UNI’fED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

NATIONAL COUNCIL OF LA RAZA, NEW YORK : IMM~IGRA’I’ION COALITION, AMERICAN-ARAB : ANTI-DISCRIMINATION COMMYITEE, LATIN : AMERICAN WORKERS PROJECT, and UNITE,

Plai~tiffs,

:

:

:
JOHN ASHCROFT, Attorney General of the United States,: TOM RIDGE, Secretary of Homeland Security, ROBERT MUELLER, Director, Federal Bureau of Investigation, MICHAEL GAR.CIA, Assistant Secretary of Homeland Security in charge of the Bureau of Immigration and Customs Enforcement, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
FEDERAL BUREAU OF INWES’f[GATION, and BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
Defendants,,.

03 Cir.

CON[PLAINT Plaintiffs National Council of La Raza, New York Immigration Coalition, AmericamArab Anti-Discrimination Committee, Latin American Workers Project, and UNITE, flmaugh their counsel, hereby complain at~d allege on personal knowledge as to themselves and otherwise cm infonnat{o~ a~d belief as follows:
PRELIMINARY STATEMENT 1, Attorney Gmmral John Ash mR, the United States Department of Justice ("DOJ"), the Federal Bm-eau of I~westigation (’TBI") a~d other defendants, without lawful authority, have begun entering civil immigration information regarding hundreds ofthousa~ds of non-citizens into the FBI’s principal criminal database, the National Crime Information Center ("NCIC"), and unlawfully disseminating that information to state and local police. Defendants

have misused the NC[C database in an effort to facilitate, cause, and induce state and local police, in fl~e course offlmir routine dalies, to make federal/mmi~fion a~rests that Congress has ba~ed lhe police from ~de~t~ing.
2. The FBI operates and maintains ~e NCIC datable, but state and loc~ police officers access it millions of times e~h d~y during ordinal0’ cncountc~ with motorists, pedest~ans, and ott~er porous, in defiance of Congrcss’s careful delinealion of the categories of c~lninal justice info~ation that may lawNlly be collect~ and exchm~ged ~-ou~ fl~is powcrN1 database, defendants have entered and contimte to enter non-criminal, administrative immigration in fo~alioa i~to the NCIC, m~d have disseminated and continue to dissemiJ~ale it 1o state m~d local police.
3, Defendants’ misuse o f the NCIC dalabase is unlawful for ~e additional reason that it has cauged and induced, ~d continues to cause ~d induce, state and local police to make f~teral immigation ~ests that Congress has prohibited. Conffcss has broadly preempt~l state or locN police from making federal immigralion a~esls, except pu~3u~t to statutory procedures that defeatists have not followed. Defendm~ts’ misuse of the NCIC database thus creates an imminent risk of unlaw~l arrest for hundreds of thousands of non-eilizens across the nation,
4. Defendants have entered civil immigafion r~oNs into ~e NCIC ~d disseminated them to police despite the repeated findi~Ns of DOJ’s own ~specmr General that "INS has serious and co~tinaiag problems with data reliabilit}~’ (2003), and that sp~ific immiwation dabbles m’e "seriously flawed in contcnt and accuracy" (1997), "not consistently reliaNe because of faulty da~ envy" (1998), m~d "l~k[] wri~en sUndaNs to ensure [data] quatit/’ (2001).

5, Defendantg misuse of the NCIC database undermines public safety by deterring coopeJation from immigrant victims and witacsscs, diverts scarce resources from local policing priorities, and exposes officers ur~trained in the complexities of immigration law to liability for wrongfut arrests, Police enforcement or immigration laws also encourages racial and ethnic profiling asd chills vital commurtications from immigrants, their families, and colleagues to police and other government officials.
6, Plaintiffs bring this civil rigNs action on behalf of their individual members to enjoin dcfcndants’ entry of eivit immigration information into the NCIC datat~ase and its dissemination to state and local police, done by defeMants in an effort to .facilitate, cause ~d induce state and local police to make immigration arrests that Congress has forbiddeu them to undertake,
JURISDICTION AND VENUE 7, The Court ha~ subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, t361, 2201 & 2202, and U,S, Const. art, IlL 8. Venue is proper pursuant to 5 U.S.C. {} 703 and 28 U.S,C, § 1391(b), (e), usa substantial part of the events or omissions giving rise to the claims occurred in this district, and lhe principal place of business of plaintiff Latin American Workers Project is in this district,
PARTIES 9, Plaintiff National Council of La Raza ("NCLR"), a private non-profit organization and the largest censtitueney-based national Hispanic organization in the United States, seeks to reduce poverly and discrimination and to improve opportunities for Hispanic Americans, In connection with this mission, NCLR advocates for its members o~a federal immigration policy issues. NCLR has nearly 300 member organizations in forty states, including New York. Some of the organizations tha! are members of NCLR are themselves membership
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organizations, wt~ose individuaI members p~y dues aud exercise voting and representation rights within their own organizations. Many of the orga~izations that ~re membel’s of NCLR provide Iegal, medical, or other services to tmn-citizens. NCI.R has its pri~cipal place of business in Washington, D.C.
10. Plaintiff American-Arab Allti-Discrimination Committee (’°ADC") is a non-profit civil rights organization committed to defending the rights oFall people of Arab descent in the United States aud promoting the{r rich culgunll heritage. Fom~ded in 1980 by U.S. Senator Jim Aboug~ek, ADC is the largest Arab-American organization of its kind and has members and ct~apters in cities throughout the United States, including New York. Its individual members pay dues and exercise voting aud representational rights. In connection with its miss~on, ADC advocates for its members on federal immigration policy issues. Its pri~cipal place of business is in Washingtor~, D,C.
11. PlaintiffNcw York Immigration Coalitirm (°~NYIC") i~ a non-profit umbrella policy and advocacy organizaiion for roughly 150 New York member groups that work with immigrants and refi~gees. Some of the organizations that are members of N¥IC are themselves membership erganiTmtiens, whose individual members pay dues ~d exercise voting and representation rights withi~ lheir respective organizations. NYIC’s of~ce and principal place of business is localed in New York County, New York.
12. Plaintiff Latin American Workers Projeet ("LAWP") is a non-profit civil rights organi~.ation incorporated under the laws of New York. Founded in 1997, the mission of LAWP is to secure better living and wo~’king conditions and respect Ibr the labor and civ{1 rigl~ts of immigrants, Tt~e principal program areas ofLAWP inch~de orga~izing day laborers, street vendo~s, NCtOl2 workers, and other cmployecs, providing educational and cultural programs, and

working to improve access to hcalth cars, Members of LAWP pay dues and have voting and representational rights, LAWP’s pril~cipal place of business is in Kings County, New York.
13. Plaintiff UNITE is an unincorporated labor unio~a of approximately 250,000 members in the United States and Canada. hnmigrant workers have been members of UNITE or its predecessor garment worker unions since Ihe{r inception. UNITE’s missiol~ includes workir~g to address the immigration issues that affect its members. In con~ection with this mission, UNITE advocates for its members on immigration policy issues. Members of UNITE pay dues and may rur~ for leadership positions and vote in union elections. UNrl’g’s principal place of business is in New York County, New York,
14. Defendant John A~hcrofl is the Attorney General of the United States, He is sued in his official capacity, in which he beat’s responsibility for overall oversight of federal law enforcement programs, including the NCIC database, and shares responsibility Ibr the implementation of federal immigration policy,
15. Defendant Tom Ridge is the Sccl~ctary of Homeland Security. He is sued in his oflSeiat capacity, in which he shares responsibility for implementation of federal immigration policy and directs the newly-formed B~-eau of lmmigrntion and Customs Enforcemer~t ("ICE"). ICE is now responsible for the immigration enforcement fimctions formerly perfonned by the Immigration and Naturalization Service ("INS").
16, Defendant Robert Mueller is the Director o f the Feder~ Bureau of I~vestigatio~ ("FBI"), He is sued in his officiaI capacity, Pursuant to 28 U.S.C. § 534(c) and 28.C.F,R {} 0,85, the Attorney General has designated the Director of the FBI to adm{n{ster the NCIC database,

17. Defendant Michael Gareia is Acting Assistant Secretary of Homeland, Security in charge of’iCE, He is sued in his officia! capacity, in which he oversees ICE law erfforcement functions,
18. Defendant United States Department of Justice (°°DOJ") is the federal agency attthorized by slatule to admiuisler the NCIC database,
19, Defendant United States Department of HomeIand Security ("DFIS") is the federal agency responsible for securing the nation’s borders, in part by enforcing federal immigration laws, and managing the immigration process.
20. Defendant FBI is the agency within the U.S. Department of Justice responsible for administering the NCIC.
21, Defendant ICE is the agency within DH8 responsible for investigating violations of lhe criminal and adminislrative provisions of the Immigration arid Natio~ality Act ("INA") and for ensuring the departure of removabIe aliens from the United States.
S’I’ATEMENT OF FACTS 22, Congress ~rst au thorized the FBt to estab li sh a ~;le aringho us e of federal, state, local, and international criminaI justice records in 1930, during the Prohibition era. Sensitive to widespivcad popular complaints of over-zealous federal law enforcement at that time, Congress scrupulously limited the types of rceords that the FBI was empowered to acquire and exchange through its vast new clearinghouse, 23. In 1967, the FBt’s clearinghouse was renamed the National Crime Information Ceoter ("NCIC"), Today, from its localion in Clarksburg, West Virgirfia, the FBI prevides an NCIC host-computer and telecommunicntion network to a control terminal agency in each of the fifty states. The Ncrc provides direct on-line access to its eompt~terized index of criminal
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justice in ~’ormation for more than 700,000 law enforcement officers nationwide, twemy-fo~.~r hours per day, 365 days per year.
24. Over 17,000 local, state, federal, a:ad tribal law enfbrcement agencies qt~ery NCIC in the perlbrmance of their daily activities, including routine patrols, in September 2003, NCIC processed m~ average of 3.7 million transactions per day with an average response time of 0.12 seconds.
25. Since its inception, what is now known as the NCIC database has cor~tained princil~ally criminal justice records, s~eh as rap sheets, criminal wan-ants, and stolen property records,
26. On oceasior~, however, Congress has specifically authorized by statute the addition of non-criminal records to this powerful database. I~ t994, fo~ instance, as part ot’the Violence Agai~st Women Act, Congress amended the NCIC statute to allow the FBI to include civil orders of protection against domestic violence a~d stalking in the database. In 1996, Congress at~thorized the addition to the NCtC of immigration records relati~g to previously deported felo~as.
27. There are prese~tIy sevemeen files in the NCIC, of which seven arc "property" files and ten are "person" files.
28, Defendants have designated ccrtain NCIC files as "hot" files. State and local law enforcelnent officials may release i~formation in "hot" files to private individuals, such as neic,dhbors, and do release "hot" file information to commercial enterprises in certain circums tastes.
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Defendants’ Unlawful Use of the NCIC 29. In disregard of the careful statutory limitations on entry ea~d dissemination of ironcriminal records via Ihe NCIC, defendants have begun to enler civil immigration records regarding hundreds of thousands of non-citizens into the NCIC, 30. In 2002, defendants started to enter records for pel~ons with outstanding orders of deportalion, exclt,sion, or removal (collectively, "remcwal orders") whom defendanls believe have remained in the United States. Defendants refer to such persons as "absconders" and estimate that there arc motw than 400,000 such persons resident in tl~e United States. Defendants intend to enter in~brmation regarding each "absconder" into the NCIC. 3 t, De fer~dants h~tve no t so ugh t or obtained a criminal arrest warrant from a federal judge upon a showing of probable cause to believe eacl~ person w~th a ten, oval order has committed a crime, Instead, defendants have misused the NCIC by entering only administrative warrants of removal for "absconders," 32. In 2003, del~ndants also began to enter records for persons whom defendant DHS believes have violated a requirvroeJat of the Nalional Security Entry-Exit Kegistration Systcm ("NSEERS"), ~:he "special registration" program a~nouneed by the Attorney General in Jm~e 2002. Defendants have not publicly announced an estimate of the nu~r~ber of NSEERS violators that will bc entered into the NCIC. 33, Defendants have r~ot s~ught or obtained a criminal arrest warrant from a federal judge upon a showing of probable cause to believe each alleged NSEERS violator has co~nitted a crime, Instead, defenda~ts have misused the NCIC by entering only administrative T~otices l~cgarding allcgcd NSEERS violators,
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34, Det~endants have placed the records regarding "absconders" and alleged NSEERS violators in a i~ew file in tile NCIC, named tim Immigration Violators File.
35. Preset~t ly, the Law Enforcement Snppo rt Center ("LESC"), a un it o f DI |$ lo cared in Burlington, Vermont, has the responsibility to enter "absconder" and alleged "NSEERS violator" records directly into the NCIC Immigration Violators File, Defendant DttS is tlle agency authorized to enter attd maintain these records.
36. When a state or local police officer runs an NCIC check or, an individual, the Immigration Violator File hit response advises the local law enforcement officer to contact the LESC for confirmation. Upon confinrtation, DHS typie~a.lly requests the police officer to arrest or detain the alleged immigration viotator until DHS officials can arrive to take custody of the person.
37, Defendants have am~ou~Jt~ed their intention to Md two additional categories of civil immigration records to the NCIC immigration Violators File. Defendants will enter and disselninate via the NCtC information regarding foreign students whom university records indicate have not maintained sufficient credits, earned minimum grades, or otherMse violated a term of their student visa, Defendants will also enter and disseminate via the NCIC infm’mation regarding previously deported persons with minor criminal convictions that ICE does not even classify as "aggravated gelonies."
38. As of Dec ember l, 20[B, defendants have entered record s regardirtg approximately 19,000 "absconders" and dozens of alleged NSEERS violators into the NCIC Immigratio~x Violators File.
39. The records defendants arc now entering into the NCIC Immigralion Violators File contain numerous inaccuracies.

40. Defendant DOJ’s own Inspector Ge~leral concluded in Febraary 2003 ttlat "tt~e INS has selioUS and continuing problems with data reliability," In particular, after comparing tracking systems maintained by INS and the Executive Office for lmmigratio~l Review, the Inspector General found discrepancies in 7% of files of persons wifl~ final removal ol-de~ -- the very records defendants a~v now entering into NCIC as "abscoMers" -- and 11% of flies of persons ~vho come from countries considered "state sponsors ofte~Torism," The Inspector General further noted that INS did. not have a system in place to correct these errors.
41. In addition, many t~ersons with rcmovat ol’de~ were not present in the administrative court when the order was enlered, Many of these persons did not l~ceive notice of their scheduled court he~ing, the entry of their removal order, or the denial of their administrative or j udicial appeals,
42, In the widespread confusion tl~at has accompa~ied defendants’ announcement and implementation of NSEERS, many persons arc ignorant of their obligatior~s ut~der NSEERS and may be unaware that they have failed to compIy wilh an NSEERS rule,
43. Other immigrants treated as "absconders" or "NSEERS violators" by defendar~ts have valid claims of United States citizenship or are eligible for immigration retief based on their marriage to a U.S, citizen, as a polit{cat asylee, or otherwise,
~-4. The Immigration Violators File is a "hot" tite~ Private citizens and commercial entel-orises can access its records or confirm the status of records under certain circumstances.
45. Defendants l~ave ignored the December 2002 recommendation of the FBI’s own advisory body For in format/on services, the Crirainal lusfice Nformation Services Advisory Poticy Board, This udvisory body is composed principally of state a~d local police officials and resolved that NSEERS information not be e~ltered into the NCIC ’~mless legislation an(got clear
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and uneanbiguous direction exists to an-est and detain these individuals ttl~til appropriate anthority arrives,"
Defendants’ Unlawful Causin~ of Prohibited hnmi~ration Arrests 46, Congress has enacted a complcx and comprehensive statutory scheme 1,egulating immiga-ation in the United States, 47. A central feature of this comprehensive federal scheme is a set of rmmemus arid detailed provisions relating to enforcement of federal immigration laws. In adopting this statutory scheme, Congress has broadly preempted immigration enforcement by state and local officials, except as specifically authorized by Congress. 48, Congress has crafted specific exceptions to its broad preemption ofimmigratior~ enforcement by state and local police, It has enacted direct arrest authority for state and local police officials to enforce certain imlnigration provisions. Congress has also cstabtishcd emergency and general procedures for tim Attorney General to authorize state and local police, under particular sets of circumstances, to enforce other immigration provisions, provided certain statutory requirements are satisfied. 49, Faithful to this legislative desiNt, various administrations have recognized thai state and local police are barred from making arrests for civil violations of,he federal immigration laws. 50. In spring 2002, however, DOJ concluded fl~at state and local police possess the "irtherel~t authorily" to arrest any immigrant listed in the NCIC database, The Attorney Get, oral, the White House Counsel, and other senior DOJ offici~ds l~ave repeatedty stated tNs conclusion. 51, The Attorney General and other defendants have subsequently encouraged, caused, and induced state and local police to arrest immigrants Iisted in the NCIC.
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52. Some local police jurisdictions have resisted this ~-cqucst. 53. Othcr police departmenta have adopted a policy or practice of arresting "absconders" and/or alleged NSI~}SRS violators listed in thc NC~C. 54. In reliance o~a admhxistrative wa~-rar~ts or other ~lo,~-¢riminal information listcd by defendants in the NCtC, police in New York, illinois, Minncsota, Connecticut, Florida, and elscwhct’c have arrested immigrants with outstanding rcmovat orders or who have allegedly violated an NSEER$ requirement. 55. Police do not typically inform st~ch NCIC immigration an-estees of their Miranda rights, nor are such persons subject to state or federal crirninaI prosecution. Police typically detain such persons tmtil they are transfcn’cd to the custody of defendant ICE. 56. In reliance on immigrration data ~,nlawfully enterext inlo the NCIC by defendar~ts.. state and local police have arsested persons who are United States citizens or who have valid claims for immigration relief, as the sponse or parent o~’a United States citizen, as a political asylee, or otherwise. 57. No authority exists for state or local police officials to arrest persons soiely on the ground that they are s~bject to a removal order or alleged to bs an NSEERS violator and listed in the NCIC. 58. No t, nifonn policy or practice governs individual state and local law enforcement officials’ use or’in formation in the NC~’C Immigration Violators File. 59. The policy a~d practice of state and lo~al police of" arresting persons listed i~ tt~e NCIC as "absconders" or "NSEERS violators" are prccmptcd by federal law and invalid.

60, Dei~ndar~ts’ practice of entering ’*absconder" and ’*NSEERS violator" information into the NCIC atld disseminating it to local police upon inquiry illegally causes ard induces police to make arrests that Co,woes has forbidden,
Effec~ of Defendants’ Preterites on Plaintiffs’ Members and the Public at Large_ 61, State and local police rely on the cooperation of all residents of the communities they serve and protect, When any member ofa communily is afraid to communicate with law enforcement officials, police effectiveness is undermined and public safely is diminished for all. 62, hnmigrant crime victims significantly under-report crimes, and immigrant witnesses hesitate to cooperate with police when they fear deportation, 63. One DO J-funded study published in 2001 Found that 67% o f district attorneys and police chiefs stlrveycd bclicvc recent immigra~ts report crhnes less frequently than other victims. 64. The same study concluded that more than one-third of the law enforcement personnel iutcr~’iewed believe under-reporting of crimes by recent immigrants poses a "serious problem" for the criminal justice system as a whole, 65. Defendants’ misuse of the NCIC to cause said induce expandexl immigration enforcement by local police has created fear in immigrant communities. 66, Defendants’ practices deter imlnigra~ts from communicating with state and local law enforcement officials when in need a~d when they would otherwise be willing and able to assist in criminal investigations, 67. Dcfcndm~ts’ practices place immigrants at immincnt risk of unlawful arrest, inl~ibit immiN-smts from accessing vital emergency gove~nent services such as police a3~d fire protection, and compromise thc privacy interests of immigrants,
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68, At least one member of" each plaintiff’ organization, or of the associations that are members of each plaintifforganization (hereafter, coll~otively ’~plaintiffmembers"), has an outstar~ding removal order or is not in eomplian:e with an NSEERS reqnirement and lives or works in a jurisdiction whose state or local police have a policy or practioe of" maki~ag immigration aa-es~s in reliance on NCIC information.
69. Defendants have entered or immine~tIy will enter into the NCIC information regarding plaintiffmembe~ as "absconders" or "NSEERS violato~."
70. Plaintiffmembe~ reg~flarly come inlo contact wi~ state ~<l local police, 71, Some p lainti ff members work in settings in which they ~e frequently questioned by police, such as those who work as day laborers or street v~dors. 72. Some plaintiff memb~s appear Arab, Muslim, or South Asi~ ~d, especially since fl~e September 11 attacks, have been reguIarty question~ by police in tim course of their dNly live~. 73. Plaintiff members listed in the NC1C as an "absconder" or "NSEERS violator" are at imminent risk of a~est by state or local law ~forcmcnt officials who stop or question them. 74. Plaintiff members l’~sonably fear fl~at if they coalact sta~e or local ~aw enforcement otNcials to r~o~ a crime, or olhc~isc speak or communicate with govemm~t officials on a matter of public or private concern, they may be arrested bas~ on an NCIC listing as an "nbsconde~’ or "NSEERS violator." 75. Personal infomaafion reg~ding plaintiff members h~ been or imminently will be plied in an NCIC "hot" fiIe. ’l]~is infom~ation is available to neighbors, private citizens, or commc~iat cntc~rises.
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76. In light of the inaccuracies and d iserepancie.~ repeatedly described by DOJ’ s own Inspector General upon review of defendm~ts’ immigration dalabases, ir~¢luding databases relating to persons with outst~dir~g removal orders, upon in I’onnation and belief, defendants have entered or imminently will enter erroneous information regarding plaintiffmembers inlo the NCIC.
COUNT ONE VIOLA’I’ION OF TIlE ADMINISTRATIVE PROCEDURES ACT
(s
77, The foregoing allegations are rcallcgcd m~d incorporated herein by refe~re~ce. 78. Congress has specifically enumerated the categories of information that may be lawfully entered into and disseminated via the NCIC database. 79. Congress has not authorized the entry or disseminatio~ of administrative warrants for "absconders" or information regardil~g alleged "NSEERS violators" via the NCIC. 80, By entering civil immigration information into the NCIC database and disseminating that infolmation to stale arid local officials, defendants have exceeded the slalulory authority granted ttmm by Cong~,ess to establish arid administer the NCIC database, pursue.at to 28 U.S.C. § 534 and 8 U.S,C. § 1252c(b). 81. Defendants’ entry and dissemination of such information via the NCIC database constitutes final agency action within the meaning of" the Administrative Procedures Act, 5 U.S.C. § 55I, and is net committed to agency discretion by law. Defendants’ unlawful practices, set tbrth above, have adversely affected or aggfie~,ext plaintiffs and have caused them to suffer or placed them at imrainent risk of suffering a legal wrong.
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COUNT TWO UNLAWFUI~ CAUSING OF PROHIBITED ARRESTS
(U.S. Const. art. VI and U.S. Const. amend. IVy. 82. The foregoing allegations are realleged and incorporaled herei~ by referet~ce, 83, The authority to regulate immigration and naturalization is ,’m exclusively federal power that the Constitu~iol~ requires be irnl~leme~ted uni fom~ly nalionwide, 84, Congress’s exercise of this power, and its enactment of a comprehensive scheme for immigration enforcement, has broadly preempted state au~d local police authority to e~force immigration laws, except where specifically authorized in statute or in conformity with statutory procedures, 85. Congress has preempted state and local police from arresting °°absconders" or "NSEERS violators" on the basis of an administrative warrant or mere listing in the NCIC, 86, By entering civil immigration information into the NCIC database, disseminating it to state and local police, confirming NCIC immigration "hits" aport inquiry by local police, advising police to arrest absconders and NSEERS vioIators based on administrative warrants or information, and taking other actions, defendants have caused m~d induced m~d are causing and inducing police to make immigration arrests that Congress has fbrbidden them fmrn undertaking. 87, Defendants’ practices, set fetch above, create an imminent risk that plaintiff members will be wrongfully arresled by state or local police, in violation of the Supremacy Clause mid the Fourth Aanendment,
REI ~IEF 88, A real and actual controversy e×ists between the ~arties. 89. The plaintiffs have no adequate remedy at law other than this action for declaratory and injunctive relief,
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90, The plaintiffs arc suffcring irrcparablc hmm as a 1-esult o f the violations compladaed of herein, a~d that harm will continue unless declared unlawf’ul and enjoined by this Com~,
WHEREFORE, the plaintiffs respectlhlly request that this Court: a, Exercise original jurisdiction over this action; b. Entcra declaratory jndgmcnt pursuant to 28 U,S,C, §§ 2201-02 that defendants’ policy or practice of entering and disseminating civil immigration information to state and local Iaw e~forcement officials through the NCIC database is not attthorizcd by statute; c. Enter a declaratory .l’nd gment pursu ant to 28 U, S,C, § § 2201-02 that defendants’ policy or practice of entering and disseminating civil immigration information to state and local taw enforcement officials through the NCIC database is tmlaw f’ul because it wronglhlly causes and indnces state and local police to make immigration arrests that Co~gress has forbidden; d. Enjoin the defendants from entering and disseminating civil immigration infennation to state and local law enforcement officials through the NCIC database without iawfut authority, and require the defendants to remove all such in~brmatien already entered; e. Award the plaintiffs the cost of this action together with their reasonable attorneys’ fees; aM
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f. Retain j t~risdiction over tl~i~ act{on and grant such other and further relief as ~e Court deems just a~d proper.
Dated: New York, New York Decembea" 17, 2003
Respectlhlly submitted,

WASHINGTON SQUARE LEGAL SERVICES Michael J. Wishnie (MW1952) Mayra peter,~-Quintem (MP 1844) Iwm EspiTloza-Madrigal, Law Student Intern
(IE48 9)
Jessica Zagier, Law Student Imem (JZ67a0) 16! Avcnuc of the kaneficas, 41h Floor New York, NY 10013 (212) 998-6430
THE BRONX DEFENDERS Peter Markowitz (PM9052) 860 Courtlandt Avc~me Bronx, NY 10451 (718) 838-7878

CLEARY, GOT’I’LIEB, STEEN & tIAMILTON Carmine D. Boccuzzi (CB2177) Asli U. Bali (AB4125) Aa~il Kalhalx (AK1156) Sheilah Kane (SK2093) One Liberty Plaza New York, NY 10006-1470 (2 t 2) 225-2000
Lucas Guttentag (LG0392) Lee Getcrnt (LG8511) Omar C. Jadwat (OJ5792) AMERICAN CIVIL LIBERTI£S UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broat Street New YoN, NY 10004-2400 (212) 549-2500

Arthur N. Eisenberg (AE20t2) Ckdstopher Dunn (CD3991) NEW YORK CIVIL LIBERTIES UNION’ FOUNDATION 125 Broad Street New York, NY 10004
(212) 34 -300s

Attorneys for Plaintiffs

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FA6117

)

NATIONAL COUNCIL OF LA RAZA, NEW )

YORK IMMIGRATION COALITION,

)

AMERICAN-ARAB ANTI-DISCRIMINA- )

TION COMMITTEE, LATIN AMERICAN )

WORKERS PROJECT, and UNITE,

Plaintiffs,

JOHN ASHCROFT, Attorney General of the

United States, TOM RIDGE, Secretary of

Homeland Security, ROBERT MUELLER,

Director, Federal Bureau of Investigation,

MICHAEL GARCIA, Assistant Secretary of

Homeland Security in charge of the Bureau

of Immigration and Customs Enforcement,

UNITED STATES DEPARTMENT OF

JUSTICE, UNITED STATES DEPARTMENT)

OF HOMELAND SECURITY, FEDERAL

)

BUREAU OF INVESTIGATION, and

)

BUREAU OF IMMIGRATION AND

)

CUSTOMS ENFORCEMENT,

)

)

Defendants.

)

)

No. 03-CV-6324 (ILG/ASC)
(Glasser, J.) (Chrein, M.J.)

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION AND FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED

ROSLYNN R. MAUSKOPF United States Attorney Eastern District of New York

F. FRANKLIN AMANAT
Assistant United States Attorney One Pierrepont Plaza, 14th Floor Brooldyn, NY 11201-2776 (718) 254-6024

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....................................................

iv

PRELIMINARY STATEMENT ...................................................

1

ARGUMENT ..............................................................

2

I. PLAINTIFFS HAVE FAILED TO ESTABLISH STANDING ............ 2

Plaintiffs’ Reference to a Heightened Risk of Future Unlawful Arrest Is Insufficient to Establish an Injury-In-Fact Which Is Fairly Traceable to the Defendants ........................... 2

Plaintiffs Have Failed to Establish that the Allegedly Heightened Risk of Future Unlawful Arrest Constitutes an Injury-in-Fact Sufficient to Confer Standing ............ 2

Plaintiffs Have Failed to Establish that the Allegedly Heightened Risk of Future Unlawful Arrest Is Fairly Traceable to the Alleged Actions of the Defendants ......... 8

Plaintiffs’ Allegations Concerning Other Forms of Alleged

Injuries Are Also Insufficient to Confer Standing to Sue

Defendants ............................................

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II. PLAINTIFFS’ ARGUMENT THAT THE DEFENDANTS ARE NOT

AUTHORIZED TO USE THE NCIC TO DISSEMINATE

ABSCONDER AND NSEERS INFORMATION IS UTTERLY

WITHOUT MERIT ...........................................

18

Use of the NCIC Is Authorized by the Plain Text of 28 U.S.C.

§ 534 .................................................

18

"Crime... Records." . ..............................

19

"Other Records." . .................................

22

The Defendants’ Use of the NCIC Is Authorized by the Legislative History of 28 U.S.C. § 534 ....................... 29

The Defendants’ Use of the NCIC Is Authorized by the Plain Text of Numerous Immigration Statutes and Regulations ......... 35

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III. PLAINTIFFS’ ARGUMENT THAT THE DEFENDANTS’ ALLEGED USE OF THE NCIC IS UNLAWFUL BECAUSE IT CAUSES LOCAL POLICE TO MAKE IMMIGRATION ARRESTS THAT CONGRESS HAS FORBIDDEN IS ENTIRELY WITHOUT MERIT ................ 39

Plaintiffs’ Argument that Congress Has Occupied the Field of

Immigration Regulation, Barring the Defendants’ Alleged Use of

the NCIC to Disseminate Immigration Information, is Without

Merit .................................................

39

Plaintiffs’ Efforts to Refute Defendaaats’ Showing that State

Police Have Inherent Authority to Make Federal Immigration

Arrests Fail .............................................

41

Even if Plaintiffs Could Somehow Establish that Local Police

Authority to Arrest Aliens for Immigration Violations Was

Preempted by Federal Law, Their Complaint Would Still Fail to

State an Actionable Claim .................................

45

CONCLUSION

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Nat’l Council of La Raza v. Askcroft, No. 03-CV-6324

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TABLE OF AUTHORITIES

CASES

American Trucking Associations, Inc., United States v., 310 U.S. 534 (1940) ..........

27-28

Baur v. Veneman, 352 F.3d 625 (2d Cir. 2004) ........................... 4, 6, 11, 12

Bennett v. Spear, 520 U.S. 154 (1997) .........................................

8

Bernard v. United States, 25 F.3d 98 (2d Cir. 1994) ...............................

3

Building & Construction Trades Council of Metropolitan District v. Associated Builders & Contractors of Mass./R.L, Inc., 507 U.S. 218 (1993) ......................... 39

Caban v. United States, 728 F.2d 68 (2d Cir. 1984) ...............................

3

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ...... 29

ChdLungv. Freeman, 92 U.S. 275 (1875) ...................................

39, 40

City of Los Angeles v. Ldons, 461 U.S. 95 (1983) .............................

6, 7, 11

City ornery York v. United States, 179 F.3d 29 (2d Cir. 1999) ....................... 38

County of Suffolk v. First American Real Estate Solutions, Inc., 261 F.3d 179 (2d Cir. 2001 ) . . 27

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

40

Dory Chemical Co. v. United States, 476 U.S. 227 (1986) ....................... 28-29

Fifth Avenue Peace Parade v. Grad, 480 F.2d 326 (2d Cir. 1973) .....................

15

Garcia v. United States, 469 U.S. 70 (1984) ....................................

22

Golden v. Zrvickler, 394 U.S. 103 (1969) .....................................

3, 17

Graham v. Richardson, 403 U.S. 365 (1971) ....................................

40

Harrison v. PPG Industries, 446 U.S. 578 (1980) ................................

22

Heldman v. Sobol, 962 F.2d 148 (2d Cir. 1992) ..................................

8

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iv

Laird ~. Tatum, 408 U.S. 1 (1972) ...........................................

Lu]an ~. Defenders of Wildlife, 504 U.S. 555 (1992) ............................

2, 3, 8

Maryland ~. Louisiana, 451 U.S. 725 (1981) ....................................

39

Mena ~. City of Simi Valley, 332 F.3d 1255 (9th Cir. 2003), cert. ~ranted sub nora. Mueller ~. Mena, __ U.S. __, No. 03-1423, 2004 WL817138 (Jtme 14, 2004) .... 44

Menardv. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974) ...................... 16, 17, 21, 22

North~vestAirlines ~. FAA, 795 F.2d 195 (D.C. Cir. 1986) ......................... 11

O’Shea ~. Littleton, 414 U.S. 488 (1974) ........................................

7

Po~vell, United States ~., 423 U.S. 87 (1975) .................................

22-23

Presbyterian Church (USA) ~. United States, 870 F.2d 518 (9th Cir. 1989) ............. 17

Reporters Committee for Freedom of the Press ~. United States Department of Justice, 816 F.2d

730 (D.C. Cir.), modified, 831 F.2d 1124 (D.C. Cir. 1987), rev’don other

grounds, 489 U.S. 749 (1989) .........................................

21

Reporters’ Committee for Freedom of the Press, United States Department of Justice ~., 489 U.S. 749 (1989) .............................................

21, 33-34

Rizzo ~. Goode, 523 U.S. 362 (1976) .........................................

6, 7

Roe ~. City of Ne~ York, 151 F. Supp. 2d 495 (S.D.N.Y. 2001) ................... 4, 5, 6

Salinas-Caldemn, United States ~., 728 F.2d 1298 (10th Cir.1984) ................... 42

Simon ~. Eastern I(y. Welfare Rights Organization, 426 U.S. 26 (1976) ............... 8, 11

Skidmorev. SMft&Co., 323 U.S. 134 (1944) ...................................

29

Students Challenging Regulatory Agency Procedures (SCRAP), United States ~., 412 U.S.

669 (1973) .......................................................

12

Tarlton ~. Saxbe, 507 F.2d 1116 (D.C. Cir. 1974) ............................. 16, 17

Toll ~. Moreno, 458 U.S. 1 (1982) ............................................

40

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Nat’l Council of La Raza v. Ashcroft, No. 03-CV-6324

V

TuKette, United States ~., 452 U.S. 576 (1981) ..................................

22

UnitedPresb2~terian Church in the U.S.A. ~. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) ...... 15

Vasquez-Al~arez, United States ~., 176 F.3d 1294 (10th Cir.), cert. denied, 528 U.S. 913

(1999) ........................................................

41-44

Zanghi ~. Village of OldBrook~ille, 752 F.2d 42 (2d Cir. 1985) ....................... 3

CODIFIED STATUTES 5 U.S.C. § 300 (1964) ........................................ 5 U.S.C. § 340 (1964) ........................................... 5 U.S.C. § 552a ...................................................... 8 U.S.C. § 1226 ................................................... 8 U.S.C. § 1227 ......................................................... 8 U.S.C. § 1231 ......................................................... 8 U.S.C. § 1252c .................................................. 8 U.S.C. § 1253 ...................................................... 8 U.S.C. § 1306 ...................................................... 8 U.S.C. § 1325 ................................................... 8 U.S.C. § 1357 ......................................................... 8 U.S.C. § 1365a ........................................................ 8 U.S.C. § 1373 ...................................................... 8 U.S.C. § 1644 ...................................................... 28 U.S.C. § 534 ........................................ Virginia Code § 15.2-1726 .................................................

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30, 32, 33, 34, 35 30, 33, 34, 35 17-18 20, 26, 37 20 20 27, 41-44 19, 20 19-20 36, 37, 40 40 40 38, 40 38, 40
1, 17, 18-35 (passim), 37 10

ENACTED STATUTES

Sedition Act of 1918, ch. 75, 40 Stat. 553 .................................. 31, 32

Alien Act of 1919 .....................................................

31, 32

Anarchist Act of 1920, ch. 251, 41 Star. 1008 (June 5, 1920) .................. 31, 32

Act of Max. 1, 1921, ch. 89, § 1,41 Star. 1175 ................................. 32

Act of Max. 4, 1921, ch. 161, § 1, 41 Star. 1410 ................................ 32

Act of May 28, 1924, Pub. L. No. 68-153, title II, ch. 204, 43 Star. 217 ............. 34

Act of June 11, 1930, Pub. L. No. 71-337, ch. 455, 46 Star. 554 ................ 30, 33

Department of Justice Appropriations Act for fiscal year 1965, Pub. L. No. 88-527, title II, § 201, 78 Star. 717 (Aug. 31, 1964) ........................ 30, 32-33

Pub. L. No. 89-554, §§ 4, 7, 80 Star. 616 (Sep. 6, 1966), set forth at 1966 U.S.C.C.A.N. 752 ............................................

30, 34, 35

Missing Children Act of 1982, Pub. L. No. 97-292, 96 Star. 1259 ............... 24-25

Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA"), Pub. L. No. 103-322, Title XIII, § 130002, 108 Star. 1796 (Sep. 13, 1994), as amended, codified as a note following 8 U.S.C. § 1226 .................... 36-38, 40, 44

Violence Against Women Act ("VAWA"), Pub. L. No. 103-322, Title IV, § 40601,

108 Star. 1950 (Sep. 13, 1994) ....................................

25-26

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104132, Title IV, § 439, 110 Star. 1276 (Apr. 24, 1996) ...................... 27

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LEGISLATIVE MATERIALS

72 CONG. REC. 1989 (7Ut Cong., 2d Sess., Jan. 20, 1930) ........................

21

1964 U.S.C.C.A.N. 815 ................................................

30, 33

H.R. R~P. No. 97-820 (1982), reprinted in 1982 U.S.C.C.A.N. 2552 ..............

24-25

140 CONG. R~C. H2518-01 (daily ed. Apr. 20, 1994) ............................ 25

H.R. CONF. REP. No. 103-711 ...........................................

25-26

142 CONG. R~C. 4619 (1996) ...........................................

42, 43

142 CONG. R~C. $4405-01 (daily ed. Apr. 30, 1996) ............................ 36

S. R~P. No. 104-249 (1996) ................................................

36

Clear Law Enforcement for Criminal Alien Removal (CLEAR) Bill of 2003, pending as

H.R. 2671, 108th Cong. (1~t Sess. 2003), and as S. 1906, 108th Cong.,

§ 104(b) (1~ Sess. 2003) ..........................................

27-28

REGULATIONS

8 C.F.R. § 1.1 ...........................................................

18

8 C.F.R. § 241.3 .........................................................

20

28 C.F.R. § 20.1 .........................................................

17

28 C.F.R. § 20.37 ........................................................

37

28 C.F.R. § 50.12 ........................................................

17

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OTHER SOURCES

Nancy Murray and Sarah Wunsch, Civil Liberties in Times of Crisis: Lessons from History,

87 Mass. L. R~v. 72 (2002) .......................................

31, 32

2B NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION

§ 49.11 (6th ed. 2000’ . ..............................................

24

Daniel ]. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Pri~acy,

75 S. CAL. L. R~v. 1083 (2002) .......................................

32

Opinion of the South Carolina Attorney General, March 6, 2002 (2002 WL 399643) . . 10

SANVORD ]. UNGER, FBI (1976) ............................................. 31

~vw.fbi.gov/qibrefl/historic/earlydays.htm, "History of the FBI: Eaxly Days 19101921" (last visited 7/16/2004) ........................................
wx~.fbi.gov, qibref/historic/qawless.htm, "History of the FBI: Lawless Years 19211933" (last visited 7/16/2004) .....................................

31 31, 34

REPLY MEMORANDUM OF LAW Nat’l Council of La Raza v. Ashcroft, No. 03-CV-6324

PRELIMINARY STATEMENT

Plaintiffs’ arguments in opposition to the defendants’ motion to dismiss for lack of

subject matter jurisdiction and for failure to state an actionable claim fail entirely.

As defendants demonstrated in their initial memorandum of law, plaintiffs lack

standing to raise the claims asserted in their complaint. Plaintiffs’ response that the defendants’

actions create a heightened risk of future unlawful arrest, sufficient to confer standing on the

plaintiffs to sue the defendants, lacks merit, given that the alleged harm is conjectural and

speculative, and given the complete absence of control which the defendants have over the

actions of the state and locaJ agents who are 3Jleged to be making such unlawful arrests.

Plaintiffs cannot demonstrate an injury-in-fact which is fairly traceable to the defendants’

conduct, and accordingly their complaint must be dismissed.

Moreover, even if plaintiffs could somehow establish this Court’s subject matter

jurisdiction to hear their claims, their argument that the defendants are not authorized to use

the NCIC to disseminate Absconder and NSEERS violator information is utterly without merit.

As set forth in the defendants’ opening brief, the plain text of 28 U.S.C. § 534 provides ample

authority for the defendants’ alleged practice of including Absconder and NSEERS violator

information in the NCIC. Plaintiffs’ arguments to the contrary rely on a misreading of the plain

language of the statute, a misapplication of the canons of statutory construction, and an

incorrect recitation of the statute’s legislative history.

Finally, plaintiffs’ argument that the defendants’ alleged use of the NCIC is unlawful,

because it causes local police to make immigration arrests that Congress has forbidden, is

frivolous. Plaintiffs argue that the defendants’ use of the NCIC for immigration information is

barred because Congress has occupied the field of immigration regulation. This argument fails,

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Nat’l Council of La Raza v. As’hcroft, No. 03-CV-6324

1

for it misstates the nature of field preemption, mischaracterizes the scope of Congressional

legislation in the immigration arena, and fails to provide a basis for barring the specific

government action at issue here. Plaintiffs also attempt to refute defendants’ showing that state

and local police have inherent authority deriving from state law to make federal immigration

arrests, but the arguments on which they rely have all been rejected as without merit by the only

court of appeals to have squarely ruled on the matter. Finally, even if plaintiffs could somehow

establish that state and local police authority to arrest aliens for immigration violations is

preempted by federal law, their complaint would still fail to state an actionable claim, for they

can prove no set of facts which would establish the defendants’ vicarious responsibility for the

allegedly illegal actions of independent state and local authorities.

ARGUMENT

I.

PLAINTIFFS HAVE FAILED TO ESTABLISH STANDING.

A. Plaintiffs’ Reference to a Heightened Risk of Future Unlawful Arrest Is Insufficient to Establish an Injury-In-Fact Which Is Fairly Traceable to the Defendants.

1. Plaintiffs Have Failed to Establish that the Allegedly Heightened Risk of Future Unlawful Arrest Constitutes an Injury-in-Fact Sufficient to Confer Standing.

As set forth in the government’s opening brief, plaintiffs have failed to allege facts which, if true, would demonstrate "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not ’conjectura1’ or ’hypothetical.’" Def. Br. at 9-12, quotingLujan p. Defenders of Wildlife, 504 U.S. 555,560 &n.1 (1992). The complaint contains no allegation that any member of any plaintiff organization has actually been arrested, detained, deported, mistreated, or otherwise made the subject of any unlawful state or

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federal action as the result of the entry or dissemination of any information in the NCIC, nor has the complaint even identified any plaintiff members as to whom information has actually been entered into the database. In the absence of allegations that specific members have actually been or actually will be unlawfully arrested based on information reported in the NCIC database, the allegation that some members subjectively fear that their unlawful arrests are imminent is strictly "conjectural" and "hypothetical," id. at 560, and plaintiffs have not alleged a "credible threat" of real and immediate future injury. See Golden p. Zwickler, 394 U.S. 103, 109 (1969); see also Defenders af Wildlife, 504 U.S. at 564 n.2 ("Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes - that the injury is certainly impending." (citations and internal quotation marks omitted; emphasis in original)).
In attempting to establish their standingto bring suit, plaintiffs do not allege that any of their members has actually been arrested, much less unlawfully arrested,±/as the result of any
actions allegedly undertaken by the defendants. See P1. Br. at 6, 8-9. Instead, the injury-in-fact which the plaintiffs identify relates to the "heightened risk of future unlawful arrest" by state and local police, which the plaintiffs claim that persons "similarly situated" to their members experience as the result of the defendants’ alleged use of the NCIC to disseminate information about Absconders and NSEERS violators. See P1. Br. at 6, 8-9. These allegations are plainly insufficient to confer standing on the plaintiffs.
Plaintiffs have no argument that theywould suffer any injury-in-fact from an arrest which is lawful, simply because the arrest would not have taken place but for the inclusion in the NCIC of information leading to their arrest. As the Supreme Court has explained, an injury in fact is defined as "an invasion of a legally protected interest." Defenders" of Wildlife, 504 U.S. at 560 & n.1. One does not have a legally protected interest in not being arrested for violations which lawfully subject one to arrest. See, e.g., Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 19 94 ) ; Zan ghi v. Village of O ld B rookville, 752 F.2d 42, 45 (2d Cir. 1985); Caban v. United States, 728 F.2d 68, 72-7B (2d Cir. 1984). REPLY MEMORANDUM OF LAW Nat’l Council of La Razav. Ashcroft, No. 03-CV-6324

The cases on which plaintiffs rely to support their standing arguments are entirely

inapposite. Plaintiffs rely primarily on Baur ~. Veneman, 352 F.3d 625 (2d Cir. 2004), and on Roe ~. City of Ne~ York, 151 F. Supp. 2d 495 (S.D.N.Y. 2001), to support their proposition that

a "heightened risk" of future injury can be sufficient to substantiate an injury-in-fact. However,

both of these cases are distinguishable. In Baur, the plaintiff brought an action against the

United States Department of Agriculture, challenging certain USDA regulations which allowed

downed livestock to be used for human consumption after passing a post-mortem inspection.

See 352 F.3d at 628-31. The consumer claimed that this policy violated federal statutes

regarding food, drugs, and meat inspection, and further alleged that the consumption of downed

animals created a serious risk of transmission of mad cow disease. See id. The court of appeals

held that "at least for the purposes of this type of administrative action, [the] relevant injury-in-

fact may be the increased risk of disease transmission caused by exposure to a potentially

dangerous food product." See id. at 632-33 (emphasis in original). From this limited holding,

the plaintiffs extrapolate the general proposition that a heightened risk of future arrest is

suffident to confer standing. P1. Br. at 7. This extrapolation is inappropriate, however, as the

court specified that its holding was limited to the narrow context of food and drug safety suits:

In this case, we need not decide as a matter of law whether enhanced risk generally qualifies as sufficient injury to confer standing, nor do we purport to imply that we would adopt such a broad view. In the specific context of food and drugsafety suits, however, we conclude that such injuries are cognizable for standing purposes where the plaintiff alleges exposure to potentially harmful products.

Baur, 352 F.3d at 634 (emphasis added). Furthermore, the court stressed that "like the other

aspects of standing, the injury-in-fact analysis is highly case-specific, and the risk of harm

necessary to support standing cannot be defined according to a universal standard." Id. at 638.

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Similarly, Roe, 151 F. Supp. 2d 495, is distinguishable on its facts. In Roe, the plaintiffs alleged that the defendants had unlawftdly haxassed, arrested, and prosecuted injection drug users who were registered participants in state-authorized New York City needle exchange programs. Id. at 499-501. Plaintiffs contended that this not only violated their rights under the United States Constitution and state law, but also threatened public health by eviscerating the effectiveness of lawful exchange programs. Id. The unique set of facts alleged in Roe "suggest that the plaintiffs’ fear of arrest [was] reasonable because it [was] grounded in both prior arrests and an allegedly ongoing NYPD practice of targeting for unlawful arrest persons in ’high drug areas’ such as neighborhoods around needle exchange programs the plaintiffs frequent." Id. at 506. The Roe court found standing predsely because there had been actual unlawful arrests of the plaintiffs by the defendants, there were ongoing arrests of the plaintiffs by the defendants, and the plaintiffs constituted a distinct, identifiable group of people in a discrete geographic area who were being continuously targeted for arrests by the defendants. See id. None of those circumstances bears any resemblance to the case at bar.
Here, not only have the plaintiffs not alleged that any of their members has actually been unlawfully arrested, whether by the defendants or by anyone else, but also their members do not consist of a single identifiable group or class. The plaintiffs’ members come from a variety of different backgrounds, races, and national origins and presumably live in locations throughout the country, Therefore, although the court in Roe "found that plaintiffs who are members of such an identifiable class of targeted individuals have standing to sue," Id. at 504, because they were geographically and demographically isolated, the plaintiffs’ members in this case are neither an identifiable class, nor have they been targeted as a class.

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Whereas Baur and Roe are readily distinguishable for the reasons set forth above, this case is on all fours with the Supreme Court’s decisions in City of Los Angeles p. Lyons, 461 U.S. 95 ( 1983 ), and Rizzo p. Goode, 523 U.S. 362 ( 1976). In Lyons, a motorist was injured by the city police when he was once subjected to a choke hold after being stopped for a traffic violation. Lyons, 461 U.S. at 97-100. He had brought a suit against the City seeking money damages for his alleged injuries, but he also sought to enjoin the dty from using a choke hold except when the proposed victim reasonably appears to be threatening the immediate use of deadly force. He alleged in his complaint that he "’justifiably fears that any contact he has with Los Angeles Police officers may result in his being choked and strangled to death without provocation, justification, or other legal excuse." Id. at 98. Lyons argued that an injunction was warranted to prevent him and others similarly situated from being threatened with injury in the future. See id. The Supreme Court disagreed, finding that Lyons lacked standing in view of the absence of a showing that he was in immediate danger of being subjected once again to a choke hold. Id. at 105.
In analyzing the standing issue, the Supreme Court took pains to note that no actual injury would be realized unless a future police officer were to choose to act illegally in plating a motorist in a choke hold. Id. at 105-06. It held this, notwithstanding the presence of a specific allegation in the complaint that "the City authorized the use of the control holds in situations where deadly force was not threatened." Id. at 106. The Supreme Court found that this allegation "falls faac short of the a~legations that would be necessary to establish a case or controversy between these parties," largely because Lyons had failed to allege why he "might be realistically threatened" by police officers who are presumed to act in accordance with their authority. Id. at 105-06, 108. As the Court put it,
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Of course, it may be that among the countless encounters between the police and the citizens of a great city such as Los Angeles, there will be certain instances in which strangleholds will be illegally applied and injury and death unconstitutionally inflicted on the victim. As we have said, however, it is no more than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter between the police and a citizen, the police will act unconstitutionally and inflict injury without provocation or legal excuse. And it is surely no more thaaa speculation to assert either that Lyons himself will again be involved in one of those unfortunate instances, or that he will be arrested in the future and provoke the use of a choke hold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury.
/d. at 108. Thus, the Supreme Court held that the alleged heightened risk of unlawful use of the
choke hold was too speculative to confer standing on Lyons to sue the city. /d. at 108-10.
Rizzo is of similar tenor. In that case, plaintiffs alleged widespread illegal and
unconstitutional police conduct aimed at minority citizens and against city residents in general.
The Supreme Court observed, in rejecting the plaintiffs’ claim of standing, that the claim of
injury rested upon "what one of a small, unnamed minority of policemen might do to them in
the future because of that unknown policeman’s perception" of departmental procedures. Rizzo,
423 U.S. at 372. The Court found this hypothesis to be "even more attenuated than those
allegations of future injury found insufficient in [O’Shea p. Littleton, 414 U.S. 488 (1974)] to
warrant [the] invocation of federal jurisdiction." /d. In short, plaintiffs’ efforts to demonstrate an injury-in-fact by reference to the alleged
increased risk of unlawful arrest fail.
REPLY MEMORANDUM OF LAW Nat’l Council of La Raza v. Ashcrofi, No. 03-CV-6324

o Plaintiffs Have Failed to Establish that the Allegedly Heightened Risk of Future Unlawful Arrest Is Fairly Traceable to the Alleged Actions of the Defendants.
Even assuming arguendo that the plaintiffs have alleged injury-in-fact, that is not suffident to confer standing on them to press their claims. See Def. Br. at 7, 13. Rather, they must also satisfy a second requirement for standing: that the injury-in-fact be "fairly traceable" to the defendants’ unlawful conduct, as opposed to the unlawful conduct of entities who are not parties to the litigation. See, e.g., Bennett v. Spear, 520 U.S. 154, 168 (1997);Defenders of Wildlife, 504 U.S. at 560; Simon v. Eastern Ky. WelfureRights Org., 426 U.S. 26, 41-42 (1976).~-/
Plaintiffs argue that "the Complaint fully describes a simple, unattenuated chain of causation, stating plainly that the’ [d] efendants’ practice of entering "absconder" and "NSEERS violator" information into the NCIC and disseminating it to local police upon inquiry illegally causes and induces police to make arrests Congress has forbidden.’" P1. Br. at 14, quoting Compl. ¶ 60. The problem with this argument is that the defendants’ use of the NCIC to disseminate information about Absconders and NSEERS violators, while it may increase the likelihood that the affected aliens will ultimately be arrested, cannot affect the possibility that those aliens will be unlawfully arrested. As set forth in the defendants’ opening brief (at pp. 1013, 28-31 ), that possibility depends entirely on choices made by independent state and local law enforcement agencies which are not parties to this action. The lawfulness or unlawfulness of such agencies’ axrests of Absconders and NSEERS violators turns on whether States have given their local police the authority to arrest such violators, on whether local police who lack such
2_/ See also Heldman v. Sobol, 962 F.2d 148, 156 (2d Cir. 1992) ("To establish standing, a plaintiff must also demonstrate a causal nexus between the defendant’s conduct and the injury. The causation requirement ensures that the injury alleged is attributable to the defendant. The injury claimed ¯ . . must be fairly traceable to the governmental conduct claimed as illegal."). REPLY MEMORANDUM OF LAW Nat’l Council of La Raza v. Ashcroft, No. 03-CV-6324

authority choose to make such arrests anyway, and on what methods those police choose to

follow in making such arrests. Because the plaintiffs’ injuries, if any, derive from the alleged unlawfulness of their members’ arrests, rather than from the aacrests themselves, plaintiffs have not

alleged any injuries-in-fact which are fairly traceable to the defendants’ conduct.

Plaintiffs allege that police in "New York, Illinois, Minnesota, Connecticut, Florida,

and elsewhere have arrested immigrants .... similarly situated" to the plaintiffs’ members

(although not the plaintiffs’ members themselves), based on information obtained pursuant to

those States’ "polic[ies] or practice[s] of arresting ’absconders’ and/or alleged NSEERS violators

listed in the NCIC."’ Pl. Br. at 9, quoting Compl. ¶ 53; see also Compl. ¶ 68. Yet they have not

sued New York, Illinois, Minnesota, Connecticut, or Florida, or any of their munidpalities, nor

do they challenge any of the policies or practices of those States. If it is the plaintiffs’ belief that

these States have caused the plaintiffs’ members injuries by arresting them without the legal

authority to do so, or that they plan to make such arrests imminently, then plaintiffs’ claim for

declaratory and injunctive relief, if any, lies solely against those governmental entities.

An example aptly illustrates why the plaintiffs’ failure to sue the correct defendants

in this case entirely defeats their standing arguments. Assume that an individual-a U.S.

citizen-is indicted by a federal grand jury sitting in this District on federal criminal charges. The

individual absconds, and a judge of this court issues a bench warrant for his arrest. The Marshals

Service enters into the NCIC the particulars of the fugitive’s crime and indictment, along with

notice of the arrest warrant and identifying information about the fugitive. Some time later, the

individual is pulled over for a routine traffic violation by a state trooper in South Carolina or

Virginia. (In these two jurisdictions, state law seemingly precludes state and local police officials

from arresting persons for violations of federal law even in the face of a valid arrest warrant for

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federal criminal violations.3-/) The trooper submits an NCIC inquiry concerning the motorist and receives a positive hit as to the federal arrest warrant. For whatever reason (whether because he is unfamiliar with the state law precluding him from arresting the individual on the federal warrant, or because he willfully disobeys the law), the trooper arrests the defendant on the federal criminal charges despite his cleax absence of authority to do so under state law. He then detains the individual until the Marshals arrive to take him into federal custody.
In this situation, it is perhaps conceivable that, but for the inclusion of the information about the fugitive in the NCIC database and its dissemination to the state trooper, the trooper would not have arrested the individual But the decision to arrest the fugitive despite the absence of authority to do so was the trooper’s, not the Marshals’, and certainly not the FBI’s. Put another way, while this situation arguably demonstrates a causal ("but for") relationship between the federal agencies’ inclusion of information in the database and the arrest of the plaintiff, it does not demonstrate a causal relationship between the inclusion of that information and the unlawful arrest of the plaintiff. What made the fugitive’s arrest unlawful (if indeed it was) was not the federal government’s use of the NCIC but rather the independent decision of the trooper to arrest the fugitive despite his lack of lawful authority,z/

3_/ A recent opinion of the South Carolina Attorney General observes that "this Office has consistently concluded that state or local law enforcement officers do not possess the authority to enforce federal law," citing to 1966 and 1971 opinions. Opinion of the South Carolina Attorney General, March 6, 2002 (2002 WL399643). Section 15.2-1726 ofthe Virginia Code, meanwhile, provides in part that "no police officer of any locality shall have authority to enforce federal laws unless specifically empowered to do so by statute, and no federal law-enforcement officer shall have authority to enforce the laws of the Commonwealth unless specifically empowered to do so by statute."

