.

5

8 U.S.C. §1373 does not mandate that local law enforcement officials provide

6
ICE information about Amici’s clients’ release dates.
7

8

In a wide range of situations throughout California, both before and after the

9 enactment of SB 54, cities and counties and their law enforcement agencies have opted
10
for various levels of cooperation with ICE.1
11

12

13

14 1 See e.g. Santa Ana: Ordinance No. NS-2908, Dec. 20, 2016, Sec. 6 (“No City
15 agency, department, officer, employee, or agent shall use City funds, resources, facilities, property, equipment, or personnel to assist in the enforcement of federal
16 immigration law, unless such assistance is required by any valid and enforceable
17 federal or state law or is contractually obligated. Nothing in this Section shall prevent the City, including any agency, department, officer, employee, or agent of the City,
18 from lawfully discharging his or her duties in compliance with and in response to a
19 lawfully issued judicial warrant or subpoena.”), at http://voiceofoc.org/wpcontent/uploads/2017/01/Santa-Ana-sanctuary-city-ordinance-adopted.pdf; Oakland
20 City Council Resolution No. 87036, January 16, 2018: Clarifying And Reaffirming
21 Policy On Non-Cooperation With ICE, ("[T]he City of Oakland's policy is that: OPD shall not provide law enforcement assistance, including traffic support, to ICE ,
22 including any subdivision of ICE, in any capacity, except to respond to a public safety
23 emergency") available at https://oakland.legistar.com/View.ashx?M= F&ID=5761718&GUID=27F9C496-CDF9-4AAE-B0BC-DF2DB54D6DC9; San
24 Francisco Administrative Code §§12H-12I (Immigration Status and Civil Immigration
25 Detainers); Los Angeles: Executive Directive 20 ("The City will not assist or cooperate with any effort by federal immigration agents to use public facilities or resources for
26 the purposes of enforcing federal civil immigration law."), available
27 at https://www.lamayor.org/sites/g/files/wph446/f/page/file/Exec.%20Dir.%20No.%20 20--Standing%20with%20Immigrants.pdf. All links last checked May 18, 2018.
28

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Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 16 of 20

1

At bottom, these local decisions are based on an assessment of the extent to

2
which greater cooperation with ICE decreases the reporting of serious crimes and
3
4 cooperation with law enforcement in prosecuting criminals. Studies show, for example,

5 that immigrant survivors of domestic violence and human trafficking overwhelmingly
6
(78%) are afraid to report crimes to the police given current immigration enforcement
7
8 policies and entanglement of local law enforcement and federal immigration

9 enforcement.2 An April 2017 survey by the Luskin School of Public Affairs at UCLA
10
found that 80% of Latino residents said that contact with any government agency or
11
12 program increases the risk of deportation.3 Even before the recent surge in immigration

13
enforcement, a 2013 study found that more than 40% of Latinos surveyed in Los
14
15 Angeles were “less likely to volunteer information about crimes because they fear

16 getting caught in the web of immigration enforcement themselves or bringing 17 unwanted attention to their family or friends”—regardless of their immigration status.4
18

19

20
21 2 Asian Pacific Institute on Gender-Based Violence (APIGBV), et al., 2017 Advocate and Legal Service Survey Regarding Immigrant Survivors, June 1, 2017, at
22 https://www.tahirih.org/wp-content/uploads/2017/05/2017-Advocate-and-Legal23 Service-Survey-Key-Findings.pdf.
24 3 Mike McPhate: California Today: Worries Over Deportation, N.Y. TIMES, April 5, 25 2017, https://www.nytimes.com/2017/04/05/us/california-today-worries-over-
deportation.html.
26
27 4 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, Univ. Ill. at Chicago, 7 (May 2013),
28 https://greatcities.uic.edu/wpcontent/uploads/2014/05/Insecure_Communities_Report_ FINAL.pdf.

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.

Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 17 of 20

1

Based on their own localized law enforcement experiences, and numerous

2
studies that assess the drop in crime reporting as entanglement with ICE enforcement
3
4 increases, cities and counties throughout California (and the country) have made local

5 decisions on the extent to which they will become involved in ICE activities. SB 54
6
actually leaves local entities free to cooperate with ICE on matters impacting Amici’s
7
8 clients to a far greater extent than required by federal law.

9

With regards accessing data about Amici’s clients, with or without SB 54, ICE

10
has access to state and regional criminal justice networks and databases, including the
11

12 National Crime Information Center (NCIC), that allow law enforcement agencies to

13 identify individuals who have been arrested and convicted. NCIC is a Federal Bureau
14
of Investigation (FBI) database containing “an electronic clearinghouse of crime data
15
16 that can be tapped into by virtually every criminal justice agency nationwide, 24 hours

17 a day, 365 days a year.” National Crime Information Center (NCIC) (Federal Bureau
18
of Investigation), https://www.fbi.gov/services/cjis/ncic.5 Fingerprints of an Amici
19

20 client taken at booking on criminal charges are checked automatically against the FBI

21 and DHS databases. This biometric data is also sent to ICE. All wanted person’s
22
23 inquiries automatically will also be run through the Immigration Violators File (IVF).

24 If there’s a match, ICE is alerted.

25
26 5 NCIC serves more than 90,000 criminal justice and law enforcement agencies, along 27 with judges, prosecutors, corrections officers, court administrators, and a variety of
other criminal justice officials by providing information that can help apprehend 28 fugitives, locate missing persons, identify convicted sexual offenders, uncover
weapons used in crimes, locate and return stolen property, and more.

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.

Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 18 of 20

1

ICE may request release dates for Amici clients held in custody, but nothing in

2
federal law requires a local jurisdiction to respond to such a request. Most local
3
4 jurisdictions already provide release dates to ICE if a serious crime was involved and

5 nothing in SB 54 will change that.
6
SB 54 also provides that local authorities should not investigate, interrogate,
7
8 detain, detect, or arrest persons, including Amici’s clients, “for immigration

9 enforcement purposes, including… Detaining an individual on the basis of a hold
10
request.” California Government Code § 7284.6(a)(1)(B). This provision of SB 54
11
12 does not interfere with the federal government’s ability to collect information

13 regarding the immigration and citizenship status of Amici’s clients, the sole federally-
14
imposed requirement under 8 U.S.C. § 1373. Hold requests have repeatedly been found
15
16 unconstitutional by the federal courts and therefore Amici is unaware of any

17 jurisdiction in California that honored hold requests before SB 54 was enacted or

18
honors since it was enacted.6
19

20

IV. CONCLUSION

21

As discussed above, when the impact of the federal and relevant state laws on

22
California residents are carefully examined, it becomes clear that in the operation of
23

24 these laws, there is no conflict between the challenged California statutes, and federal

25 law. Implementation of AB 450, AB 103, and SB 54 is going forward without
26
violating any federal laws regarding immigration enforcement.
27
28 6 See, e.g., Duncan Roy et al. v. County of Los Angeles et. al, 2018 U.S. Dist. LEXIS 27268 (C.D. Cal. 2018); see also Arizona v. United States, 132 S. Ct. 387 (2012).

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.

Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 19 of 20

1

If President Trump and Attorney General Jeffrey Sessions are unhappy with the

2
extent to which many states, counties and cities have taken steps to protect their
3
4 residents’ safety and well-being by limiting cooperation with ICE’s enforcement

5 activities, they should go to Congress and seek stronger federal laws requiring greater

6
cooperation by local jurisdictions with ICE’s immigration enforcement actions.
7

8

The challenged California statutes provide a floor for local entities to follow in

9 their involvement with ICE enforcement operations. That floor is far below the ceiling

10
created by what federal law requires of local entities.
11

12

Instead of seeking a change in federal law, President Trump and Attorney

13 General Sessions have threatened local jurisdictions with funding cuts and in this case
14
are asking the Court to involve itself in a dispute they should take to Congress to
15
16 resolve.

17

The challenged California statutes serve to protect California immigrants

18
without violating or conflicting with any federal laws regarding the role local entities
19

20 must play in ICE enforcement functions. As long as ICE complies with the federal

21 laws that govern its functions, implementation of AB 450, AB 103, and SB 54 will in

22
no way interfere with ICE’s achievement of its enforcement goals.
23

24 Dated: May 18, 2018

Respectfully submitted,

25

CENTER FOR HUMAN RIGHTS &

26

CONSTITUTIONAL LAW

Peter A. Schey

27

Carlos Holguín

28

/s/Peter Schey

Attorneys for Plaintiffs

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.

Case 2:18-cv-00490-JAM-KJN Document 140 Filed 05/21/18 Page 20 of 20

CERTIFICATE OF SERVICE

1
I, Peter Schey, declare and say as follows:
2

3

I am over eighteen years of age and am not a party to this action. I am employed

4 in the County of Los Angeles, State of California. My business address is 256 S.
5
Occidental Blvd., Los Angeles, CA 90057, in said county and state.  
6

7

On May 18, 2018, I electronically filed the following document(s):

8

• LEGAL SERVICES PROVIDERS AMICI CURIAE BRIEF

9
with the United States District Court, Eastern District of California by using the
10

11 CM/ECF system. Participants in the case who are registered CM/ECF users will be

12 served by the CM/ECF system.
13 14 15

/s/__Peter Schey_____ Attorneys for Proposed Amici

16 17

18 19

20 21

22

23 24

25 26

27

28 LEGAL SERVICES PROVIDERS AMICI BRIEF

1

 
 Case 2:18-cv-00490-JAM-KJN Document 216 Filed 04/19/19 Page 1 of 54

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant,
v.
STATE OF CALIFORNIA; GAVIN NEWSOM, Governor of California; XAVIER BECERRA, Attorney General of California,
Defendants-Appellees.

