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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

COMMITTEE FOR IMMIGRANT RIGHTS

OF SONOMA COUNTY, et al.,

Plaintiffs, No. C 08-4220 PJH

v. ORDER RE MOTIONS TO DISMISS

SONOMA COUNTY, et al., 

Defendants.

_______________________________/

Defendants’ motions to dismiss the second amended complaint came on for hearing

before this court on March 3, 2010. Plaintiffs appeared by their counsel Julia Mass and

Melissa N. Chan; the Federal defendants appeared by their counsel Colin Kisor, Ila Deiss,

Lana Vahab, and Erik Gantzel; and the County defendants appeared by their counsel Anne

Keck and Richard Osman. Having read the parties’ papers and carefully considered their

arguments and the relevant legal authority, the court hereby GRANTS the Federal

defendants’ motion in part and DENIES it in part, and GRANTS the County’s motion in part

and DENIES it in part.

BACKGROUND

This is a case alleging constitutional violations and other federal and state law

claims, filed by plaintiffs Committee for Immigrant Rights of Sonoma County; and two

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1

 Former individual plaintiff Samuel Medel Moyado sought, and obtained, an order of

dismissal without prejudice on December 22, 2009.

2

 An immigration judge terminated Sanchez-Lopez’s removal proceedings, but he

currently has no legal status in the United States. Sonato-Vega accepted voluntary departure

in lieu of removal, and returned to Mexico on April 11, 2008.

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individuals – Francisco Sanchez-Lopez (“Sanchez-Lopez”), and Christyan Sonato-Vega

(“Sonato-Vega”)1

 – against defendants United States of America; U.S. Department of

Homeland Security (“DHS” or “the Agency”); Bureau of Immigration and Customs

Enforcement (“ICE”); and ICE Special Agents Mario Huelga (“Huelga”) and Chris

Merendino (“Merendino”) (collectively, the “Federal defendants”); and against the County of

Sonoma; Sonoma County Sheriff Bill Cogbill, and Deputy Sheriff Morris Salkin (collectively,

the “County defendants”). 

The factual background is summarized in the court’s July 31, 2009 order granting in

part and denying in part defendants’ motions to dismiss the original complaint. Briefly,

Sanchez-Lopez and Sonato-Vega were arrested by members of an anti-gang task force 

known as the Multi-Agency Gang Enforcement Team (“MAGNET”), which was/is composed

of ICE agents and Sonoma County Sheriff’s deputies. Sanchez-Lopez was arrested in

September 2006, and Sonato-Vega in August 2007. ICE issued immigration detainers for

Sanchez-Lopez and Sonato-Vega under 8 C.F.R. § 287.7. They were detained in the

Sonoma County Jail, and then transferred to ICE custody.2

Plaintiffs challenge what they claim are ongoing policies and practices of ICE and

the Sonoma County Sheriff’s Department that allegedly violate the constitutional and

statutory rights of Latino residents of Sonoma County. Plaintiffs assert that ICE and

Sheriff’s deputies use race as a “motivating factor” for traffic stops and other detentions;

stop, interrogate, search, and arrest persons without adequate justification; hold individuals

in the County jail without any lawful basis for detention; and deny due process to people

arrested on suspected immigration violations and improperly held in the custody of the

Sheriff. 

The broad question raised by plaintiffs in this case is whether the Immigration and

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Nationality Act (“INA”), 8 U.S.C. § 1101, et seq., and its implementing regulations (8 C.F.R.

§ 101, et seq.) authorize the Secretary of DHS to issue detainers for illegal aliens who are

not in custody and place them in the temporary custody of state or local law enforcement

agencies before they are moved to an immigration detention facility. 

The narrower issue is whether the federal and county defendants violated SanchezLopez’s and Sonato-Vega’s constitutional and civil rights when they arrested and detained

them. Principally, plaintiffs claim that the ICE agents and Sheriff’s deputies had no lawful

reason to detain them, and that the agents were motivated solely by considerations of

plaintiffs’ race. 

The original complaint was filed on September 5, 2008, and asserted 17 causes of

action. The complaint was dismissed, with leave to amend, on July 31, 2009. Plaintiffs

filed a first amended complaint (“FAC”) on August 31, 2009. On September 3, 2009, the

court granted plaintiffs’ motion for reconsideration, to the extent of withdrawing a portion of

the discussion in the July 31, 2009 order relating to the eighth cause of action. Plaintiffs

filed a 74-page second amended complaint (“SAC”) on September 14, 2009. 