_4/ To the extent that plaintiffs may be arguing that their in)ury stems from the fact that the FBI lacks the authority to enter and disseminate Absconder and NSEERS violator information in the NCIC, tainting any arrests which would not have taken place but for the inclusion of that information, the argument is without merit. First, as will be seen i@a, pp. 18-38, the notion that the FBI lacks such authority is entirely without merit. Second, even assuming that the entry of the information into the

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In characterizing the injury-in-fact which they claim confers standing, plaintiffs do not complain of a heightened risk that their members will be arrested by federal agents. They complain of a heightened risk that their members will be unlawfully arrested by state agents. But the fact that an independent actor is necessary to supply a link in the chain of causation leading from the FBI’s dissemination of the information in the NCIC to the allegedly unlawful arrest of the plaintiffs’ members by local police defeats any claim that their members suffered an injury which is fairly traceable to the FBI. See Simon, 426 U.S. at 41-42.5/
Taking the plaintiffs’ arguments to their logical conclusion, an organization which advocates on behalf of criminal defendants would, in the hypothetical example, have standing to sue the federal government to enjoin it from using the NCIC to disseminate any information concerning its members, on the theory that some of its members might be fugitives from federal arrest warrants, who might one day find themselves in South Carolina or Virginia, where they might be pulled over in a routine traffic stop, and then might encounter a trooper who, upon obtaining a positive NCIC hit, would arrest them despite the absence of lawful authority.

database is somehow unlawful, that fact does not in and of itself cause the ensuing arrest to be unlawful, for if the arrestee has committed a violation which lawfully subjects him to arrest, and the agency which effectuates the arrest has the authority to do so, the arrestee has not been injured by his arrest simply because he would have gotten away with his violation had the information supporting his arrest not been placed in the NCIC.

_5/ Critically, the court in Baur noted the necessity of a clear and direct causal link between
the actions of the defendant of which the plaintiff complains and the ensuing injury to the plaintiff. Where "the occurrence of the alleged future injury rest[s] on the independent actions of third-parties not before the court," it held, "the asserted injury [is] too speculative for standing purposes." 352 F.3d at 640, citing Lyons, 461 U.S. at 106, and North~vest Airlines v. FAA, 795 F.2d 195, 201 (D.C. Cir. 1986). Here, the "chain of contingencies" (Baur, 352 F.3 d at 641) leading from the defendants’ inclusion of Absconder and NSEERS information in the NCIC to the heightened risk of arrest of which plaintiffs complain "rests on the independent actions of third-parties not before the court."

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Indeed, taken even further, plaintiffs’ argument implies that any individual about whom the FBI maintains information in the database-from terrorists to fugitives to convicts to individuals wanted for violating an order of protection-would have standing to challenge the inclusion of information about him in the NCIC, merely by alleging that some police officer in some jurisdiction might some day arrest him under circumstances that render the arrest unlawful. The frivolousness of this argument is as self-evident as is its dangerousness.
Plaintiffs nevertheless argue that because the complaint contains a vague and conclusory allegation (in paragraph 51) that the defendants use the NCIC to somehow "encourage, cause, and induce state and loca1 police" to arrest immigrants listed in the NCIC database, they have alleged a sufficient nexus between the defendants and the unlawful arrests of their members to establish standing as against the defendants. Pl. Br. at 8. This argument, however, misses the mark. As the Second Circuit recently held in Baur, although "the standard for reviewing standing at the pleading stage is lenient, a plaintiff cannot rely solely on conclusory allegations of injury or ask the court to draw unwarranted inferences in order to find standing." 352 F.3d at 636-37. Or, as the Supreme Court put it, "pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he cottld be affected by the agency’s action." United States p. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688-89 (1973). In alleging conclusorily that the defendants use the NCIC to somehow "encourage, cause, and induce state and local police" to arrest immigrants listed in the NCIC database, the plaintiffs have asked this Court to draw unreasonable, and ultimately unprovable, inferences in order to find standing.

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We live in a federal system comprised of separate and coordinate sovereigns, each of which makes its own independent decisions as to the utilization of its police power. The FBI and ICE cannot force or direct a state or local police officer to aJcrest an Absconder or NSEERS violator (or any other person, for that matter), any more than they can direct the Royal Canadian Mounted Police to arrest an individual found in Canada who is wanted for arrest here. The most that federal agencies can do is to request, or perhaps urge, the state or local authorities to take an individual into custody on the basis of federal charges, and to provide those authorities with the information germane to the request. If the state authorities accede to the request in a manner that turns out to be unlawful, the federal agencies which made the request and provided the information cannot be held responsible for that illegality.
Some states have adopted policies authorizing or encouraging their local law enforcement agencies to cooperate with federal immigration authorities in various ways, including through the apprehension of aliens listed in the NCIC as wanted for arrest; other states have adopted policies limiting or precluding such cooperation.-~/ In all cases, the determination as to what to do with the information received from the FBI in response to an NCIC query is made by state agencies, and the federal government has no control over that determination]-/

6_/ See, e.g. P1. Br. at 4, citing Comp. ¶ 58 ("No uniform policy or practice governs the police use of the immigration records in the NCIC."); Compl. ¶¶ 52-53 (although some local jurisdictions have "resisted" this request, others have adopted a policy or practice of arresting Absconders and/or NSEERS violators based on information listed in the NCIC).

7_/ For this reason, plaintiffs’ allegation that the arrests of alien Absconders and NSEERS violators by state and local police "have typically occurred without notice to the arrested persons of their Miranda rights, and have resulted in the detention of such persons until transfer to the custody of defendants" (Compl. ¶ 55), is irrelevant. Obviously, the notion that federal agencies could be legally responsible for the decision of state and local authorities to engage in such actions is simply wrong.

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Plaintiffs seek to hold one sovereign (i.e., the defendants in this case) vicariously responsible for the allegedly unlawful acts of entirely separate sovereigns, which are not parties to this proceeding and not under the control of the federal government. Rather than suing to enjoin the allegedly illegal actions of the independent entities who are using the NCIC information in ways that allegedly injure the plaintiffs’ members, they are "shooting the messenger"-suing the compilers and distributors of that information. Such a suit, however, is not based on an actual injury-in-fact which is fairly traceable to the defendants.
B. Plaintiffs’ Allegations Concerning Other Forms of Alleged Injuries Are Also Insufficient to Confer Standing to Sue Defendants.
In addition to alleging that the defendants’ practice of including Absconder and NSEERS information in the NCIC injures them by increasing the risk of unlawful asrest, plaintiffs allege that the practice adversely affects their memb ers in three more collateral respects. First, plaintiffs argue that the defendants’ alleged practice has "created feas in immigraaat communities," "deters immigrants from communicating with state and local law enforcement officials when in need," and "inhibits immigrants from accessing vital emergency government services such as police and fire protection." Compl. ¶7 65-67, 74-75. See P1. Br. at 4, 12, 13, 16. Second, plaintiffs argue that the data entered into the NCIC are unreliable and contain "numerous inaccuracies," resulting in numerous individuals being classified as Absconders and NSEERS violators who should not be. Compl. 77 4, 39-42, 76. See P1. Br. at 3, 4, 5, 14. Third, plaintiffs argue, albeit rather inchoately, that the inclusion of Absconder and NSEERS violator data in the NCIC somehow violates the "privacy" rights of their members because that information is allegedly accessible to certain non-governmental entities. Compl. 77 44, 74, 75. See Pl. Br. at 5, 13, 16. All three of these axguments are entirely without merit.

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First, to the extent that Absconders may be inhibited from communicating with state and local law enforcement offidals, it is not because defendants disseminated information about them in the NCIC but because they are fugitives from justice-individuals who have no right to remain in the United States and who are attempting to extend their stay in this country illegally. Such individuals would naturally be predisposed to keep a low profile and to avoid contact with police, whether or not information about them is disseminated in the NCIC.s-/Indeed, all efforts at enfordng the immigration laws have the potential to cause some aliens to become less forthcoming to the police than they otherwise might be, yet there is no authority for the proposition that this potential in itself confers standing on aliens to challenge those enforcement efforts. For this reason, plaintiffs’ supposition that "enjoining defendants from disseminating the administrative warrants at issue herein via the NCIC will eliminate.., the chilling effect upon their cooperation with local law enforcement" (P1. Br. at 16) is devoid of logic.
Moreover, plaintiffs have failed to cite a single authority (because there is none) for the proposition that the ability to "communicate with state and local law enforcement officials when in need" is a constitutional or even a statutory right, the impairment of which constitutes an injury suffident to confer standing. As the defendants stated in their opening brief, Def. Br. at 11-13, the case law decisively rejects that proposition. See, e.g., Laird ~. Tatum, 408 U.S. 1, 11-14 (1972); UnitedPresb~yterian Church in the U.S.A.p. Reagan, 738 F.2d 1375, 1377-80 (D.C. Cir. 1984); Fifth Ape. Peace Parade p. Gray, 480 F.2d 326, 330-33 (2d Cir. 1973). Indeed, plaintiffs concede (Pl. Br. at 12 n.4) that a "chilling effect" allegedly caused by a challenged law

s_/ As the plaintiffs themselves concede, the aliens affected by the defendants’ alleged practice had a history of"underreporting" crimes and of minimizing contacts with government agencies even before the defendants’ alleged practice commenced. See P1. Br. at 1 1-12 ("immigrants already significantly underreport crimes and hesitate to cooperate with the police as witnesses when they fear deportation").

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enforcement practice is in itself insufficient to establish an injury-in-fact, and that plaintiffs must

instead show some concrete injury in addition to the chilling effect in order to obtain standing. Second, to the extent that plaintiffs claim their members may be injured by alleged

inaccuracies in the information concerningAbsconders and NSEERS violators which defendants

allegedly enter into the NCIC, such allegations are insufficient to confer standing on the

plaintiffs to raise the particular claims they raise here. Defenda~ats aclcnowledge that in Menard p. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974), and Tadton p. Saxbe, 507 F.2d 1116 (D.C. Cir. 1974),

the D.C. Circuit recognized a limited cause of action available to an individual plaintiff who

(1) establishes that the NCIC contains entries which inaccurately attribute to him a criminal

record, (2) demonstrates that the existence of that inaccurate record actuaJly and proximately

caused him injury, and (3) further establishes that the FBI failed to take reasonable measures to

safeguard the accuracy of the information in its criminal files. According to the D.C. Circuit,

such a plaintiff may sue to compel the FBI to modify its records so as to ensure the correct

classification and characterization of its information about the plaintiff. Menard, 498 F.2d at

1028-30; Tarltan, 507 F.2d at 1122-28.

Even assuming that Menard and Tarlton are still good law, they are of no help to

plaintiffs, since the allegations in their complaint would not support a cause of action under

those decisions. Plaintiffs have not identified any specific individual as to whom the NCIC

contains entries which inaccurately attribute a classification of Absconder or NSEERS violator.

They have not identified any specific individuals for whom the existence of an inaccurate record

is alleged to have actually and proximately caused an unlawful axrest. Nor have they alleged that

the FBI has failed to take reasonable measures to safeguard the accuracy of the information in

its NCIC files. The mere speculative possibility that one of plaintiffs’ members might be

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unlawfully arrested as the result of inaccuracies in the database does not constitute a "credible

threat" of imminent future injury, see, e.g., Presbyterian Church (USA) p. United States, 870 F.2d

518, 528-29 (9th Cir. 1989), or an injury which is real and immediate. See Golden p. Zwi&ler,

394 U.S. 103, 109 (1969). Moreover, the broad relief which the plaintiffs are seeMng here -

piz., a prospective, generalized prohibition on the FBI’s compilation and dissemination of an

entire class of information in the NCIC - is far more extensive than the limited, individualized,

retrospective relief which the D.C. Circuit allowed in MenaM and Tarlton, and there is no support

in either of those decisions for the type or extent of relief which the plaintiffs are seeking.

Third, to the extent that the plaintiffs may be inchoately alleging that the inclusion

of Absconder and NSEERS violator data in the NCIC somehow violates the "privacy" rights of

their members because that information is allegedly accessible to certain non-governmental

entities, such allegations are also insufficient to confer standing on the plaintiffs. The only

authority plaintiffs cite in support of this claim of injury is 28 C.F.R. § 20.1, in which the FBI

describes one of the many purposes of its regulations implementing 28 U.S.C. § 534 as being "to

protect individual privacy." See Pl. Br. at 13. But as the plaintiffs themselves concede, another

FBI regulation, 28 C.F.R. § 50.12(a), specifically authorizes the dissemination of NCIC records

to the non-governmental organizations whose access to the records forms the basis for the

plaintiffs’ claims of invasion of privacy.

Plaintiffs have cited no support, because there is none, for the proposition that

Absconders and NSEERS violators have a constitutional or even a statutory right to privacywith

regard to records of their immigration violations. The federal Privacy Act, by its express terms,

only protects the privacy of information concerning U.S. citizens and lawful permaaaent residents

("LPRs"). See 5 U.S.C. § 552a(a)(2). Because Absconders are, by definition, individuals who

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have received final administrative orders of removal, and since an LPR loses his status as such

upon the issuance of a final order of removal, see 8 C.F.R. § 1.1 (p), Absconders are not entitled

to any protection under the Privacy Act with regard to their immigration records. For this

reason, nothing in the law would preclude DHS, if it wished to do so, from establishing a

publicly available website, akin to the FBI’s "Ten Most Wanted" website, on which it would post

identifying information about Absconders with a view towards inviting the general public to

assist with their apprehension. Nor is there any privacy-related barrier to DHS’s use of the

NCIC to make information about these aliens available to certain non-governmental entities.

II.

PLAINTIFFS’ ARGUMENT THAT THE DEFENDANTS ARE NOT

AUTHORIZED TO USE THE NCIC TO DISSEMINATE ABSCONDER AND

NSEERS INFORMATION IS UTTERLY WITHOUT MERIT.

A. Use of the NCIC Is Authorized by the Plain Text of 28 U.S.C. § 534. As set forth in the defendants’ opening brief, the plain text of 28 U.S.C. § 534 provides ample authority for the defendants’ alleged practice of including Absconder and NSEERS violator information in the NCIC. See Def. Br. at 15-22. This is so for two basic reasons. First, because Absconders and willful NSEERS violators are individuals who by definition have committed a crime, the records documenting those crimes are "crime... records" within the meaning of 28 U.S.C. § 534. See Def. Br. at 15-18. Second, even if the information concemingAbsconders and NSEERS violators entered into the NCIC does not constitute "crime ¯.. records," the defendants’ authority to compile aaad maintain that information in the NCIC is authorized by the "other records" provision of 28 U.S.C. § 534. See Def. Br. at 18-22. Plaintiffs advance several arguments in rejoinder, all of which are without merit.

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1. "Crime... Records."

Plaintiffs first argue that the Absconder and NSEERS violator information allegedly

being entered into the NCIC does not constitute "crime... records" within the meaning of 28

U.S.C. § 534, because Absconders and NSEERS violators are not, in their view, criminals. P1.

Br. at 18-21. This argument rests on the allegations that the plaintiffs’ members who are the

subjects of the information "have been neither charged nor convicted of criminal offenses," and

that defendants "have not even obtained criminal warrants, on a showing of a probable cause

to believe that plaintiff members have committed these ’willful’ violations." Pl. Br. at 19.

Plaintiffs refer to the allegations in their complaint which contend that maaay Absconders were

"not present" in immigration court when they were ordered removed and did not receive notice

of their removaJ orders, and many aliens subject to the NSEERS registration requirements were

not aware of those requirements. Pl. Br. at 19-20.

Even if it is true that a particular Absconder or NSEERS violator has never been

charged with or convicted of a criminaJ offense and has never been made the subject of a

criminal warrant, the fact remains that, by definition, the entire class of Absconders and

NSEERS violators are at least subject to prosecution for violation of a criminal statute. When

an individual has received a final order of removal and "fails or refuses to depart from the United

States within a period of 90 days from the date of the finaJ order of removal," there is probable

cause to believe that that alien has committed a felony in violation of 8 U.S.C. § 1253(a)(1).

And when an alien willfully fails to register with the Government when required to do so, fails

to provide the Government with updated information as to his whereabouts, and/or provides

false or fraudulent information to the Government in connection with his alien registration,

there is probable cause to believe that that alien may have committed a federal misdemeanor in

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violation of 8 U.S.C. § 1306(a),(b),(c). If either of these individuals were to come into custody,9-/ the government could determine, in the exercise of its prosecutorial discretion, whether to press criminal charges under 8 U.S.C. §§ 1253 or 1306, whether to pursue the alien’s deportation under 8 U.S.C. § 1231 or 1227(a)(3)(A), or whether to take some other course of action. If the government were to choose to criminally prosecute the alien, then the records establishing the defendant’s status as an Absconder or NSEERS violator would certainly be available to the government to support the prosecution.~°/ It is for this reason that those records constitute "crime... records" within the meaning of 28 U.S.C. § 534.
Essentially, plaintiffs argue that "crime . . . records" do not include records which demonstrate the commission of a crime and which can be used in the prosecution of the crime. Pl. Br. at 20. But they never explain what else, in their view, the statutory words "crime... records" could possibly mean. If plaintiffs’ arguments ase to be credited, then no law enforcement agency would ever have the right to enter records into the NCIC which document potential criminal activity involving an individual unless that individual has alreadybeen charged with or convicted of a crime or been made the subject of an arrest warrant. Such an argument is, of course, frivolous, and would defeat the entire purpose of the NCIC.

9/ Plaintiffs do not dispute that the United States and its agencies (e.g., ICE) have the power to take the alien into custody, simply on the basis of a finding that the alien is an Absconder or NSEERS
violator. See, e.g., 8 U.S.C. § 1231 (a)(1)(A), (a)(2) (the Government is obliged to take all necessary steps to remove an alien from the United States within 90 days after issuance of a final order of removal, and is required by 8 U.S.C. § 1231 (a)(2) to take the alien into custody after the issuance of the final order of removal and to detain the alien until the removal can be effectuated); 8 U.S.C. § 1226 (alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States); 8 C.F.R. § 241.3(a).
10__/ The defendant would of course be able to raise as a defense to the prosecution any
arguments to the effect that he was unaware of the entry of the final order of removal or of the NSEERS registration requirements, etc.

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According to the legislative history of the statute’s predecessor, "crime... records" was intended to refer to "information about criminals that is not a matter of record." 72 CONg.

R~c. 1989 (71~t Cong., 2d Sess., Jan. 20, 1930 (Statement of Rep. Graham)); see also Reporters

Comm. for Freedom of the Press ~. United States Dep’t of Justice, 816 F.2d 730, 735-36 (D.C. Cir.), modified, 831 F.2d 1124 (D.C. Cir. 1987), rep’d on other grounds, 489 U.S. 749 (1989). Afortiori,

this definition subsumes investigative information about criminals axed suspects which

documents the nature of their criminal activity axed which can form the basis for a future

criminal prosecution. The mere fact that a decision may ultimately be made not to commence

criminal proceedings against the individual does not obviate the characterization of those

documents as "crime... records."

Plaintiffs’ reliance onMenard ~. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974), in support

of a more restrained definition of "crime... records" is misplaced. That case did not deal with

the category of information in the NCIC falling under the rubric of "crime... records," but

instead with the separate category described as "criminal identification records." The court of

appeals took pains to explain that "Congress intended to differentiate ’criminal identification’

from other information that the FBI is authorized to gather." 498 F.2d at 1028-29. The court

explained that "criminal identification records" referred to records of fingerprints which were

collected in connection with an arrest or conviction, which at the time comprised about 19

million of the 200 million fingerprint records the FBI had on file. Id. at 1021.

The issue in MenaM was whether the plaintiff, who had been arrested and detained

by the Los Angeles police but then released without charges being filed, was entitled to have a

record of his fingerprints removed from the portion of the NCIC’s file which consisted of

"criminal identification records." What the court ultimately ordered was not the complete

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expungement of the fingerprint records from the NCIC database, but rather their reclassification.

In other words, the court held that the FBI could not maintain a record of the fingerprints in its "criminal identification records," but it could continue to maintain those records in other parts

of the NCIC which did not relate to arrests and convictions and therefore did not carry with

them the stigma of a criminal record. Id. at 1028-29. The court specifically held that "record of an encounter with law enforcement agencies that did not result in arrest .... is information that

may aid FBI personnel to ’more effectively do their work,’" a circumstance which permits the FBI

to continue to maintain the fingerprint records in other portions of the NCIC which are not

cross-referenced to an arrest record. Id. at 1029, 1030. This interpretation of § 534 does not

contradict the construction of "crime... records" which defendants advocate; it supports it.

2.

"Other Records."

As defendants noted in their initial brief, the meaning of the "other records" clause

of § 534 is evident from the plain wording of the text: since the series immediately preceding

the words "other records" included "criminal identification records" and "crime" records, the

words "other records" must refer to some unspecified type of records which are not crime records

and not criminal identification records. Any other reading of the provision would render the

words "other records" superfluous. See Def. Br. at 18-22.

Plaintiffs contest this argument. See P1. Br. at 21-22. In doing so, they first argue

that the maxim of ejusdem generis precludes the defendants’ interpretation of the word "other"

in § 534. This argument lacks merit. The Supreme Court has repeatedly explained that ejusdem generis is no more than an aid to construction and is triggered only by uncertain statutory text.

See, e.g., Garcia p. United States, 469 U.S. 70, 74-75 (1984); United States p. Turkette, 452 U.S.

576,581 (1981);Harrison p. PPG Indus., 446 U.S. 578,588 (1980); United States p. Powell, 423

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U.S. 87, 91 ( 1975). Moreover, ejusdem generis simply requires courts to construe general words as being similar in kind to the more specific words which precede them in an enumeration, not as being exactly the same as the preceding items. Correctly applied, this canon plainly supports the defendants’ reading of the statute, not the plaintiffs’.
The enumeration in the statute reads, "identification, crimina] identification, crime, and other records." 28 U.S.C. § 534(a)(1). The second and third of these terms refer, at the very least, to records compiled for the purpose of facilitating the apprehension of persons who have violated the law and to bringing those persons to justice. The administrative warrants for the arrest of Absconders and NSEERS violators which the plaintiffs allege the defendants enter into the NCIC are manifestly of the same chaxacter as the "criminal identification, and crime... records" (including criminal arrest warrants, fugitive bench warrants, and other records of statutory violations) which various agencies enter into the database, and they are therefore amply captured within the "other records" clause of the statute.
Plaintiffs next argue that the defendants’ broad interpretation of "other records" would render superfluous legislative enactments over the past twentyyears adding new categories of records to § 534. P1. Br. at 22, 26-29. Defendants disagree. When a statutory enumeration contains a catchall "and other" provision expanding the overall reach of the statute, it is not uncommon for Congress to pass subsequent legislation adding new categories to the enumeration. Congress may do so for any number of reasons, including a desire to clarify or elaborate the scope of the statute, or a political desire to give legislative recognition to a specific class of statutory beneficiaries that previously only benefitted from the catchall term. When Congress passes such legislation, it is not necessarily saying that the authorization was not

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already present under the pre-existing "and other" clause, and it is not diluting the breadth of
that general provision simply by adding another specific provision to the enumeration.~ 1/
Thus, for example, when Congress passed the portion of the Missing Children Act of
1982, Pub. L. No. 97-292, 96 Stat. 1259 (codified at 28 U.S.C. § 534(a)(2),(3)), relating to the
entry of information related to missing persons and unidentified corpses into the NCIC, it was
not responding to a lack of pre-existing authority on the part of local police to enter these data
into the NCIC, but rather added the provision to encourage localities to use the database in
order to locate missing children. The legislative history of the statute states as follows:
One of the most difficult obstacles faced by the families of missing children is the lack of coordinated law enforcement procedures. While some local police departments have excellent resources and methods of finding children, or of identifying them once found, others have no procedures at all. Even more importantly, there is no uniformly used method to notify other law enforcement agencies that a child has been reported as missing .....
This legislation does not in any way alter the obligation of either State or federal law enforcement officials to search for missing children. It creates no new federal jurisdiction. The National Crime Information Center computer system is not designed to locate missing children-or anyone for that matter, only to identify the subject once found. In the case of missing children even the task of identification is rendered more difficult than in the case of adults, because few children maintain common identifiers such as a drivers license number, or a social security number. Fingerprints are rarely on file, and even height and weight descriptions are quicldy dated. Despite -or indeed because of-these limitations, the bill is intended to spur a greater attention to the unique problems of missing children

C)~i 2B NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 49.11 (6*h ed. 2000) (indicating that a subsequent legislative interpretation of a statute is not conclusive of the meaning of the former statute, and may either be read to indicate that the construction of the first statute is the same as the new enactment or to provide evidence that the prior statute meant the contrary of the new enactment).

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and to encourage local police to place that data ~hich does exist into NCIC’s computer sdstem. H.R. REP. No. 97-820, at 2-3 (1982), reprinted in 1982 U.S.C.C.A.N. 2552, 2553-54. Nowhere in the legislative history did Congress suggest that the FBI previously lacked the authority under 28 U.S.C. § 534 to collect information on missing persons or to disseminate that information to the NCIC’s end users. Rather, the impetus for the statute was "the underutilization of available resources by state and local law enforcement agencies, who have primary responsibility for locating missing persons." /d., at 3, 1998 U.S.C.C~.N. at 2554. Plaintiffs references to 28 U.S.C. § 534(e), which was added by the Violence Against Women Act ("VAWA’), Pub. L. No. 103-322, Title IV, § 40601(a), 108 Star. 1950 (Sep. 13, 1994), are similarly inapposite. See Pl. Br. at 22, 27-29. That statute relates to the dissemination of "information from national crime information databases consisting of identification records, criminal history records, protection orders, and wanted person records" for use in domestic violence and stalMng cases. As plaintiffs themselves concede, the original version of this bill adopted by the House of Representatives "was necessarily premised on the understanding that the NCIC statute already authorized DOJ to disseminate protection orders; a~l that was necessary was a direction from Congress to the Executive Branch to exercise its heretofore unused powers." Pl. Br. at 28, citing 140 CONe. REC. H2518-01 (daily ed. Apr. 20, 1994). Plaintiffs argue that the conference committee "abandoned [the House’s~ approach" and instead adopted a version of the bill which "added ne~ statutory authorization for entry of civil protection records into the NCIC." /d. at 28 (emphasis in original), citing H.R. CONF. REP. No. 103-711, at 161-62. This is incorrect.

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The provision ofVAWA upon which plaintiffs rely, 28 U.S.C. § 534(e)(2), which was
adopted by the conference committee report to which plaintiffs refer, provides as follows:
Federal and State criminal justice agencies authorized to enter information into criminal information databases may include -
(A) arrests, convictions, and arrest warrants for stalking or domestic violence or for violations of protection orders for the protection of pa~ties from stalldng or domestic violence; and
(B) protection orders for the protection of persons from stalldng or domestic violence, provided such orders are subject to periodic verification.
28 U.S.C. § 534(e)(2) (emphasis added). Contrary to the plaintiffs’ supposition, the italicized
portion of the quoted provision is not a grant of authorization which did not previously exist.
Plaintiffs do not and cannot dispute, for example, that information relating to "arrests,
convictions, and arrest warrants," referenced in 28 U.S.C. § 534 (e)(2)(A), is information which
the FBI was already authorized to maintain under the "criminal identification" and "crime...
records" clauses of 28 U.S.C. § 534(a)(1). Congress merely wished to clarify that the
information which Federal and State criminal justice agencies were authorized to enter into the
database includes orders related to domestic violence and stalldng cases. It made this
clarification in part to encourage those agencies to use the database for the purposes of compiling
and disseminating information germane to stalking and domestic violence cases, in part to ensure
that orders of protection entered into the database "are subject to periodic verification," and in
part to clarify who would have access to this category of information. Nothing in the VAWA
or its legislative history even intimates that the FBI did not already have the authority to
acquire, collect, classify, or preserve the information referenced in 28 U.S.C. § 534(e) prior to
the enactment of that statute.

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Plaintiffs also cite the provision in 8 U.S.C. § 1252c(b) which was enacted as part of
the Antiterrorism and Effective Death PenaltyAct of 1996 ("AEDPA"), Pub. L. No. 104-132,
Title IV, § 439, 110 Star. 1276 (Apr. 24, 1996). See Pl. Br. at 22, 29. The provision states that
the Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.
The referenced subsection (a) of 8 U.S.C. § 1252c, which is discussed at great length infra, pp.
41-44, authorizes State and local law enforcement officials to arrest and detain previously
deported felons, to the extent they are authorized to do so by State law. Plaintiffs extrapolate
from this circumstance the conclusion that subsection (b) only "provides statutory authority to
DOI to enter and disseminate information regarding previously deported felons." P1. Br. at 29.
This conclusion is incorrect. Nothing in the language or legislative history of 8 U.S.C.
§ 1252c(b) suggests that Congress believed that the Attorney General lacked authority to include
deported felon or other immigration information in the NCIC; indeed, the plain terms of the
statute make clear that the Attorney General already had such authority, and that Congress
simply wanted, by enacting the statute, to encourage him to exercise that authority by including in the NCIC the information necessary to effectuate the terms of subsection (a).~2/

12__/ Plaintiffs also rely on proposed legislation captioned the Clear Law Enforcement for
Criminal Alien Removal Bill of 2003, pending as H.R. 2671, 108*h Cong. (1st Sess. 2003), and as S. 1906,
108th Cong., § 104(b) (1st Sess. 2003). See Pl. Br. at 22, 29-30. However, plaintiffs’ reliance on pending legislation to give meaning to a previously enacted statute is wholly misplaced. See, e.g., County of Suffolk ~. FirstAm. RealEstate Solutions, Inc., 261 F.3d 179, 189-90 (2d Cir. 2001) ("Both First American and the State as amicus point to the existence of pending legislation or proposals for legislative action to prove their respective contentions that the Legislature intended FOIL to preclude or not to preclude a state agency’s assertion of its copyright. In this situation, however, attempting to extrapolate from these bills, which have not yet been enacted, what the Legislature that enacted FOIL intended with respect to a covered entity’s copyright is of questionable utility."). See also United States v. American TruckingAss’n, 310 U.S. 534,550

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The critical assumption on which plaintiffs’ argument is based is that the FBI cannot
collect any type of "other records" for dissemination through the NCIC unless Congress has
enacted a spedfic statutory provision authorizing the collection of that type of information. See,
e.g., Compl. ¶¶ 1-3, 26, 80. Plaintiffs offer no support for this assumption. To the contrary, the
defendants’ determination to utilize the NCIC to compile and disseminate information that
could lead to the enhanced enforcement of the immigration laws falls well within the broad range
of investigatory and enforcement authority which inheres in law enforcement agencies such as
the FBI and ICE. As the Supreme Court stated in Dow Chemical Co. p. United States,
When Congress invests an agency with enforcement and investigatory authority, it is not necessa{y to identify explicitly each and e~e{y technique that may he used in the course of executing the statutory mission. Aerial observation authority, for example, is not usually expressly extended to police for traffic control, but it could hardly be thought necessary for a legislative body to tell police that aerial observation could be employed for traffic control of a metropolitan area, or to expressly authorize police to send messages to ground highway patrols that a particular over-the-road truck was traveling in excess of 55 miles per hour .... Regulatory or enforcement authority generally carries ~vith it all the modes of inqui{y and investigation traditionally employed or useful to execute the authority granted.

(1940) ("We do not think it can be said that the action of the Senate and House of Representatives on this pending transportation legislation throws much light on the policy of Congress or the meaning attributed by that body to § 204(a).").
In any event, the legislation would do much more than "allow entry into the NCIC of the very records for which defendants already claim statutory authority." P1. Br. at 29. The draft legislation would require DHS to enter into the NCIC all information which it may have "on any person who has violated any immigration law of the United States." H.R. 2671, 108th Cong. (1st Sess. 2003), § 104(a). The
legislation moreover "reaffirm[s] the existing general authority" on the part of "law enforcement personnel of a State or a political subdivision of a State... to investigate, apprehend, detain, or remove aliens in the United States . .. [and] in the enforcement of the immigration laws of the United States," id. § 101, and it withholds federal funds from States which refuse to enact "a statute that expressly authorizes law enforcement officers of the State, or of a political subdivision within a State, to enforce Federal immigration laws in the course of carrying out the officer’s law enforcement duties .... " Id., § 102.

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476 U.S. 227,233 (1986) (emphasis added). On the basis of the authorities cited here and in defendants’ opening brief, the Court should find that the plain language of 28 U.S.C. § 534 authorizes the defendants to maintain and disseminate the records in question.
In the alternative, if the Court were to determine that the language of section 534’s "other records" clause is ambiguous with regard to whether it authorizes the defendants to maintain and disseminate the records in question, then it should give effect to the FBI’s reasonable interpretation of that provision. As the agency responsible for administering the statute, the FBI is the agency tasked with determining which information is to be entered into the database and how and to whom it is to be disseminated. Its determination that section 534 permits it to accept and disseminate in the NCIC the information concerning Absconders and NSEERS violators which is at issue here is reasonable, given the text and history of the statute, and that determination is entitled to deference. See Chepron U.S.A., Inc. p. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984). At the very least, it is entitled to "respect." See, e.g., Skidmore p. Swift & Co., 323 U.S. 134, 140 (1944).
B. The Defendants’ Use of the NCIC Is Authorized by the Legislative History of 28 U.S.C. § 534.
Plaintiffs accuse the defendants of having offered % truncated version of the origins and development of 28 U.S.C. § 534," and proceed to present a fairly lengthy account of what they believe to be the legislative history of that statute. P1. Br. at 23-30. While the plaintiffs’ analysis has the trappings of erudition, it suffers from two major flaws. The first is that they have provided the legislative history of the wrong statute. The second is that their account of American history is simply wrong.

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As set forth in the defendants’ initial brief (Def. Br. at 18-22), section 534 is the product of a 1966 statute which combined and reorganized two predecessor provisions: 5 U.S.C.

§ 300 (1964) and 5 U.S.C. § 340 (1964). See historical and statutory note following 28

U.S.C.A. § 534 (2004), citing Pub. L. No. 89-554, § 4(c), 80 Star. 378, 616 (Sep. 6, 1966).

Section 300 was the provision which had authorized the FBI to collect, preserve, and exchange

"identification and other records." See Department of Justice Appropriations Act for fiscal year

1965, Pub. L. No. 88-527, title II, § 201, 78 Star. 717 (Aug. 31, 1964), codified at 5 U.S.C.

§ 300 and historical note following (1964) (emphasis added); see also 1964 U.S.C.C.A.N. 815;

historical and statutory note following 28 U.S.C.A. § 534. In contrast, section 340 was the

provision which had authorized the FBI to collect, preserve, and exchange "criminal identification

and other crime records." See Act of June 11, 1930, Pub. L. No. 71-337, ch. 455, 46 Star. 554,

codified at 5 U.S.C. § 340 (1964) (emphasis added).

In their brief, plaintiffs provide several pages of citations to Congressional floor

debates and committee reports, and they characterize those citations as constituting the

legislative history of § 534. See Pl. Br. at 23-25. However, all of these citations relate only to

the history of 5 U.S.C. § 340 and have nothing whatsoever to do with the history of 5 U.S.C.

§ 300. This is a critical flaw, for two reasons. First, as seen above, the broad scope of 28 U.S.C.

§ 534(a)(1) derives primarily from its use of the clause "and other records." To understand the

meaning of that clause, one needs to look at the history of the statute -5 U.S.C. § 300-which

actually contained it. The history of section 340, dted by the plaintiffs, has absolutely nothing

to do with that clause. Second, the historical context inwhich Congress enacted 5 U.S.C. § 300,

including its "other records" terminology, demonstrates clearly why the current 28 U. S.C. § 534

authorizes the FBI to include in the database the precise information at issue here.

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During World War I, the FBI acquired responsibility for enforcing the Espionage, Selective Service, and Sabotage Acts. 13/To fulfill this responsibility, the FBI had set up a General Intelligence Division ("GID"), which was responsible for investigating enemy aliens as well as suspected anarchists and communists.14/ In the wake of World War I and the Bolshevik Revolution in Russia, the GID was given specific responsibility for enforcing the Sedition Act of 1918 (ch. 75, 40 Stat. 553), which allowed the summary deportation of any alien deemed subversive; the Alien Act of 1919, which authorized the arrest, detention, and deportation of various classes of aliens, including communists and anarchists; and the Anarchist Act of 1920 (ch. 251, 41 Stat. 1008 (]une 5, 1920)), which permitted the exclusion or deportation of aliens who believe in or advocate the overthrow of the Government.
Many of the actions undertaken by the GID at that time were aimed at responding to the numerous international threats to American society and its democratic system of government.15/Among these threats were repeated acts of terrorism undertaken by international anarchists and other aliens bent on attacking the American way of life: bombs destroyed the homes of major city mayors, state legislators, judges, industrialists, and the Attorney General,

13__/ Much of this historical background is taken from SANFORD I. UNGER, FBI 43-55 (1976). See also www. fbi. gov/libref/historic/earlydays.ht m, "History of the FB I: Early Days 191 O- 1921" (last visited 7/16/2004).

See www.fbi.gov/libref/historic/lawle ss.ht m "History of the FBI: Lawless Years 1921-1933" (last visited 7/16/2004).
15__/ See, e.g., Nancy Murray and Sarah Wunsch, Civil Liberties in Times of Crisis: Lessons from
Histo~, 87 MASS. L. REV. 72,77 (2002) ("As the country endured strikes, race riots, and bombings, a sense of hysteria grew .... I. Edgar Hoover was asked by Attorney General A. Mitchell Palmer to draw up a list of radicals - he soon had a card index of 200,000 names .... Palmer insisted that... ’the "Reds" were criminal aliens, and secondly, that the American Government must prevent crime ’ Palmer pushed vigorously for an Immigration Act to allow for the deportation of aliens who were anarchists and immigrants active in certain trade unions " (quoting A. Mitchell Palmer, Tke Case Against tke Reds, in THE FEAR OF CONSPIRACY (David Brion Davis ed. 1971))).

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and additional bombs were intercepted before they reached such intended recipients as the Chief ]ustice of the United States and numerous leading industrialists.16/
It was in this context that Congress resolved to provide the FBI with the investigative and informational resources which it needed to respond effectively to these international threats.17/Thus, in 1921, Congress appropriated funds to permit the FBI to conduct "such other investigations regarding offidal matters under the control of the Department of Justice or the Department of State as may be directed by the Attorney General." Act of March 1, 1921, ch. 89, § 1, 41 Star. 1156, l175;seealsoActofMarch 4, 1921, ch. 161, § 1, 41 Stat. 1367, 14101411. By its plain terms, this statute was broad enough to authorize the FBI, inter alia, to collect the records it needed to investigate potential violations of the Mien, Sedition, and Anarchist Acts, all of which were "official matters under the control of the Department of ]ustice." Congress passed similas appropriations in subsequent years, modifying the wording slightly to specifically authorize the FBI to collect and exchange records germane to its law enforcement mandate, until in 1932 it adopted the language "identification and other records" which came to be codified in 5 U.S.C. § 300. It then used this identical phrase in each iteration of the statute passed between 1932 and 1965. See Department of ]ustice Appropriations Act for fiscal

16__/ "On June 2, 1919, bombs went off in eight cities. One detonated in the Massachusetts
Legislature. A New York postal clerk found 34 additional bombs in the mail addressed to such people as J.P. Morgan, John D. Rockefeller, and Attorney General Palmer .... Before 1920 was over, the whirlwind hit Wall Street in the form of a bomb that exploded in September 1920, killing 33 and wounding over 200." Murray and Wunsch, supra note 15, at 77-78.
17__/ See, e.g., Murray and Wunsch, supra note 15, at 78 (during the 1920s, the General
Intelligence Division compiled an index of 450,000 names); Daniel ]. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. CAL. L. REV. 1083, 1110 (2002) ("In a climate rife with fear of ’Reds," anarchists, and labor unrest, Congress tasked the [FBI] with addressing these terrorist threats. Under the direction of a young J. Edgar Hoover, the [FBI] developed an extensive index of hundreds of thousands of radicals.").

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year 1965, Pub. L. No. 88-527, title II, § 201, 78 Stat. 717 (Aug. 31, 1964), codified at 5

U.S.C. § 300 and historical note following (1964); see also 1964 U.S.C.C.A.N. 815; historical

and statutory note following 28 U.S.C.A. § 534.

Meanwhile, in 1930, Congress enacted the statute which later came to be codified at

5 U.S.C. § 340 (1964). SeeAct oflune 11, 1930, Pub. L. No. 71-337, ch. 455, 46 Star. 554.

That provision established and funded an entirely different division of the FBI, known as the

Division of Identification and Information ("DII"), which was "vested with the duty of

acquiring, collecting, classifying, and preserving criminal identification and other crime records and

the exchanging of said criminal identification records with the duly authorized officials of

government agencies, of States, cities, and penal institutions." Id., codified at 5 U.S.C. § 340

(1964) (emphasis added).

The historical context in which the DII was established and funded was entirely

different from the context surrounding the GID’s formation. The Department of Justice had

established a Bureau of Criminal Identification in 1905 in order to provide a centralized

reference collection of fingerprint identification cards. In 1907, the collection was moved, as a

money-saving measure, to Leavenworth Federal Penitentiary in Kansas, where it was staffed by

convicts. Suspicious of this arrangement, state and local law enforcement agencies refused to

cooperate with the Bureau of Criminal Identification and instead formed their own centralized

fingerprint identification bureau under the auspices of the Committee on Uniform Crime

Reports of the International Association of Chiefs of Police. In 1924, Congress was persuaded

to merge the two fingerprint identification collections under FBI administration in Washington.

It did this with the enactment in 1924 of an appropriation of funds to enable the Department

of Justice "to establish a program to collect and preserve fingerprints and other criminal

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identification records" and to exchange such information with "’officials of States, cities and other institutions.’" United States Dep’t of Justice p. Reporters’ Comm. for Freedom of the Press, 489

U.S. 749, 751 (1989) (quoting Act of May 28, 1924, Pub. L. No. 68-153, title II, ch. 204, 43

Stat. 217). Law enforcement agencies across the country then began contributing fingerprint

cards to the FBI by 1926, and by the late 1920s, the FBI had established the Uniform Crime

Reporting ("UCR") Program administered by the DII. It was to support the UCR Program that

Congress in 1930 enacted the "criminal identification and other crime records" legislation that

eventually became 5 U.S.C. § 340. Seegeneralld x~wv.fJoi.gov/qibref/historiceqawless.htm, "History of the FBI: Lawless Years 1921-1933" (last visited 7/16/2004).

As noted above, in 1966 (one year before the NCIC was established), Congress chose

to combine these two statutory provisions and transfer them to Title 28 as the new 28 U.S.C.

§ 534. See Pub. L. No. 89-554, § 4(c), 80 Stat. 616 (Sep. 6, 1966), set forth at 1966

U.S.C.C.A.N. 752. In doing so, Congress combined the "identification and other records"

phrase from 5 U.S.C. § 300, and the "criminal identification and other crime records" from 5

U.S.C. § 340, to create the new operative wording for 28 U.S.C. § 534: "identification, criminal

identification, crime, and other records."

When Congress first enacted the "identification and other records" language in 1932,

it knew full well what range of information it was authorizing the FBI to collect, and it not only

knew but in fact expected that that range would continue to include information related solely

to immigration enforcement. As is the case today, the FBI in 1932 was not the government

agency primarily tasked with enforcement of the nation’s immigration laws, but Congress

believed it appropriate to authorize the FBI to lend its substantial intelligence-gathering and

information-disseminating abilities to support that enforcement. The fact also remains that,

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each year from 1932 to 1965, Congress passed legislation authorizing the FBI to collect the same

range of "identification and other records" that it had initially authorized in 1932.

When Congress finally got around to revising the wording of the statute, in 1966, it

could have easily stripped the FBI of its authority to maintain the wide range of "identification

and other records" which the FBI had been authorized to collect for decades, had it wanted to

do so. See Def. Br. at 21. It chose not to, and instead deliberately included the language from the previous 5 U.S.C. § 300; see Pub. L. No. 89-554, § 7(a), 80 Stat. 61 1,616 (1966).~s/

This deliberate legislative conduct over the last seven decades years speaks volumes

about the meaning of the operative language of the statute, especially since it is consistent with

the statute’s plain language. Plaintiffs’ allegation that the inclusion of Absconder and NSEERS

violator information in the NCIC database exceeds the FBI’s statutory authority under 28

U.S.C. § 534 is entirely without merit.

C.

The Defendants’ Use of the NCIC Is Authorized by the Plain Text of

Numerous Immigration Statutes and Regulations.

As the defendants argued in their opening brief, the inclusion in the NCIC of the information at issue in this case is specifically authorized by a multitude of immigration statutes and regulations, in addition to the authorization provided in 28 U.S.C. § 534. See Def. Br. at 23-26. Plaintiffs describe these statutes and regulations as "grab-bag" and "hodgepodge." P1.

~s__/ Plaintiffs’ argument as to congressional rules that "prohibit amendment by appropriation"
is entirely inapposite. See P1. Br. at 26. Plaintiffs state that "the 1930 statute was not amended by the broader language of any subsequent appropriations bills." However, defendants have never argued that the former 5 U.S.C. § 340 was "amended by" the appropriations statutes which were codified in 5 U.S.C. § 300. Until they were merged in 1966, the two statutes were entirely separate, funded two separate divisions of the FBI, and provided the FBI with two separate sets of authorization with regard to the collection and dissemination of information. Section 340 was not amended to include the broader authorization from section 300 until the 1966 statute was passed, merging the two previous provisions and transferring them to 28 U.S.C. § 534. As the 1966 statute was not an appropriations statute, there was no violation of any purported rule prohibiting amendment by appropriation.

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Br. at 32-34. But in the end, it is the plaintiffs who "are mistaken" (P1. Br. at 32) in their view that the provisions cited by the defendants do not provide authority for the defendants’ actions.
Plaintiffs first attackthe government’s citation to the Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA"),~9/a statute which expressly requires ICE to operate a computer database which "shall be used to assist Federal, State, and local law enforcement agencies in identifying and locating aliens who may be subject to removal by reason of their conviction of aggravated felonies, subject to prosecution under [8 U.S.C. § 1325], not lawfully present in the United States, or otherwise removable." See Pl. Br. at 32-33. Plaintiffs state that this provision "was an appropriation measure to effectuate the creation of an entirely distinct database, the Criminal Mien Tracldng Center." Id, at 32. However, as the plaintiffs themselves acknowledge lower on the same page of their brief, the Criminal Mien Tracking Center is not a database, but rather a component of the DHS which is also known as the Law Enforcement Support Center, or LESC, and which is located in Burlington Vermont. Id, at 32-33, quoting 142 CONG. REC. $4405-01 (daily ed. Apr. 30, 1996) (statement of Sen. Leahy), and tiring S. REp. No. 104-249, at57 (1996); see also Compl. ¶ 35.
Plaintiffs go on to argue that "the 1994 VCCLEA appropriation is no authority whatsoever for the FBI’s dissemination of immigration records via its NCIC database in Clarksburg, West Virginia." Pl. Br. at 33. This is a rather pecttliar asgument. For the plaintiffs have sued not only the FBI (accused of disseminating the information) but also the DHS (accused of entering the information). Indeed, their complaint for declaratory and injunctive

19__/ Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, Title XIII,
} 130002, 108 Star. 1796 (Sep. 13, 1994), as amended byAEDPA, Pub. L. No. 104-132, Title IV, }432, 110 Star. 1273 (Apr. 24, 1996), as amended by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, Title III, }} 308(g)(5)(B), 326,327, 110 Star. 3009-623, 3009630 (Sept. 30, 1996), codified as a note following 8 U.S.C. } 1226.

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relief seems directed not primaxily at the FBI and its essentially clerical and technical functions of maintaining and managing a computer database, but at DHS and ICE, which are responsible for compiling, verifying, entering, updating, and ultimately removing the information regasding Absconders and NSEERS violators that goes into, and is disseminated via, that database. As the plaintiffs allege in their complaint, "the Law Enforcement Support Center (’LESC’), a unit of DHS located in Burlington, Vermont has the responsibility to enter ’absconder’ and alleged ’NSEERS violator’ records directly into the NCIC Immigration Violators File. Defendant DHS is the only agency authorized to enter and maintain these records." Compl. ¶ 35.2°--/
Defendants have never argued that the VCCLEA authorized the FBI to disseminate immigration information using the NCIC (that authorization, as we have seen, comes from 28 U.S.C. § 534). What defendants instead have argued, and what plaintiffs fail to rebut, is that the statute not only authorizes but requires DHS and its LESC component to enter information into the NCIC which would allow state and local law enforcement agencies to assist "in identifying and locating aliens who may be subject to removal by reason of their conviction of aggravated felonies, subject to prosecution under [8 U.S.C. § 1325], not lawfully present in the United States, or otherwise removable."21/This, of course, includes the Absconder and NSEERS

20__/ See 28 C.F.R. § 20.37 ("It shall be the responsibility of each criminal justice agency contributing data to the IN CIC] to assure that information on individuals is kept complete, accurate, and current so that all such records shall contain to the maximum extent feasible dispositions for all arrest data included therein.").

2A_/ Plaintiffs argue that the computer records system authorized by the VCCLEA is limited to a system of records concerning aliens who have been convicted of an aggravated felony, based on preambular language in the appropriations provision which states that the Commissioner shall act "under the authority of [8 U.S.C. § 1226(d)]." Pl. Br. at 33. This argument is without merit. The language of VCCLEA § 130002 (a) clearly describes a computer database which is far broader in scope than the system described in section 1226(d) and which is not limited to information about aggravated felons. In fact, if the system described in VCCLEA § 130002(a) was intended to be limited to aggravated felons, it would be entirely redundant of 8 U.S.C. § 1226(d), and no further statute would have been necessary.

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violator information at issue here. See Def. Br. at 23-24. The presence of such authority is fully dispositive of the plaintiffs’ contention that defendants acted ultra pires, for if DHS has explicit statutory authority to enter the information into the NCIC database, then the FBI clearly has the authority to maintain and disseminate that information.
Finally, plaintiffs attack the defendants’ reliance on 8 U.S.C. §§ 1373, 1644 as additional sources of authority for the defendants’ actions. See Pl. Br. at 35; Def. Br. at 24-25. This attack fails. While the plaintiffs may be correct that the legislative target of these provisions was local "anti-snitch" ordinances, see City of New York p, United States, 179 F.3d 29, 31 (2d Cir. 1999), plaintiffs are incorrect in assuming that that target limits the scope of the provisions. For by their plain language, these provisions do not merely prevent municipalities from enacting ordinances which restrict the right of their employees to exchange information with federal immigration authorities concerning the immigration status of any individuals. Rather, they bas any "person or agency"-which would clearly include the plaintiffs herein-from attempting to "prohibit, or in any way restrict, a Federal... entity" from exchanging "with any other Federal, State, or local government entity," or from "maintaining," any "information regarding the immigration status, lawful or unlawful, of any individual." 8 U.S.C. §§ 1373(b)(2),(3), 1644. Although plaintiffs may be correct that these statutes do not, in themselves, authorize the defendants’ alleged actions in including Absconder and NSEERS violator information in the NCIC, they dearly contemplate that such information would be exchanged among federal, State, and local government agencies, and, more importantly, expressly bar plaintiffs’ current efforts to interfere with those information exchanges.

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III.

PLAINTIFFS’ ARGUMENT THAT THE DEFENDANTS’ ALLEGED USE OF

THE NCIC IS UNLAWFUL BECAUSE IT CAUSES LOCAL POLICE TO MAKE

IMMIGRATION ARRESTS THAT CONGRESS HAS FORBIDDEN IS

ENTIRELY WITHOUT MERIT.

A. Plaintiffs’ Argument that Congress Has Occupied the Field of Immigration Regulation, Barring the Defendants’ Alleged Use of the NCIC to Disseminate Immigration Information, is Without Merit.

Plaintiffs argue that Congress has baxred state and local police from arresting aliens for immigration violations by enacting an "elaborate statutory scheme of federal immigration and enforcement." Pl. Br. at 36. They argue that "Congress holds a plenary and exclusive power to regulate immigration, and its exercise of this power wholly ousts any state role. The power to regulate immigration ’belongs to Congress, a~ad not to the states.’" Pl. Br. at 37, quoting Chy Lung~. Freeman, 92 U.S. 275, 280 (1875); see also Pl. Br. at 37-38. To the extent that plaintiffs purport to argue that Congress has "occupied the field" when it comes to immigration regtflation and enforcement, leaving no room for state involvement, the argument fails.22/
The specific governmental action at issue in this case does not involve any attempt by any state to regulate immigration, or to alter the benefits, rights, and prerogatives which Congress has made available to various classes of aliens. Nor does it involve any attempt by a~ay state to enact or enforce local immigration provisions which conflict with or supplement federal law. Plaintiffs have not sued any state or local agencies; do not seek to invalidate any state or local statutes, regulations, or ordinances; and do not ask to enjoin any state action. What this

22__/ "Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law." Maryland v. Louisiana, 451 U.S. 725, 746 (1981). Accordingly, in the absence of express preemptive language, federal courts should be "reluctant to infer preemption." Building & Constr. Trades Council of Metro. Dist. v. Associated Builders & Contractors" of Mass./R.L, Inc., 507 U.S. 218, 224 (1993).

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case has to do with, instead, is the alleged decision by federal agencies to disseminate information to State and local police about various classes of immigrants.
Put another way, this case does not implicate the "field" of immigration regulation; at best, it affects the "field" of immigration information. Any claim that Congress has occupied that field, so as to leave no room for State and local partidpation, is unsupported by law, as numerous provisions in the INA not only allow but in fact require ICE to exchange information about immigrants with State and local authorities.23/ Plaintiffs’ citations to cases such as Chy Lung, De Canas p. Bica, 424 U.S. 351 (1976), Toll p. Moreno, 458 U.S. 1 (1982), Graham p. Richardson, 403 U.S. 3 65 ( 1971 ), and the like (see Pl. Br. at 3 7-3 8), are therefore inapposite, and their arguments concerning field preemption are irrelevant.

23__/ See, e.g., VCCLEA, supra pp. 36-38 and nn. 19-21 (expressly requiring ICE to operate a
computer database which "shall be used to assist Federal, State, and local law enforcement agencies in identifying and locating aliens who may be subject to removal by reason of their conviction of aggravated felonies, subject to prosecution under [8 U.S.C. § 1325], not lawfully present in the United States, or otherwise removable."); 8 U.S.C. § 1357(g)(10) (no requirement that an officer or employee of a State or one of its political subdivisions enter into a formal agreement with the Attorney General in order "to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States," or "otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States."); 8 U.S.C. § 1365 a(f) (2) (authorizing the Attorney General to provide access to state and local law enforcement officials to the data contained in the integrated entry and exit data system); 8 U.S.C. § 1373 (providing that no federal, state, or local government entity or official may interfere with any other government entity or official’s communication with the ICE "regarding the citizenship or immigration status, lawful or unlawful, of any individual"; precluding any person or agency from prohibiting or restricting "a Federal, State, or local government entity" from m aintaining information about "the immigration status, lawful or unlawful, of any individual," or from exchanging such information with ICE or any other federal, state, or local government entity; and imposing on ICE an obligation to respond to any inquiry by any federal, state, or local government agency "seeking to verify or ascertain the citizenship or immigration status of any individual . . . for any purpose authorized by law, by providing the requested verification or status information."); 8 U.S.C. § 1644 (same).