No. 18-16496
D.C. No. 2:18-cv-00490-
JAM-KJN
OPINION

Appeal from the United States District Court for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted March 13, 2019 San Francisco, California
Filed April 18, 2019
Before: MILAN D. SMITH, JR., PAUL J. WATFORD, and ANDREW D. HURWITZ, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.

Case 2:18-cv-00490-JAM-KJN Document 216 Filed 04/19/19 Page 2 of 54

2

UNITED STATES V. STATE OF CALIFORNIA

SUMMARY*

Immigration
In a case in which the United States sought to enjoin the enforcement of three laws California enacted expressly to protect its residents from federal immigration enforcement, the panel affirmed in part and reversed in part the district court’s denial in large part of the United States’ motion for a preliminary injunction.
The United States challenged three California laws: AB 450, which—as relevant to this appeal—requires employers to alert employees before federal immigration inspections; AB 103, which imposes inspection requirements on facilities that house civil immigration detainees; and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities.
The United States sought a preliminary injunction, arguing that these laws violated the doctrine of intergovernmental immunity and the doctrine of conflict preemption. The district court concluded that the United States was unlikely to succeed on the merits of many of its claims, and so denied in large part the motion for a preliminary injunction.
With respect to AB 450, which requires employers to alert employees before federal immigration inspections, the panel affirmed the district court’s denial of a preliminary
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case 2:18-cv-00490-JAM-KJN Document 216 Filed 04/19/19 Page 3 of 54

UNITED STATES V. STATE OF CALIFORNIA

3

injunction. The panel rejected the United States’ contention that the provisions are invalid under the doctrine of intergovernmental immunity and the doctrine of conflict preemption, concluding that the district court did not abuse its discretion when it concluded that AB 450’s employeenotice provisions neither burden the federal government nor conflict with federal activities.
With respect to AB 103, which imposes inspection requirements on facilities that house civil immigration detainees, the panel affirmed the denial of a preliminary injunction as to those provisions of AB 103 that duplicate inspection requirements otherwise mandated under California law and are imposed on state and local detention facilities.
However, the panel concluded that one subsection of AB 103—California Government Code section 12532(b)(1)(C), which requires examination of the circumstances surrounding the apprehension and transfer of immigration detainees—discriminates against and impermissibly burdens the federal government, and so is unlawful under the doctrine of intergovernmental immunity. Specifically, the panel concluded that the district court erred by relying on a de minimis exception to the doctrine of intergovernmental immunity in analyzing this provision. The panel concluded that Supreme Court case law compels the rejection of such a de minimis exception and held that any economic burden that is discriminatorily imposed on the federal government is unlawful. The panel also concluded that the district court was incorrect in concluding that the review required by the provision appeared no more burdensome than reviews required under other California provisions. Therefore, the panel reversed the district court’s

Case 2:18-cv-00490-JAM-KJN Document 216 Filed 04/19/19 Page 4 of 54

4

UNITED STATES V. STATE OF CALIFORNIA

denial of a preliminary injunction as to California Government Code section 12532(b)(1)(C).
With respect to SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities, the panel affirmed the district court’s denial of a preliminary injunction. The panel rejected the United States’ argument that the provisions violate the doctrine of obstacle preemption and the doctrine of intergovernmental immunity, concluding that the district court did not abuse its discretion when it concluded that any obstruction caused by SB 54 is consistent with California’s prerogatives under the Tenth Amendment and the anticommandeering rule.
The panel also rejected the United States’ contention that SB 54’s information-sharing restrictions—which prohibit state and local law enforcement agencies from providing information regarding a person’s release date from incarceration or other personal information—conflict with 8 U.S.C. § 1373, which provides that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [the Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Although SB 54 expressly permits the sharing of information about immigration status, the United States argued that section 1373 actually applies to more information than just immigration status, and hence that SB 54’s prohibition on sharing other information created a direct conflict. The panel disagreed, explaining that the language of section 1373 is naturally understood as a reference to a person’s legal classification under federal law.

Case 2:18-cv-00490-JAM-KJN Document 216 Filed 04/19/19 Page 5 of 54

UNITED STATES V. STATE OF CALIFORNIA

5

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

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

Case 2:18-cv-00490-JAM-KJN Document 216 Filed 04/19/19 Page 6 of 54

6

UNITED STATES V. STATE OF CALIFORNIA

Maureen C. Onyeagbako, and Cherokii DM Melton, Deputy Attorneys General; Christine Chuang, Anthony Hakl, and Satoshi Yanai, Supervising Deputy Attorneys General; Thomas S. Patterson, Senior Assistant Attorney General; Edward C. DuMont, Solicitor General; Xavier Becerra, Attorney General; Office of the Attorney General, Sacramento, California; for Defendants-Appellees.

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

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

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

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

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

Case 2:18-cv-00490-JAM-KJN Document 216 Filed 04/19/19 Page 7 of 54

UNITED STATES V. STATE OF CALIFORNIA

7

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

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

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

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

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

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

Daniel B. Rice, Joshua A. Geltzer, and Mary B. McCord, Institute for Constitutional Advocacy and Protection,

Case 2:18-cv-00490-JAM-KJN Document 216 Filed 04/19/19 Page 8 of 54

8

UNITED STATES V. STATE OF CALIFORNIA

Washington, D.C.; for Amici Curiae Current and Former Prosecutors and Law Enforcement Leaders.

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

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

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

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

Abigail K. Coursolle, Ian McDonald, Joe McLean, and Sarah Grusin, National Health Law Program, Los Angeles, California, for Amici Curiae National Health Law Program, Asian Law Alliance; Bay Area Lawyers for Individual Freedom; California Center for Rural Policy; California

Case 2:18-cv-00490-JAM-KJN Document 216 Filed 04/19/19 Page 9 of 54

UNITED STATES V. STATE OF CALIFORNIA

9

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

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

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OPINION
M. SMITH, Circuit Judge:
Defendant-Appellee State of California (California) enacted three laws expressly designed to protect its residents from federal immigration enforcement: AB 450, which requires employers to alert employees before federal immigration inspections; AB 103, which imposes inspection requirements on facilities that house civil immigration detainees; and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities. Plaintiff-Appellant United States of America (the United States) challenged these enactments under the Supremacy Clause and moved to enjoin their enforcement. The district court concluded that the United States was unlikely to succeed on the merits of many of its claims, and so denied in large part the motion for a preliminary injunction.
The district court did not abuse its discretion when it concluded that AB 450’s employee-notice provisions neither burden the federal government nor conflict with federal activities, and that any obstruction caused by SB 54 is consistent with California’s prerogatives under the Tenth Amendment and the anticommandeering rule. We therefore affirm the district court’s denial of a preliminary injunction as to these laws. We also affirm the denial of a preliminary injunction as to those provisions of AB 103 that duplicate inspection requirements otherwise mandated under California law. But we conclude that one subsection of AB 103—codified at California Government Code section 12532(b)(1)(C)—discriminates against and impermissibly burdens the federal government, and so is unlawful under the doctrine of intergovernmental immunity. Because the

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district court relied on incorrect law in analyzing this provision, we reverse its preliminary injunction order in part.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Background
We first review the relevant federal statutory framework before describing the three California laws at issue in this case.
A. Federal Statutory Framework
i. The INA
“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States (Arizona II), 567 U.S. 387, 394 (2012); see also U.S. Const. art. I, § 8, cl. 4 (granting Congress the power to “establish an uniform Rule of Naturalization”); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 315–18 (1936) (exploring the federal government’s inherent sovereign powers in the realm of foreign affairs). Congress exercises its authority to regulate the entry, presence, and removal of noncitizens through the Immigration and Nationality Act (INA) and other related laws, and “has specified which aliens may be removed from the United States and the procedures for doing so.” Arizona II, 567 U.S. at 396. “A principal feature of the removal system is the broad discretion exercised by immigration officials.” Id. For example, “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States,” and until that decision, federal officials generally may either detain her or release her on bond. 8 U.S.C. § 1226(a). Detention is mandatory, however, for certain categories of noncitizens,

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including those who are inadmissible or removable due to criminal convictions. Id. § 1226(c).
“The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal,” which might include the “purchase or lease of [an] existing prison, jail, detention center, or other comparable facility suitable for such use.” Id. § 1231(g); see also id. § 1103(a)(11) (permitting agreements with states and localities “for the necessary construction, physical renovation, acquisition of equipment, supplies or materials required to establish acceptable conditions of confinement and detention”). The United States notes that the Department of Homeland Security (DHS) “regularly uses nine facilities in California to house civil immigration detainees,” which collectively have a capacity of approximately 5,700 detainees. The interplay between federal and state authorities also manifests itself when noncitizens subject to removal are also the targets of state or local criminal enforcement. The INA requires that DHS remove an alien who is subject to a final removal order “within a period of 90 days” from “the date the alien is released from [state or local] detention or confinement”; however, it “may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment.” Id. § 1231(a)(1), (4) (emphasis added). After release, federal authorities “shall detain the alien,” and “[u]nder no circumstance during the removal period shall the Attorney General release an alien who has been found inadmissible . . . or deportable.” Id. § 1231(a)(2).
The United States asserts that “Congress contemplated cooperation between federal and state officials” when it allowed noncitizens to complete state criminal custody before removal, and points to “other provisions of the INA