Plaintiffs allege 22 causes of action in the SAC: 

(1) a Fourth Amendment claim of unlawful search and seizure, under 42 U.S.C. §

1983, by all plaintiffs against Sonoma County, Sheriff Cogbill, and Deputy Salkin;

(2) a Fourteenth Amendment claim of denial of equal protection rights, under 

§ 1983, by all plaintiffs against Sonoma County, Sheriff Cogbill, and Deputy Salkin; 

(3) a Fourteenth Amendment claim of violation of due process rights, under 

§ 1983, by all plaintiffs against Sonoma County, Sheriff Cogbill, and Deputy Salkin;

(4) a Fourth Amendment and 8 U.S.C. § 1357 claim of unlawful search and

seizure, under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), and the Administrative Procedures Act (“APA”), 5 U.S.C. § 702, by all

plaintiffs against ICE, Huelga, and Merendino;

(5) a Fifth Amendment claim of denial of equal protection rights, under Bivens

and the APA, 5 U.S.C. § 702, by all plaintiffs against ICE, Huelga, and Merendino;

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(6) a Fifth Amendment, 8 U.S.C. § 1357, and 8 C.F.R. §§ 287.3 and 287.7 claim

of violation of due process rights, under Bivens and the APA, 5 U.S.C. § 702, by all

plaintiffs against ICE, Huelga, and Merendino;

(7) a claim under 42 U.S.C. § 2000d, et seq. (Title VI), by all plaintiffs against

Sonoma County, Sheriff Cogbill, and Deputy Salkin;

(8) a claim under the APA, 5 U.S.C. § 706, by plaintiffs Committee and SanchezLopez against ICE, Huelga, and Merendino;

(9) a claim of conspiracy, under 42 U.S.C. §§ 1983 and 1985(3), by all plaintiffs

against all defendants;

(10) a claim of unreasonable search and seizure, under Art. I, § 13 of the

California Constitution, by all plaintiffs against Sonoma County, Sheriff Cogbill, and Deputy

Salkin;

(11) a claim of violation of equal protection rights, under Art. I, § 7(a) of the

California Constitution, by all plaintiffs against Sonoma County, Sheriff Cogbill, and Deputy

Salkin;

(12) a claim of violation of due process rights, under Art. 1, § 7(a) of the California

Constitution, by all plaintiffs against Sonoma County, Sheriff Cogbill, and Deputy Salkin;

(13) a claim under the Bane Act, California Civil Code § 52.1, by all plaintiffs

against Sonoma County, Sheriff Cogbill, and Deputy Salkin;

(14) a claim under California Government Code § 11135 and its implementing

regulations, by all plaintiffs against Sonoma County;

(15) a claim of false imprisonment, under California Government Code 

§ 815.2, by Sonato-Vega against Sonoma County, Sheriff Cogbill, and Deputy Salkin;

(16) a claim of intentional infliction of emotional distress, under California

Government Code § 815.2, by Sonato-Vega against Sonoma County, Sheriff Cogbill, and

Deputy Salkin;

(17) a claim of negligence, under California Government Code § 815.2, by SonatoVega against Sonoma County, Sheriff Cogbill, and Deputy Salkin;

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(18) a claim of false imprisonment under the Federal Tort Claims Act (“FTCA”), by

Sanchez-Lopez and Sonato-Vega, against the United States;

(19) a claim of intentional infliction of emotional distress under the FTCA, by

Sanchez-Lopez and Sonato-Vega, against the United States;

(20) a claim of negligence under the FTCA, by Sanchez-Lopez and Sonato-Vega,

against the United States;

(21) a claim of deprivation of civil rights through intimidation, threats, and coercion

under the FTCA and California Civil Code § 52.1, by Sanchez-Lopez and Sonato-Vega,

against the United States; and

(22) a claim of assault and battery under the FTCA, by Sanchez-Lopez and

Sonato-Vega, against the United States.

Plaintiffs seek injunctive and declaratory relief, and also seek compensatory and

punitive damages.

The county defendants and the federal defendants each now seek an order

dismissing the claims asserted against them in the SAC. 

DISCUSSION

A. Legal Standard

A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims

alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003).

Review is limited to the contents of the complaint. Allarcom Pay Television, Ltd. v. Gen.

Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive a motion to dismiss for

failure to state a claim, a complaint generally must satisfy only the minimal notice pleading

requirements of Federal Rule of Civil Procedure 8. Rule 8(a)(2) requires only that the

complaint include a “short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). 

Specific facts are unnecessary – the statement need only give the defendant “fair

notice of the claim and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89,

93 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). All allegations

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of material fact are taken as true. Id. at 94. However, a plaintiff’s obligation to provide the

grounds of his entitlement to relief “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic, 550 U.S.

at 555 (citations and quotations omitted). Rather, the allegations in the complaint “must be

enough to raise a right to relief above the speculative level.” Id. 