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B. Plaintiffs’ Efforts to Refute Defendants’ Showing that State Police Have Inherent Authority to Make Federal Immigration Arrests Fail.
Plaintiffs seem to concede that the authority of state police to arrest individuals for violations of federal law is not limited to those instances in which they are exercising delegated federal power but instead inheres in the States’ status as sovereign entities. See P1. Br. at 35-36. But they argue that, "whatever the state-law powers possessed by the police to make arrests for federal offenses-in the immigration area or any other area-as to immigration arrests, Congress has preempted such authority." Id. In support of this argument, they cite to 8 U.S.C. § 1252c, which they read as explicitly permitting "local immigration enforcement in narrowly circumscribed areas," and they contend that this provision would be "wholly superfluous" if states possessed the inherent authority to which the defendants referred. P1. Br. at 39-43.
This precise argument was emphatically rejected by the only appellate court ever to have squarely considered it. See United States p. Vasquez-Alparez, 176 F. 3 d 1294 ( 10th Cir.), cert. denied, 528 U.S. 913 (1999). In that case, the government had argued that "state and local law enforcement officers are empowered to arrest for violations of federal law, as long as such arrest is authorized by state law’-an argument which, incidentally, the court found to be correct as a matter of law. 176 F.3d at 1296-97. In response, Vasquez cited to the same statutory provision upon which plaintiffs rely here-piz., 8 U.S.C. § 1252c-and argued that all arrests not specifically authorized by that provision are prohibited by it. 176 F.3d at 1296-97.
In analyzing the arguments on both sides, the Tenth Circuit first looked at the structure and wording of the statute, and it held as follows:
It is clear from the.., clause-"to the extent permitted by state and local law’-that Congress did not intend to preempt state and local law when it granted authority to

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arrest illegal aliens to state and local law enforcement officers. Indeed, the exercise of that power is specifically made dependent on state and local authorization. The second clause of the introductory language expressly negates any intent to preempt state-law limitations on state or local authority to arrest, and strongly suggests an intent to rely solely on state-law authorization to arrest, rather than to broaden or augment such authorization. It is implausible to read any preemptive intent into the immediately preceding clause.
Id. at 1298. The Tenth Circuit then looked at the legislative history of the provision, including
the very statements by Representative Doolittle upon which the plaintiffs rely on page 40 of
their memorandum. Based on this history, the court said, "the purpose of § 1252c was to
displace a perceived federal limitation on the ability of state and local officers to arrest aliens in
the United States in violation of Federal immigration laws.2~/This legislative history does not
contain the slightest indication that Congress intended to displace any preexisting enforcement
powers already in the hands of state and local officers." Id. at 1298-99.
The court then considered Vasquez’s arguments, identical to those advanced by
plaintiffs here, to the effect that the design of section 1252c implied an intention by Congress
to preempt the authority of state and local police to arrest aliens for immigration violations. The
panel’s reasons for rejecting those arguments are so germane to the case at bar as to be worth
quoting at some length:

The opinion contains a footnote here which is very germane to the case at bar: "Unfortunately, during the floor debate on § 1252c, Representative Doolittle did not identify which ’current Federal law’ prohibited ’State and local law enforcement officials from arresting and detaining criminal aliens.’ Neither the United States nor Vasquez has identified any such preexisting law. Furthermore, this court has not been able to identify any pre-§ 1252c limitations on the powers of state and local officers to enforce federal law. In fact, as set out above, this court has held that state lawenforcement officers have the general authority to investigate and make arrests for criminal violations of federal immigration laws. See United States v. Salinas-Calderon, 728 F.2d 129 8, 13 01-02 ( 10th Cir. 1984)." Vasquez-Alvarez, 176 F.3d at 1299 n.4.

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This court finds no federal preemption of state law implicit in the design of § 1252c. As noted by the United States, Vasquez’s argument in favor of implied preemption is based solely on the ma~xim of statutory construction expressia unius exclusia alterius (expression of one thing is the exclusion of another). That is to say, when Congress granted arrest power to state and local police officers in certain circumstances, it impliedly precluded the exercise of that power in all other circumstances .... We conclude that the canon is overcome here by § 1252c’s legislative history and by subsequent Congressional enactments providing additional nonexclusive sources of authority for state and local officers to enforce federal immigration laws.

As discussed at length above, § 1252c’s legislative history demonstrates that the purpose of the provision was to eliminate perceived federaJ limitations which, according to Representative Doolittle, ’tied the hands of our State and local law enforcement officials.’ 142 CONG. REC. 4619 (1996) .... There is simply no indication whatsoever in the legislative history to § 1252c that Congress intended to displace preexisting state or local authority to arrest individuals violating federal immigration laws.

In addition to this compelling legislative history, we note that in the months following the enactment of § 1252c, Congress passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws. ¯ . . This collection of statutory provisions evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws. Viewed against this backdrop, Vasquez’s claim that allowing state and local officers to arrest illegal aliens pursuaaat to preexisting state or local authority would impede the accomplishment of Congress’ purposes and objectives in enacting § 1252c is particularly unconvincing.

/d. at 1299-1300¯

The Tenth Circuit concluded by considering Vasquez’s argument, also raised by

plaintiffs here, that recognition of the states’ inherent authority to arrest for federal immigration

violations would essentiaJly render the statute superfluous. The panel concluded that, if the

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statute was superfluous, it was because the sponsoring legislator, Rep. Doolittle, was mistaken
in his assumption that state and local police did not already possess the powers conferred by the
statute. As the court explained, the mere fact that the statute would be rendered superfluous
by the court’s construction did not render that construction incorrect:
Both the plain language and legislative history of § 1252c reflect that Congress intended the provision to displace perceived Federal limitations on the authority of state and local officers to arrest "criminal illegal aliens." Nevertheless, as noted above, neither of the parties have identified, and this court has not found, any such extant federal limitation on the authority of state and local officers. See supra note four [note 24 above]. Accordingly, it might be argued that this court’s interpretation of § 1252c leaves the provision with no practical effect. That mason standing alone is not, however, suffident for this court to manufacture a purpose for § 1252c by interpreting it to preempt state law.
Vasquez-Alparez, 176 F.3d at 1300.
As Vasquez-Alparez convincingly establishes, plaintiffs’ rejoinder to the defendants’
"inherent authority" argument fails.25/ Ultimately, as the defendants have argued, the question
whether state and local police have the authority to arrest an alien on federal immigration
charges is a question of state law. If state law provides the police such authority, there is no
Congressional enactment which overrides or preempts that authority.

25__/ Plaintiffs rely to a significant extent on the Ninth Circuit’s decision in Mena ~. City of Simi Valley, 332 F.3d 1255, 1265 n.15 (9*h Cir. 2003), for the proposition, stated in dicta in that case, that
police authority to enforce immigration laws is "doubtful" and "questionable." See, e.g., P1. Br. 38, 39, 41. However, Mena’s overall conclusion that the local police in that case violated the plaintiff’s clearly established constitutional rights "by inquiring unnecessarily into her citizenship status," 332 F.3d at 12 64, is itself very much in doubt. The Ninth Circuit denied rehearing en banc in Mena over the objections of seven judges, and the Sup reme Court recently granted certiorari (sub nora. Mueller ~. Mena, __ U.S. __, No. 03-1423, 2004 WL817138 (June 14, 2004)), in part to consider the validity of the local police’s questioning of the plaintiff concerning her immigration status.

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C. Even if Plaintiffs Could Somehow Establish that Local Police Authority to Arrest Aliens for Immigration Violations Was Preempted by Federal Law, Their Complaint Would Still Fail to State an Actionable Claim.
As shown in the preceding two sections, the plaintiffs’ preemption arguments are wrong as a matter of law. As shown in this section, they are also irrelevant. For even if plaintiffs could somehow establish that federal law precludes state and local police from arresting aliens for immigration violations, their complaint would still fail to state an actionable claim.
In their memorandum of law (P1. Br. at 34-48), plaintiffs repeatedly challenge the lawfulness of the defendants’ alleged NCIC practices on the ground that these practices "directly cause police to make immigration arrests that Congress has preempted police from underta]dng." P1. Br. at 34. This challenge, indeed, is the gravamen of Count II of their complaint (Compl. ¶¶ 83-87), in which plaintiffs a~lege that the federal defendz~ats somehow "cause" state and local police to unlawfully arrest Absconders and NSEERS violators about whom information is entered into the NCIC. See, e.g., P1. Br. at 35, 36.
The question of causation has already been dealt with at some length in connection with the plaintiffs’ standing to bring suit. See supra pp. 2-11. Suffice it to say here that, while the plaintiffs may conceivably be able to demonstrate a "but for" relationship between the entry of Absconder and NSEERS information into the NCIC and the local arrest of some of their members, they can prove no set of facts which would demonstrate that the defendants’ actions caused the plaintiffs’ members to be unlarvfull~ arrested. If state and local police in a given jurisdiction are in fact precluded from arresting aliens based on civil immigration violationswhether due to strictures ~xising from State law or, as the plaintiffs fallaciously contend, because federal law precludes them from mz]<ing such arrests-and yet choose to make such arrests

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anyway, the illegality infecting such arrests is solely a function of State or local policies,

decisions, and actions.

Ultimately, plaintiffs root their preemption arguments not in the actions of federal

agencies but in the actions of state and local agencies. Plaintiffs do not argue-because it would

be absurd to do so-that Congress has preempted federal agendes from gathering and

disseminating immigration information for use by other federal agencies in effectuating

immigration arrests. Instead, they argue (incorrectly) that Congress has preempted state and

local governments from making immigration arrests and that some state and local police have

started making such aJcrests despite this preemption. But they have not sued any such state and

local governments, nor have they sued to enjoin any unlawful aJcrests. Their preemption

argument depends entirely on their ability to show that federal agencies are somehow directly

responsible for the allegedly illegal actions of state and local governments which are not parties

to this case. This is a showing which they cannot make.

Moreover, even if state and local arrest authority is preempted, that would not render

invalid the defendants’ alleged inclusion in the NCIC of the information at issue in this case.

For ultimately, despite the plaintiffs’ repeated intimations to the contrary, this is not a case

about unlawful arrests. It is a case about information, and more specifically about a computer

database used by the FBI to maintain and disseminate information pursuant to authority

explicitly set forth in federal statutes. The very notion that the exercise of a federal practice,

undertaken pursuant to federal law, could somehow be deemed to violate the Supremacy Clause,

is frivolous. Plaintiffs have cited no case, because there is none, in which a federal program was

ever deemed to have violated the Supremacy Clause. Accordingly, their Supremacy Clause

claims fail as a matter of law.

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CONCLUSION

For the foregoing reasons, and those set forth in the defendants’ initial brief,

plaintiffs’ complaint must be dismissed for lack of subject matter jurisdiction and for failure to

state a claim upon which relief may be granted.

Dated: Brooldyn, New York July 22, 2004

ROSLYNN R. MAUSKOPF26/ United States Attorney Eastern District of New York One Pierrepont Plaza, 14th Floor Brooklyn, NY 11201-2776

By: (FA61 ~
it United States Attorney 254-6024

26__/ The United States Attorney’s Office would like to thank Mr. Seena Samimi, a second-year
law student at Boalt Hall Law School, University of California-Berkeley, and a summer intern in this Office, for his invaluable assistance in the research and preparation of this memorandum.

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CERTIFICATE OF SERVICE

I, F. Franldin Amanat, Assistant United States Attorney, hereby certify under penalties of perjury that I did cause true and correct copies of the above and foregoing instrument, Reply Memorandum of Law in Further Support of Defendants’ Motion to Dismiss the Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim upon Which Relief May Be Granted, to be served on the following persons, in the manner(s) designated below:

By E-mail (on 7/22/04) and by First-class Mail, Postage Prepaid (on 7/23/04):

Michael J. Wishnie, Esq. Mayra Peters-Quintero, Esq. Washington Square Legal Services 161 Avenue of the Americas, 4th Floor New York, NY 10013 E-mail: michael.wishnie @nyu.edu

Carmine D. Boccuzzi, Esq. Asli U. Bali, Esq. Anil Ka]han, Esq. Sheilah Kane, Esq. Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, NY 10006-1470 E-mail: cboccuzzi@c, gsh.com

By First-class Mail, Postage Prepaid Only (on 7/23/04):

Peter Markowitz, Esq. The Bromx Defenders 860 Courtlandt Avenue Bromx, NY 10451

Lucas Guttentag, Esq. Lee Gelent, Esq. Omar C. Jadwat, Esq. American Civil Liberties Union Immigrants’ Rights Project 125 Broad Street New York, NY 10004-2400

Arthur N. Eisenberg, Esq. Christopher Dunn, Esq. New York Civil Liberties Union Foundation 125 Broad Street New York, NY 10004

Baher Azmy, Esq. Seton Hall University School of Law Center for Social Justice 833 McCarter Highway Newark, NJ 07102

By:
United States Attorney 254-6024

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 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

_______________________________________

)

NATIONAL COUNCIL OF LA RAZA, NEW )

YORK IMMIGRATION COALITION,

)

AMERICAN-ARAB ANTI-DISCRIMINA- )

TION COMMITTEE, LATIN AMERICAN )

WORKERS PROJECT, and UNITE,

)

)

Plaintiffs,

)

)

v.

)

)

JOHN ASHCROFT, Attorney General of the )

United States, TOM RIDGE, Secretary of

)

Homeland Security, ROBERT MUELLER, )

Director, Federal Bureau of Investigation,

)

MICHAEL GARCIA, Assistant Secretary of )

Homeland Security in charge of the Bureau of )

Immigration and Customs Enforcement,

)

UNITED STATES DEPARTMENT OF

)

JUSTICE, UNITED STATES DEPARTMENT )

OF HOMELAND SECURITY, FEDERAL )

BUREAU OF INVESTIGATION, and

)

BUREAU OF IMMIGRATION AND

)

CUSTOMS ENFORCEMENT,

)

)

Defendants.

)

_______________________________________)

No. 03-CV-6324 (ILG/ASC)
(Glasser, J.) (Chrein, M.J.)

BRIEF OF AMICI CURIAE NATIONAL LATINO OFFICERS’ ASSOCIATION AND
NATIONAL BLACK POLICE ASSOCIATION IN SUPPORT OF PLAINTIFFS

Baher Azmy, Esq. (BA8406) Anjum Gupta, Law Graduate (AG0547) SETON HALL UNIVERSITY SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE 833 McCarter Highway Newark, NJ 07102 (973) 642-8700 Counsel to amici curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................................................................................iii
STATEMENT OF FACTS ............................................................................................................ 1
STATEMENT OF INTEREST OF AMICI CURIAE ................................................................... 1
PRELIMINARY STATEMENT ................................................................................................... 2
ARGUMENT................................................................................................................................. 4
THE COURT SHOULD DENY THE GOVERNMENT’S MOTION TO DISMISS THE COMPLAINT........................................................................................... 4
A. LOCAL ENFORCEMENT OF IMMIGRATION LAWS WOULD CAUSE A “CHILLING EFFECT” AMONG IMMIGRANTS AND NONIMMIGRANTS, THEREBY UNDERMINING EFFECTIVE POLICING EFFORTS......................................................... 6
B. LOCAL ENFORCEMENT OF IMMIGRATION LAWS WOULD UNDERMINE CURRENT EFFECTIVE ANTI-CRIME AND ANTI-TERRORISM MEASURES ......................................................... 12
C. LOCAL LAW ENFORCEMENT IS NOT ADEQUATELY TRAINED TO ENFORCE IMMIGRATION LAWS ............................. 16
D. LOCAL ENFORCEMENT OF IMMIGRATION LAWS ENCOURAGES POLICE OFFICERS TO ENGAGE IN IMPROPER RACIAL PROFILING........................................................ 17
E. THE EXISTENCE OF MECHANISMS CURRENTLY IN PLACE FOR FINDING AND APPREHENDING ILLEGAL IMMIGRANTS DEMONSTRATES THAT BROADENING THE SCOPE OF IMMIGRATION LAWS IS BOTH UNCONSTITUTIONAL AND UNNECESSARY ................................. 19
CONCLUSION............................................................................................................................ 22

- ii -

TABLE OF AUTHORITIES

Page(s)

CASES

Castro v. City of Chandler, No. 97-1736 (D.Ariz., filed Aug.18, 1997) .......................................................................19

Printz v. United States, 521 U.S. 898 (1997)...........................................................................................................20

STATUTES, RESOLUTIONS, AND EXECUTIVE ORDERS 28 U.S.C. § 534 ...............................................................................................................................3
8 U.S.C. § 1357(g) .........................................................................................................4, 19, 20, 21
City Council Res. No. 27-R-03, Evanston, Il. (2003) ...................................................................12
City Council Res. Against the USA PATRIOT ACT and Other Executive Orders for the City of Philadelphia, Pennsylvania, (2003) .......................................................................12
City Human Relations Comm. Res. Calling on the Mayor & City Council to Support the Bill of Rights & Civil Liberties for San Diegans, San Diego, Ca. (Aug. 18, 2003) .........12
City Solicitor Memo. to All City Commissioners and Dep’t Heads, Philadelphia, Pa. (2003) .................................................................................................................................12
Exec. Order 89-6 (Chicago, Il. 1989); Police Dep’t Gen. Order 91-01-02, Cicero, Il. (1998) ................................................................................................................................12
Exec. Order FY 04/05 Concerning Access to State Services by all Entitled Maine Residents, Maine (April 9, 2004) .....................................................................................12
Exec. Order 41, amending Exec. Order 34, New York, N.Y. (2003)............................................12
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002).............................19
Memorandum of Understanding between DOJ and State of Florida (2002) .................................20
Ordinance MCC 19.10-19.50, Minneapolis, Minn. (2003) ..........................................................12
Ordinance No. 121063 (Seattle, Wash., Feb. 5, 2003), amending Municipal Code ch.4.18 (Jan. 2003)..........................................................................................................................12
Police Dep’t Memo. 01-06, Philadelphia, Pa. (2001 .....................................................................12

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Police Dep’t Memo. of Understanding, Katy, Tex. (1998) ...........................................................12
Res. No. 2003R-109, Minneapolis, Minn. (2003) ........................................................................12
Res. No. 9046 ,Durham, N.C. (2003) ............................................................................................12
Res. No. 020394, Philadelphia, Pa. (2002) ....................................................................................12
Res. No. 030807-37, Austin, Tex. (Sept. 25, 2003).......................................................................12
OTHER AUTHORITIES
Bendixen and Assoc., National Hispanic Electorate (poll) (May 2002) ........................................8
Callie Marie Rennison, U.S. Dept. of Justice, Bureau of Justice Statistics, Crime Victimization 2000;Changes 1999-2000 with Trends 1993-2000 (June 2001) .................8
Callie Marie Rennison, U.S. Dept. of Justice, Bureau of Justice Statistics, Violent Victimization and Race, 1993-98 (March 2001) .................................................................8
Gail Pendleton & David Neal, Local Police Enforcement of Immigration Laws and its Effects on Victims of Domestic Violence, ABA Commission on Domestic Violence ............................................................................................................................11
Glenn A. Fine, Inspector General, Top Management Challenges in the Immigration and Naturalization Service: 2002, Memorandum for the Deputy Attorney General (Nov. 8, 2002) ....................................................................................................................15
Glenn A. Fine, Inspector General, Follow-Up Report On INS Efforts To Improve The Control Of Nonimmigrant Overstays, Report No. I-2002-006 (April 2002) .......................................................................................................................15
House Comm. On the Judiciary, Subcomm. on Immigration, Border Security and Claims, New York’s Sanctuary Policy and the Effect of Such Policies on Public Safety, Law Enforcement and Immigration, Hearing Before the House Comm. on the Judiciary, Subcomm. on Immigration, Border Security and Claims, statement of Leslye Orloff, NOW Legal Defense and Education Fund, 108th Cong. (2003) ................................................................................11
James J. Carfano, The Heritage Foundation, No Need for the CLEAR Act: Building Capacity for Immigration Counterterrorism Investigations, Executive Memo. No. 925 (April 21, 2004) ..........................................................................................................15
Lisa M. Seghetti, et al., Enforcing Immigration Law: The Role of State and Local Law Enforcement, Congressional Research Service Report for Congress, 24 (Mar. 11, 2004) ......................................................................................................13, 17, 20
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Lynn Tramonte, Justice Department Seeks New Role for State and Local Police: Immigration Law Enforcement, Refugee Reports 23, No. 6 (Aug. 2002) .........................16
Matthew J.Hickman & Brian A. Reaves, U.S. Dept. of Justice, Office of Justice Programs, Community Policing in Local Police Departments, 1997 and 1999, NCJ 184794 (Feb. 2001)......................................................................................................6
Michele Waslin, Immigration Enforcement by Local Police: The Impact on the Civil Rights of Latinos, National Council of La Raza, Issue Brief No. 9, (Feb. 2003)...................................................................................................................11, 14
National Immigration Forum, Organizations Opposed to Local Enforcement Of Immigration Laws, (April 2004).....................................................................................6
Robert C. Davis et al., Access to Justice for Immigrants Who are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. (2001)..................7, 14
Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Muslims and Arabs, 58 Ann. Surv. Am. L. 295 (2002)..........................................................................................................................18
United States Department of Justice, Office of the Inspector General, Evaluation and Inspections Division, The Immigration and Naturalization Service’s Removal of Aliens Issued Final Orders, Report Number I-2003-004 (February 2003) .................................................................................................................15
United States General Accounting Office, Report to Congressional Requesters, Homeland Security: INS Cannot Locate Many Aliens Because It Lacks Reliable Address Information, GAO- 03-188 (Nov. 21, 2002)........................................................15
United States General Accounting Office, Report to Congressional Requesters, Immigrant Benefits: Several Factors Impede Timeliness of Application Processing, GAO- 01-488 (May 4, 2001) .........................................................................15
U.S. Department of Justice, Office of the Inspector General, Inspections Division, Voluntary Departure: Ineffective Enforcement and Lack of Sufficient Controls Hamper the Process, Report Number I-99-09 (March 1999)............................................15
United States General Accounting Office, Immigration and Naturalization Service: Information on the Disposition of Naturalization Cases and on Courtesy as a Factor in Employee Performance Appraisals, GAO-00-132R (May 23, 2000)................15
Verdicts and Settlements, Nat'l L.J (Nov. 10, 2003)......................................................................18
William F. McDonald, The Emerging Paradigm for Policing Multiethnic Societies: Glimpses From the American Experience, Police & Society 7, 231 (June 2001).........................................................................................................................18
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STATEMENT OF FACTS Amici curiae adopt the statement of facts submitted by Plaintiffs.
STATEMENT OF INTEREST OF AMICI CURIAE Amicus curiae National Latino Officers Association (NLOA) is a fraternal and advocacy organization with a membership of 10,000 uniformed and civilian employees, predominantly within city and state law enforcement agencies. The mission of the NLOA is to create strong bonds between the Latino community and various law enforcement agencies, while promoting candid and productive communication. Over many years, the NLOA, composed primarily of Latino officers, has gained a great deal of respect and trust within the Latino immigrant community by advising residents of their rights, fighting discrimination, and facilitating a mutual dependence between the community and law enforcement. The NLOA has testified before Congress and regularly participates in city council meetings regarding issues of discrimination and enforcement. Also, the NLOA has long advocated that police officers be prohibited from asking crime victims or witnesses questions regarding immigration status, so as to not deter already anxious immigrants—illegal or legal—from cooperating with police on law enforcement matters. Amicus curiae National Black Police Association (NBPA) is a nationwide organization of African-American police associations dedicated to fairness and effective law enforcement. With approximately 35,000 members in 140 chapters, the NBPA has helped develop a strategy for Community-Oriented Policing. The NBPA hopes this strategy will create a bond between minority officers and the communities they serve. The NBPA both trains current officers in establishing better relationships within their communities and provides scholarship programs for youth who are interested in becoming police officers. The NBPA believes that only a true, cooperative relationship between residents and police officers can lead to safer communities. The
- 1 -

NBPA also aims to improve the relationships between police departments and minority populations by evaluating the effect of policies on minority communities, recruiting minority police officers on a national scale, and teaching officers to act with professionalism and compassion in combating corruption, brutality, and racial discrimination.
Amici are deeply concerned about the practical, real world consequences the Defendants’ NCIC policies will have for effective law enforcement. In particular, amici believe that authorizing or encouraging police officers to arrest persons listed in the NCIC database will substantially hamper efforts amici and other law enforcement associations and jurisdictions have made to gain the trust of immigrant communities that is so critical to community-based policing efforts and more general effective law enforcement and counter-terrorism efforts. Amici also believe that Defendants’ NCIC policies demonstrate a deeply problematic misperception of the appropriate spheres of law enforcement authority that Congress has itself recognized. Police enforcement of federal immigration law, particularly by officers who have neither the resources nor training to undertake it, will in the end be counterproductive to protecting the communities they serve.
PRELIMINARY STATEMENT Amici curiae respectfully submit this brief in support of Plaintiffs National Council of La Raza, New York Immigration Coalition, American-Arab Anti-Discrimination Committee, Latin American Workers Project, and UNITE (“Plaintiffs”) in their action to enjoin the federal agencies and officials named as Defendants (“Defendants”) from entering civil immigration records into the National Crime Information Center (“NCIC”) database, the principal criminal database of the Federal Bureau of Investigation, and from disseminating that information to state and local police in an effort to cause state and local police to make federal immigration arrests. Plaintiffs argue that Defendants have misused the NCIC database in violation of the NCIC
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statute, 28 U.S.C. § 534. Plaintiffs also contend that state and local police have no legal authority to enforce immigration laws, except in narrow circumstances approved by Congress and not applicable to the immigration arrests at issue in this case.
Amici endorse the arguments raised by Plaintiffs in their Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (“Memorandum in Opposition”). In particular, based on their experience, amici believe that Plaintiffs’ allegations regarding the chilling effect that Defendants’ NCIC reporting policies will have on Plaintiff members’ communication with law enforcement—members who are in immigrant communities that already tend to underreport crime—are compelling. In addition, amici believe that the Plaintiffs’ arguments regarding Congress’ limitations on the circumstances in which local police can enforce immigration violations also reflect sound law enforcement policy given the particular realities of policing in the 21st century, which depend on innovative community-based policing strategies and interaction and trust between immigrant communities and the police to prevent and solve crimes, including terrorist crimes.
Furthermore, amici advance several independent arguments against the state and local enforcement of federal immigration laws that Defendants’ policies induce. First, local enforcement of immigration laws has a chilling effect on immigrant communities, making them less likely to seek the assistance of police or to assist police with criminal investigations. These fears are very real. Since the Defendants began adding immigration violations to the NCIC database in 2002, thousands of immigrants across the country, and hundreds in New York, have been arrested by local law enforcement authorities. Nina Bernstein, Crime Database Misused for Civil Issues, Suit Says, N.Y. Times, Dec. 17, 2003, at 34.
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Second, local enforcement of immigration laws will hamper current effective anti-crime and anti-terrorism measures by diverting scarce police resources from these measures and by overloading the NCIC database with volumes of inaccurate and complicated immigration data. Third, because Defendants’ policies are not accompanied by any of the necessary training provided to federal immigration agents that would allow them to understand the complex and constantly changing immigration laws, police officers are likely to make damaging mistakes. Amici also expect that local enforcement of immigration laws will cause police officers and departments to engage in discrimination against persons in Plaintiff organizations and make wrongful arrests.
Last, broadening the scope of local enforcement of immigration laws is unnecessary, because lawful, statutory mechanisms for finding and apprehending illegal immigrants are already in place. Congress has already enacted specific legislation that delegates authority to the United States Attorney General to enlist the voluntary participation of state and local entities. 8 U.S.C. § 1357(g). The design of this statute implicitly demonstrates the illegality of Defendants’ policies—policies that would also render the congressional legislation superfluous.
ARGUMENT THE COURT SHOULD DENY THE GOVERNMENT’S MOTION TO DISMISS THE COMPLAINT.
Amici adhere to the arguments raised by the Plaintiffs in their Memorandum in Opposition regarding Plaintiff organizations’ demonstration of standing, the absence of congressional authorization for the Defendants’ entry and dissemination of civil immigration records via the NCIC database, and the Defendants’ misuse of the NCIC database to cause local police unlawfully to enforce federal immigration law. Amici also wish to provide the court with additional information about the probable and dangerous consequences of the Defendants’
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policies from the perspective of police officers on the ground in the context of the realities of modern policing strategies and counter-terrorism efforts.
As described below, amici and countless local jurisdictions and law enforcement organizations have worked exhaustively to implement innovative community-policing strategies that recognize the peculiar dynamics of individual communities. Those strategies depend on forging communication and trust between police officers and the communities they serve and have been effective in preventing and solving crimes in immigrant communities in particular. As Plaintiffs have alleged and as amici demonstrate below, if police officers continue to arrest persons for immigration violations, law enforcement—even counter-terrorism efforts—in already distrustful and anxious immigrant communities will become enormously difficult.
Indeed, amici are startled by the claim of the Attorney General and other federal officials that local police retain “inherent authority” to enforce immigration laws. See Compl. ¶50. Leaving aside the questionable authority for such a claim, amply addressed by the Plaintiffs, the assertion belies a troubling misperception by the federal government about the appropriate roles of local and federal law enforcement. As our arguments below explain, Congress’ division of authority is wise: local police understand how to prevent and solve crimes in their jurisdictions, but have neither the training nor the resources to undertake immigration law enforcement. Indeed, authorizing or inducing local police to enforce federal immigration law in the way that the assertion of “inherent” local police power suggests would do serious damage to the ability of officers on the street to protect the communities they serve.
Amici are not alone in their concern about Defendants’ NCIC policies. Almost 650 organizations and prominent individuals have publicly expressed opposition to local enforcement of immigration laws outside of the limited involvement currently authorized under the law.
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National Immigration Law Forum, Organizations Opposed to Local Enforcement of Immigration Laws (2004), http://www.immigrationforum.org/documents/TheDebate/Enforcement LocalPolice/OppositiontoSLenforcement.pdf. This list includes 75 police departments and 15 law enforcement organizations. Also included are 62 state and local governmental bodies, 19 members of Congress, 21 editorial boards, 73 national interest groups, and 378 regional, state, and local interest groups. Id. (The complete list is attached to this brief as Exhibit A.)
A. LOCAL ENFORCEMENT OF IMMIGRATION LAWS WOULD CAUSE A
“CHILLING EFFECT” AMONG IMMIGRANTS AND NONIMMIGRANTS, THEREBY UNDERMINING EFFECTIVE POLICING EFFORTS.
Amici have dedicated significant efforts and resources to fostering trusting relationships between immigrant communities and law enforcement. Similarly, law enforcement entities across the country increasingly are employing community-based policing models to provide adequate law enforcement services to immigrant and other communities. Matthew J. Hickman and Brian A. Reaves, Community Policing in Local Police Departments, 1997 and 1999, U.S. Dep’t of Justice, Bureau of Justice Statistics (Feb. 2001), http://www.ojp.usdoj.gov/bjs/pub/ pdf/cplpd99.pdf.1 “The community policing approach to law enforcement seeks to address the causes of crime and reduce the fear of crime and social disorder through problem-solving strategies and police-community partnerships. A fundamental shift from traditional reactive policing, community policing strives to prevent crime before it occurs.” Id.
1 According to the Department of Justice, “State and local law enforcement agencies had nearly 113,000 community policing officers or their equivalents during 1999, compared to about 21,000 in 1997. This included 91,000 local police officers in 1999, up from 16,000 in 1997. . . .64% of local police departments serving 86% of all residents had fulltime officers engaged in community policing activities during 1999, compared to 34% of departments serving 62% of residents in 1997.” Id.
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As Plaintiffs have alleged, immigrants have tended to underreport crimes—either as victims or witnesses—because of fear that interaction with police officers may lead to negative immigration consequences. See Robert C. Davis et al., Access to Justice for Immigrants Who Are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183, 187 (2001) (DOJ-sponsored study demonstrated that two thirds of district attorneys and chiefs of police from the 50 largest cities believed that recent immigrants underreport crimes.) Local law enforcement entities depend upon valuable information received from members of immigrant communities in order to prevent and solve crimes. At the same time, immigrants must be able to trust that they will not be deported if they approach the police with information about a crime. Recently, for example, when a Dearborn, Michigan police officer put the word out in the Arab immigrant community that he was looking for an Arab-American man wanted for murder, community members flooded him with tips regarding the suspect’s whereabouts. Niraj Warikoo, Police Could Get More Power, Detroit Free Press, June 1, 2004, at 1B.
Amici have spent years working towards the development of these types of trusting relationships, and are just beginning to feel that these necessary relationships are being forged. Recognizing the obvious benefits to community policing, police departments all over the country have similarly devoted resources to gaining the trust of their immigrant communities. See, e.g., Chicago Police Dep’t, 17th District Addresses Special Needs of Korean-American Community (1998) (describing how Chicago police have worked to reach out to Korean-American women, in an effort to make them feel comfortable reporting domestic violence), http://www.ci.chi.il.us/cp /AboutCAPS/SuccessStories/Dist17.95.12.html; Mark Schultz, Hispanic Police Officer Reaches Out to Chapel Hill Latinos, Chapel Hill Herald Sun, May 17, 2002, at 6 (describing efforts of North Carolina police to increase awareness about the role of law enforcement in the Latino
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community, including need to inform the community that police are not part of “La Migra” (the federal immigration authorities)); Mai Tran, Seeking to Arrest Immigrants’ Fear of Police, Program Aims to Educate Vietnamese About U.S. Justice and Explain Ethnic Group’s Culture to Officers, L.A. Times, May 17, 2002 (stating that the Orange County, California district attorney’s office established the Vietnamese Education Services Program to breakdown stereotypes about law enforcement in Vietnamese community).
These types of programs are integral in forming mutually beneficial relationships between immigrant communities and law enforcement, and there is much evidence to suggest that community-based policing has successfully lowered crime rates in immigrant communities. Department of Justice statistics show that although the non-fatal violent crime rate dropped 44% between 1993 and 2000 for the general population, it dropped 56% for Latino populations. Callie Marie Rennison, Criminal Victimization 2000; Changes 1999-2000 with Trends 1993-2000, U.S. Department of Justice, Bureau of Justice Statistics (June 2001), http://www.ojp.usdoj.gov/ bjs/pub/pdf/cv00.pdf; Callie Marie Rennison, Violent Victimization and Race, 1993-98, U.S. Department of Justice, Bureau of Justice Statistics (Mar. 2001), http://www.ojp.usdoj.gov/bjs/ pub/pdf/vvr98.pdf. This decrease is attributed, in part, to growing trust between Latino communities and law enforcement officials. See, e.g., Ricardo Alonso-Zaldivar, Crimes Against Latinos Decrease, L.A. Times, Apr. 8, 2002, at 11A. Local enforcement of immigration laws would undermine these significant efforts and would cause immigrant communities to once again refrain from communicating with police officers for fear of being deported. A May 2002 poll found that seventy-seven percent of new Hispanic citizens were opposed to local enforcement of immigration laws because this practice would alienate immigrant residents and make them less likely to report crimes. Bendixen and Assoc., National Hispanic Electorate (poll) (May 2002) (on
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file with NLOA). Similarly, police officers, police departments, and others around the country
have publicly expressed their fears that if local law enforcement become involved in enforcing
immigration laws, their efforts to reach out to immigrant communities will be significantly
derailed.2
Past experience confirms the fear that local enforcement of immigration laws would
create a chilling effect among undocumented immigrants. One of the most poignant examples of
this type of fear of local law enforcement among undocumented immigrants is the case of 58
deaf Mexican workers who were smuggled into the United States and were found living in
virtual slavery in small, crowded apartments in New York City. The workers had been beaten,
raped, and attacked with stun guns. They reported being afraid to go to the police for fear of
being deported. Neighbors, who had witnessed the abuse, were afraid to report it to the police for
similar reasons. Mirta Ojito, Neighbors Did Not Respond to Immigrants’ Trouble, N.Y. Times,
July 21, 1997.
Other jurisdictions report similar incidents. In Lewisville, Texas, an immigrant witnessed
a murder but refrained from contacting the authorities for several months because of fear of
immigration-related consequences. Lesley Téllez, Police Seek to Ease Crime Victims’ Fear of
2 As stated by a spokesperson for the International Association of Police Chiefs, “If local police are seen as local immigration officials, there’s a concern that immigrants won’t report crimes, which will then lead to an increase in crime in communities.” Lesley Tellez, Police Seek to Ease Crime Victims’ Fear of Being Deported, Dallas Morning News, Dec. 11, 2003. These concerns have been echoed by law enforcement personnel across the country. See, e.g., Karen Brandon, U.S. Weighs Local Role on Immigration, Chicago Tribune, Apr. 14, 2002 (Chicago, Il.); Mia Taylor, Cobb Police Unit Combats Hispanic Gang Lure, Atlanta Journal-Constitution, Dec. 12, 2002 (Cobb County, Ga.); Tim Steller, Expansion of Foreigner Arrest Plan is Feared, Arizona Daily Star, July 12, 2002 (Tucson, Az.); Value, Legality Debated as Local Police Become Immigration Cops, Hispanic Link Weekly Report, June 9, 2003 (Los Angeles, Ca.); Eric Schmitt, Administration Split on Local Role in Terror Fight, N.Y. Times, Apr. 29, 2002 (Sacramento, Ca.); Louie Gilot, Immigration Proposal Puts Burden on Police, El Paso Times, Oct. 9, 2003 (El Paso, Tx.); Richard Abshire, Non-English Speakers May Face Questionable Business Dealings, Dallas Morning News, Aug. 27, 2003 (Garland, Tx.); Houston Police Stick to Hands-off Immigration Policy, Houston Chronicle, March, 3, 2003 (Houston, Tx.); Oscar Avila, Bill Imperils Immigrants’ Fragile Trust in Police, Chicago Tribune, Mar. 31, 2004 (Chicago, Il.); Michael Easterbrook, Durham Resolution Galvanizes Advocates, Raleigh News & Observer, Oct. 22, 2003 (Durham, N.C.); Bill Novak, County May Stiff the Feds On Information About Immigrants, The Capital Times, Dec. 18, 2003 (Dane County, WI).
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Being Deported, Dallas Morning News, Dec. 11, 2003. In Tampa, Florida, police have reported that community members that may have information concerning the murder of a Mexican woman and her son are afraid to come forward. Clearwater Police have tried to stem immigrant fears by publicly stating that the police have no interest in their immigration status. Natashia Gregoire, Police Appeal For Clues In Slaying Of Mom, Son, Tampa Tribune, July 22, 2003. In Portland, Maine, officials investigating a restaurant fire were unable to question the restaurant’s employees, who were members of the Thai community, because the employees, fearing that they would be deported, had fled the scene of the fire. David Hench, Volatile Cleaner Started Fatal Fire, Portland Press Herald, March 3, 2001.
Police departments have devoted time and energy to stemming immigrant fears about local law enforcement by disassociating themselves from immigration enforcement. Local enforcement of immigration laws will significantly undermine these efforts, and immigrants will once again fear communicating with police officers. These fears are justified. Thousands of immigrants around the country have already been arrested by police officers as a result of Defendants’ actions. Nina Bernstein, Crime Database Misused for Civil Issues, Suit Says, N.Y. Times, Dec. 17, 2003, at 34 (reporting independent estimates of over 5,000 nationwide police arrests of immigrants listed in NCIC database and over 300 in New York.)
Amici are further concerned that local enforcement of immigration laws would create a particularly strong chilling effect among victims of domestic violence. The American Bar Association Commission on Domestic Violence reports that battered immigrant women will be less likely to come forward if local police enforce immigration laws, not only for fear that they themselves would be deported, but also for fear that their abusers would be deported. “It is very likely that having the abuser deported would not be in the long-term best interests of the battered
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immigrant. For example, she may be blamed by her home-country community for his deportation
and ostracized for her actions.” Gail Pendleton & David Neal, Local Police Enforcement of
Immigration Laws and its Effects on Victims of Domestic Violence, ABA Commission on
Domestic Violence, http://www.nationalimmigrationproject.org/GetInvolved/DVSA%20 CLEAR%20Article.doc.3 For example, in 1998, a woman in New Jersey was found slain in her
apartment building. Friends and relatives reported that the suspected murderer, the woman’s
boyfriend, had threatened to report her to the INS, thereby preventing her from reporting his
abuse. Richard Cowen, Slain Woman Was ‘Vulnerable,’ The Record, June 29, 1998, at A1.
Battered immigrant women need to be able to access culturally sensitive law enforcement
entities without fear that they or their abusers will be deported. Police departments have
implemented programs in an attempt to reach out to battered immigrant women and children;4
however, this progress will be reversed by local enforcement of immigration law. Craig E.
Ferrell Jr., Immigration Enforcement: Is It a Local Issue?, The Police Chief, June 2004,
[hereinafter “Ferrell, Immigration Enforcement”] http://policechiefmagazine
.org/magazine/index.cfm?fuseaction=display_arch&article_id=224&issue_id=22004.
Significantly, Defendants’ policies will create a chilling effect among legal immigrants as
well. “Even U.S. Citizens and lawfully-present immigrants will cease to cooperate with police if
they sense that the police are viewing them with suspicion because of their ethnicity or the
language they speak.” Michele Waslin, Immigration Enforcement by Local Police: The Impact
3 In addition, immigrant women are particularly at risk of experiencing domestic violence because they are more prone to being isolated within the home and face language and cultural barriers not faced by non-immigrant women. New York’s Sanctuary Policy and the Effect of Such Policies on Public Safety, Law Enforcement and Immigration, Hearing Before the House Comm. on the Judiciary, Subcomm. on Immigration, Border Security and Claims, 108th Cong. (2003) (statement of Leslye Orloff, NOW Legal Defense and Education Fund), http://www.house.gov/judiciary/orloff022703.htm. 4 In New York, for example, the Mayor’s Office to Combat Domestic Violence coordinates with the police department to address the unique barriers immigrant women face in reporting abuse. See http://www.nyc.gov/html/ocdv/html/special_immigrants.html; Paroma Basu, Digital Deterrence, Village Voice, Dec. 4-10, 2002, http://www.villagevoice.com/issues/0249/basu.php.
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on the Civil Rights of Latinos, National Council of La Raza, Issue Brief No. 9, Feb. 2003,
http://www.nclr.org/content/publications/detail/1390/. Additionally, “[b]ecause immigration law
is complicated and subject to frequent changes, many legal immigrants still worry that they could
be deported for reasons they may not have known about.” Id. 5
B. LOCAL ENFORCEMENT OF IMMIGRATION LAWS WOULD
UNDERMINE CURRENT EFFECTIVE ANTI-CRIME AND ANTITERRORISM MEASURES.
Local enforcement of immigration laws will undermine current effective anti-crime and
anti-terrorism measures by diverting resources away from these measures, by making community
members less likely to cooperate with local law enforcement officials, and by undermining the
usefulness of the NCIC database.
The increased burden of local enforcement of immigration laws will drain already
shallow law enforcement resources.6 Defendants’ policies will increase police officers’
responsibilities, requiring additional financial and human resources. Because Defendants’
5 Likely recognizing the chilling effects of local enforcement of immigration laws, scores of jurisdictions recently have adopted policies prohibiting certain forms of communication regarding immigration status. These policies generally prohibit law enforcement and other state and local entities from inquiring into a person’s status; however, they would do nothing to prevent law enforcement officers from arresting or pursuing persons they know to be immigration violators as a result of their inclusion in the NCIC database. See, e.g., City Human Relations Comm. Res. Calling on the Mayor & City Council to Support the Bill of Rights & Civil Liberties for San Diegans (San Diego, Ca., Aug. 18, 2003); Exec. Order 89-6 (Chicago, Il. 1989); Police Dep’t Gen. Order 91-01-02 (Cicero, Il. 1998); City Council Res. No. 27-R-03 (Evanston, Il. 2003); Exec. Order FY 04/05 Concerning Access to State Services by all Entitled Maine Residents (Me. April 9, 2004); Ordinance MCC 19.10-19.50 (Minneapolis, Minn. 2003); Res. No. 2003R-109 (Minneapolis, Minn. 2003); Exec. Order 41 (New York, N.Y. 2003), amending Exec. Order 34; Res. No. 9046 (Durham, N.C. 2003); Police Dep’t Memo. 01-06 (Philadelphia, Pa. 2001); Res. No. 020394 (Philadelphia, Pa. 2002); City Council Res. Against the USA PATRIOT ACT and Other Executive Orders for the City of Philadelphia, Pennsylvania (Philadelphia, Pa. 2003); City Solicitor Memo. to All City Commissioners and Dep’t Heads (Philadelphia, Pa. 2003); Res. No. 030807-37 (Austin, Tex., Sept. 25, 2003); Police Dep’t Memo. of Understanding (Katy, Tex. 1998); Ordinance No. 121063 (Seattle, Wash., Feb. 5, 2003), amending Municipal Code ch.4.18 (Jan. 2003). 6 The lack of sufficient resources for local law enforcement is evidenced by, among other things, inadequate police staffing and emergency response times. See, e.g., Anjeanette Damon, City Growth Outpaces Police Staffing, Reno Gazette-Journal, Jan. 1, 2002, http://www.rgj.com/ news/stories/html/2002/01/26/6790.php; Robert Davis, Washington, D.C.: Slow Response, Lack of Cooperation Bring Deadly Delays, U.S.A. Today, Feb. 24, 2004, http://www.usatoday.com/ news/nation/ems-day1-dc.htm; NewsNet5, Records Show Slow EMS Response Times, Firehouse.com, Nov. 2, 2003 at http://cms.firehouse.com/content/article/article.jsp?id=21193 &sectionId=17.
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policies provide no additional financial or administrative resources to states and localities, these
additional burdens could only be met with resources currently used to solve and prevent crime.
Police departments across the country have publicly expressed their concerns about the drain in
resources that local enforcement of immigration laws would create.7 In addition, some fear that
local enforcement of immigration laws will lead to increased numbers of detainees, and that the
increased costs of detaining these individuals will once again fall on states and localities.8
In addition, amici are concerned that Defendants’ policies will damage the effectiveness
of current law enforcement functions. The attention of police officers will be diverted from
deterring and solving traditional crimes to tracking down immigration violations. This is
particularly true in light of the fact that, as discussed in Section C, infra, police officers are
untrained in immigration law. In addition, criminals may quickly recognize that undocumented
immigrants will be afraid to report crimes to the police, causing an increase in crimes perpetrated
against immigrants. As Lieutenant Armando Mayoya of San Joaquin County Sheriff’s Office
states, “[i]f police officers start reporting to the INS, more undocumented workers could wind up
as victims. Criminals soon would realize that undocumented workers would be unlikely to call
police for fear of being deported and target them for attacks.” Michelle Mittelstadt, U.S. May Let
7 As stated by an official of the Dallas Police Association, “The strain on local police already is enormous, and to ask us to arrest and detain immigrants is something the federal government needs to address by funding the INS some more and hiring additional personnel.” Michelle Mittelstadt, U.S. May Let State, Local Authorities Enforce Federal Immigration Laws, Dallas Morning News, April 3, 2002. This sentiment has been expressed by local law enforcement officials in several other jurisdictions. See, e.g., Sheila Burke, Midstate Auth. Balk at Possibly Enforcing Immigration Laws, The Tennessean, April 15, 2002, at B (Putnam County, Tenn.); Sixto Molina, editorial, Immigration Role Not for Local Police, Tucson Citizen, Oct. 15, 2003 (Tucson, Az.); Dina Bunis and Minerva Canto, Immigrants Worried, Coe Pleased, Orange County Register, Apr. 4, 2002 (Anaheim, Ca.); Thomas Ginsberg & Maria Panaritis, U.S. Agents Limit Scrutiny of Illegal Immigrant Arrests, The Philadelphia Inquirer, Sept. 9, 2003 (Bensalem, Pa.); Tony Coleman, Measure Targets Immigrants’ Fears, St. Paul Pioneer Press, Dec. 27, 2003, at B1 (St. Paul, Minn). 8 Lisa M. Seghetti, et al., Enforcing Immigration Law: The Role of State and Local Law Enforcement, Congressional Research Service Report for Congress, 24, Mar. 11, 2004, http://fpc.state.gov/documents/organization/31349.pdf.
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State, Local Authorities Enforce Federal Immigration Laws, Dallas Morning News, Apr. 3, 2002, at 1A.
Effective anti-terrorism measures will also be undermined by the Defendants’ policies because immigrant communities will be deterred from reporting suspicious activity within their communities if they feel they are at risk of being deported. See Robert C. Davis et al., Access to Justice for Immigrants Who Are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183, 188 (2001) (DOJ-sponsored study reported that 35% of district attorneys and chiefs of police from the 50 largest cities believe that “underreporting of crimes by recent immigrants posed a serious problem” to the criminal justice system as a whole.) As stated above, police often rely on close relationships with immigrant communities to get information on criminal activity; in particular, police depend on these communities for information relating to terrorist attacks. Neil Lewis, Immigrants Offered Incentives To Give Evidence on Terrorists, N.Y. Times, Nov. 29, 2001, at 7B (reporting that U.S. Attorney General John Ashcroft believes that "immigrants [are] in an especially good position to learn of terrorist plots or witness unusual behavior among people in their community.")
Furthermore, adding immigration violators to the NCIC database would actually diminish the usefulness of the NCIC database itself as an anti-terrorism tool. “Even DOJ’s supporters acknowledge that upwards of 99.99% of undocumented immigrants pose absolutely no terrorist threat. However, delegating immigration law enforcement to already overburdened police departments adds millions of undocumented immigrants to the pool of potential suspects—in effect, it adds more hay to the haystack. This makes it more difficult, not easier, to find real terrorists.” Michele Waslin, Immigration Enforcement by Local Police: The Impact on the Civil Rights of Latinos, National Council of La Raza, Issue Brief No. 9, Feb. 2003, http://www.nclr.
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org/content/publications/detail/1390/. “Filling the database with records of minor immigration
violators could also distract or impede police officers from using the database to obtain
information about violent criminals and terrorists.” James J. Carfano, No Need for the CLEAR
Act: Building Capacity for Immigration Counterterroism Investigations, Heritage Foundation,
Executive Memo. No. 925, Apr. 21, 2004, http://www.heritage.org/Research/HomelandDefense/
loader.cfm?url=/commonspot/security/getfile.cfm&PageID=62225. Finally, as the Department of
Justice and other government entities have documented, INS records are riddled with
inaccuracies. See U.S. Dep’t of Justice, Office of the Inspector General, Evaluation and
Inspections Div., The Immigration and Naturalization Service's Removal of Aliens Issued Final
Orders, Report No. I-2003-004 (Feb. 2003) (stating that “the INS continues to face significant
data accuracy problems,” and citing “name, nationality, and case file number discrepancies, as
well as cases missing from the electronic files.”)9 The inaccuracies contained in INS records
could lead to names of legal immigrants being placed on the NCIC database.10 Police officers,
who have no training to identify valid immigration documents, could wrongfully arrest such
persons, under the false belief that they are illegal immigrants. Amici are concerned that entering
9 The inaccuracies are a natural product of pervasive technical and systemic design and integration failures of INS databases. See, e.g., U.S. General Accounting Office, Report to Congressional Requesters, Homeland Security: INS Cannot Locate Many Aliens Because It Lacks Reliable Address Information, GAO-03-188 (Nov. 21, 2002) (stating that “the INS lacks adequate processing procedures and controls to ensure that the alien address information it receives is recorded in all automated databases.”). See also, Glenn A. Fine, Inspector General, Top Management Challenges in the Immigration and Naturalization Service: 2002, Memorandum for the Deputy Attorney General (Nov. 8, 2002) (“Our review of the INS records management system found deficiencies in 12 of the 17 control areas tested.”); U.S. General Accounting Office, Report to Congressional Requesters, Immigrant Benefits: Several Factors Impede Timeliness of Application Processing, GAO- 01-488 (May 4, 2001) (stating that the INS’ “available servicewide automated systems contain unreliable data….”); U.S. Dep’t of Justice, Office of the Inspector General, Inspections Div., Voluntary Departure: Ineffective Enforcement and Lack of Sufficient Controls Hamper the Process, Report No. I-99-09 (Mar. 1999) (reporting that “INS record-keeping for voluntary departures granted by INS district officers is seriously flawed. . . .” resulting in “an incomplete immigration history for each of those illegal aliens.”). 10 See Glenn A. Fine, Inspector General, Follow-Up Report On INS Efforts To Improve The Control Of Nonimmigrant Overstays, Report No. I-2002-006, (Apr. 2002) (reporting that “some aliens appear to be overstays when they are legally in the United States.”). See also Immigration and Naturalization Service: Information on the Disposition of Naturalization Cases and on Courtesy as a Factor in Employee Performance Appraisals, GAO-00132R (May 23, 2000) (reporting that over 44,000 naturalization cases were inadvertently dropped from the system).
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inaccurate data for thousands of immigrants into the NCIC database would further reduce the efficacy of the database and overall efficiency of local law enforcement efforts.
C. LOCAL LAW ENFORCEMENT IS NOT ADEQUATELY TRAINED TO
ENFORCE IMMIGRATION LAWS. Federal immigration agents are required to attend a 17-week Immigration Agent Basic Training course, and agents in the field complete additional on-the-job training. Lynn Tramonte, Justice Department Seeks New Role for State and Local Police: Immigration Law Enforcement, Refugee Reports 23, No. 6 (Aug. 2002), at http://www.refugees.org/world/articles/ RR_August_2002_ lead.cfm. The 17-week training program includes, among other things, “courses on immigration and nationality law, fraudulent document detection, INS statutory authorities, civil liberties and liabilities, and Spanish language.” Id. In addition, because the Department of Homeland Security (DHS) issues many different types of documents authorizing individuals to remain in the United States legally, immigration agents are trained to recognize these documents. Such intensive training is important in ensuring that immigration agents do not wrongfully detain a person who has a legal right to be in the United States. Even with this intensive training, INS agents have been known to make costly and embarrassing mistakes. See, e.g., Probe Sought Into INS Raid, Jackson Hole News, Aug. 28, 1996; FBI Probes Possible Civil Rights Violations, Press Enterprise, Feb. 25, 1998, at B1 (documenting detention of 153 immigrants suspected to be undocumented simply because of the color of their skin and noting that several “suspects” were eventually released because they were citizens or legal immigrants.) See also Editorial, Enforcement, Not Terror, Miami Herald, Apr. 25, 1998, at 24A (reporting that the INS unnecessarily apprehended and detained several Nicaraguan workers who were potential beneficiaries of the Nicaraguan Adjustment and Central
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American Relief Act of 1997). In addition to errors such these, there have been several reports of INS agents using tactics similar to racial profiling in order to arrest suspected undocumented immigrants.11
Amici are concerned that local law enforcement undergo no specialized immigration law training and are therefore more likely to make such mistakes if they are granted power to enforce immigration laws. Federal immigration laws are complex and constantly subject to change. As Craig E. Ferrell, Deputy Director and Administration General Counsel for the Houston Police Department states, “When local police have waded into immigration enforcement, it has often come with disastrous and expensive consequences.” Ferrell, Immigration Enforcement, supra.
Without proper training, local law enforcement would not be adequately equipped to enforce immigration laws; yet, as noted above, providing immigration training to state and local law enforcement officers would further drain already scarce state and local resources.
D. LOCAL ENFORCEMENT OF IMMIGRATION LAWS ENCOURAGES
POLICE OFFICERS TO ENGAGE IN IMPROPER RACIAL PROFILING.
Related to amici’s concern regarding lack of training is the likelihood that, if given the responsibility of enforcing immigration laws, improperly trained police officers will engage in improper racial profiling by relying on characteristics such as skin color or accents in deciding whether to question a person about his/her immigration status. The Congressional Research Service echoes this sentiment, stating, “a high risk for civil rights violations may occur if state and local police do not obtain the requisite knowledge, training, and experience in dealing with the enforcement of immigration laws.” Lisa M. Seghetti, et al., Enforcing Immigration Law: The
11 Following a June 2004 immigration raid in Southern California, for example, a local reverend reported that “immigration officers were randomly stopping Latinos on the street in their neighborhoods in suburbs east and south of Los Angeles and demanding their immigration papers.” John M. Broder, Immigration Raids, Far From Border, Draw Criticism, N.Y. Times, June 15, 2004, at 17A. The officers’ actions were described as “sowing fear and anger among Latinos, who they say appear to be singled out because of the color of their skin.” Id.
- 17 -

Role of State and Local Law Enforcement, Congressional Research Service Report for Congress,
24, Mar. 11, 2004, http://fpc.state.gov/documents/organization/31349.pdf.12 In New York City,
where race relations in the past have been particularly strained due to the public’s perception that
the police engaged in racial profiling, see, e.g., Felicia Lee, Coping: Where the Blues Are a Big
Help, N.Y. Times, January 14, 2001, at 1, this likelihood is especially troubling.
A recent lawsuit in Chandler, Arizona serves as an example of the potential negative
consequences of involving local law enforcement entities in the enforcement of immigration
laws. In that case, the local police department collaborated with the INS to conduct a roundup of
suspected undocumented Mexican immigrants. Police officers, acting outside of their
jurisdiction, stopped to question residents—many of whom were lawful residents or citizens—
for no other reason than their skin color or “Mexican appearance.” Victims of this roundup filed
a lawsuit against the city, which eventually settled for $400,000. Castro v. City of Chandler, No.
97-1736 (D.Ariz., filed Aug. 18, 1997). Similarly, in Katy, Texas police officers conducted a raid
that resulted in the improper detention of over 80 Hispanic citizens or legal foreign nationals.
Ferrell, Immigration Enforcement, supra. The ensuing class action lawsuit was dropped only on
the assurances that the city would end its racial profiling practices. See Verdicts and Settlements,
Nat'l L.J., Nov. 10, 2003, at 16.
12 Police officers and others have expressed similar concerns. See Michelle Mittelstadt, U.S. May Let State, Local Authorities Enforce Federal Immigration Laws, Dallas Morning News, April 3, 2002 (quoting an officer in San Joaquin County Sheriff’s Office as saying, “[r]acial profiling…could intensify if police are tasked with upholding immigration laws….”); Craig Ferrell Jr., The War on Terror’s “Absconder Initiative”, Int’l Assoc. of Chiefs of Police, Chief Counsel’s Archive, Oct. 1, 2002, http://www.iacp.org/documents/index.cfm?fuseaction= document& document_type_id=1&document_id=359 (stating, “many local agencies are usually not equipped or trained to enforce immigration laws without running afoul of their state and local statutes, such as those prohibiting racial profiling.”); Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Muslims and Arabs, 58 Ann. Surv. Am. L. 295 (2002) (describing race-based targeting of Arabs and Muslims in name of counterterrorism post-September 11). In addition, public awareness of racial profiling by immigration agents or local law enforcement is evidenced by the existence of terms such as “driving while Latino” and “flying while Arab.” William F. McDonald, The Emerging Paradigm for Policing Multiethnic Societies: Glimpses from the American Experience, Police & Society 7, 231 (June 2001), http://www.ojp.usdoj.gov/nij/specialissue/ 10McDonald.pdf.
- 18 -

Amici are concerned that the likelihood of increased racial profiling as a result of local enforcement of immigration law will significantly undermine trust of immigrant groups essential for the success of community-based policing efforts, as described in Part A, supra.
E. THE EXISTENCE OF MECHANISMS CURRENTLY IN PLACE FOR
FINDING AND APPREHENDING ILLEGAL IMMIGRANTS DEMONSTRATES THAT BROADENING THE SCOPE OF IMMIGRATION LAWS IS BOTH UNCONSTITUTIONAL AND UNNECESSARY
Congress has given DHS the authority to apprehend and detain illegal immigrants, see Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002), and can, of course, choose to provide the agency with as many resources it thinks necessary to effectively enforce federal immigration laws. In 1996, Congress also established by statute a specific program by which federal immigration officials can enlist the voluntary assistance of state and local law enforcement officers. See 8 U.S.C. § 1357(g). This program embodies several critical features absent in defendants’ policies—a clear congressional delegation of authority to a federal agency, federal supervision, and the training that Congress believed was minimally necessary to undertake the complex mission of collaborative immigration law enforcement.
Congress has provided that the Attorney General may delegate immigration enforcement authority to local officials by entering into negotiated agreements with them, frequently referred to as Memoranda of Understanding (MOU). 8 U.S.C. § 1357(g) (“the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States…may carry out such function….”) The express delegation of authority by Congress to the Attorney General to engage
- 19 -

local law enforcement agencies implicitly, but certainly, undermines the legitimacy of Defendants’ actions in this case, as Plaintiffs have otherwise demonstrated in their Memorandum in Opposition. Indeed, if Defendants’ position regarding the legality of their actions were somehow correct, the congressionally created MOU program (and its corresponding constitutional foundation) would be rendered utterly superfluous.13
In addition, the congressional statute requires, unlike Defendants’ policies, that any officer enforcing federal immigration law pursuant to an MOU receive adequate immigration enforcement training and that such officer act under the supervision of the United States Attorney General. 8 U.S.C. § 1357(g)(2) (requiring a “written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws.”) In 2002, Florida became the first state to enter into an MOU with the DOJ, and since then Alabama has entered into a similar MOU. Lisa M. Seghetti, et al., Enforcing Immigration Law: The Role of State and Local Law Enforcement, Congressional Research Service Report for Congress, 24, Mar. 11, 2004, http://fpc.state.gov/documents/organization/31349.pdf. Significantly, in Florida, these specially trained officers are not engaged in general immigration enforcement efforts; their involvement is limited to counter-terrorism efforts. See Memorandum of Understanding between DOJ and State of Florida, 2002, http://www.fdle.state.fl.us/Domestic_Security/DS_5/INS_FDLE_MOU.pdf.
Although the MOU program is constitutional, limited in enforcement scope, and provides important immigration training, the MOU does not resolve all of amici’s concerns. In particular, the MOU program does not completely obviate amici’s concerns about the chilling effect on law
13 The MOU program is, likewise, voluntary. 8 U.S.C. § 1357(g)(9). (“Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.”) Consistent with constitutional limitations, the federal government could not force a state to enter into an MOU without its clear consent. See Printz v. United States, 521 U.S. 898 (1997) (prohibiting the federal government from commandeering local government officials to implement federal programs).
- 20 -

enforcement in immigrant communities that local enforcement of immigration laws will have. See Section A, supra. Additionally, MOU programs are carried out “at the expense of the [s]tate” or locality; therefore amici’s concerns about lack of resources remain. 8 U.S.C. § 1357(g)(1). Nevertheless, because participation in the MOU program requires express state or local governmental consent, amici, and likely the dozens of state and local entities that oppose local governmental enforcement of immigration laws, see Ex. A, would have an opportunity to prevent an MOU adoption through the full democratic process,14 rather than being subject to the considerably worse consequences imposed by Defendants’ policy via, as Plaintiffs’ describe in their Brief in Opposition, unlawful federal agency action.
14In advance of the 2002 Winter Olympics, for example, Salt Lake City became one of the first localities to consider entering into an MOU with the DOJ. After a rich public debate, however, in which the community concluded that deputizing local police as immigration agents would not advance public safety, the Salt Lake City council voted against entering into the agreement. Sean Foster, SLC Council Says No to Cross-Deputization; Members Vote 4-3 Against Agreement That Would Let 20 City Police Officers Enforce Immigration Law, Salt Lake Tribune, Sept. 2, 1998.
- 21 -

EXHIBIT A

Organizations Opposed to Local Enforcement of Immigration Laws

The following organizations have expressed opposition to the idea of having state and local police enforce federal immigration laws, outside of limited avenues already available under current law. Their positions may have been manifested in organizational policy directives, statements made to the press, local resolutions, executive orders, or other public forums.