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[that] likewise reflect that expectation of collaboration.” For example, the federal government is required to make information available to state and local authorities indicating “whether individuals arrested . . . for aggravated felonies are aliens,” and to provide liaisons and computer resources in connection with aliens charged with aggravated felonies. Id. § 1226(d)(1). Additionally, DHS must respond to inquiries from state or local officials “seeking to verify or ascertain the citizenship or immigration status of any individual.” Id. § 1373(c). In turn, “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [DHS] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Id. § 1373(a). Additionally, “[f]ederal law specifies limited circumstances in which state officers may perform the functions of an immigration officer,” such as “when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government.” Arizona II, 567 U.S. at 408 (citing 8 U.S.C. §§ 1103(a)(10), 1252c, 1324(c), 1357(g)(1)). “State officials can also assist the Federal Government by responding to requests for information about when an alien will be released from their custody.” Id. at 410.
ii. The IRCA
Congress enacted the Immigration Reform and Control Act of 1986 (IRCA) “as a comprehensive framework for ‘combating the employment of illegal aliens.’” Arizona II, 567 U.S. at 404 (quoting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)). Under the IRCA, employers may not knowingly hire or employ aliens without proper work authorization. 8 U.S.C. § 1324a(a)(1)–(2). Employers in violation of the IRCA are subject to civil and,

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in cases of “a pattern or practice of violations,” criminal penalties. Id. § 1324a(e)–(f). Although the IRCA
does not impose federal criminal sanctions on the employee side . . . . some civil penalties are imposed instead. With certain exceptions, aliens who accept unlawful employment are not eligible to have their status adjusted to that of a lawful permanent resident. Aliens also may be removed from the country for having engaged in unauthorized work. In addition to specifying these civil consequences, federal law makes it a crime for unauthorized workers to obtain employment through fraudulent means.

Arizona II, 567 U.S. at 404–05 (citations omitted).
To ensure compliance with the IRCA, employers must verify the authorization statuses of prospective employees. 8 U.S.C. § 1324a(a)(1)(B), (b). Verification is facilitated through a uniform inspection process; employers are required to retain documentary evidence of authorized employment, to which “immigration officers and administrative law judges [] have reasonable access.” Id. § 1324a(b), (e)(2)(A). The information and documentation associated with the verification process may only be used to enforce the IRCA and INA, as well as for prosecution under certain criminal statutes. Id. § 1324a(b)(5), (d)(2)(F)–(G).
B. California’s Statutes
This case centers on three laws enacted by the California legislature with the express goal “of protecting immigrants from an expected increase in federal immigration enforcement actions.” Hearing on AB 450 Before the

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Assemb. Comm. on Judiciary, 2017–18 Sess. 1 (Cal. 2017) (synopsis).
i. Immigrant Worker Protection Act (AB 450)
AB 450 prohibits “public and private employers” from “provid[ing] voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor,” unless “the immigration enforcement agent provides a judicial warrant.” Cal. Gov’t Code § 7285.1(a), (e). It similarly prohibits employers from “provid[ing] voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or judicial warrant.” Id. § 7285.2(a)(1). It also limits employers’ ability to “reverify the employment eligibility of a current employee at a time or in a manner not required by” the IRCA. Cal. Lab. Code § 1019.2(a).
In addition, AB 450 requires employers to “provide a notice to each current employee, by posting in the language the employer normally uses to communicate employmentrelated information to the employee, of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection.” Id. § 90.2(a)(1).1 If an employer receives “the written immigration agency notice that provides the results of the inspection,” then she must provide a copy to each “employee identified by the immigration agency inspection results to be an employee who may lack work authorization” and each

1 AB 450 “does not require a penalty to be imposed upon an employer or person who fails to provide notice to an employee at the express and specific direction or request of the federal government.” Cal. Lab. Code § 90.2(c).

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“employee whose work authorization documents have been identified by the immigration agency inspection to have deficiencies.” Id. § 90.2(b)(1)–(2).
ii. Inspection and Review of Facilities Housing Federal Detainees (AB 103)
AB 103 requires the California Attorney General to conduct “reviews of county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California.” Cal. Gov’t Code § 12532(a).2 This includes “any county, local, or private locked detention facility in which an accompanied or unaccompanied minor is housed or detained on behalf of, or pursuant to a contract with, the federal Office of Refugee Resettlement or the United States Immigration and Customs Enforcement.” Id. It requires the California Attorney General to review “the conditions of confinement,” “the standard of care and due process provided,” and “the circumstances around [the] apprehension” of civil immigration detainees, and then prepare “a comprehensive report outlining the findings of the review.” Id. § 12532(b). To facilitate this review, the California Attorney General “shall be provided all necessary access for the observations necessary to effectuate reviews required pursuant to this section, including, but not limited to, access to detainees, officials, personnel, and records.” Id. § 12532(c).
iii. California Values Act (SB 54)

2 California law generally requires biennial inspections of “local detention facilities,” focusing on health and safety, fire suppression, security, and rehabilitation efforts. Cal. Penal Code § 6031.1(a).

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SB 54 limits law enforcement’s “discretion to cooperate with immigration authorities.” Id. § 7282.5(a). Among other things, it prohibits state and local law enforcement agencies from “[i]nquiring into an individual’s immigration status”; “[d]etaining an individual on the basis of a hold request”; “[p]roviding information regarding a person’s release date or” other “personal information,” such as “the individual’s home address or work address”; and “[a]ssisting immigration authorities” in certain activities. Id. § 7284.6(a)(1). SB 54 contains some exceptions to these prohibitions. For example, although agencies generally cannot “[t]ransfer an individual to immigration authorities,” such an undertaking is permissible if “authorized by a judicial warrant or judicial probable cause determination,” or if the individual has been convicted of certain enumerated crimes. Id. §§ 7282.5(a), 7284.6(a)(4). Similarly, the restrictions on sharing personal information are also relaxed if the individual has been convicted of an enumerated crime, or if the information is available to the public. Id. §§ 7282.5(a), 7284.6(a)(1)(C)–(D).3

3 California asserts that SB 54 was motivated by its “recogni[tion] that victims and witnesses of crime are less likely to come forward if they fear that an interaction with law enforcement will lead to their removal or the removal of a family member,” and that the law built upon prior legislative efforts. See Cal. Penal Code § 422.93 (“Whenever an individual who is a victim of or witness to a hate crime . . . is not charged with or convicted of committing any crime under state law, a peace officer may not detain the individual exclusively for any actual or suspected immigration violation or report or turn the individual over to federal immigration authorities.”); see also Cal. Gov’t Code § 7284.2 (outlining the legislative findings undergirding SB 54 and reporting that “immigrant community members fear approaching police” and “[e]ntangling state and local agencies with federal immigration enforcement programs diverts already limited resources and blurs the lines of accountability between local, state, and federal governments”).

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II. Procedural Background
On March 6, 2018, the United States filed this action against California, alleging that AB 450, AB 103, and SB 54 are preempted and violate the Supremacy Clause. The United States moved to preliminarily enjoin the three laws.
The district court granted the motion for a preliminary injunction in part and denied it in part. United States v. California (California I), 314 F. Supp. 3d 1077, 1112 (E.D. Cal. 2018). It agreed that the United States was likely to succeed on the merits as to two provisions of AB 450— specifically, the restriction on employers’ voluntary consent to immigration enforcement officers, which the court concluded “impermissibly discriminates against those who choose to deal with the Federal Government,” and AB 450’s reverification provision, which it determined was likely preempted. Id. at 1096, 1098.4 However, the court found “no merit to [the United States’] Supremacy Clause claim as to” AB 450’s employee-notice provisions, reasoning, “Given IRCA’s focus on employers, the Court finds no indication—express or implied—that Congress intended for employees to be kept in the dark.” Id. at 1097. The notice provisions did not “violate the intergovernmental immunity doctrine,” the district court continued, because “[a]n employer is not punished for its choice to work with the Federal Government, but for its failure to communicate with its employees.” Id.
As to AB 103, the district court found “no indication in the cited portions of the INA that Congress intended for

4 California does not appeal the partial grant of the United States’ motion.

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States to have no oversight over detention facilities operating within their borders,” noting that
AB 103’s review process does not purport to give California a role in determining whether an immigrant should be detained or removed from the country. The directive contemplates increased transparency and a report that may serve as a baseline for future state or local action. At this point, what that future action might be is subject to speculation and conjecture.

Id. at 1091. It further concluded that AB 103 was not invalid under the doctrine of intergovernmental immunity because “the burden placed upon the facilities is minimal,” and “even if AB 103 treats federal contractors differently than the State treats other detention facilities,” the United States had not demonstrated that California “treats other facilities better than those contractors.” Id. at 1093.
The district court also refused to enjoin the challenged provisions of SB 54, finding that California’s “decision not to assist federal immigration enforcement in its endeavors is not an ‘obstacle’ to that enforcement effort” because “refusing to help is not the same as impeding,” and thus the doctrine of obstacle preemption did not render the provisions unlawful. Id. at 1104–05. It also found that “Tenth Amendment and anticommandeering principles counsel against preemption,” and that 8 U.S.C. § 1373, which governs the exchange of “information regarding [] immigration status,” did not change this conclusion because the “plain meaning of Section 1373 limits its reach to information strictly pertaining to immigration status (i.e. what one’s immigration status is) and does not include

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information like release dates and addresses.” Id. at 1102, 1107. The district court determined that “a Congressional mandate prohibiting states from restricting their law enforcement agencies’ involvement in immigration enforcement activities—apart from, perhaps, a narrowly drawn information sharing provision—would likely violate the Tenth Amendment.” Id. at 1109–10.
Subsequently, the district court ruled on California’s motion to dismiss, issuing an order consistent with its conclusions as to the preliminary injunction. United States v. California (California II), No. 2:18-cv-490-JAM-KJN, 2018 WL 3361055, at *1 (E.D. Cal. July 9, 2018). This timely appeal followed.
STANDARD OF REVIEW AND JURISDICTION
We review a district court’s denial of a preliminary injunction for abuse of discretion. Epona v. County of Ventura, 876 F.3d 1214, 1219 (9th Cir. 2017). “Our review is limited and deferential. The district court’s interpretation of the underlying legal principles, however, is subject to de novo review and a district court abuses its discretion when it makes an error of law.” Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam). We will therefore reverse a denial of a preliminary injunction if the district court “based [its decision] on an erroneous legal standard or a clearly erroneous finding of fact.” Associated Press v. Otter, 682 F.3d 821, 824 (9th Cir. 2012) (quoting Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012)).