A motion to dismiss should be granted if the complaint does not proffer enough facts

to state a claim for relief that is plausible on its face. See id. at 558-59. “[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct,

the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’”

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009).

B. Defendants’ Motions

Notwithstanding the court’s detailed analysis and guidance in the July 31, 2009

order dismissing the original complaint, the SAC is lengthy and complex to a degree that

makes it impossible to determine the contours of all the claims. Possibly as a consequence

of this impenetrable thicket of allegations and legal claims presented by the plaintiffs,

defendants have not addressed the individual claims in a manner that would enable the

court to analyze those claims under the Rule 12(b)(6) standard. Rather, they have opted

for broad, largely policy-based attacks on, for example, the myriad requests for injunctive

relief included in the allegations for 14 of the 22 causes of action and in the prayer for

injunctive relief; and have also relied on fact-driven arguments that would be better suited

to a motion for summary judgment. 

The Federal defendants make four main arguments in support of their motion – that

the court should dismiss the request for injunctive relief because the request is predicated

on plaintiffs’ misunderstanding of the regulations at issue, particularly, 8 C.F.R. § 287.7;

that the court should dismiss the § 1983 and § 1985(3) claims against the Federal

defendants, because the SAC does not allege any actions taken under color of state law

and does not plead facts showing a conspiracy that was motivated by racial animus; that

the Bivens claims do not meet the pleading requirements set forth in Iqbal, or, in the

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alternative, that Huelga and Merendino are entitled to qualified immunity; and that the

FTCA claims fail to state a claim for relief.

The County defendants also make four main arguments – that the court lacks

jurisdiction over the injunctive relief claims because plaintiffs have not alleged a case or

controversy for injunctive relief, and because the claims for injunctive relief are not

justiciable; that the SAC fails to allege plausible claims under § 1983 because plaintiffs

plead no facts showing that defendants were acting under color of state law, and because

plaintiffs fail to state a claim for any constitutional violations against either the County or

against Sheriff Cogbill and Deputy Salkin; that the SAC fails to allege actionable claims

under the California Constitution; and that the statutory claims are without merit because

plaintiffs fail to allege a viable claim of conspiracy under § 1985(3), and because the

County defendants are immune from suit under various provisions of the California

Government Code. 

The leitmotif of this action is the interpretation and application of the federal

regulations to be found at 8 C.F.R. §§ 287.3, 287.7, and 287.12. Section 287.3 sets forth

certain procedures relevant to the “disposition of cases of aliens arrested without a

warrant.” 8 C.F.R. § 287.3 

Section 287.12 provides that “[w]ith regard to [8 C.F.R. Part 287], these regulations

provide internal guidance on specific areas of law enforcement authority” and “do not, are

not intended to, shall not be construed to, and may not be relied upon to create any rights,

substantive or procedural, enforceable at law by any party in any matter, civil or criminal.” 

The Secretary has “exclusive authority to enforce these regulations through such

administrative and other means as he may deem appropriate.” 8 C.F.R. § 287.12.

Section 287.7 provides, in relevant part, 

(a) Detainers in general. Detainers are issued pursuant to sections 236 and

287 of the Act and this chapter 1. Any authorized immigration officer may at

any time issue a Form I-247, Immigration Detainer-Notice of Action, to any

other Federal, State, or local law enforcement agency. A detainer serves to

advise another law enforcement agency that the Department seeks custody

of an alien presently in the custody of that agency, for the purpose of

arresting and removing the alien. The detainer is a request that such agency

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advise the Department, prior to release of the alien, in order for the

Department to arrange to assume custody, in situations when gaining

immediate physical custody is either impracticable or impossible.

. . . .

(d) Temporary detention at Department request. Upon a determination by

the Department to issue a detainer for an alien not otherwise detained by a

criminal justice agency, such agency shall maintain custody of the alien for a

period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in

order to permit assumption of custody by the Department.

8 C.F.R. § 287.7.

Although the parties do not clearly make this distinction, the claim regarding 

§ 287.7 appears to challenge the regulation in two separate ways. First, plaintiffs allege in

the SAC that an immigration detainer may be issued only for an individual who is already in

custody pursuant to an independent criminal or other state law arrest. See, e.g., SAC 

¶ 164(b) (also citing SAC ¶¶ 28, 33, 38, 40, 44-47); SAC ¶ 165(b) (also citing SAC ¶¶ 81-

85, 100-101); SAC ¶ 178. 