For a list of organizations that are on record explicitly opposing the Clear Law

Enforcement for Criminal Alien Removal (CLEAR) Act (H.R. 2671) and the Homeland

Security

Enhancement

Act

(S.

1906),

visit

http://www.immigrationforum.org/currentissues/clear.htm.

National Immigration Forum, April 2004

State and Local Law Enforcement Agencies
Arizona Chandler Police Department Pima County Sheriff’s Department Santa Cruz County Sheriff’s Office South Tucson Police Department Yuma County Sheriff’s Office
Calfornia Anaheim Police Department Arroyo Grande Police Department Fresno Police Department Los Angeles County Sheriff’s Department Los Angeles Police Commission Los Angeles Police Department Modoc County Sheriff’s Office Newark Police Department Sacramento Police Department Salinas Police Department San Diego Police Department San Joaquin County Police Department Sonoma County Police Department Stockton Police Department Ventura County Sheriff’s Department
Colorado Boulder Police Department Denver Police Department Glenwood Springs Police Department

1

District of Columbia Washington, DC Metropolitan Police Department
Florida Lake County Sheriff’s Office Miami Police Department North Miami Beach Police Department
Georgia Cobb County Police Department
Illinois Chicago Police Department Cicero Police Department
Iowa Des Moines Police Department
Kansas Kansas City Police Department Lenexa Police Department Overland Park Police Department
Maine Cumberland County Office of the Sheriff Portland Police Department
Maryland Baltimore City Police Department Montgomery County Police Department
Massachusetts Boston Police Department Lowell Police Department
Minnesota Minneapolis Police Department St. Paul Police Department
New Jersey Fairview Police Department Hackensack Police Department Hillsdale Police Department Palisades Park Police Department
New York New York City Police Department
2

North Carolina Cary Police Department High Point Police Department
Oregon Eugene Police Department Hillsboro Police Department Multnomah County Sheriff’s Office Portland Police Bureau
Pennsylvania Bensalem Department of Public Safety Hammonton Police Department Philadelphia Police Department
Rhode Island Pawtucket Police Department
South Carolina North Charleston Police Department
Tennessee Nashville Metropolitan Police Department Putnam County Police Department
Texas Arlington Police Department Austin Police Department Bexar County Sheriff’s Office Carrollton Police Department Dalton Police Department El Paso Sheriff’s Department Garland Police Department Houston Police Department Katy Police Department Lewisville Police Department San Antonio Police Department Waco Police Department
Washington Seattle Police Department Whatcom County Sheriff’s Department
Wisconsin Dane County Sheriff’s Department
Law Enforcement Associations
National
3

Association of National Minority Law Enforcement Associations (ANMLEA) Federal Hispanic Law Enforcement Officers Association (FHLEA) Hispanic American Police Command Officers Association (HAPCOA) National Latino Peace Officers Association (NLPOA) Police Executive Research Forum (PERF) Police Foundation
State/Local California Police Chiefs’ Association California State Sheriffs’ Association Connecticut Police Chiefs’ Association Dallas Police Association El Paso Municipal Police Officers’ Association Houston Police Officers Union Miami-Dade Chiefs Association Police Benevolent Association (FL) Washington Association of Sheriffs and Police Chiefs
State and Local Governments
National Associations National Association of Counties National Conference of State Legislatures National League of Cities United States/Mexico Border Counties Coalition
State and Local Elected Bodies and Officials
Alaska State Legislature of Alaska Anchorage City Council Fairbanks City Council
Arizona Governor Jane Hull (R)
Arkansas City of Rogers
California 54 members of the California Legislature Los Angeles City Attorney Rocky Delgadillo Los Angeles City Council Los Angeles County Board of Supervisors National City Mayor Nick Inzunza National City City Council San Francisco City Council
Connecticut
4

Danbury Mayor Mark Boughton
District of Columbia Mayor Anthony Williams (D) City Council Member Adrian Fenty (D) City Council Member Jim Graham (D)
Florida Governor Jeb Bush (R)
Illinois Evanston City Council City of Chicago Alderman George Cardenas, 12th Ward City of Chicago Alderman Tom Tunney, 44th Ward
Kansas Unified Government of Wyandotte County
Maine Portland City Council
Maryland Baltimore Mayor Martin O’Malley Baltimore City Council Montgomery County Executive Doug Duncan Takoma Park City Council
Massachusetts Cambridge City Council Orleans City Council
Michigan Ann Arbor City Council Detroit City Council
Minnesota Minneapolis City Council St. Paul City Council Member Pat Harris
New Mexico Governor Bill Richardson Albuquerque City Council Aztec City Council Rio Arriba County Board of Commissioners Santa Fe City Council
New York New York City Mayor Michael Bloomberg (R) Former New York City Mayor Rudy Giuliani (R)
5

Queens City Councilman Hiram Monserrate
North Carolina Durham Mayor Bill Bell Durham Assistant City Manager Ted Voorhees
Ohio Lorain County Board of Commissioners Former Attorney General Betty Montgomery
Oregon Oregon Revised Statute 181.850 Attorney General Hardy Myers Ashland City Council Gaston City Council Marion County City Council Salem City Council
Pennsylvania Philadelphia City Solicitor Nelson Diaz
Texas Austin City Council Houston Mayor Pro Tem Gordon Quan San Antonio Assistant City Manager Rolando Bono
Washington Seattle City Council
Wisconsin Madison City Council Dane County Board of Supervisors Member Scott McDonell District Attorney Brian Blanchard
Presidential Candidates (former)
Joseph Lieberman Wesley Clark
Congress
Congressional Hispanic Caucus Representative Howard Berman (D-CA) Representative Chris Cannon (R-UT) Representative Lincoln Diaz-Balart (R-FL) Representative Bob Filner (D-CA) Representative Jeff Flake (R-AZ) Representative Richard Gephardt (D-MO) Representative Luis Gutierrez (D-IL) Representative Sheila Jackson Lee (D-TX)
6

Representative Barbara Lee (D-CA) Representative Zoe Lofgren (D-CA) Representative Robert Menendez (D-NJ) Representative Silvestre Reyes (D-TX) Representative Ciro Rodriguez (D-TX) Representative Ileana Ros-Lehtinen (R-FL) Representative Linda Sanchez (D-CA) Representative José Serrano (D-NY) Representative Jan Schakowsky (D-IL)
Editorial Boards
American City and County The American Prospect Arizona Daily Star Athens (GA) Banner-Herald Atlanta Journal-Constitution Boston Globe Chicago Tribune Des Moines Register El Paso Times Houston Chronicle Los Angeles Times The Miami Herald Orange County Register New York Sun The New York Times Newsday Palm Springs Desert Sun San Diego Union-Tribune San Francisco Chronicle Star Tribune (MN) Tucson Citizen
National Interest Groups
ACORN American-Arab Anti-Discrimination Committee (ADC) American Civil Liberties Union American Conservative Union Americans for Tax Reform Anti-Defamation League American Conservative Union American Immigration Lawyers Association Amnesty International USA Arab American Institute Asian American Legal Defense and Education Fund Asian & Pacific Islander American Health Forum Catholic Alliance
7

Catholic Legal Immigration Network, Inc. (CLINIC) Church Women United Church World Service IRP The Committee for Inter-American Human Rights Council on American-Islamic Relations Detention Watch Network Doctors of the World-USA Episcopal Migration Ministries (EMM) Family Violence Prevention Fund Friends Committee on National Legislation (FCNL) Hebrew Immigrant Aid Society (HIAS) Hmong National Development Immigrant Legal Resource Center Immigrant Women Program of NOW Legal Defense and Education Fund Immigration and Refugee Services of America International Gay and Lesbian Human Rights Commission Jesuit Refugee Service/USA Labor Council for Latin American Advancement (LCLAA) Lawyers Committee for Human Rights Leadership Conference on Civil Rights (LCCR) Love Sees No Borders Lutheran Immigration and Refugee Service Mexican-American Legal Defense and Educational Fund Muslim Public Affairs Council National Alliance To End Sexual Violence National Alliance of Vietnamese American Service Agencies National Asian Pacific American Legal Consortium National Catholic Association of Diocesan Directors for Hispanic Ministry (NCADDHM) National Center on Domestic and Sexual Violence National Center on Poverty Law National Coalition Against Domestic Violence National Coalition for Asian Pacific American Community Development National Coalition for Haitian Rights National Council of La Raza National Employment Law Project National Immigration Forum National Immigration Law Center National Immigration Project of the National Lawyers Guild National Korean American Service and Education Consortium National Network for Immigrant and Refugee Rights National Organization of Sisters of Color Ending Sexual Assault (SCESA) National Organization for Women (NOW) Network in Solidarity with the People of Guatemala (NISGUA) Orange County (CA) Congregation Community Organization Organization of Chinese Americans People For the American Way The Puerto Rican Legal Defense and Education Fund Service Employees International Union (SEIU), AFL-CIO, CLC SHARE Foundation
8

Sikh Mediawatch and Resource Task Force (SMART) Social Welfare Action Alliance Southeast Asia Resource Action Center (SEARAC) South Asian Network Stop-Traffic Tahirih Justice Center UNITE! United Food and Commercial Workers International Union (UFCW) U.S. Civil Rights Commission United States Conference of Catholic Bishops World Relief
Regional, State, and Local Interest Groups (By State)
Alabama ACLU of Alabama Hispanic Interest Coalition of Alabama
Arizona Addiction Services, P.C. Border Action Network Border Watch Florence Immigrant and Refugee Rights Project Tempe Hispanic Forum
California ACLU of Southern California American Arab Anti-Discrimination Committee, Los Angeles and Orange County Chapter Asian Law Alliance Asian Law Caucus (San Francisco) Asian Pacific American Legal Center of Southern California (Los Angeles) Asian & Pacific Islander Institute on Domestic Violence (San Francisco) Asian Pacific Islander Legal Outreach (San Francisco) Asian Pacific Policy and Planning Council Bay Area Immigrant Rights Coalition Catholic Charities of the Diocese of Santa Rosa Catholic Charities Refugee and Immigrant Services—San Diego Catholic Charities of San Jose Central American Resource Center (CARECEN)—Los Angeles Child Care Law Center (San Francisco) Coalition to Abolish Slavery and Trafficking (CAST) (Los Angeles) Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA) Community United Against Violence (San Francisco) El Concilio del Condado de Ventura Darin M. Camarena Health Centers, Inc. East Bay Asian Local Development Corporation East San Jose Community Law Center Filipino Civil Rights Advocates (Oakland) Filipinos for Affirmative Action (Oakland)
9

Immigration Law Project, La Raza Centro Legal, Inc. (San Francisco) International Institute of the East Bay International Institute of San Francisco Korean American Coalition to End Domestic Abuse (Oakland) Korean Resource Center of Los Angeles (KRC) Lawyers’ Committee for Civil Rights of the San Francisco Bay Area Los Angeles County Board of Supervisors Migration Policy and Resource Center/Occidental College, Los Angeles Riley Center: Services for Battered Women and their Children (San Francisco) Sexual Assault Crisis Agency (SACA) Shimtuh: Korean Domestic Violence Program of the Korean Community Center of the
East Bay South Asian Network
Colorado 9to5 Colorado Boulder County Safehouse Center for Justice, Peace and Environment Colorado Coalition Against Domestic Violence (Denver) El Centro Amistad Fuerza Latina (Fort Collins) Los Compañeros (San Juan Citizens Alliance) Rape Awareness and Assistance Program (Denver) Rights for All People/Derechos Para Todos Rocky Mountain Peace and Justice Center
Connecticut Catholic Charities Migration and Refugee Services—Hartford
District of Columbia AYUDA Inc. Break The Chain Campaign Capital Area Immigrants’ Rights Coalition CARECEN-DC (Central American Resource Center) Washington Lawyers’ Committee for Civil Rights and Urban Affairs Women Empowered Against Violence, Inc. (WEAVE)
Florida Catholic Charities of Orlando, Inc. Coalition of Immokalee Workers (Immokalee) Diocese of Orlando, Respect Life Office The Farmworker Association of Florida, Inc. Florida Council Against Sexual Violence (Tallahassee) Florida Immigrant Advocacy Center (FIAC) GALATA, Inc. (Florida City) Latino Leadership, Inc. The Law Firm of M. Thomas Lobasz, P.A. Office for Farmworker Ministry
10

Georgia African Immigrant Communities Leadership Initiatives/US (Columbus) Immigration Services of Catholic Social Services—Atlanta Raksha Inc. (Atlanta)
Hawaii Catholic Charities Community and Immigrant Services Na Loio - Immigrant Rights & Public Interest Legal Center (Honolulu)
Illinois Alivio Medical Center Asian American Institute (Chicago) Dominican Literacy Center Heartland Alliance for Human Needs & Human Rights (Chicago) Illinois Coalition for Immigrant and Refugee Rights (Chicago) The Immigration Project (Granite City) Korean American Resource & Cultural Center (KRCC) Latinos Progresando (Chicago) Latino Youth, Inc. Metropolitan Family Services, Family Violence Intervention Program (Chicago) Midwest Immigrant & Human Rights Center (Chicago) Peregrinos por la Dignidad
Iowa Asian Coalition Against Domestic Violence and Sexual Assault (ACADVSA) Assault Care Center Extending Shelter (Ames) Catholic Charities, Domestic Violence/Sexual A.P. (Council Bluffs) Cedar Valley Friends of the Family (Waverly) Centers Against Abuse and Sexual Assault (Spencer) Clinton YWCA, Domestic Violence/Sexual A.R.C. (Clinton) Committee of the Immigrant Rights Network of Clarion, Iowa Committee of the Immigrant Rights Network of Des Moines, Iowa Committee of the Immigrant Rights Network of Dubuque, Iowa Committee of the Immigrant Rights Network of Ottumwa, Iowa Committee of the Immigrant Rights Network of Red Oak, Iowa Committee of the Immigrant Rights Network of Shenandoah, Iowa Committee of the Immigrant Rights Network of Sioux City, Iowa Council Against Domestic Abuse and Sexual Assault (Cherokee) Council on Sexual Assault and Domestic Violence (Sioux City) Crisis Center and Women’s Shelter (Ottumwa) Crisis Intervention and Advocacy Program (Adel) Crisis Intervention Service (Mason City) Crisis Intervention Services of Mahaska County (Oskaloosa) Domestic Abuse Prevention Center (Carroll) The Domestic and Sexual Abuse Resource Center (Decorah) Domestic/Sexual Assault Outreach Center (Fort Dodge) Domestic Violence Advocacy Program (Davenport) Domestic Violence Alternatives/Sexual Assault C. (Marshalltown) Domestic Violence Education and Shelter (Shenandoah)
11

Domestic Violence Intervention Program (Iowa City) The Family Crisis Center of North Iowa (Algona) Family Crisis Centers of NW Iowa (Sioux Center) Family Crisis Support Network (Atlantic) Family Service League Crisis Services (Waterloo) The Family Violence Center (Des Moines) Iowa Coalition Against Domestic Violence Iowa Coalition Against Sexual Assault Rape and Sexual Assault Program Polk Co. V.S. (Des Moines) Rape Victim Advocacy Program (Iowa City) Riverview Center, Inc. (Dubuque) Rural Crisis Center: Domestic Violence & S.A.S. (Creston) Seeds of Hope (Grundy Center) Sexual Assault/Domestic Abuse Advocacy Program (Muscatine) Tri-State Coalition Against Domestic and Sexual Assault (Keokuk) Turning Point (Knoxville) Waypoint Services for Women, Children and Families (Cedar Rapids) YWCA Domestic Violence Program (Dubuque) YWCA Domestic Violence Shelter and Sexual A.P. (Burlington)
Kansas El Centro, Inc. Kansas Coalition Against Sexual and Domestic Violence Law Offices of Sarah J. Schlicher (Overland Park)
Kentucky Kentucky Domestic Violence Association
Louisiana Catholic Charities Archdiocese of New Orleans Migration and Refugee Services/Catholic Diocese of Lafayette Office of Justice and Peace/Catholic Diocese of Lafayette
Maine Family Crisis Services (Portland) Immigrant Legal Advocacy Project
Maryland Immigration Outreach Service Center (IOSC) Migrant and Refugee Cultural Support, Inc. (MIRECS)
Massachusetts Brazilian Immigrant Center Brazilian Resources and Services Network Brazilian Workers Center Greater Boston Legal Services, on behalf of its clients Irish Immigration Center Massachusetts Immigrant and Refugee Advocacy (MIRA) Coalition Massachusetts Law Reform Institute
12

Political Asylum/Immigration Representation Project (Boston) Refugee Immigration Ministry (Malden) UFCW Local 1445
Michigan ACCESS (The Arab Community Center for Economic and Social Services) Domestic Violence Project, Inc./SAFE House (Ann Arbor) Hispanic American Council Michigan Coalition Against Domestic and Sexual Violence (Okemos) Michigan Organizing Project (MOP) Relief After Violent Encounter, Inc. (St. Johns) Turning Point (Mt. Clemens) YWCA of Grand Rapids
Minnesota AFFIRM (The Alliance for Fair Federal Immigration Reform of Minnesota) AFSCME Council 14 Al Taqwa Mosque Archdiocese of St. Paul & Minneapolis Hispanic Ministry Leadership Team C.N. Realty Centro de Derechos Laborales Comite Civico Ecuatoriano Community Stabilization Project (CSP) Confederation of Somali Community Council on Asian Pacific Minnesotans Council on Black Minnesotans HERE (Hotel Employees and Restaurant Employees International Union) Hmong 18 Council Hmong American Partnership ISAIAH Jewish Community Action Jobs and Affordable Housing Campaign Lauj Youth Society of Minnesota MN Chapter of the American-Arab Anti-Discrimination Committee MN Chapter of the American Immigration Lawyers Association MN Chapter of the National Lawyers Guild MN State AFL-CIO Merriam Park Neighbors for Peace Minnesota Advocates for Human Rights (Minneapolis) Minnesota Alliance for Progressive Action (MAPA) Minnesota Literacy Council Minnesota Muslim American Society National Conference of Black Lawyers Our Lady of Guadalupe Congregation Progressive Minnesota Resource Center for the Americas SEIU Minnesota State Council Sacred Heart Congregation St. Paul Bill of Rights Defense Committee
13

St. Paul Branch of the NAACP St. Paul Trades and Labor Association Steelworkers of America Swede Hollow Democratic Club UFCW Local 789 Waseca Area Neighborhood Service Centre Women of Africa Resource and Development Association (WARDA)
Mississippi Catholic Charities of the Diocese of Jackson Catholic Diocese of Jackson Daughters of Charity Dominican Sisters Saint Anne Catholic Church
Missouri Refugee & Immigration Services, Diocese of Jefferson City
Nebraska Immigrant Rights Network of Iowa and Nebraska NE Mexican American Commission Nebraska Appleseed Center for Law in the Public Interest
New Jersey American Friends Service Committee Immigrant Rights Program of Newark, NJ Catholic Community Services, Refugee Resettlement and Immigration Assistance Programs—Newark El Centro Hispanoamericano (Plainfield) Migration and Refugee Services/Diocese of Trenton New Jersey Coalition for Battered Women New Jersey Immigration Policy Network, Inc. Wind of the Spirit, Immigrant Resource Center
New Mexico Catholic Charities of Albuquerque MANA de Albuquerque (Mexican American National Association of Women)
New York Alianza Dominicana, Inc. Asian Americans For Equality, Inc. CUNY School of Law, Immigrant Initiatives Cabrini Immigrant Services Catholic Charities of Rockville Centre Central American Legal Assistance Central American Refugee Center Centro Salvadoreño Community Board 2 Manhattan Face to Face The Forest Hills Community House
14

Goddard Riverside Community Center Greater Upstate Law Project (Albany, Rochester and White Plains, NY) Hotel Employees & Restaurant Employees Union, Local 100 Kids Meeting Kids Latin American Integration Center Lesbian and Gay Immigration Rights Task Force (New York) Lutheran Family and Community Services (New York) Marymount Manhattan College Institute for Immigrant Concerns New Immigrant Community Empowerment (NICE) – Jackson Heights New York Immigration Coalition New York State Defenders Association Rockland Immigration Coalition Safe Horizon (New York City) Sanctuary for Families (New York City) Sex Workers Project at the Urban Justice League (New York City) Young Korean American Service & Education Center (YKASEC)
North Carolina Center for New North Carolinians Episcopal Farmworker Ministry FaithAction Latino Community Credit Union Latino Community Development Center North Carolina Justice and Community Development Center
Ohio Community Refugee & Immigration Services En Camino, Migrant and Immigrant Outreach/Diocese of Toledo
Oklahoma Asian American Community Service Association, Inc. Domestic Violence Intervention Services, Inc. (Tulsa) Leblang, Sobel & Ashbaugh, P.L.L.P.
Oregon ACLU of Oregon AFSCME Council 75 AILA Oregon Chapter Adelante Mujeres American Immigration Lawyers Association, Oregon Chapter Asian Pacific American Network of Oregon Basic Rights Oregon Benton County Bill of Rights Defense Committee Better People Bridge City Preparative Meeting of the Religious Society of Friends CAUSA Center for Environmental Equity Centro Cultural Centro LatinoAmericano
15

Commission on Hispanic Affairs Common Cause Oregon Community Alliance of Lane County Coos County Women’s Crisis Service Domestic Violence Resource Center Ecumenical Ministries of Oregon Eugene Human Rights Commission Haven from Domestic Violence Human Dignity Coalition Illinois Valley Safe House Alliance Japanese American Citizen League, Portland Chapter Lane County Central Labor Council Lane County Bill of Rights Defense Committee Lane County Human Rights Advisory Committee Lane County Law & Advocacy Center Latino Network Latinos Unidos Siempre Mid-Valley Women’s Crisis Service Network for Immigrant Justice Northwest Workers’ Justice Project Oregon AFL-CIO Oregon CURE Oregon NOW Oregon Action Oregon Chapter National Association of Social Workers Oregon Child Development Coalition Oregon Coalition Against Domestic and Sexual Violence Oregon Criminal Defense Lawyers Association Oregon Law Center Oregon Pacific Green Party Peace & Justice Works/Portland Copwatch Pineros y Campesinos Unidos del Noroeste (PCUN) Portland Bill of Rights Defense Committee Portland Books to Prisoners Portland State University Faculty Association Q: A Queer Resource for Social Change Rural Organizing Project SEIU Local 49 SEIU Local 503, OPEU SEIU Local 503, Latino Caucus Safe Harbors Salem/Keizer Coalition for Equality Sexual Assault Resource Center Sexual Assault Support Services Siuslaw Area Women’s Center Board of Directors Southern Oregon Chapter of the ACLU of Oregon Springfield Alliance for Equality and Respect Survivors Advocating for An Effective System Tillamook County Citizens for Human Dignity
16

VOZ Workers’ Rights Education Project Wasco County Citizens for Human Dignity Western Prison Project Western States Center Womenspace
Pennsylvania CIRCLE - Coalition for Immigrants' Rights at the Community Level (York) Detention Resource Project (Philadelphia) Lutheran Settlement House (Philadelphia) Golden Vision Foundation (York) Pennsylvania Immigrant & Refugee Women’s Network (Enola) Pennsylvania Immigration Resource Center (York) Pennsylvania Coalition Against Rape (Enola) PRIME – Ecumenical Commitment to Refugees (Clifton Heights)
Rhode Island International Institute of Rhode Island, Inc. Rhode Island Jobs with Justice
Tennessee Abused Women's Services of The YWCA of Greater Memphis Garcia Labor Company, Inc. Highlander Research and Education Center Iraqi House Tennessee Coalition Against Domestic and Sexual Violence (Nashville) Tennessee Immigrant and Refugee Rights Coalition (TIRRC)
Texas ARCA (Association for Residency and Citizenship of America) Association for Immigrants’ Equality and Freedom BARCA, Inc. Border Association for Refugees from Central America (Edinburg) Casa Guanajuato Catholic Charities of Dallas, Immigration Counseling Services Catholic Family Service, Inc. Citizens and Immigrants for Equal Justice (Mesquite) Concilio de Inmigración Equal Justice Center Hines & Leigh, P.C. School for All The Texas Civil Rights Project (Austin) Texas Council on Family Violence
Utah YWCA of Salt Lake
Vermont Vermont Network Against Domestic Violence & Sexual Assault (Montpelier)
17

Vermont Refugee Assistance (Montpelier) Virginia Boat People S.O.S. (Falls Church) The Hispanic Committee of Virginia Office of Justice and Peace, Catholic Diocese of Richmond Refugee and Immigration Services, Catholic Diocese of Richmond Refugee & Immigration Services - Roanoke Office Tenants’ & Workers’ Support Committee Virginia Hispanic Chamber of Commerce Virginia Justice Center for Farm and Immigrant Workers Washington Broadview Emergency Shelter and Transitional Housing Program (Seattle) Chinese Cultural Association Eastside Domestic Violence Program (Bellevue) El Centro de la Raza Hate Free Zone Campaign of Washington (Seattle) King County Coalition Against Domestic Violence (Seattle) Law Offices of Carol L. Edward & Associates, P.S. (Seattle) Northwest Immigrant Rights Project (Seattle) Washington Alliance for Immigrant and Refugee Justice Washington Defender Association’s Immigration Project (Seattle) Wisconsin La Causa, Inc. UNIDOS Against Domestic Violence (Madison) Voces de la Frontera
18

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FA6117

)

NATIONAL COUNCIL OF LA RAZA, NEW )

YORK IMMIGRATION COALITION,

)

AMERICAN-ARAB ANTI-DISCRIMINA- )

TION COMMITTEE, LATIN AMERICAN )

WORKERS PROJECT, and UNITE,

Plaintiffs,

JOHN ASHCROFT, Attorney General of the

United States, TOM RIDGE, Secretary of

Homeland Security, ROBERT MUELLER,

Director, Federal Bureau of Investigation,

MICHAEL GARCIA, Assistant Secretary of

Homeland Security in charge of the Bureau

of Immigration and Customs Enforcement,

UNITED STATES DEPARTMENT OF

JUSTICE, UNITED STATES DEPARTMENT)

OF HOMELAND SECURITY, FEDERAL

)

BUREAU OF INVESTIGATION, and

)

BUREAU OF IMMIGRATION AND

)

CUSTOMS ENFORCEMENT,

)

)

Defendants.

)

)

No. 03-CV-6324 (ILG/ASC)
(Glasser, J.) (Chrein, M.J.)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT
FOR LACK OF SUBJECT MATTER JURISDICTION AND FOR FAILURE TO STATE A CLAIM
UPON WHICH RELIEF MAY BE GRANTED

ROSLYNN R. MAUSKOPF United States Attorney Eastern District of New York

F. FRANKLIN AMANAT
Assistant United States Attorney One Pierrepont Plaza, 14th Floor Brooldyn, NY 11201-2776 (718) 254-6024

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....................................................

iv

PRELIMINARY STATEMENT ...................................................

STATEMENT OF FACTS ......................................................

ARGUMENT ..............................................................

6

I. STANDARD OF P, mVIEW ..........................................

6

II. BECAUSE PLAINTIFFS LACK STANDING TO BRING THESE CLAIMS, THE COMPLAINT MUST BE DISMISSED FOR LACK OF JURISDICTION ............ 6

A. Requirements for Standing .................................

6

B. Plaintiffs Have Failed to Allege Injury-in-Fact ................... 8

C. Plaintiffs Have Failed to Allege Causation ..................... 13

III. EVEN ASSUMING THE JURISDICTION OF THIS COURT, COUNT I OF THE

COMPLAINT MUST BE DISMISSED FOR FAILURE TO STATE A CLAIM UNDER

THE APA ....................................................

14

A. Because Information about Absconders and Willful NSEERS

Violators Constitutes Crime Records, the Plain Language of 28

U.S.C. § 534(a) Authorizes Defendants to Acquire, Collect, and

Disseminate It ..........................................

15

B. Even if the Information about Absconders and NSEERS Violators Does Not Constitute Crime Records, Both the Plain Language and the Legislative History of 28 U.S.C. § 534(a) Support the Acquisition, Collection, Preservation, and Dissemination of the Information as "Other Records," and Numerous Immigration Statutes and Regulations Further Authorize the Collection and Dissemination of the Information ............... 18

MEMORANDUM OF LAW: MOTION TO DISMISS Nat’l Council of La Raza v. Ashcroft, No. 03-CV-6324

IV. COUNT II OF THE COMPLAINT MUST BE DISMISSED FOR FAILURE TO STATE A CLAIM UNDER THE CONSTITUTION ......................... 27

State and Local Police Do Not Need Authority Conferred by Federal Law to Arrest Absconders and Willful NSEERS
Violators, but May Do So Based Solely on the Exercise of State Law Powers. Accordingly, Plaintiffs’ Allegations Under the Fourth Amendment Fail to State an Actionable Claim ........... 2 7

Nothing in Federal Law Preempts States from Taking Measures to Assist the Federal Government with the Enforcement of Federal Immigration Law, and Plaintiffs’ Complaint Fails to State an Actionable Claim under the Supremacy Clause .......... 33

CONCLUSION ...........................................................

37

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Nat’l Council of La Raza v. Ashcroft, No. 03-CV-6324

iii

TABLE OF AUTHORITIES

CASES

Allen v. Wright, 468 U.S. 737 (1984) ........................................

7, 8

Armentero v. INS, 340 F.3d 1058 (9th Cir. 2003) ................................

24

Baur v. Veneman, 352 F.3d 625 (2d Cir. 2003) ...................................

8

United States v. Borvdach, 561 F.2d 1160 (Sth Cir. 1977) .......................... 31

United States v. Burgos, 269 F.2d 763 (2d Cir. 1959) .......................... 30-31

Coneld v. Gibson, 355 U.S. 41 (1957) ..........................................

6

United States v. DiRe, 332 U.S. 581 (1948) ....................................

28

Doe v. Webster, 606 F.2d 1226 (D.C. Cir. 1979) ................................

17

Eckles v. CitdofCo~don, 341 F.3d 762 (8th Cir. 2003) ............................. 7

FW/PBS, lnc. v. Dallas, 493 U.S. 215 (1990) ....................................

8

Fifth Avenue Peace Parade v. Gravy, 480 F.2d 326 (2d Cir. 1973) ..................... 13

Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000) .......... 8

Golden v. Zrvickler, 394 U.S. 103 (1969) .....................................

7, 10

Gonzales v. Citd of Peoria, 722 F.2d 468 (9th Cir. 1983) ........................ Heckler v. Chaned, 470 U.S. 821 (1985) .......................................

31, 32 18

Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977) ............ 8

United States v. ]anik, 723 F.2d 537 (Tth Cir. 1983) .............................. 31

1(amen v. American Telephone & Telegraph Co., 791 F.2d 1006 (2d Cir. 1986) ............ 6

Laird v. Tatum, 408 U.S. 1 (1972) ........................................

12-13

United States v. Lindenfeld, 142 F.2d 829 (2d Cir. 1944) ........................... 31

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LosAngeles ~. Lyons, 461 U.S. 95 (1983) ........................................

7

Lujan ~. Defenders of Wildlife, 504 U.S. 555 (1992) ..................... 7, 8, 10-11, 13

Marsh ~. United States, 29 F.2d 172 (2d Cir. 1928) ........................... 29, 34

Menard ~. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974) ............................... 22

Miller ~. United States, 357 U.S. 301 (1958) ....................................

28

Northeastern Florida Chapter, Associated General Contractors of America ~. Jacksonville, 508

U.S. 656 (1993) ....................................................

8

Presbyterian Church (USA) ~. United States, 870 F.2d 518 (9th Cir. 1989) .............. 7

Reno ~. Catholic Social Services, 509 U.S. 43 (1993) ............................... 12

Reporters Committee for Freedom of the Press ~. United States Department of Justice,

816 F.2d 730 (D.C. Cir.), modified, 831 F.2d 1124 (D.C. Cir. 1987),

re~’d on other grounds, 489 U.S. 749 (1989) ...............................

20

United States ~. Rosse, 418 F.2d 38 (2d Cir. 1969) ............................... 28

United States ~. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001) .................... 32

Scheuer ~. Rhodes, 416 U.S. 232 (1974) .......................................

3, 6

Sierra Club ~. Morton, 405 U.S. 727 (1972) .....................................

7

Simon ~. Eastern I(y. Welfare Rights Organization, 426 U.S. 26 (1976) ........... 7, 8-9, 13

United States ~. S~varo~ski, 557 F.2d 40 (2d Cir. 1977) ......................... 29-30

United Food and Commercial Workers Union, Local 751 ~. Brown Group, Inc.,

517U.S. 544 (1996) ................................................

8

United Presbyterian Church in the U.S.A. ~. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) ... 11, 13

United States ~. Vasquez-Al~arez, 176 F.3d 1294 (10th Cir.), cert. denied, 528 U.S. 913 (1999) ......................................

26, 31, 32, 36

Walker ~. Reno, 925 F. Supp. 124 (N.D.N.Y. 1995) .............................. 18

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Nat’l Council of La Raza v. Ashcroft, No. 03-CV-6324

V

Warth ~. Seldin, 422 U.S. 490 (1975) ........................................

7, 8

Whitmore ~. Arkansas, 495 U.S. 149 (1990) .....................................

7

ADMINISTRATIVE DECISIONS In reD-]-, 23 I. &N. Dec. 572 (A.G. Apr. 17, 2003) ............................. 24

CONSTITUTIONAL PROVISIONS U.S. CONST. art. II ....................................................... U.S. CONST. art. III,§ 2 .................................................... U.S. CONST. art. VI ............................................ U.S. CONST. amend. IV ............................................

28 6
1, 2, 27, 33-36 1, 2, 27-33

CODIFIED STATUTES

5 U.S.C. § 300 (1964) ..............................................

5 U.S.C. § 340 (1964) .............................................. Administrative Procedures Act ("APA"), 5 U.S.C. §§ 501 et seq ...............

5 U.S.C. § 702 ..........................................................

6 U.S.C. § 202 ..........................................................

6 U.S.C. § 251 ..........................................................

6 U.S.C. § 252 ..........................................................

6 U.S.C. § 291 ..........................................................

8 U.S.C. § 1103 ......................................................

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Nat’l Council of La Raza v. Askcroft, No. 03-CV-6324

vi

19, 20, 21 19, 20, 21 1, 2, 14, 26
24 24 24 24 24, 35

8 U.S.C. § 1225 .........................................................

24

8 U.S.C. § 1227 .........................................................

23

8 U.S.C. § 1231 ................................................

16, 18, 23, 24

8 U.S.C. § 1252c .............................................

2, 14, 25-26, 36

8 U.S.C. § 1253 ......................................................

16, 18

8 U.S.C. § 1305 .........................................................

17

8 U.S.C. § 1306 ......................................................

17, 18

8 U.S.C. § 1325 .........................................................

23

8 U.S.C. § 1326 .........................................................

30

8 U.S.C. § 1357 .........................................................

35

8 U.S.C. § 1365a ........................................................

35

8 U.S.C. § 1373 ...................................................

24-25, 35

8 U.S.C. § 1644 ......................................................

25, 35

18 U.S.C. § 3041 ........................................................

30

28 U.S.C. § 534 ..............................................

2, 14, 15, 17-22

N.Y. CRAM. PRO. Law § 104.30 (1975) .................................... 29, 31

ENACTED STATUTES

Act of Sept. 24, 1789, ch. 20, § 33, 1 Stat. 91 .................................. 30

Act of Max. 1, 1921, ch. 89, § 1, 41 Stat. 1175 ................................. 20

Act of Mar. 4, 1921, ch. 161, § 1, 41 Stat. 1410 ................................ 20

Act of June 11, 1930, Pub. L. No. 71-337, ch. 455, 46 Stat. 554 ................... 20

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vii

Department of Justice Appropriations Act, Fiscal Year 1965, Pub. L. No. 88-527, title

II, § 201, 78 Star. 717 (Aug. 31, 1964) .................................

19

Act of Sept. 6, 1966, Pub. L. No. 89-554, §§ 4(c), 7(a), 80 Stat. 378, 616, set forth at 1966 U.S.C.C.A.N. 752 ....................................... 19, 20, 21

Violence Against Women Act (VAWA), Pub. L. No. 103-322, Title W, § 40601, 108

Star. 1950 (Sep. 13, 1994) ...........................................

22

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, Title XIII, § 130002, 108 Star. 1796 (Sep. 13, 1994), as amended byAntiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, Title IV, § 432, 110 Star. 1273 (Apr. 24, 1996), as amended by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, Title III, §§ 308(g)(5)(B), 326, 327, 110 Star. 3009-623, 3009-630 (Sept. 30, 1996), codified as a note following 8 U.S.C. § 1226 ............... 23, 24, 35

Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 402,441-42,471, 1102, 116 Star. 2135, 2177, 2192-93, 2205, 2273-74 (Nov. 25, 2002) ............. 24

Consolidated Appropriations Resolution for 2003, Pub. L. No. 108-7, sec. 105(a),

117 Star. 11 (2003) ................................................

24

LEGISLATIVE HISTORY

72 Cong. Rec. 1989 (7Ut Cong., 2d Sess., Jan. 20, 1930 (Statement of Rep. Graham)) . . 20

1964 U.S.C.C.A.N. 815 ...................................................

19

CODIFIED REGULATIONS

8 C.F.R. § 241.1 .........................................................

23

8 C.F.R. § 241.2 .........................................................

23

8 C.F.R. § 241.3 .........................................................

23

8 C.F.R. § 241.5 .........................................................

24

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Nat’l Council of La Raza v. Ashcroft, No. 03-CV-6324

Vlll

8 C.F.R. § 264.1 ................................................... 28 C.F.R. § 0.85 ......................................................... 28 C.F.R. Part 20 ........................................................ 28 C.F.R. § 20.31 (a) ......................................................

17, 23, 24 15 15 15

REGULATORY MATERIALS AG Order No. 2608-2002, 67 Fed. Reg. 52,584 (INS Aug. 12, 2002) ............... 17 AG Order No. 2638-2002, 67 Fed. Reg. 77,642 (INS Dec. 18, 2002) ............... 23 ICE No. 2301-3, 68 Fed. Reg. 67,578 (DHS Dec. 2, 2003) ....................... 17

RULES OF PROCEDURE

FED. R. C~v. P. 12(b)(1) ....................................................

1

FED. R. CIv. P. 12(b)(6) ....................................................

1

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Nat’l Council of La Razav. Ashcroft, No. 03-CV-6324

ix

PRELIMINARY STATEMENT
This case concerns the National Crime Information Center ("NCIC"), a database maintained by defendant Federal Bureau of Investigation ("FBI"). Five plaintiff organizations purporting to act on behalf of various segments of the immigrant community commenced this action seeking declaratory and injunctive relief to prevent the Government from including in the NCIC certain information about two specified categories of aliens, and from disseminating that information to the state and local law enforcement agencies which use that database. One category of aliens allegedly affected by the Government’s actions are persons with outstanding orders of removal who have failed to comply with those orders and who have unlawfully remained in the United States ("Absconders"). The other category consists of individuals who have violated a requirement of the National Security Entry-Exit Registration System ("NSEERS"), a program established by the Attorney General in June 2002 to assist the Government in tracking the movements of aliens from certain countries and of aliens believed to present a potential threat to national security. Plaintiffs contend that the inclusion of information about Absconders and NSEERS violators in the NCIC database exceeds the Government’s authority and therefore violates the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 501 et seq. Plaintiffs further contend that the inclusion of this information induces and causes state and local police agencies to unlawfully arrest aliens in violation of the Supremacy Clause and the Fourth Amendment.
Pursuant to FED. R. C~v. P. 12(b)(1) and 12(b)(6), the complaint must be dismissed. As a threshold matter, the Court lacks subject matter jurisdiction because plaintiffs lack standing to raise the claims asserted in the complaint. In the absence of allegations of concrete injury-in-
MEMORANDUM OF LAW: MOTION TO DISMISS Nat’l Council of La Raza v. Ashcroft, No. 03-CV-6324

fact actually caused by the Defendants’ alleged actions, the complaint fails to allege facts suffident to confer organizational standing on plaintiffs.
Even if plaintiffs could somehow establish this Court’s subject matter jurisdiction to hear their claims, their complaint must be dismissed for failure to state a claim upon which relief can be granted. Count I of the complaint, alleging that the Government acted ultra pires in entering and disseminating information about Absconders and NSEERS violators in the NCIC, fails to state an actionable claim under the APA. Plaintiffs’ allegations that the Government lacks the statutory authority to include that information in the NCIC ignore numerous statutory sections providing that authority, are based on an incorrect reading of 28 U.S.C. § 534 and 8 U.S.C. § 1252c, and fail as a matter of law. Count II of the complaint, alleging that the Government is violating the Supremacy Clause and the Fourth Amendment by "causing and inducing" state and local law enforcement agencies to ma1<e unlawful warrantless arrests of individuals wanted for immigration violations, likewise fails to state a claim. Count II is predicated on the assumptions that Absconders and NSEERS violators have not committed any crimes, that state and local law enforcement agencies lack the authority to make warrantless arrests of such individuals based solely on their immigration violations, and that federal law preempts state and local agencies from attempting to exercise such authority. As set forth below, all of these assumptions are wrong as a matter of law. Nothing in federal law precludes or preempts state and local police officials from exercising any powers they may possess under state law to arrest Absconders and NSEERS violators without a waxrant on account of their federal crimes, or, indeed, on account of their non-criminal violations of the federal immigration laws. Plaintiffs’ constitutional claims must therefore be dismissed.
MEMORANDUM OF LAW: MOTION TO DISMISS Nat’l Council of La Raza v. Ashcroft, No. 03-CV-6324

STATEM ENT O F FACTS
According to the complaint,L/the FBI established a clearinghouse of federal, state, local, and international criminal justice records in 1930. Compl. 7 22. In 1967, this clearinghouse was renamed the NCIC, which the complaint describes as a "host-computer and telecommunication network" which provides information "to a control terminal agency in each of the fifty states." Compl. 7 23. This system allegedly provides "direct on-line access to its computerized index of criminal justice information for more than 700,000 law enforcement officers nationwide, twenty-four hours per day, 365 days peryear."/d. Specifically, over 17,000 law enforcement agencies at multiple levels of government are alleged to submit queries to the NCIC in the performance of their daily activities, restflting in an average of 3.7 million informational transactions per day. Compl. 77 2, 24.
Historically, the database is alleged to have contained "principally criminal justice records, such as rap sheets, criminal warrants, and stolen property records." Compl. 7 25. As alleged by plaintiffs, the Government recently began to enter information into the database about two discrete categories of aliens - information which the complaint describes as "civil immigration records regarding hundreds of thousands of non-citizens." Compl. 77 1, 29. Specifically, in 2002, the Government allegedly began to enter information into the database about Absconders - aliens with outstanding final orders of removal who are believed to have remained in the United States. Compl. 7 30. There are alleged to be 400,000 Absconders living in the United States, and the Defendants are claimed to have already entered information about 19,000 Absconders into the NCIC. Compl. 7 30, 38. More recently, in 2003, the Government

Since this is a motion to dismiss made at the pleadings stage, the facts set forth herein are as alleged in the complaint. See Scheuer ~. Rhodes, 416 U.S. 232,236 (1974).

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allegedly began to enter information into the NCIC about NSEERS violators, defined in the complaint as "persons whom defendant DHS believes have violated a requirement" of the

NSEERS program; plaintiffs claim to be unaware of the size of this group of violators, except to

say that information about "dozens" of such individuals has already been entered into the

database. Compl. 7 32, 38.

According to the complaint, the agencywith the authorization and responsibility for

compiling and entering Absconder and NSEERS violator information into the NCIC is the

Department of Homeland Security’s CDHS") Law Enforcement Support Center CLESC").

Compl. 7 35. When a law enforcement agent runs an NCIC check on an individual, if the

Immigration Violator File returns a positive hit, the agent is instructed to contact the LESC

immediately for confirmation of the information. Compl. 7 36. Once the information is

confirmed, DHS allegedly requests the police officer to aacrest or detain the alien until DHS

officials can arrive to take custody of him. Compl. 7 37. Plaintiffs claim that DHS and its

predecessor, the Immigration and Naturalization Service ("INS"), have a poor track record for

maintaining data reliability, resulting in "numerous inaccuracies" in the information which DHS

provides to the FBI for inclusion in the NCIC. Compl. 77 4, 39-40, 76. Plaintiffs further claim

that persons described in the database as Absconders may not have been given proper notice of

one or more determinations in their immigration proceedings and therefore may not be aware

that they are subject to a final order of removal; in addition, a number of NSEERS violators are

alleged to have been unaware of their failure to comply with the registration requirements of the

NSEERS program. Compl. 77 41-42.

According to plaintiffs, the Defendants have "facilitated," "encouraged, caused, and

induced state and local police to arrest immigrants listed in the NCIC" in the course of their

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routine duties. Compl. ¶7 1, 3, 6, 51. Although some local jurisdictions have "resisted" this request, others have adopted a policy or practice of arresting Absconders and/or NSEERS violators based on information listed in the NCIC. Compl. 77 52-53. Plaintiffs claim that police in New York, Illinois, Minnesota, Connecticut, Florida, and elsewhere have axrested aliens with outstanding removal orders or with a record of NSEERS violations, in reliance on the information they received in the NCIC. Compl. 7 54. Plaintiffs allege that these arrestees are typically not informed of their Miranda rights, are not made subject to state or federal criminal prosecution, and are detained by local police only until they are transferred to the custody of the Bureau of Immigration and Customs Enforcement ("ICE"). Compl. 7 55.
As alleged in the complaint, the inclusion in the NCIC of information concerning Absconders and NSEERS violators has "created fear in immigrant communities," which has allegedly caused immigrants to become more reticent about coming forward to state and local police authorities with information they may possess about the commission of various crimes. Compl. 77 61-66. As a result, "police effectiveness is undermined and public safety is diminished for all." Compl. 7 5, 61. In addition, the Defendants’ practices allegedly "place immigrants at imminent risk of unlawful arrest, inhibit immigrants from accessing vital emergency government services such as police and fire protection, and compromise the privacy interests of immigrants." Compl. 77 3, 67. Allegedly, the practice of including the information in the database also "diverts scarce resources from local policing priorities, and exposes officers untrained in the complexities of immigration law to liability for wrongful arrests. Police enforcement of immigration laws also encourages racial and ethnic profiling ...." Compl. 7 5.

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5

ARGUMENT

I.

STANDARD OF REVIEW

In deciding a motion to dismiss, whether upon the ground of lack of subject matter

jurisdiction or for failure to state a claim upon which relief can be granted, the allegations in the

complaint are assumed to be true and should be construed in the light most favorable to the

pleader. Scheuer p. Rhodes, 416 U.S. 232,236 (1974). The complaint must be dismissed if it is

beyond doubt that plaintiff caaa prove no set of facts which would allow this Court to exercise

subject matter jurisdiction over the case and would entitle her to the relief she seeks in her complaint. See Coneld v. Gibson, 355 U.S. 41, 45-46 (1957); Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1001 (2d Cir. 1986).

II.

BECAUSE PLAINTIFFS LACK STANDING TO BRING THESE CLAIMS, THE COMPLAINT

MUST BE DISMISSED FOR LACK OF JURISDICTION.

Plaintiffs are not individual alien Absconders and NSEERS violators who allege that information about them was actually entered into the NCIC database, resulting in their actual or imminent unlawful arrest by state or local law enforcement agencies. Rather, plaintiffs are organizations who claim to have unidentified alien Absconders and NSEERS violators among their membership, and who allege on behalf of those aliens that information about them may have been added to the NCIC database, which may subject them to some speculative future risk of arrest by state or local authorities. See generalld Compl. ¶¶ 68-76. Such allegations are insufficient as a matter of law to give plaintiffs standing to bring these claims.
A. Requirements for Standing. Article III, section 2 of the Constitution limits the subject matter jurisdiction of federal courts to actual cases and controversies. A corollary to this requirement of an actual case

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or controversy is that plaintiffs bringing suit in federal courts must demonstrate that they have standing to seek the relief sought in the complaint. See Allen p. Wright, 468 U.S. 737, 751 (1984). To make such a showing, a plaintiff must satisfy three requirements:
First, a plaintiff must show an "injury in fact," which is defined as "an invasion of a legally protected interest which is (a) concrete and paxticttlarized [meaning that the injury must affect the plaintiff in a personal and individual way], and (b) ’actual or imminent, not "conjectural" or "hypothetical.’ ....Lujan p. Defenders of Wildlife, 504 U.S. 555,560 &n. 1 (1992) (quoting Whitmore p. Arkansas, 495 U.S. 149, 155 (1990), in turn quoting LosAngeles p. Lyons, 461 U.S. 95, 102 (1983)); see also Warth p. Seldin, 422 U.S. 490, 508 (1975); Sierra Club p. Morton, 405 U.S. 727, 740-41 n. 16 (1972). If the injury has not already occurred, plaintiffs must demonstrate a "credible threat" of imminent future injury, see, e.g., Presbyterian Church (USA) p. United States, 870 F.2d 518,528-29 (9th Cir. 1989), and that threat must be real and immediate. See Golden p. Zwickler, 394 U.S. 103, 109 (1969); see also Eckles p. City of Cowdon, 341 F.3d 762, 767 (Sth Cir. 2003) (plaintiff must allege facts which show a substantial likelihood that he will suffer imminent future injury to obtain declaratory judgment).
Second, the plaintiff must demonstrate a "causal connection between the injury and the conduct complained of." Defenders of Wildlife, 504 U.S. at 560. This means that the injury has to be "fairly... trace[able] to the challenged action of the defendant, and not.., th[e] result [of] the independent action of some third party not before the court." Simon p. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976).
Third, the injury in question must be redressable by the relief sought by the complaint. This means that it "must be ’likely,’ as opposed to merely ’speculative,’ that the
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injurywill be ’redressed by a favorable decision.’" Defenders of Wildlife, 504 U.S. at 561 (quoting

Simon, 426 U.S. at 38); see alsoAllen, 468 U.S. at 750-51.