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We have jurisdiction over the United States’ appeal of the denial of its motion for a preliminary injunction pursuant to 28 U.S.C. § 1292.5
ANALYSIS
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter

5 The United States’ notice of appeal is directed to both the district court’s preliminary injunction order and its order granting in part and denying in part California’s motion to dismiss. Although we have appellate jurisdiction over appeal of the preliminary injunction order pursuant to 28 U.S.C. § 1292(a)(1) (conferring jurisdiction over “[i]nterlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions”), we do not have jurisdiction over an appeal of the dismissal order. Since the district court did not grant California’s motion to dismiss in its entirety, that order was not a “full adjudication of the issues” and did not “clearly evidence[] the judge’s intention that it be the court’s final act in the matter,” Nat’l Distrib. Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997) (quoting In re Slimick, 928 F.2d 304, 307 (9th Cir. 1990)), and therefore was not final pursuant to 28 U.S.C. § 1291. See Prellwitz v. Sisto, 657 F.3d 1035, 1038 (9th Cir. 2011) (“[T]he district court’s order was not final because it did not dispose of the action as to all claims between the parties.”). Indeed, it is quite clear that the order was not the court’s final act in the matter, since it subsequently granted the United States’ motion to stay further proceedings pending the outcome of this appeal. See United States v. California, No. 2:18-cv-00490-JAM-KJN, 2018 WL 5310675, at *1 (E.D. Cal. Oct. 19, 2018).
The district court did not certify the non-final dismissal order pursuant to Federal Rule of Civil Procedure 54(b) or 28 U.S.C. § 1292(b), and no other apparent exceptions to the finality rule exist here. We therefore DISMISS the appeal of the district court’s dismissal order for want of appellate jurisdiction.

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v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Here, as the United States observes, the district court’s “sole basis for denying injunctive relief against the California laws at issue in this appeal was the court’s assessment of the merits,” which, it further argues, “was erroneous because the district court adopted an unduly narrow view of two related doctrines, intergovernmental immunity and conflict preemption.”
The doctrine of intergovernmental immunity is derived from the Supremacy Clause, U.S. Const., art. VI, which mandates that “the activities of the Federal Government are free from regulation by any state.” Boeing Co. v. Movassaghi, 768 F.3d 832, 839 (9th Cir. 2014) (quoting Mayo v. United States, 319 U.S. 441, 445 (1943)). “Accordingly, state laws are invalid if they ‘regulate[] the United States directly or discriminate[] against the Federal Government or those with whom it deals.’” Id. (alterations in original) (quoting North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality opinion)).
Under the doctrine of conflict preemption, “state laws are preempted when they conflict with federal law. This includes cases where ‘compliance with both federal and state regulations is a physical impossibility,’ and those instances where the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Arizona II, 567 U.S. at 399 (citations omitted) (first quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963); and then quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). The latter instances constitute so-called “obstacle preemption,” and “[t]o determine whether obstacle preemption exists, the Supreme Court has instructed that we employ our ‘judgment, to be informed by examining the

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federal statute as a whole and identifying its purpose and intended effects.’” United States v. Arizona (Arizona I), 641 F.3d 339, 345 (9th Cir. 2011) (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000)), aff’d in part, rev’d in part, 567 U.S. 387 (2012). The Court has emphasized that “[i]mplied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives’; such an endeavor ‘would undercut the principle that it is Congress rather than the courts that preempts state law.’ . . . [A] high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal Act.” Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 607 (2011) (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 110–11 (1992) (Kennedy, J., concurring in part and concurring in the judgment)).
“Under these principles,” the United States contends, “the challenged provisions of California law are invalid and should have been enjoined.” We consider each statute in turn.
I. AB 450
AB 450, which imposes penalties on employers based on their interactions with federal immigration authorities, was partially enjoined by the district court; specifically, its provisions relating to employers who provide consent to federal investigations or reverify the employment eligibility of current employees. The district court did not, however, enjoin the provisions of AB 450 that establish employeenotice requirements. The United States maintains that “these provisions violate the intergovernmental immunity doctrine and are also subject to obstacle preemption.”

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Congress enacted the IRCA to combat the employment of unauthorized noncitizens. Arizona II, 567 U.S. at 404– 05. Employers are required to retain documentation regarding employees’ work authorizations, and to make that documentation available for inspection by federal officers. 8 U.S.C. § 1324a(b)(3). Such inspections must be preceded by “at least three business days notice.” 8 C.F.R. § 274a.2(b)(2)(ii). The United States notes that “[n]either the statute nor the regulations require any notice to employees before their employers’ records are inspected, or after an inspection is conducted.” AB 450, by contrast, requires two forms of notice: first, employers must inform their employees of upcoming inspections within 72 hours of receiving notice, Cal. Lab. Code § 90.2(a)(1), and second, employers must share any documents providing the results of the inspection with any employees who might lack work authorization, id. § 90.2(b)(1)–(2).
A. Intergovernmental Immunity
The United States contends that “AB 450’s provisions impermissibly target and discriminate against federal immigration enforcement operations.” It reasons that “[i]f any other entity—such as a state or federal regulator, or a private entity—inspects an employer’s records, the employer would have no obligation under AB 450 to notify its employees,” and thus that AB 450 impermissibly imposes a “unique regime” on the federal government.
This argument, however, extends intergovernmental immunity beyond its defined scope. The doctrine has been invoked, to give a few examples, to prevent a state from imposing more onerous clean-up standards on a federal hazardous waste site than a non-federal project, Boeing, 768 F.3d at 842–43; to preclude cities from banning only the U.S. military and its agents from recruiting minors, United

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States v. City of Arcata, 629 F.3d 986, 988, 990–92 (9th Cir. 2010); and to foreclose a state from taxing the lessees of federal property while exempting from the tax lessees of state property, Phillips Chem. Co. v. Dumas Indep. Sch. Dist., 361 U.S. 376, 381–82, 387 (1960). Those cases dealt with laws that directly or indirectly affected the operation of a federal program or contract. The situation here is distinguishable—AB 450 is directed at the conduct of employers, not the United States or its agents, and no federal activity is regulated. We agree with California: “The mere fact that those notices contain information about federal inspections does not convert them into a burden on those inspections.” Similarly, the mere fact that the actions of the federal government are incidentally targeted by AB 450 does not mean that they are incidentally burdened, and while the latter scenario might implicate intergovernmental immunity, the former does not. As the district court correctly recognized, to rule otherwise “would stretch the doctrine beyond its borders.” California I, 314 F. Supp. 3d at 1097.
The United States argues that the proposition that intergovernmental immunity is only implicated when federal activities are obstructed “is clearly wrong, because it would render the intergovernmental-immunity doctrine entirely redundant with the obstacle-preemption doctrine, which separately addresses the burdensome effect of nondiscriminatory state laws.” We disagree. The United States does not accurately distinguish between the doctrines of intergovernmental immunity and obstacle preemption. Reviewing the case law in which these doctrines were developed yields the proper distinction: simply put, intergovernmental immunity attaches only to state laws that discriminate against the federal government and burden it in some way. Obstacle preemption, by contrast, attaches to any

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state law, regardless of whether it specifically targets the federal government, but only if it imposes an obstructive, not-insignificant burden on federal activities.
Moreover, the United States’ position that no obstruction is required in intergovernmental immunity cases ignores the origins of the doctrine and the occasions in which it has been applied. “The doctrine of intergovernmental immunity arose from the Supreme Court’s decision in M’Culloch v. Maryland, which established that ‘the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.’” City of Arcata, 629 F.3d at 991 (emphasis added) (citation omitted) (quoting M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819)); see also North Dakota, 495 U.S. at 437–38 (plurality opinion) (“The nondiscrimination rule finds its reason in the principle that the States may not directly obstruct the activities of the Federal Government.” (emphasis added)); Washington v. United States, 460 U.S. 536, 544 (1983) (“The important consideration . . . is not whether the State differentiates in determining what entity shall bear the legal incidence of the tax, but whether the tax is discriminatory with regard to the economic burdens that result.” (emphasis added)); City of Arcata, 629 F.3d at 991 (applying the nondiscrimination rule to ordinances that “specifically target and restrict the conduct of military recruiters” (emphasis added)).
Since the advent of the doctrine, intergovernmental immunity has attached where a state’s discrimination negatively affected federal activities in some way. It is not implicated when a state merely references or even singles out federal activities in an otherwise innocuous enactment.