The party invoking federal jurisdiction bears the burden of establishing all three of

these elements. See, e.g., Northeastern Fla. Chapter, Associated General Contractors of Am. ~.

]aekson~ille, 508 U.S. 656, 663 (1993); FW/PBS, Inc. ~. Dallas, 493 U.S. 215, 231 (1990);

Warth, 422 U.S. at 508; Baur ~. Veneman, 352 F.3d 625,632 (2d Cir. 2003). Moreover, when

the plaintiff predicates its claim to standing not on injury to itself but on injury to third parties

on whose behalf it claims to be acting, its burden is "substantially more difficult" to establish.

Allen, 468 U.S. at 758; see also Defenders of Wildlife, 504 U.S. at 562; Simon, 426 U.S. at 44-45;

Warth, 422 U.S. at 505. Such is the case here, where plaintiffs assert the existence of a case or

controversy based on what has been called organizationaJ or assodational standing. See United

Food and Commercial Workers Union Local 751 ~. Brown Group, Inc., 517 U.S. 5 44, 551-52 (1996).

B. Plaintiffs Have Failed to Allege Injury-in-Fact.

It is well-established that an organization or association has standing to sue on behalf

of its members only when ( 1 ) "its members would otherwise have standing to sue in their own

right," (2) "the interests at stake are germane to the organization’s purpose," and (3) "neither

the claim asserted nor the relief requested requires the participation of individual members in

the lawsuit." Friends of the Earth, Inc. ~. Laidla~En~ironmental Ser~s., 528 U.S. 167, 181 (2000);

see also Local 751, 517 U.S. at 551-53; Hunt ~. Washington State Apple Advertising Comm’n, 432

U.S. 333,343 ( 1977); Warth, 422 U.S. at 511. Thus, such an organization must first establish

that at least one of its members has suffered an injury in fact sufficient to satisfy the first

requirement for standing. See Simon, 426 U.S. at 40 (the association "can establish standing

only as representatives of those of their members who have been injured in fact, and thus could

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8

have brought suit in their own right."). Plaintiffs here have not alleged facts sufficient to establish this element.

Plaintiffs generally allege that "at least one member of each plaintiff organization" is

an Absconder or NSEERS violator "and lives or works in a jurisdiction whose state or local police

have a policy or practice of making immigration arrests in reliance on NCIC information."

Compl. ¶ 68. Plaintiffs do not identify these alleged members or the jurisdictions in which they

are alleged to live or work. Nor do they identify any of the policies or practices which they claim

to be illegal. Plaintiffs further allege that Defendants "have entered or imminently will enter"

information about these Absconders and NSEERS violators into the NCIC. Compl. ¶ 69.

They go on to allege that some of their unidentified members - not necessarily the

Absconders and NSEERS violators referred to in paragraph 68 - "regularly come into contact

with state and local police." Compl. ¶ 70. They provide no description as to the nature of or

circumstances surrounding these contacts, nor do they allege that any of these contacts has taken

place in consequence of any information disseminated through the NCIC.

Still other unidentified members, who may or may not be the same as the members

referenced in paragraphs 68 and 70, "work in settings in which they are frequently questioned

by the police." Compl. ¶ 71. However, there is no allegation that any of these individuals is

questioned as the result of any information obtained through the NCIC, and there is no

description as to the nature of or circumstances surrounding this questioning.

Another group of unidentified members, which again is not alleged to be the same as

any of the various members mentioned in paragraphs 68, 70, and 71, allegedly "appear Arab,

Muslim, or South Asian," and "have been regularly questioned by police in the course of their

daily lives." Compl. ¶ 72. Again, there is no allegation that this questioning was the result of

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9

any information obtained through the NCIC (or, for that matter, on account of the individuals’

race, ethnicity, or appearance), and no description as to the nature of or circumstances

surrounding this questioning.

In describing these various groups of unidentified members, the complaint contains

no allegation that any member of any plaintiff organization has actually been arrested, detained,

deported, mistreated, or otherwise made the subject of any unlawful state action as the result

of the entry or dissemination of any information in the NCIC. Plaintiffs instead describe their

members’ alleged injuries as being strictly prospective in nature, and these speculative injuries

are alleged to take two forms. Compl. ¶¶ 73-75.

First, plaintiffs claim that those of their members who have already been listed in the

NCIC as Absconders or NSEERS violators "are at imminent risk of arrest by state or local law

enforcement officials who stop or question them." Compl. ¶ 73. As will be seen below (see infra

pp. 28-31), any arrest by state or local law enforcement officers of Absconders or NSEERS

violators listed in the database would be entirely lawful and therefore would not constitute "an

invasion of a legally protected interest." Defenders af Wildlife, 504 U.S. at 560. Even if it did,

the allegation fails because it is neither "concrete" nor "particularized" - as noted above,

plaintiffs do not identify these alleged members or the jurisdictions in which they live or work.

In the absence of allegations that specific members have actually been or actually will be

unlawfully arrested based on information reported in the NCIC database, the allegation that

some members subjectively fear that their arrests axe imminent is strictly "conjectural" and

"hypothetical," id,, and plaintiffs have not alleged a "credible threat" of real and immediate

future injury. See Golden, 394 U.S. at 109; see also Defenders of Wildlife, 504 U.S. at 564 n.2

("Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond

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its purpose, which is to ensure that the alleged injury is not too specttlative for Article III

purposes - that the injury is certainly impending." (dtations and internal quotation marks

omitted; emphasis in original)).

In UnitedPresb2eterian Church in the U.S.A.p. Reagan, 738 F.2d 1375 (D.C. Cir. 1984),

the District of Columbia Circuit rejected a claim of standing based on allegations similar to those

offered by plaintiffs here. In the suit, a number of politicaJ and religious organizations sued the

President and various Government officials to enjoin the conduct of certain intelligence and

counterintelligence activities authorized by an Executive Order, alleging that the conduct of

those activities subjected their members to "the immediate threat of being targeted for

surveillance" in violation of their constitutional rights. Id. at 1377. Writing for the court, then-

Judge Scalia stated that the plaintiffs’ alleged grievances were "insufficient to satisfy the injury-

in-fact requirement imposed by Article III of the Constitution" because the plaintiffs had failed

to allege injury which was "distinct and palpable," "direct," and "both real and immediate, not

conjectural or hypotheticaL" Id. at 1378 (citations and internal quotations omitted).

As do plaintiffs here, the plaintiffs in United Presbyterian had alleged that "their

activities are such that they are especially likely to be targets of the unlawful activities authorized

by the order." Id. at 1380; compare Compl. ¶¶ 70-73. The reason that these allegations fell short,

Judge Scalia explained, was that the order in question "does not direct intelligence-gathering

activities against all persons who could conceivably come within its scope, but merely authorizes

them. To give these plaintiffs standing on the basis of a threatened injury would be to

aclcnowledge, for example, that all churches would have standing to challenge a statute which

provides that search warrants may be sought for church property if there is reason to believe that

felons have taken refuge there. That is not the law." Id. at 1380 (emphasis in original).

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Similarly, the actions of the Defendants in entering Absconder and NSEERS violator information into the NCIC database do not direct state and local law enforcement agencies to arrest aliens for whom there is a positive NCIC hit; they merely provide information to those agencies, which may in turn use the information to effectuate an arrest to the extent that they believe they have the authority to do so under state law. See infra p. 33. Plaintiffs’ conclusory allegations of imminent unlawful arrest thus do not satisfy the injury-in-fact requirement]-/
Second, plaintiffs allege that, as the result of the alleged entry into the NCIC of information about those of their members who are Absconders and NSEERS violators, their members as a whole "reasonably fear that if they contact state or local law enforcement officials to report a crime, or otherwise speak or communicate with government officials on a matter of public or private concern, they may be arrested based on an NCIC listing as an ’absconder’ or ’NSEERS violator.’" Compl. ¶ 74; see also Compl. ¶¶ 5, 61-66. In effect, plaintiffs allege that the Defendants’ actions have a chilling effect on their alleged right to contact law enforcement or government officials. Such allegations have repeatedly been rejected as insufficient to establish the injury-in-fact element of the standing requirement. In Laird ~. Tatum, 408 U.S. 1 (1972), the Supreme Court dismissed for lack of a justiciable controversy a complaint alleging that an intelligence-gathering and distribution system developed by the Army had a chilling effect on the exercise of the plaintiff’s constitutional rights. The Court explained that, absent allegations of specific action against the plaintiffs, there was no actual case or controversy, notwithstanding the plaintiffs’ allegations that they feared that the Army might at some future date misuse the

2_/ See also Reno v. Catholic Social Servs., 509 U.S. 43, 57-58 (1993) (A federal court
generally ought not entertain a request for an injunction or declaratory judgment regarding the validity of an administrative regulation unless the request is brought by someone who has actually been concretely affected by the regulation. The mere existence of the regulation is not enough; rather, the regulation must actually have been applied to the plaintiff.).

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information in a way that would cause them direct harm. 408 U.S. at 11-14. See also United Presbyterian, 738 F.2d at 1378-80 (finding allegations that government’s alleged surveillance program had a chilling effect on plaintiffs’ constitutionally protected activities to be insufficient to establish standing); Fifth Ape. Peace Parade p. Gray, 480 F.2d 326, 330-33 (2d Cir. 1973).
C. Plaintiffs Have Failed to Allege Causation. The second requirement for standing is that the plaintiff must allege a "causal connection between the injury and the conduct complained of." Defenders of Wildlife, 504 U.S. at 560. Much of the discussion in the preceding section is also germane to this element: as noted above, plaintiffs’ descriptions of the injuries allegedly suffered by their members (if any) do not concretely connect those injuries to the specific actions of the Defendants in adding certain information to the database. See supra pp. 9-10; Compl. ¶¶ 68-72. Plaintiffs’ efforts to establish the requisite causal connection suffer from an additional difficulty. As the Supreme Court held in Simon, 426 U.S. at 41-42, standing cannot be established if the injury in question is the "resttlt [of] the independent action of some third pasty not before the court." To the extent that plaintiffs complain about the risk of being unlawfully arrested by state and local law enforcement agencies (Compl. ¶ 73), that is a risk which can only be realized as the result of the independent actions of those agencies, over which the Defendants possess no cognizable control. See infra pp. 28-31. Put another way, any chain of causation which plaintiffs may allege between the Defendants’ allegedly unlawful actions and the concrete injury of an unlawful arrest of necessity contains a link supplied by agendes who are not before this Court. The presence of such a link is fatal to the justiciability of plaintiffs’ alleged controversy. Simon, 426 U.S. at 41-42.

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III.

EVEN ASSUMING THE JURISDICTION OF THIS COURT, COUNT I OF THE COMPLAINT

MUST BE DISMISSED FOR FAILURE TO STATE A CLAIM UNDER THE aPa.

Count I of the complaint asserts that the Defendants violated the APA (specifically, 5 U.S.C. § 702), in that they "exceeded the statutory authority granted them by Congress to establish and administer the NCIC database, pursuant to 28 U.S.C. § 534 and 8 U.S.C. § 1252c(b)." Compl. 7 80. According to plaintiffs, Congress "has not authorized the entry or dissemination of administrative warrants for ’absconders’ or information regarding alleged ’NSEERS violators’ via the NCIC." Comp. 7 79. The allegations in Count I are predicated on assumptions which are incorrect as a matter of law, and that count must be dismissed for failure to state an actionable claim.
Repeatedly throughout their complaint, plaintiffs allege that Congress placed express limitations on the types of information the FBI is permitted to include in the NCIC. See, e.g., Compl. 77 2 ("Congress’s careful delineation of the categories of criminal justice information that may lawfully be collected and exchanged through this powerful database"); 22 ("Congress scrupulously limited the types of records that the FBI was empowered to acquire and exchange through its vast new clearinghouse"); 29 ("careful statutory limitations on entry and dissemination of non-criminal records via the NCIC"); 78 ("Congress has specifically enumerated the categories of information that may be lawfully entered into and disseminated via the NCIC database"). Although plaintiffs nowhere cite the basis for these characterizations of the law, they refer to 28 U.S.C. § 534 and 8 U.S.C. § 1252c(b) in claiming that the Defendants exceeded the authority granted them by those statutes to establish and administer the NCIC database. See Compl. 7 80. Such a claim is entirely without merit.

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Plaintiffs’ reading of 28 U.S.C. § 534 is not supported by the plain text of the statute,
or by its legislative history. The portions of section 534 which are germane are as follows:
§ 534. Acquisition, preservation, and exchange of identification records and information; appointment of officials
(a) The Attorney General shall -
(1) acquire, collect, classify, and preserve identification, criminal identification, crime, and other records;.., and
(4) exchange such records and information with, and for the official use of, authorized officials of the Federal Government .... the States, cities, and penal and other institutions .... 28 U.S.C. § 534(a)(1),(4).2/
A. Because Information about Absconders and Willful NSEERS Violators Constitutes Crime Records, the Plain Language of 28 U.S.C. § 534(a) Authorizes Defendants to Acquire, Collect, and Disseminate It.
Throughout their complaint, plaintiffs repeatedly characterize the Absconder and
NSEERS violator information which the government is allegedly entering into the NCIC
database as "civil immigration information" and as "non-criminal records." See, e,g,, Compl. ¶¶ 1,
2 ("non-criminal administrative information"), 4, 6, 29, 54, 80, 86. Likewise, they repeatedly
allege that the inclusion of these data in the NCIC will lead state and local law enforcement
agents to make what they describe as "federal immigration arrests" of aliens. See, e,g,, Compl.
¶¶ 1, 3, 5 ("police enforcement of immigration laws"), 6, 49, 54, 57, 84, 86. Plaintiffs’
allegations therefore appear to be predicated on an assumption that Absconders and NSEERS

See also 28 C.F.R. §§ 0.85(b), 20.31 (a); see generally 28 C.F.R. Part 20.

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violators have committed no crime, and that any ensuing arrest is strictly for dvil and/or
administrative violations of immigration laws. This assumption is unfounded.
Absconders are criminals. By definition, they are individuals who are subject to an
outstanding order of removal and who have remained in the United States in contravention of
such orders. Compl. ¶ 30. This constitutes a federal felony, punishable by imprisonment of up
to four years, and, in certain cases, up to ten years. See 8 U.S.C. § 1253(a)(1). As set forth in
that statute, any alien subject to a final order of removal who
(A) willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order of removal ....
(B) willfully fails or refuses to make timely application in good faith for travel or other documents necessary to the alien’s departure,
(C) connives or conspires, or takes any other action, designed to prevent or hamper or with the purpose of preventing or hampering the alien’s departure pursuant to
such, or
(D) willfully fails or refuses to present himself or herself for removal at the time and place required by the Attorney General pursuant to such order,
is guilty of a federal felony. 8 U.S.C. § 1253(a)(1). Moreover, any alien who willfully fails to
comply with the terms of any pre-removal release under 8 U.S.C. § 123 l(a)(3) is guilty of a
federal misdemeanor punishable by a fine of up to $1,000 and by up to one year’s imprison-
ment. 8 U.S.C. § 1253(b).

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Likewise, NSEERS violators are criminals, at least to the extent that their violations of the NSEERS registration requirements are willful.4/ Under 8 U.S.C. § 1306, any alien who willfully fails to register with the Government when required to do so, who fails to provide the Government with updated information as to his whereabouts, and/or who provides false or fraudttlent information to the Government in connection with his alien registration, is guilty of a federal misdemeanor punishable by a fine of up to $1,000 and by up to six months’ imprisonment. 8 U.S.C. § 1306(a),(b),(c).
As a result of these provisions, the information which the Government allegedly enters into the NCIC database with regard to Absconders and willful NSEERS violators is not, as alleged, "dvil immigration information," but rather "crime" records establishing that the individual in question has committed a crime and is wanted for arrest on account of that crime. These "crime" records plainly fall within the scope of section 534(a)(1),(4), and the FBI is authorized to acquire, collect, preserve, and disseminate them. See, e.g., Doe ~. Webster, 606 F.2d 1226, 1231 (D.C. Cir. 1979) (describing the compilation of the records described in section 534(a)(1) as a "statutory duty").

The NSEERS program was initiated pursuant to authority granted by 8 U.S.C. § 1305(b). See 8 C.F.R. § 264.1 (f). When the program was established effective September 11, 2002, its purpose was to "broaden the special registration requirements for nonimmigrant aliens from certain designated countries, and other nonimmigrant aliens whose presence in the United States requires closer monitoring, to require that they provide specific information at admission, and to ensure that they depart the United States at the end of their authorized stay." AG Order No. 2608-2002, 67 Fed. Reg. 52,584 (INS Aug. 12, 2002). DHS has recently published an interim rule which suspends many of the requirements which had originally been put into place for NSEERS, including the requirements that aliens specially registered at a port of entry must app ear before D H S officials thirty days after their admission into the United States for a continuing registration interview (see 8 C.F.R. § 264.1(f)(3)) and the requirement that all aliens who are subject to special registration must appear for an annual re-registration interview (see8C.F.R. §264.1(f)(5)). See ICE No. 2301-3, 68 Fed. Reg. 67,578 (DHSDec. 2,2003).

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Whether the information is entered into the database to fadlitate the axrest of the alien on criminal charges under 8 U.S.C. §§ 1253 or 1306, or to fadlitate the apprehension of the alien so that he can be deported under 8 U.S.C. § 1231, is irrelevant. Once an Absconder or willf~fl NSEERS violator has been taken into custody, the Government can determine, in the exercise of its prosecutorial discretion, whether it wishes to criminally prosecute the alien, to remove the alien, or to take some other course of action. This discretionary determination is, of course, outside the scope of this Court’s judicial review powers. See, e.g., He&let p. Chaney, 470 U.S. 821 (1985); Walkerp. Reno, 925 F. Supp. 124, 127-28 (N.D.N.Y. 1995). For purposes of plaintiffs’ complaint, the critical consideration is that Absconders and willful NSEERS violators are criminals as to whom the Government has the option of prosecution, and the availability of that option makes them subject to arrest on criminal charges.
B. Even if the Information about Absconders and NSEERS Violators Does Not Constitute Crime Records, Both the Plain Language and the Legislative History of 28 U.S.C. § 534(a) Support the Acquisition, Collection, Preservation, and Dissemination of the Information as "Other Records," and Numerous Immigration Statutes and Regulations Further Authorize the Collection and Dissemination of the Information.
Even if the information concerning the Absconders and NSEERS violators which is entered into the NCIC database did not amount to "crime" records, its inclusion in the database is still justified by section 534’s catch-all allowance for "other records." The meaning of that provision can be extrapolated from the plain wording of the text: since the series immediately preceding the words "other records" included "criminal identification records" and "crime" records, the words "other records" must refer to some unspedfied type of records which are not crime records and not criminal identification records. Any other reading of the provision would render the words "other records" superfluous. Thus, far from a "careful delineation" and

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"scrupulous limitation" on the type of records which section 534 authorizes the FBI to maintain (see Compl. ¶¶ 2, 22, 29, 78), Congress has left the scope of that information open-ended, to be

fleshed out at the discretion of the Attorney General. Manifestly, the breadth of this provision

permits the FBI to accept into the NCIC database immigration records of the sort at issue here.

This reading of the statute is supported by its legislative history. Section 534 is the

product of a 1966 statute which combined and reorganized two predecessor provisions: 5
U.S.C. § 300 (1964) and 5 U.S.C. § 340 (1964). See historical and statutory note following 28

U.S.C.A. § 534 (2004), citing Pub. L. No. 89-554, § 4(c), 80 Star. 378,616 (Sep. 6, 1966).

Prior to the enactment of that 1966 statute, the most recent source for 5 U.S.C. § 300 was the

Department of ]ustice Appropriations Act for fiscal year 1965, Pub. L. No. 88-527, title II,

§ 201, 78 Star. 717 (Aug. 31, 1964). In that statute, Congress stated that "for the acquisition,

collection, classification and preservation of identification and other records and their exchange

with, and for the official use of, the duly authorized officials of the Federal Government, of

States, cities, and other institutions .... the Attorney General is authorized to appoint officials

who shall be vested with the authority necessary for the execution of such duties." Id., codified

at 5 U.S.C. § 300 (1964) (emphasis added); see also 1964 U.S.C.C.A.N. 815.

Congress had enacted similar provisions, containing substantially the same language,

in each appropriations act for the Department of Justice dating backto 1921. See historical note

following 5 U.S.C. § 300 ( 1964); historical and statutory note following 28 U.S.C.A. § 534. The

original 1921 appropriations statute was enacted to fund the FBI’s General Intelligence Division,

which was established during World War I to collect criminal and non-criminal information

about enemy aliens, anarchists, and communists, in connection with the FBI’s mandate to

enforce several statutes of that era relating to certain categories of aliens and to certain potential

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threats to national security. See Act of Mar. 1, 1921, ch. 89, § 1, 41 Stat. 1175; Act of Mar. 4, 1921, ch. 161, § 1, 41 Stat. 1410.
Meanwhile, in 1930, Congress enacted the second of the two predecessor provisions, which came to be codified at .5 U.S.C. § 340 (1964). See Act of June 11, 1930, Pub. L. No. 71337, ch. 455, 46 Stat. 554. That provision established a division of the FBI known as the Division of Identification and Information, which was "vested with the duty of acquiring, collecting, classifying, and preserving criminal identification and other crime records and the exchanging of said criminal identification records with the duly authorized officials of government agencies, of States, cities, and penal institutions." Id., codified at 5 U.S.C. § 340 (1964) (emphasis added)
When, in 1966, Congress chose to merge .5 U.S.C. § 300 and .5 U.S.C. § 340 and transfer them to Title 28 as the new 28 U.S.C. § 534, Congress combined the "identification and other records" phrase from 5 U.S.C. § 300, and the "criminal identification and other crime records" from .5 U.S.C. § 340, to create the new operative wording for 28 U.S.C. § 534: "identification, criminal identification, crime, and other records." See Pub. L. No. 89-554, § 4(c), 80 Stat. 378, 616 (Sep. 6, 1966), set forth at 1966 U.S.C.C.A.N. 752. The legislative history surrounding this enactment is sparse. However, we know that the phrase "identification and other records" from .5 U.S.C. § 300 included a wide range of non-criminal information, including immigration information, not only because the language was initially enacted to fund

5_/ According to the legislative history of the provision, gleaned from the floor debates
incident to its enactment, "criminal identification" was intended to refer to matters of public record, such as judgments of conviction, whereas "other crime records" was intended to refer to "information about
criminals that is not a matter of record." 72 Cong. Rec. 1989 (71~t Cong., 2d Sess., Jan. 20, 1930 (Statement of Rep. Graham)); see also Reporters" Comm. for Freedom of the Press ~. United States Dela’t of Justice, 816F.2d 730, 735-36 (D.C. Cir.), modified, 831 F.2d 1124 (D.C. Cir. 1987), rev’d on other grounds, 489 U.S. 749 (1989).

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the FBI’s enforcement of several statutes relating to aliens and to potential threats to national security, but also because Congress distinguished that language from the language it used in a different statute codified nearby. If section 300’s "identification and other records" meant the same thing as section 340’s "criminal identification and other crime records," the statutes would have been redundant; Congress’s purpose in using different language when enacting section 300 must have been to allow the FBI to collect "identification and other records" about people which went beyond the "criminal identification and other crime records" described in section 340.
Moreover, when Congress combined the two provisions in 1966, it chose to use all four categories of information described in the two predecessor statutes, collapsing the two formulations into "identification, criminal identification, crime, and other records." 28 U.S.C. § 534(a)(1). Had Congress wa~ated to strip the FBI at that juncture of its authority to collect and maintain the wide range of "identification and other records" which the FBI had been authorized to collect for decades, Congress could have easily accomplished this, simply by transposing one word: instead of using "crime, and other records" as the last four words of the new 28 U.S.C. § 534, it could have written "and other crime records," following the language of the previous 5 U.S.C. § 340. It chose not to, and instead included the language from the previous 5 U.S.C. § 300. In fact, it took pains to note that the legislative purpose of its enactment was "to restate, without substantive change, [both of] the laws replaced by" the new section. Pub. L. No. 89-554, § 7(a), 80 Star. 378,616 (1966). And although Congress has amended 28 U.S.C. § 534 on numerous occasions since 1966, it has never modified the scope of the information which the provision authorizes the FBI to collect.-6/

6/ Plaintiffs allege, in paragraph 2 6 of the Complaint, that Congress has, "on occasion," "specifically authorized by statute the addition of non-criminal records to this powerful database." As an

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This legislative history speaks volumes about the meaning of the operative language of the statute, especially since it is consistent with the statute’s plain language. Indeed, the District of Columbia Circuit has made it clear that this history supports a reading of section 534 which authorizes the FBI to collect a wide range of information about individuals which may have nothing to do with criminal activity. InMenard ~. Saxbe, 498 F.2d 1017, 1028-29 (D.C. Cir. 1974), the court observed that "Congress intended to differentiate ’criminal identification’ from other information that the FBI is authorized to gather." Although the Court stated that the FBI was required to take steps to ensure that its "criminal identification files" (i.e., its database of rap sheets) did not contain information which did not actually reflect a criminal record, it held that there was no impediment to the FBI’s maintenance of other information in "its neutral non-criminal files." 498 F.2d at 1030. Thus, the authority set forth in 28 U.S.C. § 534 for Defendants to acquire, collect, preserve, and disseminate "other records" about Absconders and NSEERS violators fully defeats plaintiffs’ claim that the inclusion of such information in the NCIC is ultra pires.

example, plaintiffs mention the amendment to "the NCIC statute to allow the FBI to include civil orders of protection against domestic violence and stalking in the database." Although the Complaint does not provide a citation, this presumably refers to 28 U.S.C. § 534(e), which was added by the Violence Against Women Act (VAWA), Pub. L. No. 103-322, Title IV, § 40601(a), 108 Star. 1950 (Sep. 13, 1994), and which authorizes the dissemination of "information from national crime information databases consisting of identification records, criminal history records, protection orders, and wanted person records" for use in domestic violence and stalking cases. If by these allegations plaintiffs are suggesting that information of a non-criminal nature can be added to the NCIC only pursuant to an express statutory authorization, the Court should reject such a suggestion. First, as set forth in the text, the specific information at issue in this case has multiple sources of express statutory authorization, making plaintiffs’ suggestion irrelevant. Second, nothing in the VAWA suggests that the FBI did not have the authority to acquire, collect, classify, or preserve the information referenced in 28 U.S.C. § 534(e) prior to the enactment of that statute; rather the sole purpose of that section was to expand the range of entities authorized to gain access to this information.

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In addition to that authority, numerous immigration statutes, along with the corresponding regulations, spedfically authorize the DHS to compile information about Absconders and NSEERS violators and to share that information with other federal agencies and/or with state and local authorities. DHS’s principle authority for compiling and entering Absconder and NSEERS information into the NCIC database derives from Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA),2/which requires ICE to operate a computer database which "shall be used to assist Federal, State, and local law enforcement agencies in identifying and locating aliens who may be subject to removal by reason of their conviction of aggravated felonies, subject to prosecution under [8 U.S.C. § 1325], not lawfully present in the United States, or otherwise removable." Absconders are "not lawfully present in the United States," see, e.g., 8 U.S.C. § 1231, and by definition a~e "removable.’’s-/ Likewise, willful NSEERS violators are not lawfully present in the United States and are removable,z/

7_/ Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, Title
XIII, 5 130002, 108 Stat. 1796 (Sep. 13, 1994), as amended byAntiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, Title IV, 5 432, 110 Stat. 1273 (Apr. 24, 1996), as amended by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, Title III, 55 308(g)(5)(B), 326,327, 110 Stat. 3009-623, 3009-630 (Sept. 30, 1996), codified as a note following 8 U.S.C. 5 1226.
s_/ Under 8 U.S.C. 5 1231 (a) (1) (A), the Government is obliged to take all necessary steps
to remove an alien from the United States within 90 days after issuance of a final order of removal, and he is required by 8 U.S.C. 5 1231 (a) (2) to take the alien into custody after the issuance of the final order of removal and to detain the alien until the removal can be effectuated. See also 8 C.F.R. 5 241.3 (a) ("Once the removal period defined in section 241 (a)(1) of the Act begins, an alien in the United States will be taken into custody pursuant to the warrant of removal."); 8 C.F.R. 55 241.1, 241.2.
9/ Aliens subject to NSEERS are required to complywith all of the provisions of 8 C.F.R.
5 264.1 (f), and a willful failure to comply with those requirements constitutes a failure on the part of the alien to maintain his nonimmigrant status under 8 U.S.C. 5 1227 (a)( 1 ) (C) (i). See 8 C.F.R. 5 264.1 (f); AG Order No. 2638-2002, 67 Fed. Reg. 77,642 (INS Dec. 18, 2002). Pursuant to 8 U.S.C. 5 1227(a)(3)(A), an alien who fails to comply with the registration requirements under the N SEERS is deportable, unless the alien establishes that his failure was reasonably excusable or was not willful. See AG Order No. 26382002, supra, 67 Fed. Reg. at 77,642.

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Thus, the VCCLEA provides direct authority for the Government to compile and disseminate the information at issue in this case relating to Absconders and NSEERS violators.
Moreover, specifically with regard to Absconders, 8 U.S.C. § 1231 and its implementing regulations authorize and require the DHS!2/ to obtain and maintain all information necessary to effectuate the removal of aliens with final orders of removal. See 8 U.S.C. § 1231 (a)(3) (C), (D); 8 C.F.R. § 241.5 (2003). And with regard to NSEERS violators, 8 U.S.C. § 1225(a)(3) and 8 C.F.R. § 264.1(f)(2), (3) authorize the DHS to obtain and maintain information about aliens subject to the NSEERS requirements.
Critically, 8 U.S.C. § 13 73 provides that no federal, state, or local government entity or official may interfere with any other government entity or official’s communication with the

10__/ Many provisions in the INA and its implementing regulations continue to refer to "the
Attorney General" and "the INS." However, the INS has been abolished, and its functions have been transferred to the new Department of Homeland Security. See 8 U.S.C. 5 1103(a)(1) (2004) (the Secretary of Homeland Security, rather than the Attorney General, is now charged with the administration and enforcement of all laws relating to the immigration and naturalization of aliens, except insofar as certain powers, functions, and duties may be expressly conferred on the President, the Attorney General, or officials in the State Department, and with the caveat that the determination and ruling by the Attorney General with respect to all questions of law shall be controlling); 6 U.S.C. 5 202(3) (the Secretary of Homeland Security, through the Under Secretary of Homeland Security for Border and Transportation Security, shall carry out the immigration enforcement functions previously vested by statute in, or performed by, the INS, its Commissioner, and its employees); 6 U.S.C. 55 251-252 (establishing the Bureau of Border Security, now called ICE, reporting to the Under Secretary for Border and Transportation Security, to which are transferred the INS’s previous functions involving, inter alia, intelligence, investigations, detention, and removal); 6 U.S.C. 5 291 (a) (abolishing the INS); Consolidated Appropriations Resolution for 2003, Pub. L. No. 108-7, sec. 105(a), 117 Star. 11 (2003); Homeland Security Act of 2002, Pub. L. No. 107-296, 55 402,441-42, 471, 1102, 116 Star. 2135, 2177, 2192-93, 2205, 2273-74 (Nov. 25, 2002)). Although the Attorney General continues to have some involvement in the enforcement of the immigration laws, most references to "the Attorney General" which survive in the immigration statutes actually refer to the Secretary of Homeland Security or his subordinates in ICE; Congress has simply not yet revised the INA to reflect the new organizational structure. See, e.g., Armentero ~. INS, 340 F.3d 1058, 1072 (9th Cir. 2003); In reD-J-, 23 I. & N. Dec. 572,573-74 (A.G. Apr. 17, 2003) ("Although authority to enforce and administer the INA and other laws related to the immigration and naturalization of aliens has recently been transferred to the Secretary of Homeland Security by the HSA, the Attorney General retains his authority to make controlling determinations with respect to questions of law arising under those statutes.").

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ICE "regarding the citizenship or immigration status, lawful or unlawful, of any individual." 8
U.S.C. § 1373(a). Moreover, "no person or agency may prohibit, or in any way restrict, a
Federal, State, or local government entity from doing any of the following with respect to
information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the lICE].
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
8 U.S.C. § 1373(b). The statute goes on to impose an obligation on the ICE to respond to any
inquiry by any federa1, state, or local government agency "seeking to verify or ascertain the
citizenship or immigration status of any individual.., for any purpose authorized by law, by
providing the requested verification or status information." 8 U.S.C. § 1373(c). See also 8
U.S.C. § 1644 (no state or local government entity "may be prohibited, or in any way restricted,
from sending to or receiving from the lICE] information regarding the immigration status, lawful
or unlawful, of an alien in the United States.").
Plaintiffs nevertheless allege that DHS’s and ICE’s inclusion in the NCIC database
of information relating to NSEERS violators and Absconders exceeds the statutory authority set
forth in 8 U.S.C. § 1252c(b). See Compl. ¶ 80. That statute provides as follows:
The Attorney General shall cooperate with the States to ensure that information in the control of the Attorney General, including information in the National Crime Information Center, that wottld assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.

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Subsection (a) of 8 U.S.C. § 1252c provides, in turn, that "to the extent permitted by relevant State and local law," state and local police are authorized, under certain circumstances and with certain limitations, to arrest and detain illegal aliens who have previously been convicted of a felony in the United States and deported or left the United States after such conviction. 8 U.S.C. § 1252c(a). A fuller discussion of 8 U.S.C. § 1252c(a), and an analysis of plaintiffs’ allegation that this provision preempts state and local police agencies from arresting aliens based on information in the NCIC except as allowed in the section, is set forth infra, at p. 36. For purposes of the present discussion, suffice it to say that 8 U.S.C. § 1252c(b) is neither a limiting section nor a prohibitory one. It simply provides that, in those narrow drcumstances when state and local law enforcement authorities are exerdsing the authority afforded to them in 8 U.S.C. § 1252c(a), the federal Government is required to cooperate with them to ensure that they have access to all the information that would be of help to them in carrying out those duties. Nothing in this provision, however, limits the federal Government’s authority to provide such cooperation or such information to situations in which state and local police departments exerdse powers vested in them by section 1252c(a). United States ~. Vasquez-Alparez, 176 F.3d 1294, 1297-1300 (10th Cir.), cert. denied, 528 U.S. 913 (1999). Indeed, as set forth in the preceding paragraphs, numerous statutory provisions not only authorize but require such cooperation.
Accordingly, plaintiffs’ allegations that the Defendants violated the APA by exceeding their statutory authority as to information entered into and disseminated through the NCIC database fail to state an actionable claim and must be dismissed.

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IV.

COUNT II OF THE COMPLAINT MUST BE DISMISSED FOR FAILURE TO STATE A

CLAIM UNDER THE CONSTITUTION.

In Count II of their complaint, plaintiffs allege that the Defendants’ alleged practice
of including Absconder and NSEERS violator information in the NCIC database violates two
provisions of the Constitution, to wit, the Supremacy Clause and the Fourth Amendment.
Compl. ¶7 83-87. As to both constitutional provisions, Count II is predicated on several
assumptions which are legally unsupported. Absconders and willful NSEERS violators have
violated federal criminal laws, and nothing in federal law precludes or preempts state and local
police from exercising any powers they may possess under state law to arrest such individuals on
account of those federal criminal violations or on account of their non-criminal violations of the
immigration laws.
A. State and Local Police Do Not Need Authority Conferred by Federal Law to Arrest Absconders and Willful NSEERS Violators, but May Do So Based Solely on the Exercise of State Law Powers. Accordingly, Plaintiffs’ Allegations Under the Fourth Amendment Fail to State an Actionable Claim.

Much of plaintiffs’ complaint is predicated on the premise thatAbsconders and willful

NSEERS violators are non-criminals who are wanted solely for civil immigration violations. See,

e.g., Compl. 77 1-6, 29, 54, 57, 80, 84, 86. From this incorrect premise, see supra pp. 16-17,

plaintiffs leap to the equally incorrect conclusion that state and local police may not lawfully arrest such individuals without a warrant, absent the existence of a specific federal provision

authorizing such arrests. See Compl. 77 84-87. Plaintiffs essentially contend that by entering

what they characterize as "dvil information" into the NCIC database, and by allegedly "advising

police to arrest absconders and NSEERS violators based on administrative warrants or

information," the Defendants have allegedly "caused and induced

police to make

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immigration arrests that Congress has forbidden them from underta~<ing." Compl. ¶ 86. According to plaintiffs, the Defendants’ alleged practices "create an imminent risk that plaintiff members will be wrongfully arrested by state or local police," a risk which they contend entitles them to injunctive relief. Compl. ¶ 87. These allegations find no support in Fourth Amendment jurisprudence or in any other body of law and therefore fail to state an actionable claim.
As a general matter, the authority of state police to arrest individuaJs for violations of federal law is not limited to those instances in which they are exercising delegated federal power. Rather, such axrest authority inheres in the States’ status as sovereign entities. In the same way that police in Canada do not exercise delegated Article II power when they arrest someone who has violated U.S. law and turn him over to U.S. authorities, State police, too, need not be exercising such federal power when they arrest Absconders and NSEERS violators. Instead, the power to make such arrests is inherent in the ability of one sovereign to accommodate the interests of another sovereign.
Case law reflects this conclusion. Although no act of Congress specifically authorizes state police to arrest for federal offenses without an arrest warrant, the Supreme Court has held that States have inherent authority to authorize their police to ma~<e warrantless arrests for federal criminal violations. See, e.g., United States p. DiRe, 332 U.S. 581,589-591 (1948).~/ Seventy-five years ago, Judge Learned Hand discussed the issue as follows:
¯ . . [It] has been a universa1 practice of police officers in New York to arrest for federal crimes, regardless of whether they are felonies or misdemeanors .... True, the state may

The Fourth Amendment does not prohibit all warrantless arrests, only "unreasonable" ones, and it has long been held that whether a particular warrantless arrest is "unreasonable" is to be determined with reference to the law of the State where the arrest is made. See, e.g., Miller ~. United States, 357 U.S. 301,305 (1958); United States" ~. Rosse, 418 F.2d 38, 39 (2d Cir. 1969).

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not have, and has not, passed any legislation in aid of the EighteenthAmendment, but from that we do not infer that general words used in her statutes must be interpreted as excepting crimes which are equally crimes, though not forbidden by her express will. We are to assume that she is concerned with the apprehension of offenders against laws of the United States, valid within her borders, though they cannot be prosecuted in her own courts.
Marsh p. United States, 29 F.2d 172, 173-74 (2d Cir. 1928) (L. Hand, J.).
The Second Circuit’s most extensive discussion of this issue is in United States p.

Swaropski, 557 F.2d 40 (2d Cir. 1977). In that case, agents of the Customs Service arrested

without warrant an individual known to have violated a provision of the Munitions Control Act,

a statute as to which Customs agents lacked the authority under federal law to make arrests.

The court considered the question whether the Customs agents may have derived authority to

make the arrest from New York State’s general "citizen’s arrest" provision, which authorizes a

private person to arrest another person for any crime committed or attempted in his presence,

or for any felony, whether or not it was committed in his presence. 557 F.2d at 44, citing N.Y.

CRIM. PRO. LAW § 104.30 (1975). The court of appeals held that "the great weight of opinion

in the federal courts and in the courts of the State of New York, as well as the understanding and

practices of the executive branches of the federal and state governments is to the effect that the statutory provisions of the state of New York which authorize arrests by private persons of

another person who is in the act of committing or has in fact just committed a felony in the State of New York, include felonies under the laws of the United States as well as those under

the laws of New York." Swaropski, 557 F.2d, at 46-47. The court’s ensuing discussion is

sufficiently germane to the issues in this case to merit quoting at some length:

We are entirely unpersuaded that the Legislature of the State of New York... either intended to or did, in fact,

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dissolve all participation by the executive and judicial branches of the State government in dealing with federal criminal offenses, occurring within the boundaries of the State, to the extent and degree that it has developed for nearly 100 years . and has become the established practice recognized by the executive and judicial branches of the State and Federal Governments. This is particularly true with respect to arrests by New York peace officers and by private citizens, of persons who are committing or who have committed federal felonies in the State of New York. There is not a scrap of legislative history to show that the termination of such participation was ever contemplated. ¯.. The New York State Legislature could, of course, have codified the interpretation of existing statutes to include the right to arrest federal felons, but this was hardly necessary in the light of 200 years of a well developed custom and a pattern of state participation and cooperation in arresting, and placing in federal custody, violators of federal criminal law in the State - a practice which is now so vital and important in any high crime area of the nation.
If the district court’s chain of reasoning, which would thus remove from the State’s consideration and authority, an offense, which is a federal felony or misdemeanor, is followed, it would apparently likewise render nugatory 18 U.S.C. § 3041, which grants powers in the apprehension and holding of those charged with federal crimes, to certain executive and judidal officers of the states. This statute is almost an exact copy of its ancestor, in direct line of continuous descent, from the first such statute, ’The Act of Sept. 24, 1789’ (Ch. 20, § 33, 1 Star. 91 ), which over the span of the lives of the federal government and of the State of New York has been an important and usefttl factor in fostering New York’s (and other States’) participation in the administration and enforcement of federal criminal laws.
Swaro~ski, 557 F.2d at 47-48¯ See also United States ~, Burgos, 269 F.2d 763,766 (2d Cir. 1959)
("Defendant [who had been ordered deported] was committing a felony by his presence in this
country, 8 U.S.C. § 1326¯ Consequently, the Customs Agents, as private persons, could validly

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arrest him under Section 183 of the New York Criminal Code."); United States ~. Lindenfeld, 142

F.2d 829, 831-32 (2d Cir. 1944) (Clark, C.J.). Courts in other Circuits have reached the same conclusions. See, e.g., Vasquez-Alparez,
176 F.3d at 1297-1300; United States p.Janik, 723 F.2d 537,548 (7t~ Cir. 1983); Gonzales ~. City of Peoria, 722 F.2d 468,474-77 (9t~ Cir. 1983) (federal law did not preclude local enforcement

of criminal provisions of the Immigration and Nationality Act, and Arizona law authorized local

officers to arrest for criminal violations of that Act); United States ~. Bo~dach, 561 F.2d 1160, 1167-68 (5~ Cir. 1977).

As seen above (pp. 16-17), plaintiffs’ assumption that Absconders and willful

NSEERS violators have committed no crime is baseless. When a state or local police officer

encounters an individual who, based on information in the NCIC database as confirmed by

DHS, is an Absconder or willful NSEERS violator, the officer is not confronted with an

individualwho is only guilty of non-criminal, administrative immigration violations. Rather, the

officer is confronted with an individual who has committed a federal crime in the officer’s

presence, simply by being in the United States at the time of the encounter. As the result of this

circumstance, and pursuant to the authorities cited above, a State or local police officer would

have the inherent authority to take the alien into custody based solely on powers conferred by

State law and wo~fld not need to exercise any authority provided to her under federal law.

However, even if one accepts as true plaintiffs’ assumption that Absconders and

NSEERS are non-criminals who are wanted for nothing more than civil or administrative

immigration violations, their complaint still fails to state a claim under the Fourth Amendment.

As with criminal aliens, the question whether State police can lawfully arrest these individuals

without a warrant depends entirely on whether they are authorized to do so under the law of the

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relevant state, and not whether they are authorized to do so under federal law. The Tenth Circuit has held that the authority of State and local law enforcement officials to make warrantless arrests for both civil and criminal immigration violations requires neither an express federal authorization nor even an express State law provision authorizing such aJcrests. See United States p. Santana-Garcia, 264 F.3d 1188, 1193-94 (10th Cir. 2001). Indeed, the court said "that state and local police officers had implicit authority within their respective jurisdictions ’to investigate and make arrests for violations of federal law, including immigration laws.’"/d, at 1194 (quoting Vasquez-Alparez, 176 F.3d at 1295). Although the Ninth Circuit, in Gonzales ~. City of Peoria, 722 F.2d 468,476-77 (9th Cir. 1983), held that local police had the authority to arrest aliens for criminal violations of the immigration laws but not for civil violations, it predicated that holding entirely on its analysis of State law, finding that Arizona law did not expressly authorize arrests for civil immigration violations; there is no indication in the court’s opinion that, had Arizona law permitted arrests for civil violations, a separate federal authorization would have also been required.~2/
The significance of these authorities for the present case is twofold. First, even if Absconders and NSEERS violators were for some reason not construed to be criminals, their arrest by state or local law enforcement agents, on the basis of purely civil or administrative immigration violations disclosed in the NCIC, would only be unlawful if the law of the State in which the arrest is made fails to permit such an arrest. However, if the law of a particular State does not authorize such arrests, it is highly unlikely that State and local police would actually

~2--/ Indeed, as noted above, the Ninth Circuit held in Gonzales that local police had the power to arrest aliens for criminal violations of the immigration laws, and this power came solely from Arizona state law. The Court held expressly that no additional federal authorization was necessary. 722 F.2d at 474-76.

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attempt to make such arrests in derogation of State law. In contrast, if the law of a partic~flar State does authorize such arrests for civil immigration violations, then, as seen above, such arrests would not violate the Fourth Amendment or any other federal law. In either event, the likelihood that the rights of plaintiffs’ members could be injured solely by virtue of the dissemination of information in the NCIC is negligible.
Second, even assuming that state or local police were to arrest an alien for civil immigration violations despite the absence of State law authority to do so, any illegality with respect to that arrest cannot be attributed to the Defendants. Once state and local police officers confirm with ICE that an individual is an Absconder or NSEERS violator, the determinations whether the officers have the authority to arrest the individual under State law and whether to exercise that authority are made entirely by state agents, non-parties to this action over whom the Defendants possess no cognizable control.
For these reasons, plaintiffs’ allegations fail to state a claim under the Fourth Amendment, and any claims based on such allegations must be dismissed.
B. Nothing in Federal Law Preempts States from Taking Measures to Assist the Federal Government with the Enforcement of Federal Immigration Law, and Plaintiffs’ Complaint Fails to State an Actionable Claim under the Supremacy Clause.
Plaintiffs allege that "the authority to reg~flate immigration and naturalization is an exclusively federal power that the Constitution requires be implemented uniformly nationwide," and that "Congress’s exercise of this power, and its enactment of a comprehensive scheme for immigration enforcement, has broadly preempted state and local police authority to enforce immigration laws, except where specifically authorized in statute or in conformity with statutory procedures." Compl. ¶¶ 83-8 4. According to plaintiffs, "Congress has preempted state and local

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police from arresting ’absconders’ and ’NSEERS violators’ on the basis of an administrative warrant or mere listing in the NCIC," Compl. ¶ 85, and the Government’s alleged invitation to local police offidals to make such axrests violates this principle of preemption. Compl. ¶ 87.
Plaintiffs’ preemption arguments axe entirelywithoutmerit. Essentially, they contend that federal law preempts state and local police authority to enforce immigration laws, but they are not challenging the exercise of any state or local authority over immigration matters. What they are challenging is the exercise of a federal practice, undertaken pursuant to federal law, which they contend has the effect of inviting state and local police to enforce federal immigration laws. Simply stated, federal law cannot "preempt" federal law or federal action.
Unlike the typical case which raises preemption issues, this case does not involve an attempt by States to enact State laws, or to promulgate regulations pursuant to State laws, that arguably conflict with federal law or that intrude into a field which is reserved to Congress or which federal law has occupied. Instead, the question presented is whether States can assist the federal government by arresting aliens who have violated federal law and by turning them over to federal authorities. Judge Hand answered this question affirmatively in 1928 when he wrote for the Second Circuit that "it would be unreasonable to suppose that [the United States’s] purpose was to deny itself any help that the states may allow." Marsh, 29 F.2d at 174.
Second, plaintiffs’ contention that Congress’s "enactment of a comprehensive scheme for immigration enforcement" leaves no room for State and local paxticipation, Compl. ¶ 84, is not supported by the plain text of the INA. Numerous provisions in the INA not only allow but in fact require the ICE to collaborate with State and local authorities so as to ensure the most effective enforcement of the immigration laws. Several of these provisions have already been

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discussed at some length, supra at 22-25, namely, VCCLEA, supra note 6; 8 U.S.C. § 1373; and 8 U.S.C. § 1644.
Additional provisions can be found at 8 U.S.C. § l103(a)(10) (authorizing the Attorney General to deputize State and local law enforcement agents under certain circumstances to exercise the powers conferred on ICE); 8 U.S.C. § 1103(a)(ll) (authorizing the Attorney General to enter into agreements with State and local entities for the detention and confinement of aliens); 8 U.S.C. § 1357(g) (authorizing the Attorney General to enter into agreements with State and local governments pursuant to which state and local agents can perform the function of an immigration officer in relation to the investigation, apprehension, or detention of aliens); and 8 U.S.C. § 1365 a(f) (2) (authorizing the Attorney General to provide access to state and local law enforcement officials to the data contained in the integrated entry and exit data system).
Of the provisions just cited, one bears special mention. Section 1357 (g)(10) of Title 8 provides that there is no requirement that an officer or employee of a State or one of its political subdivisions enter into a formal agreement with the Attorney General in order "to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States," or "otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." The plain wording of this statute, and of the others cited above, is simply not consistent with plaintiffs’ allegation that Congress intended no role for state and local police in immigration enforcement. To the contrary, in each of these provisions, Congress communicated that it considered state and

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local agencies to be vital players in the enforcement of immigration laws, particularly in their roles as providers and users of information relevant to such enforcement.
Plaintiffs nevertheless intimate, albeit inchoately (Compl. ¶ 80), that state and local involvement in immigration enforcement is preempted by virtue of 8 U.S.C. § 1252c(b). That statute, which is discussed supra at 25-26, does not preempt state and local involvement - it invites it. According to the statute, "the Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials." As with the other statutory sections discussed above, this provision describes state and local law enforcement agents as key figures in the development and use of the information base needed for effective immigration enforcement. And while 8 U.S.C. § 1252c(a), referred to in subsection (b), appears to place conditions and limitations on certain forms of state and local cooperation with federal immigration authorities, the Tenth Circuit has decisively rejected arguments that that provision preempts state law or places any limitations on the extent to which the ICE can rely on state and local police to assist with immigration enforcement. See Vasquez-Al~arez, 176 F.3d at 1296-1300.
In sum, plaintiffs will be able to prove no set of facts which would establish an actionable claim under the Supremacy Clause. None of the Defendants’ alleged actions with regard to the inclusion of Absconder and NSEERS Violator information in the NCIC "causes or induces" state police to undertake actions preempted by federal law.

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CONCLUSION

For the foregoing reasons, plaintiffs’ complaint must be dismissed for lack of subject

matter jurisdiction and for failure to state a claim upon which relief may be granted.

Dated: BrooMyn, New York April 26, 2004

ROSLYNN R. MAUSKOPF United States Attorney Eastern District of New York One Pierrepont Plaza, 14th Floor BrooMyn, NY 11201-2776

By:
(FA61
United S~ates Attorney 254-6024

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 468 F.Supp.2d 429 (2007)
NATIONAL COUNCIL OF LA RAZA, et al., Plaintiffs, v.
Alberto GONZALES, et al., Defendants.
No. 03-CV-6324.
United States District Court, E.D. New York.
January 5, 2007.
4301 *430 *431 Carmine Daniel Boccuzzi, Cleary, Gottlieb, Steen & Hamilton, New York, NY, Michael J. Wishnie, Jerome N. Frank Legal Services Organization, Inc., Yale Law School, New Haven, CT, for the Plaintiff.
F. Franklin Amanat, United States Attorney's Office, Eastern District of New York, Brooklyn, NY, for the Defendant.
MEMORANDUM AND ORDER
GLASSER, Senior District Judge.
INTRODUCTION
Plaintiffs National Council of La Raza ("NCLR"), New York Immigration Coalition ("NYIC"), American-Arab AntiDiscrimination Committee ("ADC"),, " Latin American Workers Project ("LAWP"), and UNITE (collectively "Plaintiffs") bring, this action against Alberto Gonzales, the' Attorney General of the United States; Michael Chertoff, Secretary of Homeland Security; Robert Mueller, Director of the Federal Bureau of Investigation; Julie 432 Myers, Assistant *432 Secretary of Homeland Security in charge of Bureau of Immigration and Customs Enforcement;[1] the United States Department of Justice ("DOJ") and Department of Homeland Security ("DHS"), the Federal Bureau of Investigation ("FBI"), and Bureau of Immigration and Customs Enforcement ("ICE") (collectively "Defendants"), seeking a declaratory judgment and injunction against Defendants' policy and practice of entering and disseminating civil immigration information to state and local enforcement officials through the National Crime Information Center ("NCIC") database. Plaintiffs allege that this policy and practice violates the Administrative Procedures Act, 5 U.S.C. § 702, and wrongfully causes or induces state and local police to make immigration arrests that Congress has forbidden.
Before the Court is Defendants' motion to dismiss for lack of jurisdiction and failure to state a claim upon which relief may be granted.
PARTIES
I. Plaintiffs
NCLR is a private non-profit organization and the largest constituency-based Hispanic organization in the United States. Its mission is to reduce poverty and discrimination and to improve opportunities for Hispanic Americans. In connection with this mission, NCLR advocates for its members on federal immigration policy issues. NCLR has nearly 300 member organizations in forty states, including New York. Some organizations that are members of NCLR have individual members who pay dues and exercise voting and representation rights within their own organizations. Many of the organizations that are members of NCLR provide legal, medical, or other services to non-citizens. NCLR has its principal place of business in Washington, D.C.
ADC is a non-profit civil rights organization committed to defending the rights of all people of Arab descent in the United States and promoting their cultural heritage. Founded in 1980 by U.S. Senator Jim Abourzek, ADC is the largest Arab0907 American organization of its kind and has members and chapters in cities throughout the United

States, including New York. Its individual members pay dues and exercise voting and representational rights. In connection with its mission, ADC advocates for its members on federal immigration policy issues. Its principal, place of business is in Washington, D.C.
NYIC is a non-profit umbrella policy and advocacy organization for roughly 150 New York member groups that work with immigrants and refugees. Some of the organizations that are members of NYIC are themselves membership organizations, whose individual members pay dues and exercise voting and representational rights within their respective organizations. NYIC's office and principal place of business is located in New York County, New York.
LAWP is a non-profit civil rights organization incorporated under the laws of New York. Founded in 1997, the mission of LAWP is to secure better living and working conditions and respect for the labor and civil rights of immigrants. The principal program areas of LAWP include organizing day laborers, street vendors, factory 433 workers, and other employees, providing *433 educational and cultural programs, and working to improve access to health care. Members of LAWP pay dues and have voting, and representational rights. LAWP's principal place of business is in Kings County, New York.
UNITE is an unincorporated labor union of approximately 250,000 members in the United States and Canada. Immigrant workers have been members of UNITE or its predecessor garment worker unions since their inception. UNITE's mission includes working to address the immigration issues that affect its members. In connection with this mission, UNITE advocates for its members on immigration policy issues. Members of UNITE pay dues and may run for leadership positions and vote in union elections. UNITE's principal place of business is in New York County, New York.
II. Defendants
Alberto Gonzales is the Attorney General of the United States, sued in his official capacity, who bears responsibility for oversight of federal law enforcement programs including the NCIC database, and shares responsibility for the implementation of federal immigration policy. Michael Chertoff is Secretary of Homeland Security, sued in his official capacity, who shares responsibility for implementation of federal immigration policy and directs the Bureau of Immigration. and Customs Enforcement ("ICE"). ICE is responsible for immigration enforcement functions formerly performed, by the Department of Immigration and Naturalization. Services ("INS"). Robert Mueller is the Director of the Federal Bureau of Investigation, sued in his official capacity. Pursuant to 28 U.S.C. § 534(c) and 28 C.F.R. § 0.85, the Attorney General designates the Director of the FBI to administer the NCIC database. Julie Garcia is the Assistant Secretary of Homeland Security, sued in her official capacity, who oversees ICE and ICE law enforcement functions.
DOJ is the federal agency authorized by statute to administer the NCIC database. DHS is the federal agency responsible for securing the nation's borders, in part by enforcing federal immigration laws and managing the immigration process. The FBI is the agency within DOJ responsible for administering the NCIC. ICE is the agency within DHS responsible for investigating violations of the criminal and administrative provisions of the Immigration and Nationality Act ("INA") and for ensuring the departure of removable aliens from the United States.
BACKGROUND
I. Factual Allegations
Plaintiffs allege that in 2003 Defendants began entering civil immigration records into the National Crime Information Center ("NCIC") Database. The newly entered records identify as "absconders" persons with outstanding immigration warrants or orders of deportation, exclusion or removal (collectively "immigration warrants"), and also identify individuals whom DHS believes have violated requirements of the National Security Entry-Exit Registration System ("NSEERS violators").[2] Plaintiffs allege that there are significant error rates in 434 these entries and that many of the identified individuals did not receive notice of either the entry of a *434 removal order against them or their NSEERS obligations.

The NCIC database is queried millions of times each day by state and local law enforcement officials who interact with the public during lawful stops. When a state or local police officer runs an NCIC check on an individual for whom an immigration warrant has been issued, an Immigration Violator File "hit" response advises the local law enforcement officer to contact the federal Law Enforcement Support Center, a division of DHS, for confirmation. Upon confirmation, DHS typically requests the police officer to arrest or detain the alleged immigration violator until DHS officials can arrive to take custody of the person.[3] Some local jurisdictions have resisted this request; others have adopted a policy or practice of arresting absconders and/or alleged NSEERS violators listed in the NCIC. Police in New York, Illinois, Minnesota, Connecticut, Florida have made arrests of immigrants in reliance on immigration warrants listed by Defendants in the NCIC. Moreover, the Immigration Violators File is a "hot file," meaning that private citizens and commercial enterprises can access its records or confirm the status of records under certain circumstances.
The thrust of Plaintiffs' Complaint is two-fold. First, Plaintiffs allege that the policy and practice of entering removal orders into the NCIC exceeds Defendants' statutory authority pursuant to 28 U.S.C. § 534 and 8 U.S.C. § 1252c(b). Second, Plaintiffs allege that because Congress has broadly preempted state and local law enforcement officials from enforcing immigration law, with some specific exceptions, Defendants are causing state and local officials to make unconstitutional arrests.
Plaintiffs allege that at least one member of each plaintiff organization, or of the associations that are members of each plaintiff organization (hereinafter, collectively, "plaintiff members"), has an outstanding immigration warrant or is not in compliance with an NSEERS requirement, and lives or works in a jurisdiction whose state or local police has a policy or practice of making immigration arrests in reliance on NCIC information. (¶ 68). Some of these plaintiff members regularly come into contact with state and local police, work in settings in which they are frequently questioned by police, or, based on their appearance as Arab, Muslim or South Asian, have been regularly questioned by police in the course of their daily lives. (¶¶ 70-72). These plaintiff members, who as a result of their immigration status may now be listed in the NCIC database, are allegedly at imminent risk of arrest by state or local law enforcement officials who stop or question them, and fear that if they contact state or local law enforcement officials to report a crime, or otherwise speak or communicate with government official, they may be arrested based on their presence in the NCIC database. (¶¶ 73-74). Moreover, their personal information placed in the NCIC "hot" files is available to neighbors, private citizens, or commercial enterprises. (¶ 75).
Plaintiffs also allege that the "misuse of the NCIC database to cause and induce expanded immigration 435 enforcement by local police has created fear in immigrant communities." (¶ 65). "When any member *435 of the
community is afraid to communicate with law enforcement officials, police effectiveness is undermined and public safety is diminished for all." (¶ 61). Accordingly, Plaintiffs contend that the reduction in law enforcement effectiveness and diminishment of public safety constitutes injury suffered by the public at large.
II. Plaintiffs' Claims
A. Violation of 28 U.S.C. 534 and the Administrative Procedures Act
Plaintiffs allege that Congress has specifically enumerated the categories of information that may be lawfully entered into and disseminated via the NCIC database. This authorization allegedly does not include the entry or dissemination of immigration warrants or orders for absconders or NSEERS violators. By entering civil immigration information into the NCIC database and disseminating that information to state and local official, Defendants have allegedly exceeded the statutory authority granted them by Congress to establish and administer the NCIC database, pursuant to 28 U.S.C. § 534 and 8 U.S.C. § 1252c(b). These acts constitute final agency action within the meaning of the Administrative Procedures Act, 5 U.S.C. § 551.
B. Violation of Article IV and Article VI of the United States Constitution
Plaintiffs allege that the authority to regulate immigration and naturalization is an exclusively federal power that the Constitution requires be implemented uniformly nationwide. Congress's exercise of this power and its enactment of a comprehensive scheme for immigration enforcement has broadly preempted state and local police authority to enforce immigration laws, except where specifically authorized by statute. Thus, state and local

police are allegedly preempted from arresting absconders or NSEERS violators on the basis of an administrative warrant or their presence in the NCIC.
Plaintiffs allege that by entering immigration information into the NCIC database, disseminating it to state and local police, confirming NCIC "hits" upon inquiry by local police, advising police to arrest absconders and NSEERS violators based on administrative warrants or information, and taking other actions, Defendants have caused or induced and are causing or inducing police to make immigration arrests that Congress has forbidden them from making. These practices create an imminent risk that plaintiff members will be wrongfully arrested by state or local police, in violation of the Fourth Amendment and the Supremacy Clause.
DISCUSSION

I. Legal Standards to Establish Standing

Article III, § 2 of the Constitution grants judicial power to the federal courts to adjudicate certain "cases" and "controversies." In order to "identify those disputes which are appropriately resolved through the judicial process," the doctrine of standing remains "an essential, and unchanging part of the case-or-controversy requirement." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 &Ct. 2130, 119 L.Ed.2d 351 (1992) (citing Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990)). To satisfy the "case or controversy" requirement, a plaintiff bears the burden of establishing three elements:

"First, the plaintiff must have suffered an injury in fact an 0907 invasion of a legally protected interest

436

which is (a) concrete and particularized, and (b) actual *436 or imminent, not conjectural or

hypothetical. Second, there must be a causal connection between the injury and the conduct

complained of-the injury has to be fairly. . . . trace[able] to the challenged actions of the defendant,

and not . . . th[e] result [of] the independent action of some third party not before the court. Third, it

must be likely as opposed to merely speculative, that the injury will be redressed by a favorable

decision."

Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130.

Because of the concern that a "plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties," Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975), organizations suing in a representative capacity face additional scrutiny. "An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members." Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. 528 U.S. 167, 181, 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000) (citing Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). These requirements address the core requirements of Article III "by requiring an organization suing as representative to include at least one member with standing to present, in his or her own right,, the claim (or the type of claim) pleaded by the association" and "assur[ing] that the association's litigators will themselves have a stake in the resolution of the dispute, and thus be in a position to serve as the defendant's natural adversary." United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 545-46, 116 S.Ct. 1529, 1530, 134 L.Ed.2d 758 (1996).

Finally, a plaintiff must demonstrate standing "for each claim and form of relief sought." Rosenberger v. New York State Office of Temporary and Disability Assistance, 153 Fed.Appx. 753, 755 (2d Cir.2005) (citing Baur v. Veneman, 352 F.3d 625, 642 n. 15 (2d Cir.2003)). Where, as here, plaintiffs seek injunctive relief, they must plead a "real and immediate threat of repeated injury." City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). "[A] federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement are unconstitutional." Slain v. Ellison, 356 F.3d 211, 216 (2d Cir.2004) (citing Lyons, 461 at 111, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675). And mindful of the "overriding and time-honored concern about keeping the Judiciary's power within its proper constitutional sphere," the "standing inquiry has

been especially rigorous when reaching the merits of the dispute would force [the court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." Raines v. Byrd, 521 U.S. 811, 819-820, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997).
II. Analysis of Plaintiffs' Allegations of Injury-in-Fact
437 Defendants challenge the sufficiency of Plaintiffs' allegations of an injury-in-fact to plaintiff members[4] Plaintiffs *437 in turn identify four injuries: first, the heightened risk to plaintiff members of arrest stemming, from the placement of immigration data into the NCIC database; second, the fear of arrest resulting from Defendants' actions, manifest in a "chilling effect" that inhibits immigrants' First Amendment rights; third, the loss of privacy associated with the entry of immigration information into the NCIC database; and fourth, the overall deleterious effect on law enforcement when immigrants fear and fail to communicate with law enforcement officials.[5] They contend that because a cessation of Defendants' practice and policy would mitigate these injuries, the causal relationship between Defendants' action and the alleged injuries is plain.
Plaintiffs assert that in addition to these injuries, the APA confers an "independent basis for standing" because "the injuries of which the plaintiff organizations complain fall within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for [the] Complaint," (Pl. Mem. at 12), (citing Lujan v. National Wildlife Federation, 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686, 93 S.Ct 2405, 37 L.Ed.2d 254 (1973)). This misapprehends the relationship of the statutory authorization of judicial review over agency action to the Article III standing requirement. The APA "impose[s] a prudential standing requirement in addition to the [Article III] requirement . . . that a plaintiff have suffered a sufficient injury in fact. For a plaintiff to have prudential standing under the APA, the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute . . . in question." National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 488, 118 S.Ct. 927, 933, 140 L.Ed.2d 1 (1998) (emphasis supplied, internal quotations and citations omitted). The APA does not provide an independent basis for standing; it only authorizes, under certain conditions including the existence of an Article III injury-in-fact to the plaintiff, judicial review over final agency action.
A. Heightened risk of unlawful arrest
The first of Plaintiffs' alleged injuries is the heightened risk of unlawful arrest of plaintiff members whose immigration data has been entered into the NCIC.[6] Assuming that such an arrest would constitute an injury, Plaintiffs still fail to plead, on this basis, an actual or imminent injury-in-fact to any plaintiff member.
As noted by the D.C. Circuit, "[s]ome injuries fit easily within or without the' common definitions of `actual' or 438 `imminent.' *438 Others do not. Among those which fit least well are purely probabilistic injuries." Natural
Resources Defense Council v. E.P.A., 440 F.3d 476, 483 (D.C.Cir.2006) (declining to find standing where NRDC members alleged a greater chance of contracting skin cancer, cataracts, and other ailments under contested agency rule). The Second Circuit has "not decide[d] as a matter of law whether enhanced risk generally qualifies as sufficient injury to confer standing," Baur v. Veneman, 352 F.3d 625, 634 (2d Cir.2003) (holding that "in the specific context of food and drug safety suits, exposure to potentially harmful products" is sufficient to confer standing), but the "potential expansiveness" of adopting such a doctrine was noted in Baur and has been criticized by other courts. Id. at 636; see also, e.g., Center for Law and Educ. v. Department of Educ., 396 F.3d 1152, 1161 (D.C.Cir.2005) (finding no standing where "Appellants allege[d] direct injury styled as `increased risk,' in the form of giving the States the opportunity to injure Appellants' interests."); Shain v. Veneman, 376 F.3d 815, 818 (8th Cir.2004) (holding that increased risk of flood damage did not constitute imminent injury sufficient to confer standing where plaintiffs sued for an injunction to dismantle sewage treatment plant). The specter haunting courts considering whether "risk of future injury" constitutes injury-in-fact is that "were all purely speculative `increased risks' deemed injurious, the entire requirement of `actual or imminent injury' would be rendered moot, because all hypothesized, non-imminent `injuries' could be [exalted] as `increased risk of future injury.'" Center for Law and Educ., 396 F.3d at 1161.[7] The parties dispute the extent to which Baur recognizes "heightened risk" as an injury-in-fact.

Baur held that the heightened risk of contracting a food-borne illness from the consumption of downed livestock constituted a cognizable Article III injury-in-fact, even though the individual asserting the claim did not allege that he had actually been exposed to any illness. Analogizing to other cases where individuals asserted claims based on increased risk of illness resulting from allegedly unlawful environmental conditions, see LaFleur v. Whitman, 300 F.3d 256, 270 (2d Cir.2002); N.Y. Pub. Interest Research Group (N.Y.PIRG) v. Whitman, 321 F.3d 316, 325-26 (2d Cir. 2002), the Baur court identified narrow circumstances in which "heightened risk" satisfies the injury requirement of standing. While one might read Baur as limited to its facts, see Baur at 634 ("In the specific context of food and drug safety suits, however, we conclude that such injuries are cognizable for standing purposes, where the plaintiff alleges exposure to potentially harmful products."), no principled distinction exists to other allegations of heightened risk of injury, such as those present here, without a consideration of the extensive rationale offered by Baur as to why and how a heightened risk of injury resulting from agency action becomes injury-in-fact.
For heightened risk to constitute an Article III injury-in-fact, Baur first requires that "there [be] a tight connection between the type of injury which [a plaintiff] alleges and the fundamental goals of the statutes which he sues under." Baur, 352 F.3d at 635. This "tight connection" standard transforms the qualitative analysis by which the 439 court would typically determine the "concreteness" and "imminence" of an alleged injury into a relational analysis *439 between the harm alleged and the statute at issue. Thus, in Baur, heightened risk could constitute an Article III injury where the food and drug statute at issue was "intended to ensure the safety of the nation's food supply and to minimize the risk to public health from potentially dangerous food and drug products," and the alleged violation of that statute increased plaintiff's risk of "exposure to dangerous food products." Id. at 634; cf. LaFleur, 300 F.3d at 270 (conferring standing on citizen to challenge EPA's refusal to object under the Clean Air Act to sulfur dioxide emissions based on likely exposure); NPIRG, 321 F.3d at 325 (conferring standing where plaintiff members alleged health effects of air pollution and uncertainty as to whether the EPA's actions expose them to excess air pollution).
Once the plaintiff has established the "tight connection" between the heightened risk of harm and the intended goals of the statute, Baur then requires the plaintiff to demonstrate a "credible threat of harm." The phrase "direct risk of harm which rises above mere conjecture," Baur, 352 F.3d at 636, suggests the reintroduction of an imminence standard; but a close analysis of Baur reveals that the plaintiff must demonstrate not imminence, but a nontrivial result from the "probability of harm" factored against the "severity of the probable harm." Id. at 637. In Baur, the court was moved to find a credible threat of harm because "downed cattle may transmit . . . a deadly disease with no known cure or treatment. Thus, even a moderate increase in the risk of disease may be sufficient to confer standing." Id.
Plaintiffs' assertion of a heightened risk of arrest, as an injury-in-fact fails under both of the. requirements identified in Baur. First, there is no "tight connection" between the risk of arrest to plaintiff members and 28 U.S.C. § 534 because the statute is not intended to protect plaintiffs against the risk of arrest in the same way that the Food and Drug Act is intended to protect citizens from unsafe products or the Clean Air Act is intended to protect citizens against unhealthy environmental conditions. To the contrary, the statute specifically authorizes the Attorney General to "exchange such records and information with, and for the official use of, authorized officials of the Federal Government . . . the States, cities, and penal and other institutions." 28 U.S.C. § 534(a)(4) (emphasis supplied). Whether or not the immigration records are properly placed in the NCIC database, the statute clearly contemplates that those records will be accessible to law enforcement for official uses, one of which is making arrests. Thus, the prospective injury (arrest) is not of the sort intended to be prevented by the statute.
The Plaintiffs likewise have failed to show a "credible threat of injury." Not only are individual plaintiff members' actual risks of arrest in this case speculative, but the prospective injury provides its own remedy: plaintiff members detained for their immigration status will have due process opportunities to challenge the basis of their arrest, including the information in the NCIC database, and any other immigration determination that has been made against them. While their risk of arrest may be greater than the plaintiff's risk of contracting a deadly disease in Baur, any undue harm is curable, compensable, or reversible, thus mitigating the credibility of the threat and requiring a significantly greater risk of injury in order to ameliorate the standing requirements. It would

be a bizarre result were the court to view the heightened risk of compelled legal process to resolve outstanding 440 immigration warrants as of the same magnitude of harm to a person as the risk of contracting *440 "a deadly
disease with no known cure or treatment." Baur 352 F.3d at 637.
In the end, the "heightened risk" doctrine has only been applied in a narrow range of cases: those in which an agency's failure to conform to a statutory mandate has resulted in the plaintiffs exposure to a greater risk of an either difficult or impossible to remedy injury that the statute explicitly sought to prevent, and then, only in the context of exposure to environmental conditions or harmful products. In this case, where there is no statutory mandate seeking to prevent the arrest of individuals who have outstanding immigration "warrants, nor is the "harm" to which plaintiff members are exposed clearly identifiable, the Court will not enable the expansion of the heightened risk doctrine. Plaintiffs have failed to establish standing to pursue their claims on the basis of heightened risk of arrest.
B. Fear of unlawful arrest
Plaintiffs next contend that Defendants' actions have caused plaintiff members to suffer injury in their reasonable fear of allegedly unlawful arrest by state or local officials. Plaintiffs submit that either the reasonable fear of arrest itself constitutes injury-in-fact or that the "chilling effect" upon their interactions with law enforcement officials resulting from that fear independently fulfills the injury-infact requirement.
The argument that plaintiff members' fear of unlawful arrest constitutes injury-in-fact was addressed by the Supreme Court in O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). In that case, plaintiff residents of Cairo, Illinois, brought a civil rights class action seeking an injunction against the county magistrate and associate judge of the county circuit court for depriving plaintiffs and class members of rights under the Constitution and civil rights statutes. The officials allegedly engaged, under color of state law, in a continuing pattern and practice of conduct consisting of illegal bond setting, sentencing, and jury fee practices in criminal cases. Notably, none of the plaintiffs, in O'Shea were actually facing charges or the discriminatory practices alleged at the time the Complaint was filed, but some had previously been arrested in the county, and all objected to the possibility that, if they were arrested in the future, they would be subject to the discriminatory practices. Observing that the plaintiffs' injuries were too speculative to establish standing, the Court characterized the situation thus:
[T]he proposition is that if [plaintiffs] proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed. But it seems to us that attempting to anticipate whether and when these [plaintiffs] will be charged with crime and will be made to appear before either petitioner takes us into the area of speculation and conjecture.
O'Shea, 414 U.S. at 497, 94 S.Ct. 669. Moreover, the Court noted that it assumed that plaintiffs would "conduct their activities within the law and so avoid prosecution and . . . exposure to, the challenged course of conduct said to be followed by [defendants]," and refused to "speculate whether respondents will be arrested, either again or for the first time . . . particularly in the absence of any allegations that unconstitutional criminal statutes are being employed to deter constitutionally protected conduct." Id.
The nature of the anticipated injuries alleged in O'Shea and in this case are almost identical: Plaintiffs identify a 441 government *441 practice they believe is unconstitutional and allege injury in that their own actions might result in
such policy or practice affecting them in the future. Moreover, as in O'Shea, Plaintiffs here do not challenge the constitutionality of the underlying statutes; they do not challenge the authority to issue immigration warrants, detain individuals for the purpose of resolving outstanding warrants, or Congress's right to enact a statute that would authorize the entrance of immigration warrants into the NCIC database. They only allege, with respect to the actual arrests, that state and local authorities are engaged in an unconstitutional practice and that their members may be affected by that policy in the future. Such conjecture cannot satisfy the requirement of injury-infact to secure standing.
That the Plaintiffs have additionally alleged a present fear of a prospective arrest does not distinguish this case from O'Shea; a reasonable reading of O'Shea bears the inference that those plaintiffs feared future unlawful

treatment as well. Indeed, stylizing a speculative injury as a present fear that the ultimate harm might occur does not change the conjecture of a future harm into an injury-in-fact. Conferring standing solely upon fear would enable the transformation of any prospective harm into an actual injury by a simple reference to an immediate corresponding emotion.
Such a limitation on standing was recognized in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), where the plaintiff alleged that he had been illegally placed in a chokehold by an officer, that the police had a regular practice of using illegal chokeholds, and that he feared that if he ever encountered another officer he would be placed in a chokehold again. The Court held that Lyons's subjective fear of a speculative future injury insufficiently established injury-in-fact on which to confer jurisdiction. In a footnote, the Court wrote:
The reasonableness of Lyons' fear is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct. It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiffs subjective apprehensions. The emotional consequences of a prior act simply are not a sufficient basis for an injunction absent a real and immediate threat of future injury by the defendant.
Lyons, 461 U.S. at 107, n. 8, 103 S.Ct. 1660 (emphasis in original). In the present case, Plaintiffs do not even assert previous arrests of plaintiff members subject to the alleged fear of arrest, but rely generally upon their knowledge of the existing practice of state and local authorities who make such arrests. In this sense, the injuries alleged by Plaintiffs are even more speculative and less particularized than the injury alleged in Lyons. But even assuming that plaintiff members might fear arrest on the basis of the prior arrest of other parties, that "subjective apprehension" is insufficient to establish standing. What is necessary is a real and immediate threat to a plaintiff. There is insufficient immediacy to the speculation that a plaintiff members' actions may result in some particular treatment at some indeterminate point in the future.
Plaintiffs nonetheless rely extensively upon the reasoning in Roe v. City of New York, 151 F.Supp.2d 495 (S.D.N.Y.2001), where the court held that intravenous drug users who participated in a state-authorized needle exchange program sufficiently alleged an injury-in-fact in that they feared arrest by the police, who had a pattern and practice of harassing, arresting and prosecuting registered participants found in the vicinity of state clinics. In 442 that case, the court acknowledged "that *442 courts are loath to find that fear of an injury, without more, is not [sic][8] an injury in fact," Id. at 505 (citing Martin v. Vaughn, 1995 WL 458977, *1 (E.D.Pa. 1995) ("mental anguish" arising from fear of contracting HIV not an actual injury); Robinson v. Vaughn, 1992 WL 368461, *2 (E.D.Pa.1992) (holding that "constant fear of contracting an asbestos-related disease" did not constitute actual injury); Board of Commissioners v. Nuclear Assurance Corp., 588 F.Supp. 856, 859-60 (N.D.Ohio 1984) (fear of nuclear catastrophe on local roads was not actual injury)), but distinguished Lyons on three bases: first, that the NYPD had a practice of arresting Needle Exchange Program participants "for engaging in lawful behavior," Id. at 503 (emphasis in original); second, that the individual plaintiffs were "members of an identifiable class of targeted individuals," Id. at 504; and third, that the facts alleged constituted more than a chain of contingencies. None of these distinctions applies with equal force in this case.
First, though they challenge whether state or local law enforcement officials may make such an arrest, Plaintiffs acknowledge that an immigration warrant lawfully authorizes the arrest or detention of a person for violation of immigration law. This is so whether or not the immigrant ultimately succeeds in offering a defense to the alleged violation. Thus, plaintiff members are not being arrested for participating in "lawful" activity in the same way that state-registered participants in a needle exchange program were in Roe.
Second, though plaintiff members allege that they are members of a class of affected individuals 0907namely those individuals who have been identified by ICE as immigration violators and whose information has been entered into the NCIC database 0907they do not allege that they are either identifiable or improperly targeted. The cases cited by Roe that have distinguished Lyons on this basis have reasoned that where plaintiffs allege a pattern of localized, intentional misconduct aimed at a particular set of identifiable individuals, those individuals satisfied the requirement that they show an imminent threat of injury. See, e.g., Thomas v. County of Los Angeles, 978 F.2d 504, 508 (9th Cir.1992) (distinguishing Lyons where "numerous instances of police misconduct have occurred in

a small six by seven block area, some minority residents of the area have been mistreated by deputies more than once, and many victims purportedly did nothing to warrant detention or apprehension prior to the mistreatment."); Maryland State Conference of NAACP Branches v. Maryland Dep't of State Police, 72 F.Supp.2d 560, 564-65 (D.Md.1999) (finding plaintiffs to have standing to enjoin racially discriminatory vehicle stops); National Congress for Puerto Rican Rights v. City of New York, 75 F.Supp.2d 154, 162 (S.D.N.Y.1999) (standing to enjoin racially discriminatory stop and frisk policy). By contrast, immigration. violators are neither necessarily identifiable by law enforcement officials by appearance or location, nor are they allegedly targeted for enforcement on any inappropriate basis. In the scenarios offered by the plaintiff as to when arrests occur, it is only after consulting the NCIC database that an alleged immigration violator can be identified and there is no suggestion that the police "target" these individuals in any way that differs from any other individual arrested on the basis of an outstanding warrant.
Finally, the court in Roe determined that, unlike Lyons, the NEP members had "reasonably demonstrate[d] a 443 likelihood *443 that [they] will be arrested." In reaching this conclusion, the court considered the passage in
Lyons in which the Court indicated that for Lyons to transform his speculative fear of future harm into actual injury, he would need to make the "incredible assertion either (1) that all police officers always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such a manner." Lyons, 461 U.S. at 107, 103 S.Ct. 1660 (emphasis in original). The police in Roe were allegedly targeting all NEP members in a delineated area, giving rise to the likelihood that the plaintiffs would be arrested. In this case, however, where there is no allegation that the police intentionally identify or target individuals with immigration warrants, but only act upon the information once it is discovered in the course of regular activities, there is no analogous reasonable likelihood that any particular individual will actually be identified or arrested. Any future encounter between a plaintiff member and the police is entirely speculative. Whether the police actually identify that plaintiff member's immigration status is speculative to a second degree. And the result of such an identification 0907that is, whether or not the officer actually makes the arrest or detention is 0907 removed yet again. "Such an accumulation of inferences is simply too speculative and conjectural to supply a predicate for prospective injunctive relief." O'Shea, 414 U.S. at 497, 94 S.Ct. at 669
Plaintiffs also submit that the fear of arrest has had a chilling effect on plaintiff members, inhibiting their First Amendment rights to speak with local law enforcement officials on matters of public concern including unrelated criminal investigations and enforcement efforts. The seminal case on whether standing may be conferred by an alleged injury of a chill to protected speech, caused by a government policy or enactment, is Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). There, the Court addressed the question of whether a justiciable controversy existed where plaintiffs complained of a chilling effect on their exercise of First Amendment rights, when the effect was caused not by any specific action taken against them, but by the existence and operation of an intelligence gathering and distribution system conducted by the Army. In reaching its conclusion that plaintiffs had not established standing to challenge this practice, the Court noted that although "constitutional violations may arise from the deterrent, or `chilling,' effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights," this recognition "in no way erode[s] the established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action . " Laird v. Tatum, 408 U.S. 1, 11, 13, 92 S.Ct. 2318, 2324, 2325, 33 L.Ed.2d 154 (1972) (internal quotation omitted). As one court later interpreted Laird, "a reluctance to engage in First Amendment protected activity prompted solely by a fear of future governmental malfeasance is not sufficient to confer standing." Keene v. Meese, 619 F.Supp. 1111, 1117 (D.Cal.1985), rev'd on, other grounds, 481 U.S. 465, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987).
Plaintiffs attempt to distinguish their case from Laird on the basis that "plaintiff members . . . allege that they also face a heightened risk of unlawful arrest due to defendants' NCIC policies." (P 1. Resp. Mem. at 12 n. 4). As discussed supra, however, such a heightened risk is not cognizable in this case as an injury-in-fact. Without 444 satisfying the requirement that they plead an injury-in-fact, the contention *444 that plaintiff members have experienced a subjective chilling of their speech is simply not relevant to the standing analysis.

Because Plaintiffs' assertion that fear of arrest constitutes an injury-in-fact is based on subjective speculation without any indicia of imminent or actual threat of injury, and because the chilling effect alleged by plaintiffs is irrelevant to the standing inquiry, fear of arrest may not constitute a basis on which to confer standing.
C. Loss of privacy
Finally, Plaintiffs contend that the NCIC harms plaintiff members' privacy interests because "[p]rivate citizens and commercial enterprises can access [the Immigration Violators File of the NCIC] or confirm the status of records under certain circumstances." (Compl. 1144).[9] Plaintiffs have neither identified any source of a privacy interest in their status as alleged immigration violators, nor cited any authority for the proposition that, assuming they have such a right, the potential access of that data by citizens or commercial enterprises violates it. To put a finer point on the deficiency of their allegations; Plaintiffs do not allege that any unauthorized party has actually accessed the records of any plaintiff member listed in the NCIC database. Rather, they generally contend that "Defendants' practices . . . compromise the privacy interests of immigrants," (Compl. ¶ 67), that "[p]ersonal information regarding plaintiff members has been or imminently will be placed in an NCIC `hot' file," (Compl. ¶ 75), and that "[t]his information is available to neighbors, private citizens, or commercial enterprises." (Compl. ¶ 75).
Assuming that a right to maintain the confidentiality of their status as suspected immigration violators exists, Plaintiffs have nonetheless failed to plead any injury-in-fact to plaintiff members based on a violation of that privacy. Though they have alleged that some plaintiff member information either has or will be entered into the NCIC database, they have not alleged a single instance in which the Defendants have exchanged that information with any unauthorized official or entity. The speculation that at some point in the future some unauthorized party may access plaintiffs' file in violation of a plaintiff members' privacy right does not satisfy the requirement that plaintiffs identify an "actual or imminent," "concrete and particularized" injury.[10]
III. Conclusion
445 Plaintiffs in this case are a set of advocacy organizations ostensibly suing on behalf *445 of their members. In actuality, they seek what would amount to an advisory opinion on the legality of certain law enforcement practices, in the absence of any actual case or controversy between any of their members and the government. Because Plaintiffs have failed to plead any actual injury to any of their members, they have failed to establish that any of their members have standing to pursue these claims. This failure precludes the organizations from suing in a representative capacity. The motion to dismiss for lack of subject matter jurisdiction is granted. The Clerk of the Court is respectfully directed to close the case.
SO ORDERED.
[1] The action originally named Attorney General John Ashcroft, Secretary of Homeland Security Tom Ridge and Assistant Secretary of Homeland Security Michael Garcia. Those parties have been replaced as defendants by their successors in office pursuant to Fed. R.Civ.P. 25(d).
[2] Plaintiffs allege as many as 19,000 absconders and "dozens" a NSEERS violators were entered into the NCIC database as of 2003 and that Defendants intend to expand the use of the NCIC database to include information regarding foreign students and previously deported persons with minor criminal convictions.
[3] Plaintiffs allege that these arrestees typically do not face state or federal criminal prosecution; and police do not typically inform them of their Miranda rights. Rather, the police detain them until transfer to the custody of ICE for immigration enforcement procedures. (¶ 55). Some arrests have been made of United States citizens or individuals who have valid claims for immigration relief as the spouse or parent of a United States citizen, a political asylee, or otherwise. (¶ 56).
[4] Defendants also object that Plaintiffs have failed to identify by name any particular plaintiff member injured. However, such particularity is not required in pleadings. It is axiomatic that "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we

presume that general allegations embrace those specific facts that are necessary to support the claim." Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130.
[5] This final assertion warrants no more than a footnote dismissal as a generalized grievance suffered "in some indefinite way in common with people generally." Valley. Forge Christian College v. Americans United for Separation of Church and State, Inc., 454, U.S. 464, 478 102 S.Ct. 752 (1982).
[6] Such an assumption of "unlawful arist" is bottomed upon the theory of Plaintiffs' second claim, that the arrest by state or local officials based on immigration warrants is unconstitutional under the doctrine of preemption. The Court accepts this assumption only for the purpose of evaluating standing.
[7] In this vein, Plaintiffs' stylization of the heightened risk of arrest as "imminent risk of arrest" is redundant and perplexing. (Compl. ¶ 73). Risk is inherently both actual and imminent, thus the difficulty of evaluating it as an Article III injury.
[8] The addition of the word "not" is clearly a typographical error in the context of three citations that found fear alone not to constitute an injury-in-fact.
[9] Plaintiffs suggest that such a privacy right is created by the circumscribed authorization to enter and exchange records of 28 U.S.C. § 534,(granting the Attorney General the authority to "acquire collect, classify, and preserve identification, crime, and other records" and to "exchange such records and information with, and for the official use of, authorized officials of the Federal Government . . .") and the Department of Justice regulations enacted, in part, to "protect individual privacy," 28 C.F.R. § 20.1. The Court takes no position on this untested theory.
[10] During the pendency of the instant motion, Judge Baer of the Southern District of New York issued an opinion in a case presenting legal issues quite similar to this one, in which he concluded in dicta that the defendants lack statutory authority under 28 U.S.C. § 534 to enter civil immigration information into the NCIS database. See Doe v. Immigration and Customs Enforcement, No. M-54 (HB), 2006 WL 1294440 (S.D.N.Y. May 10, 2006) (slip copy). In Doe, the district court granted the government's motion for reconsideration pursuant to Fed.R.Civ.P. 59(e) and Local Civil Rule 6.3 and reversed its earlier order directing ICE to "correct the procedure by which non-criminal immigration information is entered into a criminal database and thus follows the subject, frequently to his detriment, forevermore," on the ground that the plaintiff, suing as an individual who had been denied employment due to incorrect information about his immigration history having been erroneously entered into the NCIS database, lacked standing to seek the prospective relief ordered by the court. Id. at *1. Before addressing the standing issue, however, Judge Baer reiterated that "[t]he information provided by the Government in this motion to reconsider fails to convince me that any statutory authority exists for the inclusion of this non-criminal information" in the NCIS database. Id. Taking no position on the validity of the Doe court's analysis of the defendants' statutory authority to include such information in the database, this Court nevertheless concludes that the motion to dismiss must be granted because, like the plaintiff in Doe, the Plaintiffs here lack standing to seek the requested relief.
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 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------------------- x

NATIONAL COUNCIL OF LA RAZA, NEW YORK :

IMMIGRATION COALITION, AMERICAN-ARAB :

ANTI-DISCRIMINATION COMMITTEE, LATIN

:

AMERICAN WORKERS PROJECT, and UNITE,

:

:

Plaintiffs,

:

:

v.

:

:

JOHN ASHCROFT, Attorney General of the United States,:

TOM RIDGE, Secretary of Homeland Security, ROBERT :

MUELLER, Director, Federal Bureau of Investigation, :

MICHAEL GARCIA, Assistant Secretary of Homeland :

Security in charge of the Bureau of Immigration and

:

Customs Enforcement, UNITED STATES

:

DEPARTMENT OF JUSTICE, UNITED STATES

:

DEPARTMENT OF HOMELAND SECURITY,

:

FEDERAL BUREAU OF INVESTIGATION, and

:

BUREAU OF IMMIGRATION AND CUSTOMS

:

ENFORCEMENT,

:

Defendants.

:

----------------------------------------------------------------------- x

No. 03-CV-6324 (Glasser, J.) (Chrein, M.J.)

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS

TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................... PRELIMINARY STATEMENT ..................................................................................... FACTS AND PROCEEDINGS....................................................................................... ARGUMENT ..................................................................................................................
I. STANDARD OF REVIEW .....................................................................

Page(s) iii 1 2 5 5

II. THE PLAINTIFFS HAVE STANDING TO VINDICATE

THEIR MEMBERS’ RIGHTS ................................................................

6

A. Plaintiffs Have Adequately Alleged Injuries-In-Fact ..................

6

1. Plaintiff Members Reasonably Fear They Will Be

Illegally Arrested Because Of The Defendants’

Unlawful NCIC Policies ..................................................

8

2. The Plaintiff Members Are Adversely “Affected Or

Aggrieved” By Defendants’ Actions ...............................

12

B. Defendants’ Actions Cause The Plaintiff Members’

Injuries And The Requested Relief Will

Redress The Injuries Alleged.......................................................

14

C. Plaintiffs May Sue To Seek Relief For Their Members’

Injuries .........................................................................................

16

III. DEFENDANTS’ ENTRY AND DISSEMINATION OF

HUNDREDS OF THOUSANDS OF CIVIL IMMIGRATION

RECORDS VIA THE NCIC IS NOT AUTHORIZED

BY STATUTE .........................................................................................

17

A. Defendants’ Practices Are Not Authorized By

The NCIC Statute.........................................................................

18

1. Defendants’ Interpretation Is Contrary

To The Statutory Text......................................................

18

2. Defendants’ Interpretation Is Contrary To The

Structure And History Of The NCIC Statute...................

22

3. Defendants’ Practices Contradict

Their Own Regulations ....................................................

30

B. Defendants’ Practices Are Not Authorized

By Any Other Statute...................................................................

32

IV. DEFENDANTS’ MISUSE OF THE NCIC IS UNLAWFUL

FOR THE ADDITIONAL REASON THAT IT CAUSES

POLICE TO MAKE IMMIGRATION ARRESTS

CONGRESS HAS FORBIDDEN............................................................

34

A. Scope Of Police Authority Under State Law To

Make Federal Immigration Arrests Is Irrelevant .........................

35

B. Federal Defendants Cannot Cause State

And Local Arrests That Congress Has Preempted ......................

36

C. Congress Has Preempted The Police Arrests

That Defendants’ NCIC Practices Have Caused

And Continue To Cause...............................................................

36

1. Immigration Regulation And Enforcement

Is A Federal Concern .......................................................

37

2. Congress Has Broadly Preempted State And

Local Police Enforcement Of Immigration Laws............

38

3. Congress Has Preempted Police Arrests Of

Alleged Absconders And NSEERS Violators .................

43

CONCLUSION................................................................................................................

49

ii

TABLE OF AUTHORITIES

Page(s)

Statutes

5 U.S.C. § 702..................................................................................................................

7

8 U.S.C. § 103(a)(10).......................................................................................................

41

8 C.F.R. § 212.2 ...............................................................................................................

20

8 C.F.R. § 236.1(b)(1)......................................................................................................

40

8 U.S.C. § 1103(a)(2).......................................................................................................

29

8 U.S.C. § 1160(b)(7) ......................................................................................................

46

8 U.S.C. § 1182(a)(9)(A)(iii) ...........................................................................................

20

8 U.S.C. § 1226(d)(1)(C) .................................................................................................

33

8 U.S.C. § 1252c(a)..........................................................................................................

39

8 U.S.C. § 1252c(b) .........................................................................................................

18

8 U.S.C. § 1253(a) ........................................................................................................... 45, 46

8 U.S.C. § 1255a(c)(5)(E)................................................................................................

46

8 U.S.C. § 1255a(c)(6).....................................................................................................

46

8 U.S.C. § 1306(a) ...........................................................................................................

45

8 U.S.C. § 1324(a)(f) .......................................................................................................

46

8 U.S.C. § 1324(c) ...........................................................................................................

39

8 U.S.C. § 1324(c)(e).......................................................................................................

46

8 U.S.C. § 1357(a) ...........................................................................................................

40

8 U.S.C. § 1357(g)...........................................................................................................

41

8 U.S.C. § 1357(g)(1) ......................................................................................................

42

iii

Page(s)

8 U.S.C. § 1357(g)(2) ......................................................................................................

42

8 U.S.C. § 1357(g)(3) ......................................................................................................

42

8 U.S.C. § 1357(g)(10)(B)...............................................................................................

43

8 U.S.C. § 1534(c)(3)(F)(ii).............................................................................................

46

18 U.S.C. § 228................................................................................................................

20

20 C.F.R. § 20.3(d) (2004)...............................................................................................

31

28 C.F.R. § 20.1 ...............................................................................................................

13

28 C.F.R. § 20.32(b) ........................................................................................................

31

28 C.F.R. App. to Part 20, Subpart A-§20.3(d) ...............................................................

31

28 C.F.R. § 20.3(d) ..........................................................................................................

31

28 C.F.R. § 50.12(a).........................................................................................................

13

28 U.S.C. § 534(a)(1)....................................................................................................... 18, 21

28 U.S.C. § 534(a)(2).......................................................................................................

18

28 U.S.C. § 534(a)(3).......................................................................................................

18

28 U.S.C. § 534(e)(2)(B) .................................................................................................

18

28 U.S.C. § 534(e)(3)(B) ................................................................................................. 18, 28

26 U.S.C. § 7203..............................................................................................................

20

31 U.S.C. § 1342..............................................................................................................

42

33 U.S.C. § 1319(c) .........................................................................................................

20

Act of Apr. 18, 1930, ch. 184, Pub. L. No. 71-142..........................................................

25

Act of Feb. 15, 1928, ch. 57, Pub. L. No. 70-32..............................................................

25

Act of July 1, 1932, ch. 361, Pub. L. No. 72-232 ............................................................

25

iv

Page(s)

Act of June 11, 1930, ch. 455, Pub. L. No. 71-337, 46 Stat. 554 ....................................

25

Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 631, .................................................

25

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 .............................

33

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1276, codified at 8 U.S.C. § 1252c(b) .......................................................................................

22, 29

Missing Children Act of 1982, Pub. L. No. 97-292, 96 Stat. 1259 codified at 28 U.S.C. § 534(a)(2), (3) .............................................................................. 22, 26

Violence Against Women Act of 1994 (“VAWA”), Pub. L. No. 103-322, 108 Stat. 1796, codified at 28 U.S.C. § 534(e) .........................................................................................

22, 27

Violent Crime Control and Law Enforcement Act of 1994, Title XIII § 130002, Pub. L. No. 103-322, 108 Stat. 1796)............................................. 32, 33, 34

N.Y. Penal Law § 215.50-52 ...........................................................................................

28

18 Oreg. Rev. Stat. § 181.850..........................................................................................

35

75 Op. Att’y Gen. Cal. 270 (1996) ..................................................................................

35

1977 Op. Att’y Gen. H-1029 (1977)................................................................................

35

2000 Op. Att’y Gen. (Inf.) 1001 (2000)...........................................................................

35

Cases

Andrus v. Sierra Club, 442 U.S. 347 (1979)....................................................................

26

Auburn Hous. Auth. v. Martinez, 277 F.3d 138 (2d Cir. 2002) ......................................

26

Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004) ...........................................

16

Baur v. Veneman, 352 F.3d 625 (2d Cir. 2003) .............................................................. passim

Bennett v. Spear, 520 U.S. 154 (1997) ............................................................................ 5-6, 11, 14

Carrasca v. Pomeroy, 313 F.3d 828 (3d Cir. 2002) ......................................................... 38, 39

v

Page(s)

Chamber of Commerce of the United States v. Reich, 74 F.3d 1332 (D.C. Cir. 1995) ..

36

Chy Lung v. Freeman, 92 U.S. 275 (1875)......................................................................

37

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

24

Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) ................................................

21

Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987) ........................................................... 12, 13

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

37

Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340 (2d Cir. 1998) .................................

7, 8

Drax v. Reno, 338 F.3d 98 (2d Cir. 2003) .......................................................................

42

Forum For Academic and Institutional Rights, Inc. v. Rumsfeld,

291 F. Supp. 2d 269 (D. N.J. 2003) .................................................................................

10

Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983) ............................................... 38, 45, 46

Graham v. Richardson, 403 U.S. 365 (1971)...................................................................

37

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ..........................................................

37

Heldman on Behalf of T.H. v. Sobol, 962 F.2d 148 (2nd Cir. 1992) .............................. 14, 15, 16

Hines v. Davidowitz, 312 U.S. 52 (1941)........................................................................

38

Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977)................................. 6, 16

Laird v. Tatum, 408 U.S. 1 (1972)...................................................................................

12

Los Angeles v. Lyons, 461 U.S. 95 (1983)......................................................................

7

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990)........................................................ 7-8, 12

LULAC v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995) .................................................

38

Lunney v. United States, 319 F.3d 550 (2d Cir. 2003).................................................... 5, 10-11

Marsh v. United States, 29 F.2d 172 (2d Cir. 1928)........................................................

47

Meese v. Keene, 481 U.S. 465 (1987) .............................................................................

15

vi

Page(s)

Mena v. City of Simi Valley, 332 F.3d 1255(9th Cir. 2003), cert. granted on other grounds sub nom., Mueller v. Mena, __ U.S. __, No. 03-1423, 2004 WL 817138 (June 14, 2004) ............. 38, 39, 41

Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974).......................................................... passim

Montilla v. INS, 926 F.2d 162 (2d Cir. 1991) ................................................................. 30-31

Morton v. Ruiz, 415 U.S. 199 (1974) ..............................................................................

30

Mountain States Legal Found. v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996)..................

12

N.A. Dev. Co. v. Jones, 99 A.D.2d 238, 472 N.Y.S.2d 363 (1st Dept. 1984).................

20

Nat’l Credit Union Admin. v. First Nat’l Bank and Trust Co, 522 U.S. 479 (1998).......

14

New Hampshire Right to Life Political Action Comm. v. Gardner,

99 F.3d 8 (1st Cir. 1996)..................................................................................................

7

Printz v. United States, 521 U.S. 898 (1997)...................................................................

42

Robertson v. Seattle Audubon Soc’y, 503 U.S. 429 (1992) ............................................

26

Roe v. City of New York, 151 F. Supp. 2d 495 (S.D.N.Y. 2001) ................................... 7, 8, 9, 11

Rostker v. Goldberg, 453 U.S. 57 (1981) ........................................................................

26

Shain v. Ellison, 356 F.3d 211 (2d Cir 2004) ..................................................................

7

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) ............................................. 14, 15

Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948)............................................. 37-38

Tarlton v. Saxbe, 507 F.2d 1116 (D.C. Cir. 1974) ..........................................................13-14, 17, 21

Toll v. Moreno, 458 U.S. 1 (1982) ..................................................................................

37

Truax v. Raich, 239 U.S. 33 (1915).................................................................................

38

United Presbyterian Church in the USA v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) ....

12

United States v. Burgos, 269 F.2d 763 (2d Cir. 1959).....................................................

47

United States v. Di Re, 332 U.S. 581 (1948)...................................................................

47

vii

United States v. Lindenfeld, 142 F.2d 829 (2d Cir. 1944)...............................................

47

United States v. Schultz, 333 F.3d 393 (2d Cir. 2003) ....................................................

45

United States ex. rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)..............................

30

United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973)..................................................................................................................

12, 13

United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999) ...............................

41

Warth v. Seldin, 422 U.S. 490 (1975).............................................................................. 16-17

Other Authorities

2A Norman J. Singer, Sutherland on Statutes and Statutory Construction

§ 47.17 (1991)..................................................................................................................

21

72 Cong. Rec. 1989 (1930) .............................................................................................. 23, 24, 25

139 Cong. Rec. S17095-03 (1993) ..................................................................................

33

140 Cong. Rec. H2518-01 (daily ed. Apr. 20, 1994).......................................................

28

142 Cong. Rec. H2191-04 (daily ed. Mar. 13, 1996) ......................................................

40

142 Cong. Rec. H2475-01 (1996). .................................................................................

42

142 Cong. Rec. S4405-01 (daily ed. Apr. 30, 1996) .......................................................

32

Ferrell, Craig E., The War on Terror’s ‘Absconder Initiative,

The Police Chief (Oct. 2002)

available at http://www.iacp.org/documents/index.cfm?fuseaction=

document&document_type_id=1&document_id=359 ....................................................

19

H.R. 2671, 108th Cong. (1st Sess. 2003)......................................................................... 22, 29, 30

H.R. Conf. Rep. No. 82-1505, at 1361 (1952), reprinted in 1952 U.S.C.C.A.N. 1360, 1361....................................................................

39-40

H.R. Conf. Rep. No. 103-711 (1994)............................................................................... 28, 33

H.R. Rep. No. 71-85 (1929)............................................................................................. 23, 24

Nina Bernstein, Old Deportation Orders Leading To Many Injustices, Critics Say,

N. Y. Times (Feb. 19, 2004) ..........................................................................................

19

viii

Page(s)

S. 1906, 108th Cong. (1st Sess. 2003) ............................................................................. 22, 29

S. Rep. No. 104-249 (1996) .............................................................................................

33

U.S. Department of Justice, Executive Office for Immigration Review,

FY 2003 Statistical Year Book H-1 (2004),

available at http://www.usdoj.gov/eoir/statspub/fy03syb.pdf .........................................

29

ix

PRELIMINARY STATEMENT National Council of La Raza, New York Immigration Coalition, American-Arab Anti-Discrimination Committee, Latin American Workers Project, and UNITE bring this action to enjoin defendants from exceeding their statutory authority by unlawfully entering hundreds of thousands of civil immigration records into the National Crime Information Center (“NCIC”), the principal criminal database of the Federal Bureau of Investigation (“FBI”), and disseminating that information to state and local police. Defendants have misused this database in violation of the NCIC statute, 28 U.S.C. § 534, in an unlawful scheme to cause local police, in the course of their routine duties, to make federal immigration arrests that Congress has barred the police from undertaking. The defendants’ misuse of the NCIC undermines public safety by deterring immigrant victims and witnesses from cooperating with police, diverts scarce resources from local policing priorities, exposes officers untrained in the complexities of immigration law to liability for wrongful arrests, and leads to increased ethnic profiling. Defendants have moved to dismiss the Complaint on three grounds. Each ground fails. First, defendants argue that plaintiffs lack standing, because none of their individual members has suffered an injury attributable to defendants’ misconduct. Defendants are wrong: individual members of each plaintiff organization have sufficiently alleged injuries-in-fact, including an imminent threat of unlawful arrest as a result of defendants’ unlawful policies and procedures and the chilling of vital communications with local law enforcement. Their allegations of injury vest plaintiffs with standing to bring this action.

Second, defendants argue that the civil immigration records at issue in this case fit within the NCIC statute’s authorization for entry and dissemination of “crime . . . [or] other records,” because the people who are the subject of these records are, as defendants repeatedly assert, “criminals.” In making this argument, defendants ignore the language and history of the NCIC statute, which limits the FBI’s power to collect and exchange criminal justice information to narrowly delineated categories. The civil immigration records and administrative warrants at issue in this case are not “crime records” under the statute. In addition, the individuals who are the subjects of those records have not been charged or convicted criminally, and are not subject to criminal warrants. These individuals are not “criminals” merely because the defendants so label them. Nor are defendants’ arguments strengthened by resort to other general immigration statutes, none of which grants defendants the broad powers claimed here.
Last, defendants argue that Congress has not preempted routine immigration enforcement by police, and thus dissemination of immigration records via the NCIC does not cause police to make illegal arrests. To the contrary, Congress has broadly preempted local police enforcement of immigration laws, subject to specific statutory exceptions that would be rendered impermissibly superfluous by the defendants’ sweeping claims of “inherent” local police authority. Simply put, Congress has forbidden the arrests caused by defendants’ misuse of the NCIC database.
FACTS AND PROCEEDINGS Since 1930, Congress has authorized the FBI to operate a massive clearinghouse of federal, state, local, and international criminal justice records, making them available to law enforcement officials across the country. Compl. ¶ 22. Today that clearinghouse
2

is known as the National Crime Information Center, and from the location of its host computer in Clarksburg, West Virginia it processes approximately 4 million transactions per day. Id. ¶¶ 23-24. The dispute in this case concerns defendants’ practice of entering administrative warrants for arrest or removal, based on civil immigration records, into the NCIC, and disseminating those records to local police with a request that police arrest the subjects of those administrative warrants when encountered. Id. ¶¶ 29-34.
Since 2002, defendants have entered thousands of administrative warrants for persons with outstanding removal orders into the NCIC, and they have announced their intention to input “each ‘absconder’ into the NCIC” - a total of over 400,000 records. Id. ¶¶ 30-31.1 The records being entered include “numerous inaccuracies.” Id. ¶ 39. Defendants have also entered and disseminated an unknown number of records regarding persons alleged to have violated a requirement of the National Security Entry-Exit Registration System (“NSEERS”), the “special registration” program launched by the Attorney General in 2002, id. ¶ 32,2 over the objections of the FBI’s own police advisory body. Id. ¶ 45. Finally, defendants have announced their intention to enter additional categories of civil immigration records into the NCIC. Id. ¶ 37.
Defendants’ practice of entering administrative immigration warrants for absconders and NSEERS violators has caused police to arrest such individuals in many jurisdictions, including in New York, Illinois, Minnesota, Connecticut, and Florida. Compl. ¶ 54. These arrests have typically occurred without notice to the arrested persons
1 The Complaint alleges that “approximately 19,000 ‘absconders’” had been entered into the NCIC as of December 1, 2003. Compl. ¶ 38. Counsel understand that as of March 1, 2004, that figure exceeds 28,000 records.
2 The Complaint alleges that defendants enter “administrative notices” regarding NSEERS violators into the NCIC. Compl. ¶ 33. Counsel understand that defendants have revised their draft NCIC screen and now enter administrative warrants for arrest for NSEERS violators. This change has no legal significance.
3

of their Miranda rights, and have resulted in the detention of such persons until transfer to the custody of defendants. Id. ¶ 55. No uniform policy or practice governs the police use of the immigration records in the NCIC. Id. ¶ 58. Among those persons arrested by local police based on defendants’ NCIC immigration listings are persons of United States citizenship or who have valid claims for immigration relief to remain in this country, for instance as the spouse or parent of a United States citizen or as a bona fide political asylee. Id. ¶ 56.
In addition to causing police arrests in many jurisdictions, defendants’ NCIC practices have “created fear in immigrant communities,” id. ¶ 65, “deter[red] immigrants from communicating with state and local law enforcement officials when in need,” id. ¶ 66, and “inhibit[ed] immigrants from accessing vital emergency government services such as police and fire protection.” Id. ¶ 67.
Individual members of the plaintiff organizations have directly suffered these consequences. The “plaintiff members,” as defined in the Complaint, are a group comprised of “[a]t least one member of each plaintiff organization, or of the associations that are members of each plaintiff organization . . . [who] has an outstanding removal order or is not in compliance with an NSEERS requirement.” Compl. ¶ 68. Accordingly, defendants “have entered or imminently will enter into the NCIC” an administrative warrant for removal of each of the plaintiff members. Id. ¶ 69. The risk of police arrest based on an NCIC listing is not speculative, as an administrative warrant for removal has or eminently will be entered into the NCIC for the plaintiff members, each of whom “lives or works in a jurisdiction whose state or local police have a policy or practice of making immigration arrests in reliance on NCIC information.” Id. ¶ 68. These plaintiff
4

members “regularly come into contact with state and local police,” id. ¶ 70, because they either “work in settings in which they are frequently questioned by police, such as those who work as day laborers or street vendors,” id. ¶ 71, or “appear Arab, Muslim, or South Asian and, especially since the September 11 attacks, have been regularly questioned by police in the course of their daily lives.” Id. ¶ 72.
The plaintiff members therefore are at imminent risk of arrest by state or local police “who stop or question them.” Compl. ¶ 73. The plaintiff members reasonably fear that if they “contact state or local law enforcement officials to report a crime, or otherwise speak or communicate with government officials on a matter of public or private concern, they may be arrested based on an NCIC listing.” Id. ¶ 74. As a result, the plaintiff members are fearful of “communicating with state and local law enforcement officials when in need and when they would otherwise be willing and able to assist in criminal investigations.” Id. ¶ 66. The plaintiff members are also the subject of erroneous information in the NCIC, id. ¶ 76 (“upon information and belief, defendants have entered or imminently will enter erroneous information regarding plaintiff members into the NCIC”), and their personal information “is available to neighbors, private citizens, or commercial enterprises.” Id. ¶ 75.
ARGUMENT I. STANDARD OF REVIEW
On a motion to dismiss, the facts alleged in the Complaint are deemed true, and plaintiffs are entitled to all reasonable inferences drawn therefrom. Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003); Baur v. Veneman, 352 F.3d 625, 631 (2d Cir. 2003) (pleadings “need not be elaborate” to state claim) (quotation and citation omitted).
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As to a plaintiff’s standing to bring suit, “general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss [the Court must] presume that general allegations embrace those specific facts that are necessary to support the claim.” Bennett v. Spear, 520 U.S. 154, 168 (1997) (internal quotation and citations omitted). Because the jurisdictional requirement of standing is subject to the same degree of proof that governs other contested factual issues, “standing allegations need not be crafted with precise detail, nor must the plaintiff prove his allegations of injury.” Baur, 352 F.3d at 631. II. THE PLAINTIFFS HAVE STANDING TO VINDICATE THEIR
MEMBERS’ RIGHTS The defendants’ argument that the plaintiff union, community group, and civil rights organizations do not have standing to sue on behalf of their members, Def. Br. 613, lacks merit. An association has standing if: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). As alleged in the Complaint, each plaintiff has at least one member at heightened risk of unlawful arrest (the “plaintiff members,” Compl. ¶ 68) as a result of the defendants’ unlawful NCIC practices. Since the Complaint adequately alleges that the plaintiff members have suffered an “injury-in-fact” that is “fairly traceable” to defendants’ unlawful conduct and “likely [to] be redressed by a favorable decision,” the plaintiff organizations have associational standing to assert the claims of their individual members. Bennett, 520 U.S. at 162.
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A. Plaintiffs Have Adequately Alleged Injuries-In-Fact In arguing that the plaintiff members must already have been unlawfully arrested to establish an “injury-in-fact,” Def. Br. 10, the defendants advance a proposition that is precisely the opposite of what the law requires. A plaintiff seeking injunctive relief ordinarily “cannot rely on past injury to satisfy the injury requirement,” but rather must show a probability of future injury. Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998); see also Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983); Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004). In assessing that probability of future injury, there is “no per se rule” requiring a court to find “more than one past act, or any prior act, for that matter,” as a basis for the threatened injury. Roe v. City of New York, 151 F. Supp. 2d 495, 503 (S.D.N.Y. 2001); see also New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996) (“a credible threat of present or future prosecution itself works an injury that is sufficient to confer standing, even if there is no history of past enforcement”). Nor must the future injury be an inevitable certainty, for as the Second Circuit has explained, “threatened harm in the form of an increased risk of future injury may serve as injury-in-fact for Article III standing purposes.” Baur, 352 F.3d at 632-33 (discussing cases); accord Roe, 151 F. Supp. 2d at 501-02. The plaintiff organizations also satisfy the requirements for obtaining judicial review under the Administrative Procedure Act, since they adequately allege that the defendants’ NCIC policies cause the plaintiff members (1) to “suffer[] legal wrong because of agency action” - namely, the heightened risk of imminent unlawful arrest and (2) to be “adversely affected or aggrieved by agency action.” 5 U.S.C. § 702; see Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882-83 (1990) (individual seeking judicial
7