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The Supreme Court has clarified that a state “does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them.” Washington, 460 U.S. at 544–45. AB 450 does not treat the federal government worse than anyone else; indeed, it does not regulate federal operations at all. Accordingly, the district court correctly concluded that AB 450’s employee-notice provisions do not violate the doctrine of intergovernmental immunity.
B. Preemption
The United States also contends that AB 450’s employee-notice provisions are preempted because they seek “to alter the manner in which the federal government conducts inspections, by imposing requirements that neither Congress nor the implementing agency saw fit to impose.” We disagree. The cases to which the United States cites concerned either the disruption of a federal relationship or the undermining of a federal operation. Here, there is indisputably a federal relationship, but it is between federal immigration authorities and the employers they regulate6— not between employers and their employees. AB 450 impacts the latter relationship, not the former, and imposes no additional or contrary obligations that undermine or disrupt the activities of federal immigration authorities. In Arizona II, the Supreme Court observed that a “[c]onflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy.” 567 U.S. at 406

6 Cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347 (2001) (“[T]he relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law.”).

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(alteration in original) (quoting Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 287 (1971)); see also Crosby, 530 U.S. at 376–77 (finding preempted a state law “imposing a different, state system” that “undermines the President’s intended statutory authority”). Here, by contrast, there is no “conflict in technique,” because federal activity is not regulated.
AB 450’s employee-notice provisions do not permit employers to hire individuals without federally defined authorization, or impose sanctions inconsistent with federal law, either of which would impermissibly “frustrate[] the purpose of the national legislation or impair[] the efficiency of those agencies of the Federal government.” Nash v. Fla. Indus. Comm’n, 389 U.S. 235, 240 (1967) (quoting Davis v. Elmira Sav. Bank, 161 U.S. 275, 283 (1896)). But “nothing in IRCA (or federal immigration policy generally) demands that employers, site owners, or general contractors be absolved from” a state’s employee-protection efforts “whenever undocumented aliens provide labor.” Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 242 (2d Cir. 2006); see also id. at 241–42 (finding no preemption where “[t]here is no irreconcilable conflict between IRCA and [a state workplace-protection law] such that compliance with both the former’s prohibition on the employment of undocumented workers and the latter’s safe construction site obligation is physically impossible”). In the absence of irreconcilability, there is no conflict preemption, as the district court correctly recognized. See California I, 314 F. Supp. 3d at 1097.
II. AB 103
AB 103 authorizes the California Attorney General to inspect detention facilities that house civil immigration detainees. The United States contends that the law

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“impermissibly seeks to require facilities housing federal immigration detainees to cooperate with broad investigations that examine the due process provided to detainees and the circumstances surrounding the detainee’s apprehension and transfer to the facility.” Again, it invokes intergovernmental immunity and obstacle preemption.
A. Intergovernmental Immunity
Like AB 450, AB 103 relates exclusively to federal conduct, as it applies only to “facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California.” Cal. Gov’t Code § 12532(a).7 Unlike AB 450, AB 103 imposes a specialized burden on federal activity, as the district court recognized. See California I, 314 F. Supp. 3d at 1093. That vital

7 To “arrange for appropriate places of detention for aliens detained pending removal or a decision on removal,” 8 U.S.C. § 1231(g)(1), the INA contemplates use of both federal facilities and nonfederal facilities with which the federal government contracts. See id. § 1231(g)(2) (requiring the federal government to “consider the availability for purchase or lease of any existing prison, jail, detention center, or other comparable facility suitable for” detainee detention); id. § 1103(a)(11) (authorizing “payments” to and “cooperative agreement[s]” with states and localities). For purposes of intergovernmental immunity, federal contractors are treated the same as the federal government itself. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 181 (1988) (“[A] federally owned facility performing a federal function is shielded from direct state regulation, even though the federal function is carried out by a private contractor, unless Congress clearly authorizes such regulation.”); Gartrell Constr. Inc. v. Aubry, 940 F.2d 437, 438–41 (9th Cir. 1991) (holding that state licensing requirements for construction contractors were preempted to the extent that they applied to federal contractors).

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distinction renders the burdensome provisions of AB 103 unlawful under the doctrine of intergovernmental immunity.
Prior to the enactment of AB 103, California law already required periodic inspections of prisons and detainment facilities. See Cal. Penal Code § 6031.1 (mandating biennial inspections of “[h]ealth and safety,” “[f]ire suppression preplanning,” “[s]ecurity, rehabilitation programs, recreation, treatment of persons confined in the facilities, and personnel training,” and visitation conditions, as well as the completion of subsequent reports). AB 103, however, does not merely replicate this inspection scheme; in addition to requiring “[a] review of the conditions of confinement,” the enactment also calls for reviews of the “standard of care and due process provided to” detainees, and “the circumstances around their apprehension and transfer to the facility.” Cal. Gov’t Code § 12532(b)(1). These additional requirements burden federal operations, and only federal operations.8

8 The statute requires that the California Attorney General “be provided all necessary access for the observations necessary to effectuate reviews required pursuant to this section, including, but not limited to, access to detainees, officials, personnel, and records.” Cal. Gov’t Code § 12532(c). Immigration and Customs Enforcement (ICE) official Thomas Homan claimed that “[t]hese inspections have caused the facilities to expend resources otherwise necessary for ensuring the safety and security of the detainees. Each inspection presents a burdensome intrusion into facility operations and pulls scarce resources away from other sensitive law enforcement tasks.” Homan also attested that “the broad allowances made by AB 103 for the California [Attorney General] to perform reviews of immigration detention facilities to include wideranging access to facilities, individuals, and records, if enforced by the state, will conflict with ICE’s ability to comply with other federal information disclosure laws, regulations, and policies.”

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The district court addressed this burden as follows: “[The United States] argues the law violates [the doctrine of intergovernmental immunity] because it imposes a review scheme on facilities contracting with the federal government, only. This characterization is valid. However, the burden placed upon the facilities is minimal and [the United States’] evidence does not show otherwise.” California I, 314 F. Supp. 3d at 1093. Instead of challenging the factual conclusion regarding the severity of AB 103’s burden, the United States questions the district court’s legal conclusion, contending that “the application of the intergovernmental immunity doctrine does not depend on the size of the discriminatory burden imposed. Even a tax of $1 imposed only on entities that contract with the federal government would be unlawful.” In essence, the district court applied a de minimis exception to the doctrine of intergovernmental immunity, concluding that a discriminatory enactment is lawful so long as the burden it imposes on the federal government is minimal. But the court cited no authority for this proposition. We must therefore determine whether such an exception is cognizable.
i. De Minimis Exception
We agree with the United States that Supreme Court case law compels the rejection of a de minimis exception to the doctrine of intergovernmental immunity.
The recent decision in Dawson v. Steager, 139 S. Ct. 698 (2019), supports this position. There, the Court suggested that any discriminatory burden on the federal government is impermissible, writing that “[s]ection 111 disallows any state tax that discriminates against a federal officer or employee.” Id. at 704 (citing 4 U.S.C. § 111). The Court had previously explained that the prohibition against discriminatory taxes in § 111 “is coextensive with the

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prohibition against discriminatory taxes embodied in the modern constitutional doctrine of intergovernmental tax immunity.” Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 813 (1989).
The parties do not dispute that the principles of the intergovernmental tax immunity doctrine apply to the general intergovernmental immunity doctrine. See North Dakota, 495 U.S. at 434–39 (plurality opinion). Accordingly, we are not prepared to recognize a de minimis exception to the doctrine of intergovernmental immunity. Any economic burden that is discriminatorily imposed on the federal government is unlawful.9 In relying on a de minimis exception, the district court applied incorrect law and therefore abused its discretion.
ii. Burdensome Provisions
That is not to say, however, that the United States is likely to succeed on the merits as to the entirety of AB 103. Only those provisions that impose an additional economic

9 We note the practical merit of this conclusion. Rejecting a de minimis exception permits a clearer distinction between intergovernmental immunity and the related—but distinct—doctrine of obstacle preemption. Intergovernmental immunity is implicated when any burden is imposed exclusively on the federal government; obstacle preemption is implicated when an obstructive burden is imposed, regardless of its discriminatory nature. Our conclusion is also consistent with M’Culloch, the seminal intergovernmental immunity decision. There, the Supreme Court was loath to undertake the “perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power,” and opined that “[a] question of constitutional power can hardly be made to depend on a question of more or less.” M’Culloch, 17 U.S. (4 Wheat.) at 327, 430.

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burden exclusively on the federal government are invalid under the doctrine of intergovernmental immunity.
California maintains that all of AB 103’s requirements duplicate preexisting inspection demands imposed on state and local detention facilities. It points to regulations requiring its Board of State and Community Corrections (the Board) to inspect not only compliance with general health and safety standards—which are included in AB 103, see Cal. Gov’t Code § 12532(b)(1)(A)–(B) (requiring review of “the conditions of confinement” and “the standard of care” of detainees)—but also the availability of legal reference materials and confidential communications with counsel. See Cal. Penal Code § 6031.1; Cal. Code Regs. tit. 15, §§ 1063–64, 1068. California argues that AB 103’s requirement that the California Attorney General review the “due process provided to” civil immigration detainees, Cal. Gov’t Code § 12532(b)(1)(B), is therefore duplicative, on the assumption that “due process” refers to “conditions of confinement that affect detainees’ ability to access courts— such as the adequacy of the facility’s law library, the availability of unmonitored communications with counsel, and the ability to send and receive mail.” See Bounds v. Smith, 430 U.S. 817, 828 (1977) (recognizing that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law”); Cornett v. Donovan, 51 F.3d 894, 897–98 (9th Cir. 1995) (finding that the Bounds right is “not limited to people who are committed following criminal proceedings”). At oral argument, California maintained that its Attorney General’s interpretation of “due process” is indeed as limited as its brief suggests, and thus does not compel any additional