review under the APA must (1) “identify some ‘agency action’ that affects him in the specified fashion,” and (2) “show that he has ‘suffer[ed] legal wrong’ because of the challenged agency action, or is ‘adversely affected or aggrieved’ by that action ‘within the meaning of a relevant statute’”) (citations omitted).
1. Plaintiff Members Reasonably Fear They Will Be Illegally Arrested Because Of The Defendants’ Unlawful NCIC Policies
The Complaint sufficiently alleges that at least one member of each plaintiff organization reasonably fears a future unlawful arrest as a direct and foreseeable result of the defendants’ policy of using the NCIC to “encourage[], cause[], and induce[] state and local police to arrest immigrants listed” in the database. Compl. ¶ 51. See Deshawn E., 156 F.3d at 344 (plaintiffs who “are likely to suffer future interrogations” using challenged methods have standing). An established government policy or practice that is directed at an identifiable group and is an alleged cause of probable future injury is sufficient to confer standing upon members of that group. Roe, 151 F. Supp. 2d at 506; Deshawn E., 156 F.3d at 345 (finding likelihood of recurring injury since “challenged interrogation methods . . . are officially endorsed policies”); see also Baur, 352 F.3d at 637 (existence of policy that causes risk of harm critical in holding that plaintiff had standing). The plaintiff organizations have accordingly established their standing by alleging both (1) the existence of an official policy that causes their plaintiff members harm and (2) a probability of future harm to their plaintiff members.
First, there is no question that the Complaint sufficiently alleges the existence of an official government policy that creates a heightened risk of harm to the plaintiff members. Defendants have announced policies regarding the entry of data into the NCIC, see Compl. ¶¶ 30, 32, and have begun placing “civil immigration records
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regarding hundreds of thousands of non-citizens into the NCIC,” Compl. ¶ 29, for the very purpose of causing police to arrest the listed persons. Id. ¶ 51. As a result, police in “New York, Illinois, Minnesota, Connecticut, Florida, and elsewhere have arrested immigrants” similarly situated to the plaintiff members based on information directly obtained pursuant to their “polic[ies] or practice[s] of arresting ‘absconders’ and/or alleged NSEERS violators listed in the NCIC.” Id. ¶ 53.
Second, the Complaint alleges a probability of harm to the plaintiff members sufficient to confer standing upon the organizations in which they are members. Defendants have entered or imminently will enter administrative warrants for the plaintiff members into the NCIC, Compl. ¶ 69, and the plaintiff members live or work in jurisdictions whose state or local police have policies or practices of making immigration arrests in reliance on NCIC information. Id. ¶ 68. Plaintiff members also regularly come into contact with local police because they either (1) work in settings in which they are frequently questioned by police or (2) have been regularly questioned by police in the course of daily life because the members appear Arab, Muslim, or South Asian. Id. ¶¶ 70-72. The plaintiff members thus reasonably fear that police will run their names and arrest them based on the administrative warrants in the NCIC. Id. ¶ 73. That objectively reasonable fear is sufficient to establish standing to contest defendants’ NCIC policies. See Roe, 151 F. Supp. 2d at 504 (“Courts have repeatedly found that plaintiffs who are members of such an identifiable class of targeted individuals have standing to sue”).3
3 In Roe, for instance, the court concluded that intravenous drug users had sufficiently alleged standing to challenge a police practice of arresting participants in a state-authorized needle exchange program, based on the plaintiffs’ reasonable fear of future arrest. 151 F. Supp. 2d at 506. The plaintiffs’ fear was reasonable because of prior arrests and an “ongoing” police practice of targeting “persons in ‘high drug areas’” for unlawful arrest, including the neighborhoods where the needle exchange programs visited by plaintiffs were located. Id.
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While the defendants protest that the Complaint does not identify any of the illegal policies and practices at issue, Def. Br. 9, that assertion plainly misreads the Complaint, which explicitly identifies the defendants’ policies regarding the entry and dissemination of civil immigration records through the NCIC to cause police officers to make immigration arrests that Congress has preempted the police from making. Compl. ¶¶ 29-32, 51-54. Nor are the defendants correct in arguing that the Complaint fails because it lacks “allegations that specific members have actually been or actually will be unlawfully arrested based on information reported in the NCIC database,” Def. Br. 10, since the Complaint unmistakably alleges that the plaintiff members face a heightened risk of unlawful arrest, and as discussed below, those allegations are sufficient to establish the plaintiff organizations’ associational standing. See Compl. ¶¶ 68-74; infra Point I.C; see also Forum for Academic and Institutional Rights, Inc. v. Rumsfeld, 291 F. Supp. 2d 269, 286-89 (D. N.J. 2003).
Finally, the defendants are mistaken that the allegations are inadequate to establish plaintiffs’ standing simply because the Complaint does not include the word “same” before “plaintiff members.” See Def. Br. 9. The Complaint alleges that each plaintiff organization has at least one member subject to an outstanding removal order or not in compliance with an NSEERS requirement, Compl. ¶ 68, and that these “plaintiff members” regularly come into contact with state and local police, id. ¶¶ 70-72. As alleged in the Complaint, these “plaintiff members” therefore are at risk of arrest when they come into contact with the police, and reasonably fear being illegally arrested during any such encounter. Id. ¶¶ 73-74. Since the Complaint explicitly defines the “plaintiff members” whose risk of unlawful arrest is increased as a result of defendants’ actions,
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the defendants’ insistence on the use of the word “same” amounts to a technicality at best and is inconsistent with the obligation to draw all reasonable inferences in the plaintiff organizations’ favor at this stage of the litigation. See, e.g., Lunney, 319 F.3d at 554 (court “must draw all reasonable inferences in favor of the plaintiff”); Bennett, 520 U.S. at 168 (on motion to dismiss, court must “presum[e] that general allegations embrace those specific facts that are necessary to support the claim”) (internal quotation and citations omitted).
Defendants also incorrectly argue that the Complaint is inadequate because it does not allege that the plaintiff members’ contacts with the police result from information obtained through the NCIC. Def. Br. 9. This assertion misstates the nature of the harm that the plaintiff members face. The Complaint concretely alleges that the plaintiff members face a heightened risk of illegal arrest as a result of defendants causing police to arrest persons subject to administrative warrants as absconders or NSEERS violators, following routine police-civilian encounters. Compl. ¶¶ 24, 36, 54. Defendants’ unlawful NCIC practices directly cause police to arrest persons listed in the database, regardless of the reason for the initial police contact, and the allegations in the Complaint are amply concrete to support that injury.
Moreover, as in Roe, the defendants’ actions cause a “distinct and palpable” injury to both the plaintiff members and other members of the plaintiff organizations. Roe, 151 F. Supp. 2d at 506. In Roe, the fear of arrest translated “directly into less frequent visits to the NEP centers, more frequent use of ‘dirty’ and dulled needles, and a significantly higher risk of HIV contraction and transmission.” 151 F. Supp. 2d at 506. In this case, immigrants already significantly underreport crimes and hesitate to cooperate
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with the police as witnesses when they fear deportation, and the defendants’ misuse of
the NCIC further deters “immigrants from communicating with state and local law
enforcement officials when in need and when they would otherwise be willing and able to
assist in criminal investigations.” Compl. ¶¶ 62-66. The plaintiff members suffer the
distinct and palpable injury of not being able fully to cooperate with and access police
and other government services to which they are entitled in their local communities. Id.
¶¶ 66-67.4
2. The Plaintiff Members Are Adversely “Affected Or Aggrieved” By Defendants’ Actions
As an independent basis for standing, the plaintiff members also are “affected or
aggrieved” by defendants’ actions, since the injuries of which the plaintiff organizations
complain fall “within the zone of interests sought to be protected by the statutory
provision whose violation forms the legal basis for [the] Complaint.” Lujan, 497 U.S. at
883 (internal quotation omitted); see also United States v. Students Challenging
Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686 (1973). This lenient
standard only “denies a right of review if the plaintiff’s interests are so marginally related
to or inconsistent with the purposes implicit in the statute that it cannot reasonably be
4 In this context, defendants’ reliance on Laird v. Tatum, 408 U.S. 1 (1972) and United Presbyterian Church in the USA v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984), Def. Br. 11-13, is misplaced. Unlike the plaintiffs in Laird, 408 U.S. at 10-13, or in United Presbyterian, 738 F.2d at 1378-79, who asserted no injury other than a “chilling effect” caused by the challenged law enforcement practice, here the plaintiff members clearly and sufficiently allege that they also face a heightened risk of unlawful arrest due to defendants’ NCIC policies. The United Presbyterian court itself recognized that “threatened arrest” constitutes a “concrete, harmful action” sufficient to “support standing,” id. at 1380; see also Laird, 408 U.S. at 11 (approving standing where “challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging”). Nor can defendants’ invocation of these cases be reconciled with more recent precedent. See, e.g., Baur, 352 F.3d at 632-33 (heightened risk of future injury may establish injury-in-fact); Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1234-35 (D.C. Cir. 1996) (“a small probability of injury is sufficient” and “relatively modest increments in risk . . . qualify for standing”).
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assumed that Congress intended to permit the suit.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987).
Defendants’ NCIC practices injure interests of the plaintiff members that fall within the NCIC statute’s zone of interests. Defendants’ practices result in the improper inclusion of administrative warrants for plaintiff members in the NCIC criminal database, when these persons they have been neither charged with nor convicted of an immigration crime, nor even made the subject of a criminal arrest warrant. Compl. ¶¶ 29, 69. Defendants’ practices also inhibit plaintiff members from speaking, communicating, and interacting with local law enforcement officials, because plaintiff members reasonably fear that their names are included in the NCIC and that, upon any encounter, police officials may arrest them illegally. Id. ¶¶ 74, 75. Finally, inclusion in the NCIC harms the plaintiff members’ privacy interests because private citizens and commercial enterprises access the NCIC file in which their names are included. Id. ¶¶ 44, 74; see also 28 C.F.R. § 50.12(a) (authorizing dissemination of NCIC records to banking and financial institutions, state agencies for employment or licensing purposes, “segments of the securities industry,” and registered futures associations). The FBI’s own regulations recognize this privacy interest. See 28 C.F.R. § 20.1 (“purpose” of regulations implementing NCIC statute includes “to protect individual privacy”).
Plaintiff members have more than the small direct stake in the outcome of the litigation that would be sufficient to sustain standing. See SCRAP, 412 U.S. at 689 n.14. As subjects of records in the NCIC, they are the persons upon whom Congress must have intended to rely “to challenge agency disregard of the law.” Clarke, 479 U.S. at 399. See Menard v. Saxbe, 498 F.2d 1017, 1023 (D.C. Cir. 1974) (holding subject of NCIC record
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has standing to challenge lawfulness of its inclusion in database and ordering expungement of non-criminal information wrongly included in NCIC criminal files); Tarlton v. Saxbe, 507 F.2d 1116 (D.C. Cir. 1974) (holding subject of NCIC record has standing to challenge accuracy of record and further that FBI has duty to maintain accurate information in NCIC).5
For the foregoing reasons, the injuries to the plaintiff members fall within the zone of interests of the NCIC statute. See Nat’l Credit Union Admin. v. First Nat’l Bank and Trust Co., 522 U.S. 479, 492 (1998) (interest to be protected must only be “arguably” within zone of interests of statutory provision); see also Bennett, 520 U.S. at 163 (emphasizing that, for APA claims, courts must construe zone of interests test against backdrop of “generous review provisions of the APA”).
B. Defendants’ Actions Cause The Plaintiff Members’ Injuries And The Requested Relief Will Redress The Injuries Alleged
The plaintiff organizations also sufficiently allege causation and redressability, since the plaintiff members’ injuries can be “fairly . . . traced to the challenged action of the defendant[s]” and are not injuries that result “from the independent action of some third party not before the court.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 4142 (1976). The Complaint fully describes a simple, unattenuated chain of causation, stating plainly that the “[d]efendants’ practice of entering ‘absconder’ and ‘NSEERS violator’ information into the NCIC and disseminating it to local police upon inquiry illegally causes and induces police to make arrests that Congress has forbidden.” Compl. ¶ 60; see Simon, 426 U.S. at 45 n.25; Heldman on Behalf of T.H. v. Sobol, 962 F.2d 148,
5 In addition, the interest of plaintiff members in preventing their own illegal arrest is related to the purpose of the statute, which aims to promote public safety and effective criminal law enforcement, see infra Point III.A.2. Impediments to effective communication between police and the public frustrate this legislative purpose.
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156 (2d Cir. 1992). In addition, as discussed above, a similarly clear and unattenuated chain of causation exists between the defendants’ actions and the ways in which the plaintiff members are “affected or aggrieved” - the defendants’ own actions directly cause the wrongful inclusion of plaintiff members’ names in the NCIC database, the heightened risk of unlawful arrest, the chilling of speech and other communication to local officials, and the harm to plaintiff members’ privacy interests.
While the defendants insist that their NCIC policies “do not direct state and local law enforcement agencies to arrest aliens for whom there is a positive NCIC hit,” Def. Br. 12 (citing United Presbyterian), this assertion misses the mark. Police access the NCIC database - which is maintained by defendants, not by local police themselves literally “millions of times each day during ordinary encounters with motorists, pedestrians, and other persons.” Compl. ¶¶ 2, 23-25. Defendants have “encouraged, caused, and induced” police to make arrests forbidden by Congress, by using a criminal database that those police routinely rely upon for a plethora of law enforcement purposes having nothing to do with immigration enforcement. Compl. ¶¶ 50-51. This “end run” around established limits on the arrest authority of state and local police is the direct source of the heightened risk of unlawful arrest that the plaintiff members reasonably fear. Any such arrests are - and, as the Complaint alleges, Compl. ¶¶ 54-56, already have been - the natural and foreseeable result of the defendants’ misuse of the NCIC.6
The causal relationship between the defendants’ actions and the plaintiff members’ injuries becomes even more readily apparent upon consideration of the
6 Moreover, even on their own mistaken assumptions concerning the source of the heightened risk of arrest, the defendants are simply wrong that presence of a supposed “link supplied by agencies who are not before this Court” is “fatal” to the plaintiff organizations’ standing. Def. Br. 13. “[I]ndirectness of injury . . . [is] not necessarily fatal to standing.” Simon, 426 U.S. at 44; see also Meese v. Keene, 481 U.S. 465, 472-77 (1987); Heldman, 962 F.2d at 156.
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overlapping analysis of causation and redressability, particularly because the remedy requested by plaintiff organizations is cessation of the defendants’ illegal conduct. Heldman, 962 F.2d at 157 n.8. Enjoining defendants from disseminating the administrative warrants at issue herein via the NCIC will eliminate both the plaintiff members’ fear of unlawful arrest and the chilling effect upon their cooperation with local law enforcement. Nor will there be any longer the violation of the privacy interests based on their inclusion in a “hot file.” Since the relief sought by the plaintiff organizations will fully redress their members’ injuries, the causal link between the defendants’ actions and those injuries is abundantly clear.
C. Plaintiffs May Sue To Seek Relief For Their Members’ Injuries Finally, having alleged sufficiently concrete and particularized injuries such that the plaintiff members would “otherwise have standing to sue in their own right,” the plaintiff organizations have established their own standing to seek relief for those members’ injuries. Hunt, 432 U.S. at 343. In addition, as the defendants apparently concede (since they make no argument to the contrary), the plaintiff organizations also have established that (1) the interests they seek to protect through the prosecution of this lawsuit are germane to their respective purposes, Compl. ¶¶ 9-13, and (2) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt, 432 U.S. at 342-43; see Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004) (participation of individual members unnecessary when associational plaintiff “seeks a purely legal ruling without requesting that the federal court award individualized relief to its members”). The Complaint raises purely legal questions, the analysis of which does not require any individualized consideration of the injuries of the
16

plaintiff members, and the declaratory and injunctive relief sought by the plaintiff organizations “will inure to the benefit of those members of the association actually injured.” Warth v. Seldin, 422 U.S. 490, 515 (1975). III. DEFENDANTS’ ENTRY AND DISSEMINATION OF HUNDREDS OF
THOUSANDS OF CIVIL IMMIGRATION RECORDS VIA THE NCIC IS NOT AUTHORIZED BY STATUTE Defendants principal argument is that the civil immigration records at issue in this case - administrative warrants for removal or arrest - constitute “crime . . . [or] other records,” as those terms are used in the NCIC statute. Def. Br. 15-22. In the alternative, defendants maintain that dissemination of these records via the NCIC is permitted by some other generalized immigration provision. Id. at 22-26. Defendants are mistaken. Congress has carefully limited the categories of records that may be lawfully disseminated via the powerful NCIC database, as the text and history of 28 U.S.C. § 534 reveal. The D.C. Circuit has made clear, in two opinions carefully examining the text and history of the NCIC statute, that the FBI’s statutory powers to disseminate records via the NCIC must be narrowly construed. See Menard, 498 F.2d 1017 (holding record of lawful police arrest and overnight detention, where arrestee was later released without charge, does not constitute “crime” record that may be disseminated via NCIC, in light of text and history of § 534(a)(1)); Tarlton, 507 F.2d 1116 (affirming Menard and holding FBI has reasonable duty of care to ensure accuracy of records in NCIC). The D.C. Circuit’s reasoning in Menard and Tarlton is equally applicable to the immigration records at issue in this case. In the thirty years since Menard, Congress has on several occasions amended § 534 to authorize entry of additional records into the NCIC, and has considered - but not adopted - legislation
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specifically authorizing entry of immigration records. The text and history of § 534 and the case law interpreting its terms refute the defendants’ arguments on this motion. Nor does the other grab-bag of statutes invoked by the defendants permit dissemination of civil immigration records via the NCIC.
A. Defendants’ Practices Are Not Authorized By The NCIC Statute 1. Defendants’ Interpretation Is Contrary To The Statutory Text
The text of the statute establishing and governing the NCIC appears at 28 U.S.C. § 534. It sets forth several categories of information that may be entered and disseminated via the database: “identification, criminal identification, crime, and other records,” id. § 534(a)(1); records which would assist in the “identification of any deceased individual” or “missing person,” id. §§ 534(a)(2), (a)(3); and “protection orders for the protection of persons from stalking or domestic violence,” whether issued by “civil or criminal courts.” Id. §§ 534(e)(2)(B), (e)(3)(B). A separate provision that refers by name to the NCIC database authorizes the entry and dissemination of information regarding previously deported felons. See 8 U.S.C. § 1252c(b).
The defendants argue first that administrative warrants for absconders or NSEERS violators are “crime . . . records” within the meaning of 28 U.S.C. § 534(a)(1). The defendants cite no case law, nor regulation, nor even longstanding agency practice, in support of their position that administrative warrants constitute “crime . . . records.” The defendants also do not contend that administrative warrants, deportation orders, and NSEERS determinations are “crime . . . records” in the ordinary meaning of that term. Rather, the defendants’ position is simply that “[a]bsconders are criminals,” Def. Br. 16 (citing 8 U.S.C. § 1253(a)(1)), and “[l]ikewise, NSEERS violators are criminals, at least
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to the extent that their violations of the NSEERS registration requirements are willful.”
Def. Br. 17 (citing 8 U.S.C. § 1306). In defendants’ view, this allegation alone is
sufficient to render the administrative warrants at issue “crime . . . records.”
But the facts contradict the defendants’ labels. The plaintiff members who are the
subjects of the administrative warrants at issue in this case have been neither charged nor
convicted of criminal offenses under either 8 U.S.C. § 1253(a)(1) (criminal penalties for
“willful” failure to depart after entry of removal order) or 8 U.S.C. § 1306 (criminal
penalties for “willful” failure to comply with registration requirements). Defendants have
not even obtained criminal warrants, on a showing of probable cause to believe that
plaintiff members have committed these “willful” violations.7
Nor could the defendants charge all “absconders” or “NSEERS violators”
criminally. Many alleged “absconders” and “NSEERS violators” have committed no
willful violations of the immigration laws, and therefore are not criminally liable under §
1306 or § 1253(a)(1). Many so-called absconders were “not present” in Immigration
Court when they were ordered removed, Compl. ¶ 41, and “did not receive notice of their
scheduled court hearing, the entry of their removal order, or the denial of their
administrative or judicial appeals.” Id.8 Similarly, in the “widespread confusion”
7 Police have specifically criticized defendants’ practice of entering administrative warrants into the NCIC instead of obtaining criminal arrest warrants. See Compl. ¶ 52; see also Craig E. Ferrell, Jr., The War on Terror’s ‘Absconder Initiative, The Police Chief (Oct. 2002), at 12, available at http://www.iacp.org/documents/index.cfm?fuseaction=document&document_type_id=1&document_id= 359 (“The NCIC database has always been used to aid law enforcement officers in identifying persons wanted criminally. The FBI and Department of Justice should take steps to immediately remove those individuals from the database who only have civil absconder warrants.”).
8 Plaintiffs note that defendants’ own website indicates a large number of removal orders are entered in absentia. See U.S. Department of Justice, Executive Office for Immigration Review, FY 2003 Statistical Year Book H-1 (2004) (191,456 orders of removal entered in absentia in 1999 - 2003), available at http://www.usdoj.gov/eoir/statspub/fy03syb.pdf; see also Nina Bernstein, Old Deportation Orders Leading To Many Injustices, Critics Say, N. Y. TIMES (Feb. 19, 2004), at B1 (DOJ study indicates “two-thirds of [removal] orders were issued in absentia,” due in part to “chronic problem notifying immigrants of hearings and of removal orders”).
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accompanying “defendants’ announcement and implementation of NSEERS, many persons are ignorant of their obligations” and “unaware that they have failed to comply with an NSEERS rule.” Id. ¶ 42. In fact, some absconders and NSEERS violators “have valid claims of United States citizenship or are eligible for immigration relief based on their marriage to a U.S. citizen, as a political asylee, or otherwise.” Id. at 43.9
The interpretation of “crime . . . records” advanced by the government is enormously broad in its reach. Nearly all statutory schemes in the modern administrative state combine civil and criminal sanctions. If the unilateral allegation by the government that individuals have violated a civil or regulatory obligation, for which there may also be criminal penalties, is enough to convert those individuals into “criminals,” Def. Br. 16-17, and thus the underlying administrative records into “crime . . . records” for dissemination via the NCIC, then untold numbers of tax records, see 26 U.S.C. § 7203 (criminal penalties for willful failure to file return or pay tax), child support orders, see 18 U.S.C. § 228 (criminal penalties for willful failure to pay child support); environmental records, see, e.g., 33 U.S.C. § 1319(c) (criminal penalties for negligent and knowing Clean Water Act violations), and many other administrative files are eligible for entry into the NCIC as “crime . . . records.” Even local housing code violations would qualify. See N.A. Dev. Co. v. Jones, 99 A.D.2d 238, 472 N.Y.S.2d 363 (1st Dep’t 1984) (affirming criminal sentence of incarceration for landlord’s failure to make court-mandated repairs). This is not the plain meaning of “crime . . . records,” however, and as nearly a century of legislative history evidences, see infra Point III.A.2, this was not at all the intention of Congress.
9 The immigration statutes specifically authorize a waiver for persons subject to an outstanding removal order. See 8 U.S.C. § 1182(a)(9)(A)(iii); 8 C.F.R. § 212.2.
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The case law interpreting the NCIC statute confirms the narrow meaning of “crime . . . records.” In Menard v. Saxbe, the D.C. Circuit reviewed the legislative history and then narrowly construed the terms of the NCIC statute, holding that a Los Angeles Police Department arrest of a man sleeping in a park, classified as a “detention” under California law, was not a “criminal identification” or “crime” record. 498 F.2d at 1030 n.53. The D.C. Circuit therefore ordered the FBI to expunge Menard’s arrest and detention from the NCIC. Id. at 1028-29.10 In a later decision, the D.C. Circuit adhered to the validity of Menard’s narrow construction of § 534(a)(1). Tarlton, 507 F.2d at 1122 (“We reaffirm the holding of Menard . . .”).
The defendants also argue that, if not “crime . . . records,” then the administrative warrants at issue here constitute “other records,” 28 U.S.C. § 534(a)(1), which may lawfully be entered and disseminated via the NCIC. Def. Br. 18-19 (arguing the scope of “other records” is “open-ended, to be fleshed out at the discretion of the Attorney General”). Yet the category “other records,” construed under ordinary canons of statutory interpretation, necessarily means others similar to those previously listed. See, e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001) (applying canon of ejusdem generis, or principle that “where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words”); 2A Norman J. Singer, Sutherland on Statutes and Statutory Construction § 47.17 (1991) (same). In
10The defendants misapprehend the Menard decision. Def. Br. 22. In a later passage in Menard, the court indicated that the arrest/detention information could be retained in the FBI’s own identification records, which contain fingerprint data on millions of persons with no involvement in the criminal justice system, from certain federal employees to tourists who visit FBI headquarters. 498 F.2d at 1121. The court emphasized, however, that these records held for the FBI’s own use could not be disseminated based on ordinary police inquiries, but were reserved for inquiries regarding unidentified corpses or missing persons. Id. at 1028-29.
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context, the plain meaning of the phrase “other records” is other like records – not any and all administrative records relating to uncharged, unconvicted individuals deemed “criminals” by defendants (and certainly not records regularly understood as “civil”). See also Menard, 498 F.2d at 1028-30 (even records of arrest and lawful detention by Los Angeles police not subject to dissemination via NCIC under any statutory category of § 534(a)(1)).
Finally, as shown in the legislative history that follows, defendants’ interpretation of “other records” would render superfluous legislative enactments over the past twenty years adding new categories of records to § 534. See Missing Children Act of 1982, Pub. L. No. 97-292, 96 Stat. 1259 (codified at 28 U.S.C. § 534(a)(2), (3) (amending § 534 to authorize entry of records related to missing persons and unidentified corpses to NCIC); Violence Against Women Act of 1994 (“VAWA”), Pub. L. No. 103-322, 108 Stat. 1796 (codified at 28 U.S.C. § 534(e)) (amending § 534 to authorize entry of civil orders of protection to NCIC); Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1276 (codified at 8 U.S.C. § 1252c(b) (enacting 8 U.S.C. § 1252c(b) to authorize entry of records regarding previously deported felons into NCIC); infra Point II.A.2. Notably, 121 members of Congress have sponsored legislation that would be unnecessary if the government’s interpretation of § 534 were correct. See H.R. 2671, 108th Cong. (1st Sess. 2003) (bill to amend § 534 to authorize entry of “records of violations of the immigration laws of the United States” into NCIC); see also S. 1906, 108th Cong. (1st Sess. 2003) (same).
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2. Defendants’ Interpretation Is Contrary To The Structure And History Of The NCIC Statute
The defendants offer a truncated version of the origins and development of 28 U.S.C. § 534 before concluding that “[t]his legislative history speaks volumes about the meaning of the operative language of the statute.” Def. Br. 22. That legislative history does indeed “speak volumes,” but it is a narrative that powerfully contradicts the defendants’ sweeping interpretation of their powers under § 534.
The narrow scope of the terms of 28 U.S.C. § 534(a) is confirmed in the statute’s earliest origins. In the 1920s, the International Association of Chiefs of Police (“IACP”) asked the Department of Justice (“DOJ”) to take over a program by which the IACP had collected records of convictions and criminal arrest warrants and shared them with law enforcement officials upon request. At first, the Attorney General demurred, citing a lack of statutory authorization to accept and distribute these criminal records.11 Even after Congress appropriated funds for the program, DOJ recognized that it lacked authority to operate the criminal records clearinghouse. See Letter from Attorney General Sargent to Rep. George Graham, Chair, House Judiciary Committee, dated April 2, 1928 (noting that “there is no legislative authority for it other than that which appears in the appropriation bill and it is desired, for this reason, that” authorizing legislation be adopted), reprinted in H.R. Rep. No. 71-85, at 2 (1929); see also 72 Cong. Rec. 1989 (1930) (statement of Rep. Graham) (clearinghouse must be established “[b]y a proper law, where it is now illegal. We are authorizing it so that it will be legalized so [DOJ] can do
11 Before IACP’s initiative, there had been no efficient way for police in one city to learn of a person’s criminal history in another, nor for agencies to respond to inquiries from police authorities in foreign countries. See Hearing on H.R. 8580 and H.R. 8409 Before the Comm. on the Judiciary, 68th Cong. 6365 (1924) (statement of Maj. Richard Sylvester, Hon. President of the International Association of Chiefs of Police) (copy annexed as Exhibit A).
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it in the right way”). From the beginning, Congress was exceedingly conscious that the DOJ’s power to operate a criminal record clearinghouse was strictly subject to the authority granted by Congress.
The drafting history of H.R. 977, the 1929 bill that became the NCIC statute, also reflects a clear legislative intent that the record categories be narrowly construed. As introduced, H.R. 977 authorized DOJ to collect and exchange “criminal identification records.” The House Judiciary Committee then expanded this authorization by amending the bill to permit the collection and exchange of “criminal identification and other records.” H.R. Rep. No. 71- 85, at 1 (1929) (emphasis added). This amendment prompted an objection on the House floor from Rep. Cochran:
I want to call attention to the fact that in the War Department, the Civil Service Commission, the Veterans’ Bureau, and other Government agencies applications are filed in connection with certain matters and in every instance they require the applicant to submit their fingerprints. They have millions of fingerprints. Even widows and dependent mothers are required to place fingerprints on applications . . . . Just think of it. It is an insult to them. If you are going to confine the division solely to criminal records, then I have no objection, but here you put in ‘and other records’. 72 Cong. Rec. 1989 (1930). Graham responded that Cochran’s concerns “have no application whatever to the matter of fingerprints. This has nothing to do with the bureau of the Department of Justice where criminal records are kept.” Id. Thus “millions” of fingerprints and other records already possessed by federal agencies were to be excluded from the record-keeping authority conferred by Congress on the FBI. Next, even as to records that might relate to criminal investigations, Graham carefully distinguished between crime records, which were to be collected for dissemination to local police, and general investigative materials, which the FBI might maintain for its own investigations but which would not be disseminated to police:
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There are two classes of information that is gathered. One is criminal records, and another is the information that is gathered about criminals that is not a matter of record. That they do not give out, but the criminal records they do give out. That information [not of record] is gathered for the department itself and its agents, in order that they more effectually do their work.
Id. LaGuardia next offered a floor amendment to insert the word “criminal” after
“other,” so that the authority to collect and exchange records would be restricted to
“criminal identification and other criminal records.” Id. Graham agreed, and the bill was
enacted without further change. Act of June 11, 1930, ch. 455, Pub. L. No. 71-337, 46
Stat. 554; see also Menard, 498 F.2d at 1028 (DOJ must “maintain[] an appropriate
separation of the various files it is authorized to establish, and for preventing the criminal
identification files, subject as they are to dissemination, from containing inappropriate
material. This appears from the legislative history”); id. at 1028 n.42 (reviewing
Cochran-Graham exchange). Thus, the 1930 legislative history contradicts defendants’
broad claims of authority to disseminate civil immigration records.
In this action, the defendants also invoke a 1966 congressional recodification.
Def. Br. 19-22.12 The invocation is unhelpful to the government’s cause, however,
because in 1966 Congress declared its purpose to “restate, without substantive change,
the laws replaced.” Act of Sept. 6, 1966, § 7(a), Pub. L. No. 89-554, 80 Stat. 631,
(reprinted at 28 U.S.C. § 534 note). DOJ’s power remains limited to the dissemination of
12 The 1966 statutory reorganization combined the language of the 1930 statute - “criminal identification and other criminal records” - with that of the most recent appropriations bill funding the criminal clearinghouse - “identification and other records” - to yield the four categories authorized by the modern 28 U.S.C. § 534(a)(1) (“identification, criminal identification, crime, and other records”). The appropriations bills had had a life of their own. The 1928 appropriations bill had provided for collection and exchange of “criminal identification records.” Act of Feb. 15, 1928, ch. 57, Pub. L. No. 70-32, at 78. The 1930 appropriations bill was enacted after the House Judiciary Committee amendment had added “and other records” but before LaGuardia’s floor amendment narrowed the statute to “and other criminal records”; not surprisingly, therefore, the 1930 appropriations bill tracked the then-approved Committee language. Act of Apr. 18, 1930, ch. 184, Pub. L. No. 71-142, at 187. In 1932, the appropriations language became simply “identification and other records,” Act of July 1, 1932, ch. 361, Pub. L. No. 72232, at 488, and remained unchanged through 1964.
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crime records, as that term was meant by Congress in 1930. See also Menard, 498 F.2d at 1028 n.42 (noting that 1966 recodification made no substantive change to authority of DOJ to disseminate records).
Moreover, congressional rules generally prohibit amendment by appropriation, and thus the 1930 statute was not amended by the broader language of any subsequent appropriations bills. See Andrus v. Sierra Club, 442 U.S. 347, 359-60 (1979) (legislation by appropriation violates rules of Congress); Rostker v. Goldberg, 453 U.S. 57, 74-75 (1981) (recognizing that “appropriations legislation should not be considered as modifying substantive legislation”). At a minimum, arguments that appropriations bills have amended authorizing statutes must satisfy a “clear statement” rule of interpretation. See Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440 (1992) (Congress may, in some circumstances, “amend substantive law in an appropriations statute, as long as it does so clearly”); Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 145 (2d Cir. 2002) (“While Congress may amend or repeal a statute by means of an appropriations bill, its intention to do so must be clear”). As the D.C. Circuit concluded in Menard, Congress did not clearly expand its authorization for DOJ to exchange “crime . . . records” in any appropriations act, nor in its 1966 recodification.
Most importantly, legislative developments since the 1966 recodification demonstrate a plain legislative intent that the categories of the NCIC be strictly construed. In 1982, Congress added two additional categories of records to the NCIC statute, for missing persons and unidentified deceased individuals. See Missing Children Act of 1982, §§ 2, 3(a), Pub. L. No. 97-292, 96 Stat. 1259 (codified at 28 U.S.C. § 534(a)(2), (3)). Under the defendants’ interpretation of “crime . . . [or] other records,” however, the
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Missing Children Act is superfluous. If defendants were correct, for instance, that the scope of “other records” is “open-ended, to be fleshed out at the discretion of the Attorney General,” Def. Br. 19, then surely records relating to a missing child or unidentified corpse - both circumstances that frequently involve criminal conduct - would have already been authorized in 28 U.S.C. § 534(a)(1), and the Missing Children Act would have been unnecessary.
Congress next expanded the NCIC record categories in a provision of the VAWA. See VAWA, § 40601(a), Pub. L. No. 103-322, 108 Stat. 1796 (codified at 28 U.S.C. § 534(e)) (authorizing entry of protection orders against domestic violence and stalking issued by civil courts into NCIC). The defendants argue that “nothing in the VAWA suggests that the FBI did not have the authority” to collect and disseminate protection orders, Def. Br. 22 n.6, and that “the sole purpose” of the 1994 VAWA amendment “was to expand the range of entities authorized to gain access to this information.” Id. (emphasis added). But the defendants’ account carefully elides the most relevant history, which contradicts their views.
The provision that became 28 U.S.C. § 534(e) originated in a floor amendment by Rep. Kennedy, addressing both the need for improved access to the NCIC by court personnel (as emphasized by the government, Def. Br. 22 n.6, and now codified at § 534(e)(1)) and the need for entry of civil orders of protection into the NCIC (ignored by defendants and now codified at § 534(e)(2)). Subsection (a) of the first provision of Rep. Kennedy’s amendment concerned access to the NCIC; subsection (b), not mentioned by defendants, specified:
(b) ENTRY. The Attorney General shall amend existing regulations to permit . . . criminal justice agencies, assigned to input information into [the NCIC], to
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include arrests, warrants, and orders for the protection of parties from stalking or domestic violence, whether issued by a criminal, civil, or family court . . . 140 Cong. Rec. H2518-01 (daily ed. Apr. 20, 1994). This amendment instructing the Attorney General to “amend existing regulations” was necessarily premised on the understanding that the NCIC statute already authorized DOJ to disseminate protection orders; all that was necessary was a direction from Congress to the Executive Branch to exercise its heretofore unused powers. The House adopted Kennedy’s amendment, but the conference committee abandoned his approach. Instead, in the conference version of the bill (which was enacted as VAWA), Congress added new statutory authorization for entry of civil protection records into the NCIC. H.R. Conf. Rep. No. 103-711, at 161-62 (1994) (in § 40601, adding new 28 U.S.C. § 534(e)(2), authorizing entry of orders for “protection of persons from stalking or domestic violence,” violations of such orders, and “arrests, convictions, and arrest warrants for stalking or domestic violence”).13 Section 534(e)(2) and its history directly contradict the defendants’ interpretation of “crime . . . [or] other records.” If Congress intended for the term “other records” to be “open-ended” and “fleshed out at the discretion of the Attorney General,” Def. Br. 19, and for “crime . . . records” to include any record “establishing that the individual in question has committed a crime,” id. at 17, then the 1994 VAWA amendments are superfluous. Violation of a civil order of protection is a crime, see, e.g., N.Y. Penal Law § 215.50-52 (imposing criminal contempt penalties for violation of civil order of protection), and hence, if defendants were correct, protection orders, violations of protection orders, and arrest warrants would already be covered by § 534(a)(1). Yet Congress, when specifically presented with a House-approved measure to combat
13 Congress defined “protection orders” for the purposes of this provision to include “temporary and final orders issued by civil or criminal courts.” 28 U.S.C. § 534(e)(3)(B).
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domestic violence through promulgation of new NCIC regulations, pursuant to statutory authority already conferred, declined that approach and, instead - contrary to the defendants’ interpretation of § 534(a)(1) - expanded the statutory categories themselves.
Another legislative amendment in the 1990s is inconsistent with the defendants’ sweeping interpretation of 28 U.S.C. § 534(a)(1). In 1996, Congress authorized the entry of information regarding deported felons into the NCIC. AEDPA, Title IV § 439, Pub. L. No. 104-132, 110 Stat. 1276 (codified at 8 U.S.C. § 1252c(b) (“information in the control of the Attorney General, including information in the [NCIC]” to be “made available” to “assist State and local law enforcement officials in carrying out duties under subsection (a) of this section,” relating to arrest of previously deported felons). At least until the creation of the Department of Homeland Security, information regarding the deportation of persons with felony convictions was in the control of the Attorney General. See 8 U.S.C. § 1103(a)(2). Section 1252c(b) thus provides statutory authority to DOJ to enter and disseminate information regarding previously deported felons, and further demonstrates that when Congress meant to authorize the entry of civil information, indeed civil immigration information, into NCIC, it said so in statutory terms.
Finally, it is noteworthy that 121 members of the current Congress have cosponsored legislation, now pending, to allow entry into the NCIC of the very records for which defendants already claim statutory authority – immigration records. See H.R. 2671, 108th Cong. (1st Sess. 2003); see also S. 1906, 108th Cong. § 104(b) (1st Sess. 2003) (same). In sections entitled “Listing of Immigration Violators in the National Crime Information Center Database,” the bills provide:
Section 534(a) of title 28, United States Code, is amended by redesignating paragraph (4) as paragraph (5) and inserting after paragraph (3) the following:
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‘(4) acquire, collect, classify, and preserve records of violations of the immigration laws of the United States’. H.R. 2671, § 104(b); S. 1906, § 104(b). In sum, the legislative history of the NCIC statute, from its 1930 origins through the 1966 recodification, the amendments in the 1980s and 1990s, and up to the pending House and Senate proposals to authorize entry and dissemination of immigration records, contradicts the extraordinarily broad claim made by the government in this case. If the defendants were correct that “crime . . . records” includes any record “establishing” criminal culpability, and “other records” leaves to the “discretion of the Attorney General” entry of any other records, then all manner of tax, child support, environmental, housing, and other administrative orders or determinations would be candidates for dissemination via the NCIC - and Congress’ cautious, incremental expansion of 28 U.S.C. § 534(a) in 1982, 1994, 1996, and perhaps 2004 are meaningless. On the defendants’ broad view, too, the D.C. Circuit misinterpreted the legislative history of the NCIC statute, and Menard v. Saxbe should have come out the other way. To the contrary, Congress has not authorized dissemination via the NCIC of the civil immigration records and administrative warrants at issue in this case, and the defendants’ practices are not authorized by law.
3. Defendants’ Practices Contradict Their Own Regulations The defendants’ position in this case also impermissibly contradicts the FBI’s own regulations. See United States ex. rel. Accardi v. Shaughnessy, 347 U.S. 260, 266268 (1954); Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.”); Montilla v.
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INS, 926 F.2d 162, 166 (2d Cir. 1991) (“The seeds of the Accardi doctrine are found in the long-settled principle that the rules promulgated by a federal agency, which regulate the rights and interests of others, are controlling upon the agency”).
NCIC regulations address collection and dissemination of “criminal history record information,” defined as “identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom . . .” 28 C.F.R. § 20.3(d) (2004). See also 28 C.F.R. App. to Part 20, Subpart A-Commentary on § 20.3(d) (“Intelligence or investigative information (e.g., suspected criminal activity, associates, hangouts, financial information, and ownership of property and vehicles) is not included in the definition of criminal history information”) (emphasis added). Furthermore, “[c]riminal history record information” does not include “identification information such as fingerprint records if such information does not indicate the individual's involvement with the criminal justice system.” 20 C.F.R. § 20.3(d). Thus, the terms of the FBI’s own regulatory definition of “[c]riminal history record information” exclude administrative warrants, deportation records, and determinations of NSEERS violations. Moreover, not even all criminal history may be entered into the NCIC, as “non-serious” offenses are excluded. 28 C.F.R. § 20.32(b) (excluding “arrests and court actions concerning nonserious offenses” from databases linked to NCIC).
* * * * In sum, defendants’ practice of entering administrative warrants for removal of alleged “absconders” and “NSEERS violators” into the NCIC database and the dissemination of those warrants to local police with a request that the subjects of the
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administrative warrants be arrested is not authorized by the NCIC statute, 28 U.S.C. § 534. Administrative warrants of removal are not “crime . . . [or] other records” as those terms are used in § 534(a)(1). The text, history, and structure of the statute, as well as the defendants’ own regulatory materials, refute the government’s sweeping claim that Congress has authorized the collection and exchange of any administrative record which, in the Attorney General’s view, establishes criminal culpability.
B. Defendants’ Practices Are Not Authorized By Any Other Statute The government argues that, even if not authorized by the NCIC statute, the database practices challenged by plaintiffs are lawful under a grab-bag of immigration statutes. Def. Br. 23-26. The defendants are mistaken. The government begins with a provision of the Violent Crime Control and Law Enforcement Act of 1994, Title XIII § 130002, Pub. L. No. 103-322, 108 Stat. 1796 (“VCCLEA”), which it characterizes as “DHS’s principle authority for compiling and entering Absconder and NSSERS information into the NCIC database.” Def. Br. 23. See also id. at 24 (“the VCCLEA provides direct authority for the Government to compile and disseminate the information at issue in this case”). But the 1994 VCCLEA provision is of no help in justifying defendants’ NCIC practices. First, the provision was an appropriation measure to effectuate the creation of an entirely distinct database, the Criminal Alien Tracking Center (renamed the Criminal Alien Identification System in 1996), in a different agency (INS, now DHS), in a different city (Burlington, Vermont). “The Criminal Alien Tracking Center - also known as the Law Enforcement Support Center . . . is located in South Burlington, VT.” 142 Cong. Rec. S4405-01 (daily ed. Apr. 30, 1996) (statement of Sen. Leahy); see also Compl.
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¶ 35 (describing “the Law Enforcement Support Center . . . a unit of DHS located in
Burlington, Vermont”); VCCLEA § 130002 (“The Commissioner of Immigration and
Naturalization . . . shall operate a criminal alien identification system”), reprinted at 8
U.S.C. § 1226 note; S. Rep. No. 104-249, at 57 (1996) (minority views) (describing
“Criminal Alien Tracking Center (Law Enforcement Support Center) established by the INS . . . [and] located in South Burlington, VT”).14 The 1994 VCCLEA appropriation is
no authority whatsoever for the FBI’s dissemination of immigration records via its NCIC
database in Clarksburg, West Virginia.
Second, in words that begin the appropriation provision relied on by the
defendants but which are omitted from their brief, Congress has made clear that the
VCCLEA funds are to be expended by the INS Commissioner “under the authority of section 236(d) of the Immigration and Nationality Act [8 U.S.C. § 1226(d)].”15 This
authority, in turn, permits a computer records system only “to maintain a current record
of aliens who have been convicted of an aggravated felony.” 8 U.S.C. § 1226(d)(1)(C).
Few, and certainly not most, of the absconder and NSEERS violators records at issue in
this case are for persons “who have been convicted of an aggravated felony.” VCCLEA
14 Nor is this unintentional: the Senate version of what became VCCLEA § 130002 designated the appropriation for use by the Commissioner of INS “with the cooperation of the Director of the Federal Bureau of Investigation,” 139 Cong. Rec. S17095-03, S17186 (1993) (H.R. 3355, § 5007, as passed by Senate), but in conference committee, the provision was amended and the funds were reserved exclusively for the INS Commissioner, for her establishment of the database within INS. See H.R. Conf. Rep. No. 103-711, at 236-37 (1994) (accepting Senate’s § 5007 but deleting reference to FBI from provision, renumbered § 130002 of H.R. 3355). Appropriating the funds to INS was also consistent with the earlier congressional directive that had prompted the 1994 bill. See Anti-Drug Abuse Act of 1988, § 7380(a)(1), Pub. L. No. 100-690, 102 Stat. 4181 (establishing INS pilot program to respond to police inquiries regarding aliens arrested, convicted, or under investigation for controlled substance offense). Confirming its intent that the program funded by VCCLEA § 130002 be operated directly by the INS, in 1996 Congress substituted “the Commissioner of Immigration and Naturalization” for “the Attorney General” in the first sentence, AEDPA, Title IV, § 432, Pub. L. No. 104-132, 110 Stat. 1273.
15 VCCLEA § 130002 (codified as amended at 8 U.S.C. § 1226 note).
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§ 130002 is far from “direct authority,” Def. Br. 24, for the government’s challenged practices in this case.
The government concludes its defense of the NCIC practices challenged herein with a citation to, but not specific argument from, 8 U.S.C. § 1373 and a nearly-identical provision, 8 U.S.C. § 1644. See Def. Br. 24-25. The government is off the mark. These provisions “prohibit state and local governments from limiting their employees in the voluntary provision of information about the immigration status of aliens to the [INS],” City of New York v. United States, 179 F.3d 29, 31 (2d Cir. 1999) (rejecting Tenth Amendment challenge to §§ 1373, 1644). The legislative target of these provisions were local “anti-snitch” ordinances, such as former New York City Executive Order 124. Id. at 32-33. In this action, plaintiffs do not challenge the authority of state or local police to communicate immigration information that they may acquire to federal officials, nor do they seek to defend state or local rules limiting such communications. Nothing in 8 U.S.C. §§ 1373, 1644, however, authorizes the FBI’s entry and dissemination via the NCIC of administrative warrants for removal of absconders and NSEERS violators.16 IV. DEFENDANTS’ MISUSE OF THE NCIC IS UNLAWFUL FOR THE
ADDITIONAL REASON THAT IT CAUSES POLICE TO MAKE IMMIGRATION ARRESTS CONGRESS HAS FORBIDDEN Plaintiffs also challenge the lawfulness of defendants’ NCIC practices on the independent ground that these practices directly cause police to make immigration arrests that Congress has preempted police from undertaking. Compl. ¶¶ 82-87. In its motion, the government makes three arguments that the preemption claim should be dismissed.
16 The defendants also invoke the powers of the Department of Homeland Security “to obtain and maintain” information on certain immigrants. Def. Br. 24 (citing 8 U.S.C. §§ 1231(a)(3)(C), (D), 1225(a)(3) and DHS regulations). None of these provisions, however, authorizes the FBI to enter civil immigration records or administrative warrants into the NCIC, nor to disseminate them to local police.
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The government contends first that state and local police possess “inherent” authority, Def. Br. 28, under state law to make warrantless immigration arrests, id. at 27-33; second, that preemption doctrines are inapplicable to their NCIC practices, because “federal law cannot ‘preempt’ federal law or federal action,” id. at 34; and third, the federal statutory scheme for immigration enforcement does not in fact bar the local immigration arrests caused by defendants that are at issue in this case. Id. at 34-36. As to the first and second points, the defendants misapprehend plaintiffs’ legal theories, and as to the third point, defendants are mistaken.
A. Scope Of Police Authority Under State Law To Make Federal Immigration Arrests Is Irrelevant
The government devotes the first portion of its preemption argument to an exegesis of the authority, under state and local law, for police to make warrantless immigration arrests, whether criminal or civil. Def. Br. 27-33. The scope of police authority under state law, however, which necessarily varies among the fifty states, see, e.g., 75 Op. Att’y Gen. 270 (1996) (California police may not arrest immigrants solely for civil deportation and may not arrest for criminal immigration offenses unless misdemeanor committed in presence of officer or felony); 2000 Op. Att’y Gen. (Inf.) 1001 (2000) (New York police may not make civil immigration arrests); 1977 Op. Att’y Gen. H-1029 (1977) (same as to Texas police); 18 Oreg. Rev. Stat. § 181.850 (Oregon police prohibited from “detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship residing in the United States in violation of federal immigration laws”), is not the issue in this case.
Plaintiffs’ contention is that, whatever the state-law powers possessed by the police to make arrests for federal offenses - in the immigration area or any other area - as
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to immigration arrests, Congress has preempted any such authority. See Point III.C, infra. Defendants do not contest that state law authority to make immigration arrests, if any exists, must necessarily yield under the Constitution’s Supremacy Clause to federal law barring those same arrests.
B. Federal Defendants Cannot Cause State And Local Arrests That Congress Has Preempted
The defendants next maintain that preemption doctrines have no bearing on the lawfulness of their NCIC practices, because the defendants are themselves federal agencies and officials. But defendants miss the mark. It is the contention of plaintiffs that Congress has preempted state and local police from making the arrests at issue in the case, see Point III.C below, and that defendants use of the NCIC is therefore unlawful because it causes police to make these illegal arrests. Surely defendants cannot contend, and do not appear to contend, that they may “cause[],” Compl. ¶ 3, “induce[],” id., “request[],” id. ¶ 36, and “encourage[],”police to make arrests that are illegal. Id. ¶ 51. It is axiomatic that the defendants cannot act in ways that cause or induce others to commit unlawful acts. See, e.g., Chamber of Commerce of the United States v. Reich, 74 F.3d 1332, 1339 (D.C. Cir. 1996) (invalidating Labor Department regulations that would “induce . . . the employer . . . [into] committing an unfair labor practice”).
C. Congress Has Preempted The Police Arrests That Defendants’ NCIC Practices Have Caused And Continue To Cause
The defendants’ central argument is that the elaborate statutory scheme of federal immigration regulation and enforcement does not preempt local police arrests, based on administrative warrants listed in the NCIC, of absconders and NSEERS violators. Def. Br. 34-36. The defendants fail to grapple, however, with the full force of this complex
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statutory scheme, the widespread recognition that Congress has occupied the field of immigration regulation, and most concretely, the reality that Congress has scrupulously delineated for which immigration offenses, and under what circumstances, local police may make arrests. These laws reflect careful and sound policy choices by Congress, and defendants’ argument that Congress has not generally preempted police from making immigration arrests renders superfluous numerous federal statutes.
1. Immigration Regulation And Enforcement Is A Federal Concern It is well-settled that Congress holds a plenary and exclusive power to regulate immigration, and its exercise of this power wholly ousts any state role. The power to regulate immigration “belongs to Congress, and not to the states.” Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (invalidating state inspection and bond requirements for arriving noncitizens). The Supreme Court has explained that the “[p]ower to regulate immigration is unquestionably exclusively a federal power.” De Canas v. Bica, 424 U.S. 351, 354 (1976); see also Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976) (“[T]he authority to control immigration is . . . vested solely in the Federal Government, rather than the States . . . .”).17 As a consequence, preemption doctrines have long had special force in immigration law. See Toll v. Moreno, 458 U.S. 1, 17 (1982) (invalidating state denial of student financial aid to visa holders as preempted); Graham v. Richardson, 403 U.S. 365, 376–80 (1971) (invalidating state welfare discrimination against permanent residents as preempted); Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948) (stating
17 The federal nature of immigration regulation derives at least in part from the constitutional command of “uniformity” in immigration law. U.S. Const. Art. I § 8 cl. 4 (Congress may “establish an uniform Rule of Naturalization”); Graham v. Richardson, 403 U.S. 365 (1971) (disparate state welfare rules for immigrants violate constitutional obligation of uniformity).
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Congress has enacted “a comprehensive legislative plan for the nation-wide control and regulation of immigration and naturalization” and holding state alienage restriction on commercial fishing licenses invalid as preempted); Hines v. Davidowitz, 312 U.S. 52, 69 (1941) (state registration system for noncitizens preempted by federal law); Truax v. Raich, 239 U.S. 33, 42 (1915) (state law regulating employment of non-citizens invalid as preempted); see also LULAC v. Wilson, 908 F. Supp. 755, 775 (C.D. Cal. 1995) (invalidating portions of Proposition 187, requiring state officials to detect immigration violators and report violators to federal officials, as preempted).
The settled principle that immigration regulation is exclusively a federal concern has also long guided congressional enactments regarding immigration enforcement, which have preempted local arrest authority. This is true for both the civil provisions of the immigration statutes, governing removal proceedings, see Gonzales v. City of Peoria, 722 F.2d 468, 472-75 (9th Cir. 1983) (“assum[ing] that the civil provisions” of immigration law preempt local arrest authority), and the numerous criminal provisions of the immigration laws discussed infra. Applying these principles in the years since 1996, when Congress clarified its scheme for local immigration enforcement, two courts of appeals have described police authority to enforce immigration laws as “doubtful,” “questionable” Mena v. City of Simi Valley, 332 F.3d 1255, 1265 n.15 (9th Cir. 2003), cert. granted on other grounds sub nom. Mueller v. Mena, __ U.S. __, No. 03-1423, 2004 WL 817138 (June 14, 2004), and “uncertain[].” Carrasca v. Pomeroy, 313 F.3d 828, 837 (3d Cir. 2002).
38

2. Congress Has Broadly Preempted State And Local Police Enforcement Of Immigration Laws
Despite the well-settled principles that immigration regulation and enforcement is a federal concern, and the recognition by courts of appeals that police arrest authority is thus “doubtful,” “questionable” Mena, 332 F.3d at 1265 n.15, and “uncertain[],” Carrasca, 313 F.3d at 837, defendants contend that the arrests at issue here are not preempted. This conclusion reflects a fundamental misunderstanding of the legislative scheme adopted and refined by Congress. Several statutory provisions enacted explicitly to permit local immigration enforcement in narrowly circumscribed areas would be wholly superfluous if states possessed the “inherent authority” the defendants assert.
Congress has expressly authorized direct local enforcement of two criminal immigration provisions. See 8 U.S.C. § 1324(c) (subsection entitled “Authority to Arrest” empowers INS agents “and all other officers whose duty it is to enforce criminal laws” to make arrests for violations of § 1324(a), which criminalizes smuggling, transporting, or harboring illegal immigrants); id. § 1252c(a) (authorizing “state and local law enforcement officials” to arrest and detain “an alien illegally present in the United States” who “has previously been convicted of a felony” and ordered deported).18 The defendants’ argument that the local police possess the power to arrest alleged absconders and NSEERS violators would render § 1324(c) and § 1252c(a) unnecessary.
The legislative history of these two direct-arrest provisions, moreover, confirms their plain meaning and further contradicts the defendants’ argument. When first drafted, the bill that became § 1324(c) empowered criminal law enforcement officers “of the United States” to arrest alleged smugglers. Congress eliminated the phrase “of the
18 Defendants concede that section 1252c “appears to place conditions and limitations on certain forms of state and local cooperation with federal immigration authorities.” Def. Br. 36.
39