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inspection requirements beyond those applied to other state facilities.
In the context of this appeal from the denial of a preliminary injunction, we accept California’s limited construction. We therefore conclude that AB 103’s due process provision likely does not violate the doctrine of intergovernmental immunity, and that the district court’s denial of a preliminary injunction as to this provision should be affirmed. We note, however, that a broader reading of the term “due process” might empower the California Attorney General to scrutinize, say, an immigration judge’s analysis, the results of the Board of Immigration Appeals, or other related court proceedings—all of which are well outside the purview of a state attorney general, and not duplicative of the inspection requirements otherwise imposed on California’s state and local detention facilities.
That is not the end of our inquiry, for as the United States observes, California “does not even attempt to identify any provision of the pre-existing inspection scheme analogous to the unique requirement for immigration detainees that inspectors must examine the circumstances surrounding their apprehension and transfer to the facility.” See Cal. Gov’t Code § 12532(b)(1)(C). This is a novel requirement, apparently distinct from any other inspection requirements imposed by California law. The district court was therefore incorrect when it concluded that “the review appears no more burdensome than reviews required under California Penal Code §§ 6030, 6031.1.” California I, 314 F. Supp. 3d at 1093.
In light of this apparent factual error, and the district court’s erroneous reliance on a de minimis exception to the doctrine of intergovernmental immunity, we reverse the district court’s denial of a preliminary injunction as to

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California Government Code section 12532(b)(1)(C)—the provision of AB 103 requiring examination of the circumstances surrounding the apprehension and transfer of immigration detainees.
B. Preemption
The United States further argues that “even if AB 103’s inspection regime had not discriminatorily targeted facilities holding federal immigration detainees, it still would be preempted by federal law.” We disagree.
The cases on which the United States relies involved a far clearer interference with federal activity than AB 103 creates. In Leslie Miller, Inc. v. Arkansas, 352 U.S. 187, 189–90 (1956) (per curiam), and Gartrell Construction Inc. v. Aubry, 940 F.2d 437, 441 (9th Cir. 1991), states prevented the federal government from entering into agreements with its chosen contractors until the states’ own licensing standards were satisfied. In Tarble’s Case, the Supreme Court rejected a state court’s attempt to discharge a prisoner held “by an officer of the United States, under claim and color of the authority of the United States, as an enlisted soldier mustered into the military service of the National government.” 80 U.S. (13 Wall.) 397, 412 (1871). In In re Neagle, the Court determined that a county sheriff could not hold a U.S. marshal on murder charges for actions taken on duty. 135 U.S. 1, 62 (1890).
These cases evinced states’ active frustration of the federal government’s ability to discharge its operations. Here, by contrast, AB 103 does not regulate whether or where an immigration detainee may be confined, require that federal detention decisions or removal proceedings conform to state law, or mandate that ICE contractors obtain a state license. The law might require some federal action to permit

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inspections and produce data—a burden that, as discussed above, implicates intergovernmental immunity—but as California persuasively notes, “[M]ere collection of such factual data does not (and cannot) disturb any federal arrest or detention decision.”
In Arizona II, the Supreme Court noted that “[i]n preemption analysis, courts should assume that ‘the historic police powers of the States’ are not superseded ‘unless that was the clear and manifest purpose of Congress.’” 567 U.S. at 400 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The United States does not dispute that California possesses the general authority to ensure the health and welfare of inmates and detainees in facilities within its borders, and neither the provisions of the INA that permit the federal government to contract with states and localities for detention purposes, see 8 U.S.C. §§ 1103(a)(11), 1231(g), nor the contracts themselves,10

10 The contracts included in the record require that immigration facilities conform to California’s authority. One contract—between DHS and the City of Holtville, California, for use of the Imperial Regional Detention Facility—includes a provision requiring “compl[iance] with all applicable ICE, federal, state and local laws, statutes, regulations, and codes. In the event there is more than one reference to a safety, health, or environment requirement . . . the most stringent requirement shall apply.” Another agreement between the Office of the Federal Detention Trustee and a private contractor, Corrections Corporation of America, to house ICE detainees in San Diego County similarly required that “[a]ll services and programs shall comply with . . . all applicable federal, state and local laws and regulations.” The district court correctly recognized these provisions, writing, “The Court finds no indication in the cited portions of the INA that Congress intended for States to have no oversight over detention facilities operating within their borders. Indeed, the detention facility contracts [California] provided to the Court expressly contemplate compliance with state and local law.” California I, 314 F. Supp. 3d at 1091 (citations omitted).

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demonstrate any intent, let alone “clear and manifest,” that Congress intended to supersede this authority. The district court was correct when it concluded, “Given the Attorney General’s power to conduct investigations related to state law enforcement—a power which [the United States] concedes—the Court does not find this directive in any way constitutes an obstacle to the federal government’s enforcement of its immigration laws or detention scheme.” California I, 314 F. Supp. 3d at 1091–92 (citation omitted).
III. SB 54
We now reach the most contentious of the three challenged laws, SB 54, which, the United States contends, “seeks to impede the enforcement of federal immigration laws by manipulating the overlap between state criminal enforcement and federal immigration enforcement.”
A. Preemption
The United States argues that SB 54 unlawfully obstructs the enforcement of federal immigration laws. It focuses on a provision of the law that prohibits California law enforcement agencies from “[t]ransfer[ring] an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination.” Cal. Gov’t Code § 7284.6(a)(4). It notes that the INA provides that “[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a) (emphasis added). It therefore concludes that “California has no authority to demand a judicial warrant that Congress chose not to require. . . . By prohibiting transfers of custody within secure areas of local jails in the absence of a judicial warrant, California prevents federal

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officers from obtaining custody through a safe and peaceful transfer.”
We have no doubt that SB 54 makes the jobs of federal immigration authorities more difficult. The question, though, is whether that constitutes a “[c]onflict in technique” that is impermissible under the doctrine of obstacle preemption. Arizona II, 567 U.S. at 406 (alteration in original).
The United States relies in part on our opinion in Oregon Prescription Drug Monitoring Program v. DEA, 860 F.3d 1228 (9th Cir. 2017), but that case is easily distinguished. There, a federal agency issued statutorily authorized subpoenas to a state agency, and the latter sought a declaration that it need not respond because of a state statute requiring “a valid court order” in all cases in which a subpoena is issued. Id. at 1231–32, 1236. We concluded that the state statute “stands as an obstacle to the full implementation of the [federal statute] because it ‘interferes with the methods by which the federal statute was designed to reach [its] goal.’” Id. at 1236 (second alteration in original) (quoting Gade, 505 U.S. at 103 (plurality opinion)). Here, by contrast, neither an administrative warrant issued by federal authorities nor any other provision of law identified by the United States compels any action by a state or local official. With the exception of § 1373(a), discussed below, the various statutory provisions to which the United States points direct federal activities, not those of state or local governments. See 8 U.S.C. §§ 1226, 1231.
We cannot simply assume that Congress impliedly mandated that state and local governments would act in accordance with these statutes. Even if Congress had every expectation that they would, and opted not to codify its belief based on the presumption that states would conduct their law

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enforcement activities in concert with federal immigration efforts, it is a state’s historic police power—not preemption—that we must assume, unless clearly superseded by federal statute. See Arizona II, 567 U.S. at 400.11 As California notes, “There is [] nothing in the federal regulatory scheme requiring States to alert federal agents before releasing a state or local inmate.” The Fifth Circuit has aptly noted that
[f]ederal law does not suggest the intent—let alone a “clear and manifest” one—to prevent states from regulating whether their localities cooperate in immigration enforcement. Section 1357 does not require cooperation at all. And the savings clause allowing cooperation without a 287(g) agreement indicates that some state and local regulation of cooperation is permissible.

City of El Cenizo v. Texas, 890 F.3d 164, 178 (5th Cir. 2018) (citations omitted) (citing 8 U.S.C. § 1357(g)(9)–(10)).12

11 A state’s ability to regulate its internal law enforcement activities is a quintessential police power. See United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”).
12 The United States points out that City of El Cenizo “upheld a state enactment that merely required state and local officials to cooperate with requests by federal officials,” as opposed to California’s efforts “to disrupt the federal scheme.” But this distinction does not alter the Fifth Circuit’s conclusion regarding the ability of states and localities to regulate the extent to which they cooperate with federal immigration authorities.

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In short, SB 54 does not directly conflict with any obligations that the INA or other federal statutes impose on state or local governments, because federal law does not actually mandate any state action (again, with the exception of § 1373, discussed below).
But that does not resolve the lingering issue of obstacle preemption. The United States notes that SB 54 requires federal officers to, “in effect, stake out a jail and seek to make a public arrest. . . . Arrests of aliens in public settings generally require five officers and present risks to the arresting officer and the general public.” It contends that “Congress did not contemplate that, as a consequence of letting state detention proceed first, federal officers who sought to detain an alien for immigration purposes would need to race to the front of a local detention facility and seek to effectuate an arrest before the alien manages to escape.” Compounding the problem, the United States further claims, are provisions of SB 54 that preclude agencies from providing personal information and release dates to immigration authorities. See Cal. Gov’t Code § 7284.6(a)(1)(C)–(D). “So not only would California require DHS to stake out jails to detain aliens upon their release,” the United States continues, “but California would require DHS to do so indefinitely because the agency would not otherwise know if and when any given alien would be released.”
The district court concluded that this frustration does not constitute obstacle preemption:
California’s decision not to assist federal immigration enforcement in its endeavors is not an “obstacle” to that enforcement effort. [The United States’] argument that SB 54 makes immigration enforcement far more

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burdensome begs the question: more burdensome than what? The laws make enforcement more burdensome than it would be if state and local law enforcement provided immigration officers with their assistance. But refusing to help is not the same as impeding. If such were the rule, obstacle preemption could be used to commandeer state resources and subvert Tenth Amendment principles.
California I, 314 F. Supp. 3d at 1104.13 We agree. Even if SB 54 obstructs federal immigration enforcement, the United States’ position that such obstruction is unlawful runs directly afoul of the Tenth Amendment and the anticommandeering rule.
B. The Tenth Amendment and Anticommandeering Rule
“The Constitution . . . ‘confers upon Congress the power to regulate individuals, not States.’” Murphy v. NCAA, 138 S. Ct. 1461, 1476 (2018) (quoting New York v. United States, 505 U.S. 144, 166 (1992)). Under the Tenth Amendment and other provisions of the Constitution, “the Federal Government may not compel the States to

13 The Seventh Circuit has conducted a similar analysis: “[T]he Attorney General repeatedly characterizes the issue as whether localities can be allowed to thwart federal law enforcement. That is a red herring. . . . [N]othing in this case involves any affirmative interference with federal law enforcement at all, nor is there any interference whatsoever with federal immigration authorities.” City of Chicago v. Sessions, 888 F.3d 272, 282 (7th Cir. 2018), vacated in part on other grounds, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018).