United States,” however, so that “other officers whose duty it is to enforce criminal laws, would have authority to make an arrest for a violation of a provision of the act.” H.R. Conf. Rep. No. 82-1505, at 1361 (1952), reprinted in 1952 U.S.C.C.A.N. 1360, 1361.19
The history of § 1252c(a), authorizing “state and local law enforcement officials” to make arrests for the criminal offense of illegal re-entry by a felon, undermines the defendants’ arguments even more powerfully. The provision began as a floor amendment offered by Rep. Doolittle, who explained, “the Federal Government has tied the hands of our State and local law enforcement officials.” 142 Cong. Rec. H2191-04 (daily ed. Mar. 13, 1996). This was because, according to Doolittle, “current Federal law prohibits State and local law enforcement officials from arresting and detaining criminal aliens whom they encounter[] through their routine duties.” Id. His amendment would remedy this problem in part, because it would “untie the hands of those we ask to protect us,” id., when encountering a previously deported felon. Congress enacted Rep. Doolittle’s amendment, but under the defendants’ preemption analysis, this provision was entirely superfluous, because, contrary to Rep. Doolittle’s statements, local police already had the power to make all immigration arrests. It is defendants, not Rep. Doolittle and Congress, who are mistaken: federal law has “tied the hands” and preempted local police from making criminal and civil immigration arrests, except as specifically approved by Congress in provisions such as 8 U.S.C. §§ 1252c(a), 1324(c).
As noted by defendants, Def. Br. 31-32, 36, the Tenth Circuit has adopted a different interpretation of § 1252c, adhering to its pre-1996 view that police possess
19 By contrast, Congress has made clear its grant of broad immigration enforcement powers to federal immigration officers. See 8 U.S.C. § 1357(a) (empowering “[a]ny officer or employee of the Service” to make warrantless immigration arrests); see also 8 C.F.R. § 236.1(b)(1) (“A [immigration] warrant of arrest may be issued only by [designated] immigration officers”).
40

broad immigration enforcement authority. See United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999) (relying on United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984)). The Tenth Circuit has recognized that the history of § 1252c is especially relevant to understanding its meaning, “because Representative Doolittle sponsored the amendment and his statements regarding its purpose were uncontested.” Id. at 1299 n.5. Nevertheless, the Vasquez-Alvarez court did not discern from § 1252c and its history a legislative intent to preempt local immigration enforcement authority. Id. at 1298-99 & nn.4-5. The court failed to explain, however, how its interpretation would render § 1252c anything but surplusage. See also Mena, 332 F.3d at 1266 n.15 (noting Vasquez-Alvarez but stating police arrest authority under federal law “doubtful” and “questionable”). It is plain from Rep. Doolittle’s statements that § 1252c was designed to expand, not contract, local arrest authority.
Two further immigration statutes confirm that Congress has broadly preempted local police authority to make immigration arrests. These provisions establish emergency and routine procedures by which the Attorney General can formally deputize local police to assist in immigration enforcement. See 8 U.S.C. § 103(a)(10) (emergency procedure allowing Attorney General to authorize “any State or local law enforcement officer” to enforce immigration laws upon certification of “an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border”); id. § 1357(g) (entitled “Performance of immigration officer functions by state officers and employees” and authorizing Attorney General to train, supervise, and execute “written agreement” with local jurisdiction for enforcement of immigration laws); see also Def. Br. 35 (acknowledging §§ 1103(a)(10), 1357(g)).
41

The scheme set forth at § 1357(g) deserves special note. It includes mandatory
training in immigration law for any local officer who would be empowered to enforce
immigration law, id. § 1357(g)(2), and requires that local police act under the “direction and supervision of the Attorney General.” Id. § 1357(g)(3).20 Section 1357(g) began as a
floor amendment offered by Rep. Latham, who explained the need for the provision in
terms that recall Rep. Doolittle’s justification for what became § 1252c:
[T]here is legally nothing that a State or local law enforcement agency can do about a violation of immigration law other than calling the local INS officer to report the case…My amendment will allow State and local law enforcement agencies to enter into voluntary agreements with the Justice Department to give them the authority to seek, apprehend, and detain those illegal aliens who are subject to an order of deportation.
142 Cong. Rec. H2475-01, at H2476-77 (1996). Latham’s amendment was responsive to
the obvious need for federal training and supervision of local police involved in
immigration enforcement, given the “labyrinthine character of modern immigration law”
and its “maze of hyper-technical statutes and regulations,” Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003),21 as well as to the obligation of the Executive Branch to ensure
responsible implementation of federal statutes. See Printz v. United States, 521 U.S. 898,
922 (1997) (“The Constitution does not leave to speculation who is to administer the laws
enacted by Congress; the President, it says, ‘shall take Care that the Laws be faithfully
executed,’ Art. II, § 3, personally and through officers whom he appoints”). Congress
20 Congress also recognized that, absent express authorization, local enforcement of immigration laws would run afoul of the law barring the federal government from accepting volunteer services. Compare 31 U.S.C. § 1342 (prohibiting acceptance of volunteer services) with 8 U.S.C. § 1357(g)(1) (“Notwithstanding section 1342 of Title 31 . . . .”).
21 Rep. Becerra responded with concern about how local officers, untrained in immigration law, could be effective. 142 Cong. Rec., at H2477. Apparently, these concerns were widely shared and resulted in Congress adopting § 1357(g)’s training and federal supervision requirements.
42

approved the Latham amendment, and thus far two states have executed § 1357(g) agreements authorizing immigration enforcement by designated local officials.22
Finally, Congress’s refusal to authorize blanket immigration enforcement by local
police makes sense. Police “rely on the cooperation of all residents of the communities
they serve and protect. When any member of a community is afraid to communicate with
law enforcement officials, police effectiveness is undermined and public safety is
diminished for all.” Compl. ¶ 61; see also id. ¶¶ 62-64 (immigrants significantly under-
report crimes for fear of deportation); Ferrell, supra note .7, at 12 (“enforcement of civil
immigration laws by local law enforcement would have a chilling effect on both legal and
illegal aliens reporting criminal activity or assisting police in criminal investigations . . .
Police depend on the cooperation of immigrant communities to help them solve all sorts
of crimes and to maintain public order”).
In short, defendants’ arguments about “inherent” immigration arrest power make
little sense, contradict well-settled canons of statutory interpretation, and are inconsistent
with the text and history of 8 U.S.C. §§ 1103(a)(10), 1252c(a), 1324(c), and 1357(g).
Defendants may not ignore the “mass influx” certification requirement of § 1103(a)(10)
nor the “written agreement” requirement of § 1357(g) (with its attendant training and
22 Defendants contend that § 1357(g)(10)(B) (even in absence of written agreement, local police may “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States”) is inconsistent with plaintiffs’ position. 8 U.S.C. § 1357(g)(10)(B). But there is a substantial difference between the power to “cooperate with the Attorney General,” as allowed by § 1357(g)(10)(B), and the power to “perform a function of an immigration officer,” as allowed by the remainder of § 1357(g). Id. The savings clause of § 1357(g)(10)(B) cannot plausibly authorize police to make immigration arrests in the absence of a written agreement, lest officers operating without a written agreement have more powers than those in a jurisdiction that has executed an agreement. On defendants’ interpretation, the remainder of § 1357(g) becomes meaningless. To the contrary, § 1357(g)(10) is a simple savings clause that confers no power for local police to engage in independent immigration enforcement.
43

supervision obligations) and proceed instead to cause the unilateral, episodic exercise of a claimed “inherent” police power to enforce any and all immigration laws.
3. Congress Has Preempted Police Arrests Of Alleged Absconders And NSEERS Violators
In light of the broad congressional preemption of local enforcement of immigration laws, subject only to specific statutory exceptions and procedures, the question before this court is whether the arrests at issue in this case fit within the statutory exceptions. Neither of the criminal immigration provisions that, by their own terms, authorize local police arrests apply in the case of absconders or NSEERS violators. Section 1324(c) authorizes police arrests for smuggling, harboring, or transporting illegal immigrants, and § 1252c(a) authorizes police arrests for previously deported felons who illegally re-enter the country. Absconders and NSEERS violators are none of these. Similarly, the procedural exceptions enacted by Congress have no applicability in this case. The Attorney General has not certified the existence of a “mass influx” per § 1103(a)(10), and only two states, Florida and Alabama, have executed “written agreements” per § 1357(g) (and even these limit the local law enforcement officials who may enforce immigration laws). The defendants do not contend otherwise.
Instead, defendants argue that absconders “are criminals,” Def. Br. 16, and “[l]ikewise, NSEERS violators are criminals, at least to the extent that their violations of the NSEERS registration requirements are willful,” id. 17, and thus when a police officer encounters an absconder or NSEERS violator, “the officer is confronted with an individual who has committed a federal crime in the officer’s presence.” Id. 31. This arguments fails for two independent reasons. First, these are civil arrests. Second, Congress has preempted local arrest authority for these arrests even if criminal.
44

Defendants do not and cannot contend that persons listed as absconders or NSEERS violators have been charged or convicted of the “willful” violations penalized at 8 U.S.C. §§ 1253(a)(1), 1306, nor even have defendants secured criminal arrest warrants on a showing of probable cause to believe these provisions have been violated. Compl. ¶¶ 31, 33. Rather, the arrests at issue in this action are made pursuant to administrative warrants for removal (absconders) and administrative warrants for arrest (NSEERS violators). See Compl. ¶ 31; supra n.2. Arresting officers “do not typically inform such NCIC immigration arrestees of their Miranda rights.” Id. ¶ 55. Defendants have not initiated federal criminal prosecutions of absconders or NSEERS violators. Id. In all respects, these are civil arrests, and they are unlawful. See Gonzales, 722 F.2d at 472-75 (“assum[ing] that the civil provisions” of immigration law preempt local arrest authority).
Moreover, the administrative warrants entered into the NCIC - which contain “numerous inaccuracies,” Compl. ¶ 39 - do not establish probable cause for a criminal arrest. The criminal immigration laws that the Defendants contend have been violated require that the offender acted “willfully.” 8 U.S.C. §§ 1253(a) (criminal penalties for “willful” failure to depart after entry of removal order), 1306(a) (same for “willful” failure to comply with registration requirement). To satisfy the mens rea requirement of “willfulness,” an offender must have a specific intent to violate the law. United States v. Schultz, 333 F.3d 393, 411 (2d Cir. 2003). However, in reality, many alleged absconders and NSEERS violators have no idea that they have broken any law. Compl. ¶ 41 (“many persons with removal orders were not present in the administrative court when the order was entered. Many of these persons did not receive notice of their scheduled court hearing, the entry of their removal order, or the denial of their administrative or judicial
45

appeals”); id. ¶ 42 (in “widespread confusion that has accompanied defendants’ announcement and implementation of NSEERS, many persons are ignorant of their obligations under NSEERS and may be unaware that they have failed to comply with an NSEERS rule”); see also supra n.9.
Even assuming arguendo that the arrests at issue in this action may fairly be classified as criminal arrests supported by probable cause, they are unlawful. Congress has preempted local police arrests for criminal immigration offenses, except as authorized by 8 U.S.C. §§ 1252c(a), 1324(c) or the procedures set forth at 8 U.S.C. §§ 1103(a)(10), 1357(g). The rationale of Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983) itself, relied on by defendants, Def. Br. 31-32, undermines their argument. The Ninth Circuit concluded that Congress had not preempted criminal immigration arrests because, at the time of the decision, statutes relating to “the regulation of criminal immigration activity by aliens” are “few in number and relatively simple in their terms.” Id. at 472-75. Since the Gonzales decision in 1983, however, Congress has added numerous criminal immigration provisions, including those now codified at 8 U.S.C. § 1160(b)(6)(D) (violation of confidentiality provision regarding specified applications); id. § 1160(b)(7) (false statement in specified applications); id. § 1253(a) (willful failure to depart); id. § 1255a(c)(5)(E) (violation of confidentiality provision regarding specified applications); id. § 1255a(c)(6) (false statement in specified application); id. § 1324a(f) (employment of unauthorized immigrants); id. § 1324c(e) (immigration document fraud); id. § 1534(e)(3)(F)(ii) (violation of disclosure rules in specified proceedings). Because federal immigration criminal laws are no longer “few in number and relatively simple in
46

their terms,” the underlying the premise of Gonzales is no longer applicable. 722 F.2d at 475.
The cases relied upon by the defendants for the proposition that state officers may make criminal immigration arrests arise outside the immigration context and are inapposite. See United States v. Di Re, 332 U.S. 581, 589 (1948) (state officer makes federal arrest for possession of counterfeit gasoline ration); Marsh v. United States, 29 F.2d 172 (2d Cir. 1928) (local police make arrest for violation of federal prohibition law).23 In these cases local officers did not act contrary to any congressional preemption of state power. Di Re, 332 U.S. at 589 (“in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity”) (emphasis added).
Finally, defendants make brief reference to several other statutory provisions, none of which authorize police arrests for immigration violations. See Def. Br. 35 (citing 8 U.S.C. §§ 1373, 1644, 1365a(f)(2) and VCCLEA). Plaintiffs analyze these provisions, supra Point III.B, with the exception of 8 U.S.C. § 1365a(f)(2), a provision authorizing the Attorney General to share information from a new entry-exit system, termed “U.S. VISIT,” with local police when that system becomes operational at some future time. Nothing in this last provision authorizes the NCIC practices challenged here.
* * * * Defendants have overreached. They have exceeded their statutory authority by entering civil immigration records and administrative warrants into the NCIC criminal
23 The defendants also rely on several cases involving federal officers making arrests for federal crimes. Def. Br. 29-31 (citing United States v. Swarovski, 557 F.2d 40 (2d Cir. 1977); United States v. Burgos, 269 F.2d 763 (2d Cir. 1959); United States v. Lindenfeld, 142 F.2d 829 (2d Cir. 1944)). These cases are of no aid in the preemption analysis because no state actor was involved.
47

database and disseminating those records to state and local police. The defendants’ NCIC practices are also unlawful for the independent reason that they have caused, and continue to cause, local police to make immigration arrests that Congress has preempted police from undertaking. Defendants’ illegal actions have ignored elaborate congressional schemes to regulate both the NCIC and local enforcement of immigration laws. Their actions have also undermined public safety, frustrated effective policing, and chilled vital communications from non-citizens to law enforcement and other local officials. Individual members of plaintiff organizations have been injured by these actions, and plaintiffs have sufficiently pleaded their standing to pursue the declaratory and injunctive relief they request.
48

CONCLUSION For the foregoing reasons, the government’s motion to dismiss should be denied.

WASHINGTON SQUARE LEGAL SERVICES Michael J. Wishnie (MW1952) Mayra Peters-Quintero (MP1844) Ivan Espinoza-Madrigal, Law Student Intern
(IE4839) Jessica Zagier, Law Student Intern (JZ6740) 245 Sullivan Street New York, NY 10012 (212) 998-6430
THE BRONX DEFENDERS Peter Markowitz (PM9052) 860 Courtlandt Avenue Bronx, NY 10451 (718) 838-7878

Respectfully submitted,
By: /s/ Carmine D. Boccuzzi _______________
CLEARY, GOTTLIEB, STEEN & HAMILTON Carmine D. Boccuzzi (CB2177) Anil Kalhan (AK1156) Sheilah Kane (SK2093) Kristen Santillo (KS0467) One Liberty Plaza New York, NY 10006-1470 (212) 225-2000
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT Lucas Guttentag (LG0392) Lee Gelernt (LG8511) Omar C. Jadwat (OJ5792) 125 Broad Street New York, NY 10004-2400 (212) 549-2500
NEW YORK CIVIL LIBERTIES UNION FOUNDATION Arthur N. Eisenberg (AE2012) Christopher Dunn (CD3991) 125 Broad Street New York, NY 10004 (212) 344-3005

49

EXHIBIT A

TO CREATE A NATIONAL POLICE BUREAU O CREATE A BUREAU OF CRIMINAL IDENTIFICATION
HEARING
)1
BEFORE1 THE
COMMITTEE ON THE JIUDICIAR{Y HOUSE OF REPI{ESENTNTIYES'
SIXTY-EIGHTH CONGRESS
FIRST SESSION ON
H. R. 8580 H. R. 8409
APRIL 17 AND 24, 1924,
Serial 31
WASHINGTON GOVERNMENT PRINTING OFFICE
1924

rio-N BUREAj
at bureau of c,
,;esonctliyatiboenenofesct~qj
criminal idenltil [It of police pid, en police depat.
eau wvill 1he Pederal, cange tofore it has be ncerning thle aclt obtaining inforr a national bur's enan,1ce, of the ina ition and will ' tte~data with tlh~
2ution of crimhili
y; appreciated atvl -1brevention bodlo
XLGUST VOLI2L-AEt if
Chief of~o

FEJmnTAny 21i, IC,

d.I had aLlread~ Reociation to wvrite~
fitdThd by you. ,ls to rie eox-er~
i it alm11ost verb
"'rse attached. Mand wIVth best xvii

PlreSide,

[ErS OF POLIrCE,

feb'117\.)12

0

leucee regurdi i111 :,~eg to adv-ise.tt
9~p~i~es flrom neai ,~Y, the Depa.rtn'I.
t1cocomplp2
#PaejWi'pitlhemthbleersvaorfi(I ging1 their supp,
-keve it will be

of

NAL POLICE AND CRIMIVINA-L IDENTIFI'CATION BUIREAUJS 63

(CITx OF )TONTGFOe)MbErrtuY,aArLyAi.,,124

~.gp~deiit lfle)fliotiofal, A,,sr~ciatiou Chielso~f Poliue,
Detroit, Mfich. yj. . Iami herewith inclosing nIcopy of letter I sent to the two
~T~ttesSentors fromi this Sktate and the Congres~sman from, this district,
anttoyou rquest of February 13 cando nyting more in furthering this measure, kindly advise me.

yourtrsuvlye,rb

~W. II1. TA-~yLoil, Chicf of Polioe.

E1 JI~~sY.Several days ago Mr. Enright testified before the,
ttee, representing the International Police Conference, which, Ldconsists of 7 00 cities and towns in the United States and iotimportant police departments of foreign countries and all nets." In the, course of h-is statement I asked him this

F~yoifl refe to the question of putting the bureau under the Department of
5 e A separate bureau is rather obnoxious to us inl Wasigtn

~1~tisqustion Mr. Enright replied:

fel \haiy regarding the Department of Justice: There is not very

iucui enshp betwveen the Department
~U~ent ofour country, and wve rather

oif Justice and most of the object to becoming an annex

police, to the

~ep~men ofJustice.

1iat will give you an idea of Mr11E. nright's position.

LRUTLEDGE. I think ILhave stated here that the~National Asso-

iain of Chiefs of Police. is the only borna fide police organization

iheUnited States. We have in our membership chiefs of police, ~ lost every country in the world. Mr. Joseph M. Quigley, when

ident of the, association, wrote a letter to every chief onf. ,police in

Uited States putting before them the iprop~osition of turning-

I*d'ent'i-tiaion bureau over to the Departmnent of Justice, and ho

N,,&ived a favorable reply, I believe, from every one of them. 1

d~leve the response was unanimous. "Every chief of police went on

~di avro ha rpoiin

We have had it up from time

~in~intheconventions, and the orgai-iizations have gone, on recorc4

R~hmoulyin favor of the proposition.

MPrERLMN. Is Commissioner Enright a, mnember of your orgaai!V

~MUr TLEGE. No, sir. ~'rPERILM3AN. He is a member of the, other organization , l RUTLEDGE. He is thle Dresident of what is called the NewYork iceCoif~er~ence, of-Nhe-York City. We all believe th7at that anzation was fo-r-med -fo-r th purpose of disintegrating and x~ermining the, old organization of thle chiefs of police, of. this nti'y.
!ATETENT OF IIAJ. RICHARD SYLVESTER, HONORARY PRESTDENT OF THE INTE,-.NATIO-NAL ASSOCIATION 'OF CHIEFS OF POLICE
The, CH-AIRIMAN. Major Sylvester, you are the president, or. welre~ epes-idet, of this international organization of chiefs of Police?
MaVIPor SYLVESTER. Yes, sir, I organized the international institur ~nin 4901. and after I retired fromn the police service, in 1915, out,
~,-)24],R- 31 5

64 NATIONAL POLICE AND CRIMINAL IDENTIFICATION BIJR.EA'US

of regard for what I ha~ve done as its president for 15 years in'

interest of the police of this country and abroad I was elected

honorary president of this association for life.

The CHAirM3AN. You are still the honorary president, then?,

Major SYLVESTER. Yes , sir. Fromn that standpoint I have- t

able to see something of this situation.

The CHAIRMAN. Is that organization still functioning?

Major SYLVESTER. Do you mean'the International Associationl

Chiefs of Police?

-The

CHAIRMAN. Yes.7

Major SYLVESTER. Yes, Sir; it has a Very extensive memnbevsl

embracing the chiefs of police, marshals, commissioners, etc., of lii

of the cities and towns of the. United States. The numerical strein

of the orgahization is probably 600 or mnore.

The CHAIRM1AN. I understand that you have prepared a writ

statement to submit.

Major SYLVE1STER.' Yes, sii'r and if you -will indulge nme Iwil'

it as fast as I can. In order that it mnay be understood I will ri

it as distinctly as I, can. It gives a brilef history of this ques

that is befoire you.

The CHAIR]MAN. If you do not mnind, we will have it entered iii'

recordl just the samne.I

Major SYLVESTER. My statement is as follows,

Hon. GJEORGE 8. GRAHAM.

WILMINGTON. DEL., April 22, 192

Chairman,Judiciary Combmittee.

[louse of Representa-tives, Wa,,?ino'ton, D. C.

DEAR SIR: In relation to the establishment of a bureau. of crimainal infor
tion and identification in Washington by the chiefs of police of the Tin' States, in cooperation with the United States Government Department of, tice, in line with the recommendation contained in the message of the PI dent of the United States to Congress, I respect fully beg leave to report: ~
in 1901 there existed in this country a small organization known ag' Chiefs of Police Union, which bad for its purposes the bringing ab~outl,closer personal and official relationship between the heads of police force,, the various States, municipalities, and towns of the United States.
At that time, and for a period of about '32 years, the writer had been' was connected as an official of the -metropolitan department of police of
District of Columbia. In the year 1901 the Police Chiefs Union expanded and became known as
International Association of Chiefs of Police in ordler to include memibers
the Dominion of Canada. Your correspondent was elected to the presideney of that associatioa-'
was' repeatedly selected as such for a period of 15 years'. when he ceased t. the head of a police jurisdiction. However, out of Fespect and in appreci.J of long services, the lnternational Association of Chiefs of Police elected' writer a life member and an honorary president of the institution, andN
that standpoint I rom able to make report Of the efforts and activities 0organization looking to a partnership or coordination of some kind whi'q the law-enforcing divisions of the Government and those of the Statesniunicipalities~'might Wvork in h'athi~oy in! tho accomplishment of the gref good for the public welfare in their respective fields without interferenc
the rights of the States or the General Government.

The question of
s~pekingdir his

State rights was
ill.The'tofore, I

raised would

by like

Mtor'.

LaGuardi'
ernpiaIze"

cpiehstidn'. 'als by saying that we are fully aware of tile delicao~ a siuaton tht kind. However, it is not contemplatedby
International Association ~of Police Chilefs that the diviso bureau of criminal information and identification in the Departn

HONT BUREAUS
Eor 15 yeairs InI I I was elected,
sident, then? point If have-
tionino'? )nal Association
,Dnvsive niemibersl ioners, etc., of nU numerical stren~
prepared a writ
ulge me I will r'~ erstood I will r~ ry of this qnesti
ive it entered in
DEL., April 22, 1924
ti of criminal illfor~ f. police of the Unit unt Department of Ji mpessagle of the Pie
leavre to retmort: Al'zation known as t ie bringing albout o~
ads of police forces.
.~,!*.iter had been am Ahiiht of police of ti
~d. becmkenon as U~
4include m~1)embrs fh'~
~ihaastsoiatimon at,, ~t~vhee cased tol,.
taidin appreciatic t~6fPlice elected "f 1ltitfution, amid fr4 AAia, ctivities of tI: ,~soume kind wimereb Iithe States an i~~etof the greate~~ Itotinterference a
1La(I~uardia~-1
tehphasize tMi ~t~delicacy 4, t~patecd b th~i
di~visionn t~q<Departnieni

[JT~NOANLBPUORLEIACUES AND CRIMINAL IDENTIFICATION BUREAUS. 65.

j~tice wouldI carry with itanything in theiway of law, rule, or~

ation

iays~tointehoneedduirrnecsthiningfoorfmSatatitoeno. r

mnunicipal It is not

agencies. It'is for the Depart-

,Of Justice to ed.and itdoes

direct the police officer. or the marshal not mean that the city should direct the

how to Depart-

~1

'f.Jstice how it should proceed in any case. There would be 1rel-efle in either direction.

H-1A1 IR N. I do not think youi need trouble, yourself at all

tAhat question.

r' SYLVESTER,. The statenment continues rreadhig']

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 Eastern District of New York - Live Database Version 3.0.5 Release

06/25/2007 03:55 PM

APPEAL

U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:03-cv-06324-ILG-RER

National Council of La Raza et al v. Ashcroft et al Assigned to: Senior-Judge I. Leo Glasser Referred to: Magistrate-Judge Ramon E. Reyes, Jr Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 12/17/2003 Date Terminated: 01/05/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff National Council of La Raza

represented by Carmine Daniel Boccuzzi Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, NY 10006 212-225-2000 Fax: 212-225-3499 Email: Maofiling@cgsh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff New York Immigration Coalition

Michael J. Wishnie Jerome N. Frank Legal Services Organization, Inc Yale Law School 127 Wall Street New Haven, CT 06511 203-432-4800 Fax: 203-432-1426 Email: michael.wishnie@yale.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carmine Daniel Boccuzzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Eastern District of New York - Live Database Version 3.0.5 Release
Plaintiff American-Arab Anti-Discrimination Committee
Plaintiff Latin American Workers Project
Plaintiff Unite
V. Defendant John Ashcroft Attorney General of the United States
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06/25/2007 03:55 PM
represented by Carmine Daniel Boccuzzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carmine Daniel Boccuzzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carmine Daniel Boccuzzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by F. Franklin Amanat United States Attorneys Office Eastern District of New York One Pierrepont Plaza, 14th Floor Brooklyn, NY 11201 (718) 254-6024 Fax: (718)254-6081 Email: franklin.amanat@usdoj.gov ATTORNEY TO BE NOTICED
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Eastern District of New York - Live Database Version 3.0.5 Release
Defendant Tom Ridge Secretary of Homeland Security
Defendant Robert Mueller Director, Federal Bureau of Investigation
Defendant Michael Garcia Assistant Secretary of Homeland Security in charge of the Bureau of Immigration and Customs Enforcement Defendant Department of Justice
Defendant United States Department of Homeland Security
Defendant Federal Bureau of Investigation
Defendant Bureau of Immigration and Customs Enforcement
Amicus National Latino Officers Association
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06/25/2007 03:55 PM
represented by F. Franklin Amanat (See above for address) ATTORNEY TO BE NOTICED
represented by F. Franklin Amanat (See above for address) ATTORNEY TO BE NOTICED
represented by F. Franklin Amanat (See above for address) ATTORNEY TO BE NOTICED
represented by F. Franklin Amanat (See above for address) ATTORNEY TO BE NOTICED
represented by F. Franklin Amanat (See above for address) ATTORNEY TO BE NOTICED
represented by F. Franklin Amanat (See above for address) ATTORNEY TO BE NOTICED
represented by F. Franklin Amanat (See above for address) ATTORNEY TO BE NOTICED
represented by Baher Azmy Seton Hall University School of Law Center For Social Justice Civil Litigation Clinic 833 McCarter Highway Newark, NJ 07102 973-642-8700 Fax: 973-642-5939 LEAD ATTORNEY
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Eastern District of New York - Live Database Version 3.0.5 Release
Amicus National Black Police Association

06/25/2007 03:55 PM
ATTORNEY TO BE NOTICED
represented by Baher Azmy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

12/17/2003
12/29/2003 02/25/2004 03/01/2004 03/01/2004 04/26/2004
04/26/2004

1 COMPLAINT Summons Issued against John Ashcroft, Bureau of Immigration and Customs Enforcement, Department of Justice, Federal Bureau of Investigation, Michael Garcia, Robert Mueller, Tom Ridge, United States Department of Homeland Security filing fee $ 150, receipt number 287278, filed by American-Arab Anti-Discrimination Committee, Latin American Workers Project, National Council of La Raza, New York Immigration Coalition, Unite. (Attachments: # 1 Civil Cover Sheet)(Bowens, Priscilla) (Entered: 12/17/2003)
2 SUMMONS Returned Executed by National Council of La Raza. John Ashcroft ; Bureau of Immigration and Customs Enforcement ; Department of Justice ; Federal Bureau of Investigation ; Michael Garcia ; Robert Mueller ; Tom Ridge ; United States Department of Homeland Security served on 12/19/2003, answer due 1/8/2004. (Rodriguez, Angela) (Entered: 02/02/2004)
3 Letter from F. Franklin Amanat, Assistant United States Attorney, to Judge Glasser Regarding government's request for extension of time until April 19, 2004, to answer or otherwise move with respect to the complaint,. (Amanat, F.) (Entered: 02/25/2004)
4 Letter from Anil Kalhan to Judge Glasser Regarding And In Response To Government Counsel's Letter Of February 27, 2004, Dated March 1, 2004. (Boccuzzi, Carmine) (Entered: 03/01/2004)
5 ORDER endorsed on hard copy of doc. #3. Request for extension of time to 4/19/04 to answer is granted. Signed by Judge I. Leo Glasser on 3/1/04. (Rodriguez, Angela) (Entered: 03/02/2004)
6 Notice of MOTION to Dismiss the Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim upon Which Relief May Be Granted, by John Ashcroft, Bureau of Immigration and Customs Enforcement, Department of Justice, Federal Bureau of Investigation, Michael Garcia, Robert Mueller, Tom Ridge, United States Department of Homeland Security. (Amanat, F.) (Entered: 04/26/2004)
7 MEMORANDUM in Support re 6 Notice of MOTION to Dismiss the Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim upon Which Relief May Be Granted, by John Ashcroft, Bureau of Immigration and

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Eastern District of New York - Live Database Version 3.0.5 Release

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05/11/2004 06/02/2004 06/07/2004 06/08/2004 06/09/2004 06/10/2004 06/18/2004
06/21/2004 06/25/2004

Customs Enforcement, Department of Justice, Federal Bureau of Investigation, Michael Garcia, Robert Mueller, Tom Ridge, United States Department of Homeland Security. (Amanat, F.) (Entered: 04/26/2004)
8 Minute Entry for proceedings held before I. Leo Glasser : for a Civil Conference held on 5/11/2004. The defendant has made a motion to dismiss, but there are no papers in opposition. Scheduling is discussed. Plaintiff to respond to motion by 6/11/04; Defendant to respond by 7/2/04. Hearing on motion to be held on 7/19/04 at 10:00 a.m. (Sica, Michele) (Entered: 05/19/2004)
9 NOTICE of Change of Address by Carmine Daniel Boccuzzi on Behalf of Washington Square Legal Services, Inc., Dated June 1, 2004 (Boccuzzi, Carmine) (Entered: 06/02/2004)
10 CERTIFICATE OF SERVICE by American-Arab Anti-Discrimination Committee, Latin American Workers Project, National Council of La Raza, New York Immigration Coalition, Unite re 9 Notice of Change of Address , Of Janet Ford, Dated June 3, 2004 (Boccuzzi, Carmine) (Entered: 06/07/2004)
11 Letter from Anil Kalhan, Dated June 8, 2004 to Judge Glasser Regarding Request For An Extention Of Time To Serve Brief In Opposition To The Defendants' Motion To Dismiss. (Boccuzzi, Carmine) (Entered: 06/08/2004)
12 Letter dtd 06/01/04 from Michael J. Wishnie to Mr. Heinemann, informing the court that the office of Washington Square Legal Services, Inc. Has relocated. (Sica, Michele) (Entered: 06/09/2004)
ENDORSED ORDER, The request for an extention of time to serve the brief in opposition to the defendant's motion is GRANTED. Oral argument is hereby scheduled for 10:00 a.m., July 29, 2004. (see ltr dtd 6/8/04) . Signed by Judge I. Leo Glasser on 6/8/04. (Sica, Michele) (Entered: 06/10/2004)
13 RESPONSE in Opposition re 6 Notice of MOTION to Dismiss the Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim upon Which Relief May Be Granted, Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Dismiss, filed by American-Arab Anti-Discrimination Committee, Latin American Workers Project, National Council of La Raza, New York Immigration Coalition, Unite. (Boccuzzi, Carmine) (Entered: 06/18/2004)
14 CERTIFICATE OF SERVICE by American-Arab Anti-Discrimination Committee, Latin American Workers Project, National Council of La Raza, New York Immigration Coalition, Unite re 13 Response in Opposition to Motion, / Of Richard V. Conza Dated, June 21, 2004, (Boccuzzi, Carmine) (Entered: 06/21/2004)
15 Letter dtd 6/22/04 from Baher Azmy to Clerk of the Court, informing the Court that the National Latino Officers and the National Black Police, who wish to participate as amici curiae. (Diskette enclosed) (Sica, Michele) (Entered: 06/30/2004)

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Eastern District of New York - Live Database Version 3.0.5 Release

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07/01/2004
07/06/2004 07/06/2004 07/06/2004 07/08/2004 07/16/2004 07/22/2004
07/23/2004 07/29/2004

16 ORDER, regarding the motion filed requesting an order that would permit Seton Hall University to appear as Amici Curiae in this action. Should the assistant U.S> Attorney wish to submit a formal response setting forth his objections, He should do so before 7/15/04. If such a response is filed, the movant may reply before 7/22/04. The Court will consider the motion on submission absent a request by either party to be heard, in which event, it would be heard at 10:00 a.m. 7/29/04. ( Order scanned) . Signed by Judge I. Leo Glasser on 6/29/04. (Sica, Michele) (Entered: 07/01/2004)
17 Letter dated 6/18/04 from Baher Azmy, counsel for National Latino Officers Association and the National Black Police Association, to EDNY Clerk, wishing to participate in this action as amici curiae. Enclosed are two discs for e filing. (Vaughn, Terry) (Entered: 07/06/2004)
18 NOTICE of MOTION by National Black Police Association, National Latino Officers Association to participate as Amici curiae. (Vaughn, Terry) (Entered: 07/06/2004)
19 BRIEF in Support of Plaintiffs and urging the Court to deny the Govt.'s motion to dismiss the complaint, filed by Amici Curiae National Black Police Association, National Latino Officers Association. (Vaughn, Terry) (Entered: 07/06/2004)
20 Letter from F. Franklin Amanat, Assistant U.S. Attorney EDNY to Judge Glasser Regarding request for extension of time until July 19, 2004, to file reply brief in support of defendants' motion to dismiss the complaint. (Amanat, F.) (Entered: 07/08/2004)
21 Letter from F. Franklin Amanat, Assistant United States Attorney, Eastern District of New York to Judge Glasser Regarding request for three-day extension of time (to Thursday July 22, 2004) to file reply brief in support of defendants' motion to dismiss. (Amanat, F.) (Entered: 07/16/2004)
22 REPLY to Response to Motion re 6 Notice of MOTION to Dismiss the Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim upon Which Relief May Be Granted, filed by John Ashcroft, Bureau of Immigration and Customs Enforcement, Department of Justice, Federal Bureau of Investigation, Michael Garcia, Robert Mueller, Tom Ridge, United States Department of Homeland Security. (Amanat, F.) (Entered: 07/22/2004)
23 ORDER ENDORSED on letter dtd 7/16/04, signed by Judge I. Leo Glasser on 7/20/2004,from F.Franklin Amanat, Assistant U. S. Attorney, granting request to file brief until 7/22/04 and scheduling oral argument for 9/10/04 at 10 am.(order signed by Judge I. Leo Glasser on 7/20/04.)(Schillat, Louise) (Entered: 07/23/2004)
24 Letter dtd. 7/8/04 from AUSA F. Franklin Amanat to Judge Glasser, advising w/pltff's consent, deft requests a one-week extension of time to 7/19/04, in which to complete their reply brief. (Layne, Monique) (Entered: 07/29/2004)

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Eastern District of New York - Live Database Version 3.0.5 Release

06/25/2007 03:55 PM

10/08/2004
10/14/2004 10/15/2004 01/12/2005 04/11/2005 02/15/2006 02/17/2006
02/23/2006 03/10/2006 03/17/2006 03/17/2006

27 Minute Entry for proceedings held before I. Leo Glasser : For a Motion Hearing held on 10/8/2004. Case Called, Motion hearing held, Decision Reserved. re 6 Notice of MOTION to Dismiss the Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim upon Which Relief May Be Granted, filed by John Ashcroft, Michael Garcia, Robert Mueller, Tom Ridge, United States Department of Homeland Security, Bureau of Immigration and Customs Enforcement, Federal Bureau of Investigation, Department of Justice. (Sica, Michele) (Entered: 10/18/2004)
25 Letter from Michael J. Wishnie to Judge I. Leo Glasser Regarding Citations from oral argument. (Wishnie, Michael) (Entered: 10/14/2004)
26 Letter dtd 3/1/04 from Anil Kalhan to Judge Glasser, Motion to dismiss filed 4/26/05; Pl. 45 days 6/11/05; reply 3 weeks 7/2/05. (Sica, Michele) (Entered: 10/15/2004)
28 NOTICE by Unite, National Council of La Raza, New York Immigration Coalition, American-Arab Anti-Discrimination Committee, Latin American Workers Project /Notice of Change of Firm Name and Legal Status, dated January 7, 2005 (Boccuzzi, Carmine) (Entered: 01/12/2005)
Case reassigned to Judge Steven M. Gold. Judge A. Simon Chrein no longer assigned to the case. (Villanueva, William) (Entered: 04/11/2005)
29 Letter regarding additional legal authority by National Council of La Raza. (Wishnie, Michael) (Entered: 02/15/2006)
30 MOTION for Extension of Time to File Response/Reply as to 29 Letter , seeking extension of time until March 10, 2006, to respond to plaintiffs' February 15, 2006, letter purporting to inform the Court of "additional legal authority" in opposition to the motion to dismiss the complaint. Motion made on consent of the plaintiffs by all defendants. (Amanat, F.) (Entered: 02/17/2006)
31 ORDER granting 30 Motion for Extension of Time to File Response/Reply. ( Ordered by JudgeI. Leo Glasser on 2/17/05 ) (Guzzi, Roseann) (Entered: 02/23/2006)
32 SEALED DOCUMENT PLACED IN VAULT. (Sica, Michele) (Entered: 03/13/2006)
33 ORDER TO SHOW CAUSE. Ordered by Judge I. Leo Glasser on 03/17/06. (Chiodo, Marie) (Entered: 03/17/2006)
34 RESPONSE in Support re 6 Notice of MOTION to Dismiss the Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim upon Which Relief May Be Granted, by way of Letter from F. Franklin Amanat, AUSAEDNY, to Hon. I. Leo Glasser, in Response to 29 Plaintiffs' Letter to Judge Glasser Dated February 15, 2005, filed by all defendants. (Attachments: # 1 2002 Memorandum from the Office of Legal Counsel to the Attorney General (Redacted))(Amanat, F.) (Entered: 03/17/2006)

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Eastern District of New York - Live Database Version 3.0.5 Release

06/25/2007 03:55 PM

03/17/2006
03/22/2006 05/10/2006 05/17/2006
06/23/2006 01/05/2007 01/10/2007 03/02/2007 03/05/2007

35 Letter from F. Franklin Amanat, AUSA-EDNY, to Hon. I. Leo Glasser, USDJ, in Response to 34 Order to Show Cause, withdrawing the government's request to have the March 10, 2006, letter and its attachment kept under seal, and advising the Court of the government's intention to electronically file the documents for inclusion in the Court's public docket, by John Ashcroft, Tom Ridge, Robert Mueller, Michael Garcia, Department of Justice, United States Department of Homeland Security, Federal Bureau of Investigation, Bureau of Immigration and Customs Enforcement. (Amanat, F.) (Entered: 03/17/2006)
36 Letter DTD 3/17/06 To Judge Glasser From Carmine Boccuzzi objecting to the defendant's filing their 3-10-06 submission under seal. (Sica, Michele) (Entered: 03/22/2006)
37 Letter advising court of new legal authority by American-Arab AntiDiscrimination Committee. (Wishnie, Michael) (Entered: 05/10/2006)
38 Letter from F. Franklin Amanat, AUSA, to Hon. I. Leo Glasser, in Response to 37 Letter from plaintiffs dated May 10, 2006, by John Ashcroft, Tom Ridge, Robert Mueller, Michael Garcia, Department of Justice, United States Department of Homeland Security, Federal Bureau of Investigation, Bureau of Immigration and Customs Enforcement. (Attachments: # 1 Encl. 1: ? Respondent?s Supplemental Memorandum of Law in Support of Its Motion to Reconsider or in the Alternative to Stay the Execution of the Judgment, Doe v. ICE, No. M-54 (HB) (S.D.N.Y. filed January 18, 2006)# 2 Encl. 2: ? Respondent?s Memorandum of Law in Response to the Supplemental Brief of Amicus Curiae, Doe v. ICE, No. M-54 (HB) (S.D.N.Y. filed Feb. 10, 2006))(Amanat, F.) (Entered: 05/17/2006)
39 NOTICE of Change of firm, address, and email of plaintiffs' counsel by Michael J. Wishnie (Wishnie, Michael) (Entered: 06/23/2006)
40 ORDER granting 6 Motion to Dismiss for lack of subject matter jurisdiction. Ordered by Judge I. Leo Glasser on 1/5/2007. (Dillon, James) (Entered: 01/05/2007)
41 CLERK'S JUDGMENT, Ordered and Adjudged that plaintiff take nothing of the defendants; and that the motion to dismiss for lack of subject matter jurisdiction is GRANTED. Ordered by Judge Clerk of Court on 1/9/07. (Sica, Michele) (Entered: 01/10/2007)
42 NOTICE OF APPEAL as to 40 Order on Motion to Dismiss, 41 Clerk's Judgment by Unite, National Council of La Raza, New York Immigration Coalition, American-Arab Anti-Discrimination Committee, Latin American Workers Project. Filing fee $ 455, receipt number 2261232.Appeal Record due by 3/9/2007. (Wishnie, Michael) (Entered: 03/02/2007)
Electronic Index to Record on Appeal sent to US Court of Appeals. For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. 13 Response in Opposition to Motion, 7 Memorandum in Support, 14 Certificate of Service, 11 Letter, 29 Letter, 35

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Eastern District of New York - Live Database Version 3.0.5 Release

06/25/2007 03:55 PM

06/08/2007 06/22/2007

Letter,, 33 Order to Show Cause, 4 Letter, 16 Order,, 36 Letter, 40 Order on Motion to Dismiss, 1 Complaint, 6 Motion to Dismiss, 42 Notice of Appeal, 20 Letter, 34 Response in Support of Motion, 30 Motion for Extension of Time to File Response/Reply, 10 Certificate of Service, 3 Letter, 28 Notice (Other), Notice (Other), 37 Letter, 19 Memorandum in Support, 9 NOTICE of Change of Address/Firm/Email, 25 Letter, 26 Letter, 18 Notice (Other), 38 Letter,, 39 NOTICE of Change of Address/Firm/Email, 31 Order on Motion for Extension of Time to File Response/Reply, 21 Letter, 27 Motion Hearing,, 22 Reply to Response to Motion, [32] Letter, 41 Clerk's Judgment (Gonzalez, Mary) (Entered: 03/05/2007)
43 First Supplemental INDEX on Appeal transmitted to US Court of Appeals re 42 Notice of Appeal. USCA#07-0816-cv. (McGee, Mary Ann) (Entered: 06/14/2007)
44 Acknowledgment 1st SUPPLEMENTAL from USCA received re: 42 Appeal. Acknowledgment dated 6/20/07. Unable to read signture. USCA#07/0816-cv. (Drayton, Lorraine) (Entered: 06/22/2007)

PACER Login:
Description:
Billable Pages:

PACER Service Center
Transaction Receipt
06/25/2007 16:54:40

wu0079

Client Code: Woodruff

Docket Report

Search Criteria:

1:03-cv-06324-ILGRER

6

Cost:

0.48

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 USCA2 Docket Sheet for 07-0816

http://pacer.ca2.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=07-081...

General Docket
US Court of Appeals for the Second Circuit

Second Circuit Court of Appeals

INDIV

OPEN

Court of Appeals Docket #:

07-0816-cv

Nsuit : 2440

CIVIL RIGHTS-Other

National Council of La Raza v. Gonzales

Filed 3/2/07

Appeal from:

EDNY (BROOKLYN)

Case type information:

Civil

United States

None

Lower court information:

District:

03-cv-6324

Trial Judge: I. Leo Glasser

MagJudge:

Ramon E. Reyes

Date Filed:

12/17/03

Date order/judgement:

1/10/2007

Date NOA filed: 3/2/2007

Fee status: Paid

Panel Assignment:

Panel:

Date of decision:

Prior cases: NONE

Current cases NONE

Official Caption 1/

INDIV

OPEN

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USCA2 Docket Sheet for 07-0816

http://pacer.ca2.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=07-081...

-------------------------------------Docket No. [s] : 07-0816 -cv
National Council of La Raza, New York Immigration Coalition, American-Arab Anti-Discrimination Committee,
Latin American Workers Project, UNITE HERE,
Plaintiff-Appellants,
v.
Alberto R. Gonzales, Attorney General of the United States, Michael Chertoff, Robert Mueller, Director, Federal Bureau of Investigation, Julie Myers, U.S. Department of Justice, U.S. Department of Homeland Security, Federal Bureau of Investigation, Bureau of Immigration and Customs Enforcement [B,
Defendant-Appellees.
--------------------------------------

Authorized Abbreviated Caption 2/ -------------------------------------Docket No. [s] : 07-0816 -cv
National Council of La Raza v. Gonzales --------------------------------------

------------------------------------------------------------------------1/ Fed. R. App. P. Rule 12 [a] and 32 [a]. 2/ For use on correspondence and motions only.

Docket as of June 27, 2007

9:37 pm

Page 2

INDIV

OPEN

American-Arab Anti-Discrimination Committee Plaintiff-Appellant

Arthur Eisenberg Esq.
[ n ] New York Civil Liberties Union Foundation 125 Broad St. New York , NY , 10004

212-344-3005

Latin American Workers Project Arthur Eisenberg Esq.(See

above)

Plaintiff-Appellant

[ n ]

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USCA2 Docket Sheet for 07-0816

http://pacer.ca2.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=07-081...

National Council of La Raza Plaintiff-Appellant

Arthur Eisenberg Esq.(See above) [ n ]

New York Immigration Coalition Arthur Eisenberg Esq.(See

above)

Plaintiff-Appellant

[ n ]

UNITE HERE Plaintiff-Appellant

Arthur Eisenberg Esq.(See above) [ n ]

Docket as of June 27, 2007

9:37 pm

Page 3

INDIV

OPEN

Hispanic Command Police Officers Association Amicus Curiae

Baher Azmy Esq.
[ LD n ] Center for Social Justice, Seton Hall Law 833 McCarter Highway Newark , NJ , 07102

973-642-8700

National Black Police Association Amicus Curiae

Baher Azmy Esq.(See above) [ LD n ]

National Latino Officers` Association Amicus Curiae

Baher Azmy Esq.(See above) [ LD n ]

Alberto R. Gonzales

Douglas N. Letter Esq.

Defendant-Appellee

[ n ] U.S. Dept. of Justice, Appellate Staff 950 Pennsylvania Ave. NW Washington , DC , 20530

202-514-3602

Bureau of Immigration and Customs Enforcement [BICE] Defendant-Appellee

Douglas N. Letter Esq.(See above) [ n ]

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Federal Bureau of Investigation Defendant-Appellee

Douglas N. Letter Esq.(See above) [ n ]

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Julie Myers Defendant-Appellee

Douglas N. Letter Esq.(See above) [ n ]

Michael Chertoff Defendant-Appellee

Douglas N. Letter Esq.(See above) [ n ]

Robert Mueller Defendant-Appellee

Douglas N. Letter Esq.(See above) [ LD n ]

U.S. Department of Homeland Security Defendant-Appellee

Douglas N. Letter Esq.(See above) [ n ]

U.S. Department of Justice Defendant-Appellee

Douglas N. Letter Esq.(See above) [ n ]

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National Immigration Law Center Amicus Curiae

Karen Tumlin Esq.
[ LD n ] National Immigration Law Center

3435 Wilshire Blvd., suite 2850 Loas Angeles , CA , 90010

213-674-2850

Alberto R. Gonzales

Lewis S. Yelin Esq.

Defendant-Appellee

[ LD n ] U.S. Department of Justice, Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W., Washington , DC , 20530

202-514-3425

Bureau of Immigration and Customs Enforcement [BICE] Defendant-Appellee

Lewis S. Yelin Esq.(See above) [ LD n ]

Federal Bureau of Investigation Defendant-Appellee

Lewis S. Yelin Esq.(See above) [ LD n ]

Julie Myers

Lewis S. Yelin Esq.(See above)

Defendant-Appellee

[ LD n ]

Michael Chertoff

Lewis S. Yelin Esq.(See above)

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Defendant-Appellee

[ LD n ]

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Robert Mueller

Lewis S. Yelin Esq.(See above)

Defendant-Appellee

[ n ]

U.S. Department of Homeland Security Defendant-Appellee

Lewis S. Yelin Esq.(See above) [ LD n ]

U.S. Department of Justice

Lewis S. Yelin Esq.(See above)

Defendant-Appellee

[ LD n ]

American-Arab Anti-Discrimination Committee Plaintiff-Appellant

Michael J. Wishnie Esq.
[ LD n ] Allard K. Lowenstein International Human Rights 127 Wall Streetw School New Haven , CT , 06510

Latin American Workers Project Michael J. Wishnie Esq.(See

above)

Plaintiff-Appellant

[ LD n ]

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National Council of La Raza Plaintiff-Appellant

Michael J. Wishnie Esq.(See above) [ LD n ]

New York Immigration Coalition Michael J. Wishnie Esq.(See

above)

Plaintiff-Appellant

[ LD n ]

UNITE HERE Plaintiff-Appellant

Michael J. Wishnie Esq.(See above) [ LD n ]

American-Arab Anti-Discrimination Committee Plaintiff-Appellant

Omar C. Jadwat Esq.
[ n ] American Civil Liberties Union Foundation Immigrants Rights 125 Broad Street New York , NY , 10004

212-549-2620

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Latin American Workers Project Omar C. Jadwat Esq.(See above)

Plaintiff-Appellant

[ n ]

National Council of La Raza Omar C. Jadwat Esq.(See above)

Plaintiff-Appellant

[ n ]

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New York Immigration Coalition Omar C. Jadwat Esq.(See above)

Plaintiff-Appellant

[ n ]

UNITE HERE

Omar C. Jadwat Esq.(See above)

Plaintiff-Appellant

[ n ]

American-Arab Anti-Discrimination Committee Plaintiff-Appellant

Peter Markowitz Esq.
[ n ] The Bronx Defenders

860 Courtland Ave. Bronx , NY , 10451

718-838-7878

Latin American Workers Project Peter Markowitz Esq.(See above)

Plaintiff-Appellant

[ n ]

National Council of La Raza Peter Markowitz Esq.(See above)

Plaintiff-Appellant

[ n ]

New York Immigration Coalition Peter Markowitz Esq.(See above)

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Plaintiff-Appellant

[ n ]

UNITE HERE

Peter Markowitz Esq.(See above)

Plaintiff-Appellant

[ n ]

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3/2/07

Copy of notice of appeal and district court docket entries on behalf of APPELLANT American-Arab Anti-Discrimination Committee,
Latin American Workers Project, National Council of La Raza, New York Immigration Coalition, ET AL , filed. [Entry date Mar
8 2007 ] [RD]

3/2/07 Copy of U.S. District Court Memorandum and Order dated 1/4/07. [Entry date Mar 8 2007 ] [RD]

3/12/07

APPELLANT American-Arab Anti-Discrimination Committee, Latin American Workers Project, National Council of La Raza, New York Immigration Coalition,
ET AL , Form C filed, with proof of service. [Entry date Mar 14 2007 ] [RD]

3/12/07

APPELLANT American-Arab Anti-Discrimination Committee, Latin American Workers Project, National Council of La Raza, New York Immigration Coalition,
ET AL , Form D filed, with proof of service. [Entry date Mar 14 2007 ] [RD]

3/19/07 Notice of appeal acknowledgment letter from Michael Wishnie received. [Entry date Mar 27 2007 ] [RD]

3/21/07

Pre-Argument Conference Notice and Order from Stanley A. Bass, Scheduled For: 4/4/07,
at 3:30 pm, Filed. [Entry date Mar 22 2007 ] [RD]

3/22/07

Scheduling order #1 filed. Record on appeal due 4/18/2007. Appellants brief due 4/25/2007. Appellees brief due 5/25/2007. Ready week 7/9/2007. [Entry date Mar 22 2007 ] [RD]

3/29/07

Letter dated 3/27/07 from Lewis S. Yelin stating that he and Douglas N. Letter will be handling the appeal on behalf of all of the appellees. Mr. Yelin is requesting that all briefs, motions and other papers be served directly upon them at the address listed above, received. [Entry date Mar 30 2007 ] [JR]

3/29/07 Notice of appeal acknowledgment letter from Douglas Letter received. [Entry date Apr 16 2007 ] [RD]

4/5/07 Scheduling order #2 filed. Record on appeal due 5/25/2007. Appellants brief due 6/1/2007. Appellees brief due 7/2/2007.

Docket as of June 27, 2007

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Ready week 8/27/2007. (SAB) [Entry date Apr 17 2007 ] [RD]

4/16/07 The CAPTION PAGE for this appeal has been AMENDED. [Entry date Apr 16 2007 ] [RD]

4/17/07 Notice to counsel in re: scheduling order #2. [Entry date Apr 17 2007 ] [RD]

6/4/07

APPELLANT American-Arab Anti-Discrimination Committee, Latin American Workers Project, National Council of La Raza, New York Immigration Coalition,
ET AL , brief FILED with proof of service. [Entry date Jun 19 2007 ] [RD]

6/4/07

APPELLANT American-Arab Anti-Discrimination Committee, Latin American Workers Project, National Council of La Raza, New York Immigration Coalition,
ET AL , special appendix filed(w/pfs) [Entry date Jun 19 2007 ] [RD]

6/4/07

APPELLANT American-Arab Anti-Discrimination Committee, Latin American Workers Project, National Council of La Raza, New York Immigration Coalition,
ET AL , joint appendix filed w/pfs. [Entry date Jun 19 2007 ] [RD]

6/13/07 Scheduling order #3 filed. Appellees brief due 8/7/2007. Ready week 8/27/2007. (SAB) [Entry date Jun 13 2007 ] [RD]

6/13/07 Notice to counsel in re: amended scheduling order dated 6/13/07. [Entry date Jun 13 2007 ] [RD]

6/13/07

Scheduling order #4 filed. Appellees brief due 8/7/2007. Reply brief of appellant shall be filed by 8/31/07. Ready week 9/17/2007. [Entry date Jun 18 2007 ] [RD]

6/13/07

Amicus Curiae Hispanic Command Police Officers Association, Amicus Curiae National Black Police Association, Amicus Curiae National Latino Officers` Association motion to appear as amicus curiae, allow filed with proof of service. [Entry date Jun 14 2007 ] [RD]

6/14/07

Motion for leave to file brief as amicus curiae in support of plaintiff appellants, by NAtional Law Immigration Center, received. [Entry date Jun 20 2007 ] [RD]

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6/14/07 First supplemental Record on appeal index in lieu of record filed. [Entry date Jun 20 2007 ] [RD]

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6/18/07 Notice to counsel in re: motion order dated 6/18/07. [Entry date Jun 18 2007 ] [RD]

6/18/07

Notice of appearance form on behalf of Baher Azmy , filed. (Orig in acco, copy to Calendar and Admissions Dept.). [Entry date Jun 21 2007 ] [RD]

6/18/07

Order FILED REFERRING to the panel that will decide the appeal, the motion for leave to appear as Amicus Curiae National Black Police Association, Amicus Curiae Hispanic Command Police Officers Association, Amicus Curiae National Latino Officers` Association, endorsed on motion dated 6/13/2007. For the Court: TWY. [Entry date Jun 18 2007 ] [RD]

6/20/07

Amicus Curiae National Immigration Law Center motionfor leave to appear as amicus curiae filed with proof of service. [Entry date Jun 20 2007 ] [RD]

6/25/07 Notice to counsel in re: motion order dated 6/25/07. [Entry date Jun 25 2007 ] [RD]

6/25/07

Order FILED REFERRING tmotion to appear as Amicus Curiae by Amicus Curiae National Immigration Law Center, endorsed on motion dated 6/20/2007. For the Court: TWY. [Entry date Jun 25 2007 ] [RD]

Docket as of June 27, 2007

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PACER Service Center
Transaction Receipt

07/11/2007 15:30:54

PACER Login:

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Client Code:

Description:

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Case Number:

Billable Pages:

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Cost:

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