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implement, by legislation or executive action, federal regulatory programs.” Printz v. United States, 521 U.S. 898, 925 (1997).
Ultimately, we conclude that the specter of the anticommandeering rule distinguishes the case before us from the preemption cases on which the United States relies. Those cases concerned state laws that affirmatively disrupted federal operations by mandating action (or inaction) contrary to the status quo.14 In each, a state statute

14 See Arizona II, 567 U.S. at 393–94 (considering four provisions of state law, including “[t]wo [that] create new state offenses” and two that “give specific arrest authority and investigative duties with respect to certain aliens to state and local law enforcement officers”); Crosby, 530 U.S. at 366 (“The issue is whether the Burma law of the Commonwealth of Massachusetts, restricting the authority of its agencies to purchase goods or services from companies doing business with Burma, is invalid under the Supremacy Clause of the National Constitution owing to its threat of frustrating federal statutory objectives.” (footnote omitted)); Lockridge, 403 U.S. at 276 (exploring “the extent to which the maintenance of a general federal law of labor relations combined with a centralized administrative agency to implement its provisions necessarily supplants the operation of the more traditional legal processes in this field”); Nash, 389 U.S. at 236 (“The crucial question presented here is whether a State can refuse to pay its unemployment insurance to persons solely because they have preferred unfair labor practice charges against their former employer.”); Paul, 373 U.S. at 133–34 (assessing a state statute that “gauge[d] the maturity of avocados by oil content,” where federal law “gauge[d] the maturity of avocados grown in Florida by standards which attribute no significance to oil content”); Hines, 312 U.S. at 59 (“This case involves the validity of an Alien Registration Act adopted by the Commonwealth of Pennsylvania.”); Davis, 161 U.S. at 283 (determining that “an attempt, by a State, to define [the] duties or control the conduct of [the] affairs [of national banks] is absolutely void, wherever such attempted exercise of authority expressly conflicts with the laws of the United States, and either frustrates the purpose of the national legislation or impairs the efficiency of these agencies of the Federal government to discharge the

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affirmatively instituted a regulatory scheme that conflicted with federal law, either by commission (for example, by applying differing standards or mandating affirmative action irreconcilable with federal law) or omission (by demanding inaction that directly conflicted with federal requirements). The solution to avoid conflict preemption was the same: invalidate the state enactment. In each case, the status quo would return—either no future conflicting action would be taken, or active compliance with federal law would recommence—and federal activity would no longer be obstructed.
Here, by contrast, invalidating SB 54 would not prevent obstruction of the federal government’s activities, because the INA does not require any particular action on the part of California or its political subdivisions. Federal law provides states and localities the option, not the requirement, of assisting federal immigration authorities. SB 54 simply makes that choice for California law enforcement agencies.
The United States’ primary argument against SB 54 is that it forces federal authorities to expend greater resources to enforce immigration laws, but that would be the case regardless of SB 54, since California would still retain the ability to “decline to administer the federal program.” New York, 505 U.S. at 177. As the Supreme Court recently rearticulated in Murphy, under the anticommandeering rule, “Congress cannot issue direct orders to state legislatures,” 138 S. Ct. at 1478, and the Court’s earlier decision in New

duties, for the performance of which they were created”). Leslie Miller, Gartrell Construction, Tarble’s Case, and Neagle featured similarly affirmative disruptions of federal law; their specific facts are explored in our discussion of AB 103 and preemption.

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York underscored that the rule also permits a state’s refusal to adopt preferred federal policies. See 505 U.S. at 161–62. Even in the absence of SB 54, Congress could not “impress into its service—and at no cost to itself—the police officers of the 50 States.” Printz, 521 U.S. at 922.15
Federal schemes are inevitably frustrated when states opt not to participate in federal programs or enforcement efforts. But the choice of a state to refrain from participation cannot be invalid under the doctrine of obstacle preemption where, as here, it retains the right of refusal. Extending conflict or obstacle preemption to SB 54 would, in effect, “dictate[] what a state legislature may and may not do,” Murphy, 138 S. Ct. at 1478, because it would imply that a state’s otherwise lawful decision not to assist federal authorities is made unlawful when it is codified as state law.
We also find no constitutional infirmity in the specific provisions of SB 54 that govern the exchange of information with federal immigration authorities. See Cal. Gov’t Code § 7284.6(a)(1)(C)–(D) (prohibiting California law enforcement agencies from “[p]roviding information regarding a person’s release date or responding to requests for notification by providing release dates or other information unless that information is available to the

15 The United States suggests that these principles do not extend here because “both sovereigns [are] regulat[ing] private individuals,” and the Supreme Court has held that it “is incorrect” to “assume that the Tenth Amendment limits congressional power to pre-empt or displace state regulation of private activities affecting interstate commerce.” Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 289–90 (1981). But although the INA and SB 54 both implicate noncitizens—private actors—SB 54 governs how California and its localities can interact with the federal government, not the activities of private individuals, and so Hodel is inapposite.

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public,” and “[p]roviding personal information . . . about an individual, including, but not limited to, the individual’s home address or work address unless that information is available to the public”). These two subparts only concern the exchange of information, and the Supreme Court has implied the existence of a Tenth Amendment exception for reporting requirements. See Printz, 521 U.S. at 917–18 (distinguishing between federal statutes that “require only the provision of information to the Federal Government” and those that “force[ the] participation of the States’ executive in the actual administration of a federal program”).
The United States relies on Reno v. Condon, which upheld against Tenth Amendment attack a federal statute that “regulate[d] the disclosure and resale of personal information contained in the records of state DMVs” because it did “not require the States in their sovereign capacity to regulate their own citizens” and instead “regulate[d] the States as the owners of data bases.” 528 U.S. 141, 143, 151 (2000). But the Supreme Court recently explained,
The anticommandeering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage.

That principle formed the basis for the Court’s decision in Reno v. Condon, which concerned a federal law restricting the disclosure and dissemination of personal information provided in applications for driver’s licenses. The law applied equally to state and private actors. It did not regulate

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the States’ sovereign authority to “regulate their own citizens.”

Murphy, 138 S. Ct. at 1478–79 (citation omitted) (quoting Reno, 528 U.S. at 151). Here, by contrast, it is the state’s responsibility to help enforce federal law, and not conduct engaged in by both state and private actors, that is at issue. We therefore conclude that Murphy’s reading of Reno suggests that the latter is not applicable here.
SB 54 may well frustrate the federal government’s immigration enforcement efforts. However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts. The United States stresses that, in crafting the INA, Congress expected cooperation between states and federal immigration authorities. That is likely the case. But when questions of federalism are involved, we must distinguish between expectations and requirements. In this context, the federal government was free to expect as much as it wanted, but it could not require California’s cooperation without running afoul of the Tenth Amendment.
C. Intergovernmental Immunity
The Government also argues that SB 54 violates the doctrine of intergovernmental immunity.
The district court correctly rejected that argument. See California I, 314 F. Supp. 3d at 1110. In North Dakota, the Supreme Court endorsed “a functional approach to claims of governmental immunity, accommodating of the full range of each sovereign’s legislative authority and respectful of the primary role of Congress in resolving conflicts between the

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National and State Governments.” 495 U.S. at 435 (plurality opinion). A finding that SB 54 violates the doctrine of intergovernmental immunity would imply that California cannot choose to discriminate against federal immigration authorities by refusing to assist their enforcement efforts—a result that would be inconsistent with the Tenth Amendment and the anticommandeering rule.
D. Section 1373
Lastly, the United States contends that 8 U.S.C. § 1373 directly prohibits SB 54’s information-sharing restrictions.
Section 1373 provides that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [DHS] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). SB 54, in turn, expressly permits the sharing of such information, and so does not appear to conflict with § 1373. See Cal. Gov’t Code § 7284.6(e) (“This section does not prohibit or restrict any government entity or official from sending to, or receiving from, federal immigration authorities, information regarding the citizenship or immigration status, lawful or unlawful, of an individual . . . pursuant to Section[] 1373.”). But the United States argues that § 1373 actually applies to more information than just immigration status, and hence that SB 54’s prohibition on sharing other information creates a direct conflict.
We disagree. Although the United States contends that “whether a given alien may actually be removed or detained by federal immigration authorities is, at a minimum, information regarding that alien’s immigration status,” the phrase “information regarding the citizenship or

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immigration status, lawful or unlawful, of any individual” is naturally understood as a reference to a person’s legal classification under federal law, as the district court concluded. See California I, 314 F. Supp. 3d at 1102 (“[T]he plain meaning of Section 1373 limits its reach to information strictly pertaining to immigration status (i.e. what one’s immigration status is) and does not include information like release dates and addresses.”).16 Phrases like “regarding” may generally have “a broadening effect, ensuring that the scope of a provision covers not only its subject but also matters relating to that subject,” Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1759–60 (2018), but if the term “regarding” were “taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-

16 This is consistent with our decision in Steinle v. City and County of San Francisco, in which we determined that “[t]he statutory text [of § 1373(a)] does not include release-date information. It includes only ‘information regarding’ ‘immigration status,’ and nothing in [§ 1373(a)] addresses information concerning an inmate’s release date.” No. 17-16283, slip op. at 16 (9th Cir. Mar. 25, 2019). Several district courts have reached similar conclusions regarding § 1373’s circumscribed scope. See, e.g., City and County of San Francisco v. Sessions, 349 F. Supp. 3d 924, 968 (N.D. Cal. 2018) (“Given my interpretation of Section 1373, limiting it to information relevant to citizenship or immigration status not including release date information, it is clear [SB 54] complies with Section 1373.”), appeal docketed, No. 18-17308 (9th Cir. Dec. 4, 2018); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 333 (E.D. Pa. 2018) (“The phrase ‘citizenship or immigration status,’ plainly means an individual’s category of presence in the United States—e.g., undocumented, refugee, lawful permanent resident, U.S. citizen, etc.— and whether or not an individual is a U.S. citizen, and if not, of what country. The phrase ‘information regarding’ includes only information relevant to that inquiry. When an individual will be released from a particular City facility, cannot be considered ‘information regarding’ his immigration status.”), aff’d in part, vacated in part on other grounds sub nom. City of Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir. 2019).

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emption would never run its course, for ‘[r]eally, universally, relations stop nowhere.’” N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995) (alteration in original) (quoting H. James, Roderick Hudson xli (New York ed., World’s Classics 1980)).17
Congress has used more expansive phrases in other provisions of Title 8 when intending to reach broader swaths of information. See, e.g., 8 U.S.C. § 1360(a) (mandating the inclusion of “such other relevant information as the Attorney General shall require as an aid” to the creation of a central index of noncitizens entering the country); id. § 1360(b) (“Any information in any records kept by any department or agency of the Government as to the identity and location of aliens in the United States shall be made available to the Service upon request.”). The United States claims that § 1373(c) demonstrates the extensive reach of § 1373(a), as unlike the latter, the former does not use the term “regarding” but instead refers simply and explicitly to “the citizenship or immigration status of any individual.” Id. § 1373(c). But the fact that subpart (c) only concerns itself with immigration status suggests, given § 1373’s focus on reciprocal communication between states and the federal government, that immigration status is the extent of subpart (a)’s reach as well.18

17 Indeed, the range of facts that might have some connection to federal removability or detention decisions is extraordinarily broad. See, e.g., 8 U.S.C. § 1182 (listing various admissibility considerations, including vaccination history, education, financial resources, and membership in “the Communist or any other totalitarian party”).
18 We note that a congressional report concerning a statute with similar language to § 1373 indicated that it “provides that no State or

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The United States also relies heavily on an Information Bulletin issued by the California Department of Justice in June 2014, which read in part that “law enforcement officials may provide information to ICE, including notification of the date that an individual will be released, as requested on an immigration detainer form. Federal law provides that state and local governments may not be prohibited from providing information to or receiving information from ICE.” The United States contends that California’s “limited view of the scope of [§ 1373] contradicts the longstanding views . . . of the California Attorney General.” But the Information Bulletin attempted to summarize both federal law and California’s then-governing TRUST Act, not the laws at issue today. And at any rate, the previous conclusions of the California Attorney General do not change the plain text and meaning of § 1373; that the California Department of Justice might have been incorrect then does not mean that its revised interpretation is incorrect now.
In summation, the district court correctly concluded that “Section 1373 and the information sharing provisions of SB

local government entity shall prohibit, or in any way restrict, any entity or official from sending to or receiving from the [federal government] information regarding the immigration status of an alien or the presence, whereabouts, or activities of illegal aliens.” H.R. Rep. No. 104-725, at 383 (1996) (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 2649, 2771. But the fact that the report distinguished between the two categories— “information regarding the immigration status of an alien or the presence, whereabouts, or activities”—suggests that “information regarding the immigration status” does not include “the presence, whereabouts, or activities” of noncitizens. And in any event, “Congress’s ‘authoritative statement is the statutory text, not the legislative history.’” Whiting, 563 U.S. at 599 (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)).

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54 do not directly conflict.” California I, 314 F. Supp. 3d at 1104.19
IV. Winter Factors
California argues that the three other Winter factors— irreparable harm, the balance of the equities, and the public interest, 555 U.S. at 20—provide an alternative basis for affirming the district court’s denial of a preliminary injunction. See Big Country Foods, Inc. v. Bd. of Educ., 868 F.2d 1085, 1088 (9th Cir. 1989) (concluding that a district court’s denial of a motion for a preliminary injunction “may [be] affirm[ed] on any ground supported by the record”). Because we agree with the district court that the United States is unlikely to succeed on the merits of its challenges to AB 450’s employee-notice provisions and SB 54, we consider these factors only as applied to the provision of AB 103 that imposes an impermissible burden on the federal government.
In granting the United States’ motion to enjoin the two invalidated provisions of AB 450, the district court “presume[d] that [the United States] will suffer irreparable harm based on the constitutional violations.” California I, 314 F. Supp. 3d at 1112. This conclusion was consistent with our previous recognition that preventing a violation of

19 Because we agree with the district court’s conclusion, we need not address whether § 1373 is itself unlawful, though we note that various district courts have questioned its constitutionality. See, e.g., City and County of San Francisco v. Sessions, 349 F. Supp. 3d 924, 949–53 (N.D. Cal. 2018), appeal docketed, No. 18-17308 (9th Cir. Dec. 4, 2018); City of Chicago v. Sessions, 321 F. Supp. 3d 855, 873 (N.D. Ill. 2018); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 329–31 (E.D. Pa. 2018), aff’d in part, vacated in part on other grounds sub nom. City of Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir. 2019).

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the Supremacy Clause serves the public interest. See, e.g., Arizona I, 641 F.3d at 366 (“We have found that ‘it is clear that it would not be equitable or in the public’s interest to allow the state . . . to violate the requirements of federal law, especially when there are no adequate remedies available. . . . In such circumstances, the interest of preserving the Supremacy Clause is paramount.’” (alterations in original) (quoting Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852–53 (9th Cir. 2009))); Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1059–60 (9th Cir. 2009) (determining that “the balance of equities and the public interest [] weigh in favor of a preliminary injunction” against a likely preempted ordinance).
Nevertheless, California argues that “[t]he balance of equities and public interest weigh strongly against enjoining [its] laws during the pendency of litigation” because “a preliminary injunction here would lead to significant, concrete harm to the public.” At the district court, California claimed that “the Legislature passed AB 103 in reaction to growing concerns of egregious conditions in facilities housing civil detainees,” California I, 314 F. Supp. 3d at 1090–91—a conclusion supported in detail by amici curiae, including the National Health Law Program and the Immigrant Legal Resource Center. Moreover, we note that California retains an historic—and, since the federal government’s contracts with immigration detainee facilities explicitly contemplate the application of state regulations, undisputed—authority to regulate the conditions of detainees housed within its borders. By contrast, other than relying on general pronouncements that a Supremacy Clause violation alone constitutes sufficient harm to warrant an injunction, the United States did not present compelling evidence that AB 103 inspections conducted by the

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California Attorney General harmed facilities’ detention operations. Rather, the only evidence of AB 103’s burdensome effect is conclusory assertions made by a DHS official in a declaration and deposition.20 Neither he nor the United States provided any indication, even an estimate, of the actual costs imposed by AB 103 or the number of ICE officers forced to assist in the extra inspection efforts, or any quantification whatsoever of the enactment’s burden. The United States’ complaint in this action did not even plead that the statute imposes an economic or operational burden on DHS or anyone else.
We are not prepared, in the first instance, to affirm the district court’s denial of a preliminary injunction as to

20 The relevant deposition transcript reads as follows:
[I]t’s going to require yet another inspection that we think is unnecessary, because these are federal contracts, these are federal prisoners detained under federal authority. We have our own set of standards. We certainly don’t believe there should be any inspections to talk about due process of people that are in federal custody, under federal authority, conditions of confinement when we have our own set of standards which is much higher than most states.
So there’s this general feeling that this is—it’s burdensome, that they’re going to be required to pull resources to do these inspections, when we have numerous inspections already at these facilities from various different components.
So again, it’s—it’s talk of burdensomeness—right?— extra work, pulling people from their duties to host these things and gather documents and paperwork and making people available for interviews and so forth.

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AB 103’s burdensome provision based on these considerations. However, on remand, we encourage the district court to reexamine the equitable Winter factors in light of the evidence in the record.
CONCLUSION
We conclude that the district court correctly determined that the United States was unlikely to succeed on the merits of its challenges to AB 450’s employee-notice provisions and SB 54, and therefore AFFIRM its denial of a preliminary injunction as to these enactments. We also AFFIRM the denial as to those provisions of AB 103 that duplicate preexisting inspection requirements. But because we conclude that California Government Code section 12532(b)(1)(C) both discriminates against and impermissibly burdens the federal government, we REVERSE the district court’s denial of the United States’ motion as to this provision and REMAND for further proceedings consistent with this opinion.21

21 Finally, we grant the State of Michigan’s motion to withdraw from an amicus brief in support of the United States.