Plaintiffs assert that the issuance of a detainer for any individual not already in

custody pursuant to an independent arrest violates that individual’s constitutional and

statutory rights; and also constitutes agency action that is “arbitrary and capricious, an

abuse of discretion, or otherwise not in accordance with the law;” “contrary to constitutional

right, power, privilege, or immunity;” “in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right;” or “without observance of procedure required by law,”

in violation of the APA. 

Defendants reject this interpretation, arguing that § 287.7 broadly allows ICE agents

to issue immigration detainers for illegal aliens who are “not otherwise detained,” and to

issue detainers “at any time,” and that it does not preclude the issuance of a detainer at the

time that the individual is being taken into custody.

In the second part of their challenge, plaintiffs allege that defendants’

implementation of § 287.7 was unlawful in that it violated plaintiffs’ statutory and

constitutional rights. In particular, plaintiffs assert that in the course of arresting and

holding them pursuant to the detainers issued by ICE, defendants acted without probable

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cause, targeted them because of their race, and denied them due process protections. 

In their motions, defendants contend that the SAC does not allege facts sufficient to

state a claim under any of the constitutional or statutory causes of action, suggesting that

any claim regarding the implementation of § 287.7 must be dismissed.

It is not the task of the court to “decide which among several competing

interpretations best serves the regulatory purpose.” Thomas Jefferson Univ. v. Shalala,

512 U.S. 504, 512 (1994). The court must give an agency's interpretation of its own

regulations “controlling weight” unless that interpretation is “plainly erroneous or

inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414

(1945); Miller v. California Speedway Corp., 536 F.3d 1020, 1028 (9th Cir. 2008). 

That is, the court must defer to the agency's interpretation unless an alternative

reading is compelled by the regulation's plain language or by other indications of the

agency's intent at the time of the regulation's promulgation. Miller, 536 F.3d at 1028 (citing

Thomas Jefferson Univ., 512 U.S. at 512). “When the meaning of regulatory language is

ambiguous, the agency's interpretation controls ‘so long as it is “reasonable,” that is, so

long as the interpretation sensibly conforms to the purpose and wording of the regulations.’” 

Oregon Paralyzed Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1131 (9th Cir.

2003) (quoting Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144,

150-51 (1991)).

Here, the court finds that the plain language of § 287.7 authorizes, and does not

preclude, the issuance of immigration detainers for individuals who are not already in

custody pursuant to an independent arrest. Under § 287.7, an authorized immigration

officer “may at any time issue a Form I-247 Immigration Detainer - Notice of Action, to any

other Federal, State, or local law enforcement agency,” 8 C.F.R. § 287.7(a); and an

immigration detainer may be issued “for an alien not otherwise detained by a criminal

justice agency,” id. § 287.7(d). 

The court finds that the Agency’s interpretation of § 287.7 is not unreasonable, and

that the provisions authorizing the issuance of immigration detainers “at any time” for

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persons who are “not otherwise detained by a criminal justice agency” permits the issuance

of immigration detainers for individuals not already in custody. There is no suggestion in

the regulation that the category of aliens “not otherwise detained by a criminal justice

agency” refers only to those aliens who were previously detained by a criminal justice

agency, but are in the process of being released from custody. 

Nor is the court persuaded by plaintiffs’ argument that their interpretation is in accord

with the Agency’s interpretation at the time the regulation was promulgated, as plaintiffs

have not pointed to any earlier interpretation of the language in § 287.7 that conflicts with

the current interpretation of the same language. 

Accordingly, to the extent that defendants seek an order dismissing any claim in the

SAC in which plaintiffs assert that 8 C.F.R. § 287.7 does not permit ICE to issue

immigration detainers for individuals who are not already in custody pursuant to an

independent criminal or state law arrest, the motion is GRANTED. Put another way,

plaintiffs may not proceed with any direct challenge to defendants’ interpretation of 8 C.F.R.

§ 287.7, as permitting the issuance of an immigration detainer for an individual not already

in custody (prior to the issuance of the detainer) pursuant to an independent arrest. 

As for the claims that derive from the allegations that defendants’ implementation of

§ 287.7 (or § 287.3) violated plaintiffs’ constitutional and statutory rights, the court finds, as

an initial matter, that the provisions of § 287.12 bar any claim directly premised on an

alleged violation of § 287.7 (or § 287.3) – though not constitutional or statutory claims that

are otherwise independently actionable. With regard to the latter, the court finds that the

question whether defendants’ implementation of § 287.7 (or 287.3) violated plaintiffs’

constitutional or statutory rights is not appropriate for decision in a Rule 12(b)(6) motion. 

Because the regulations cannot trump the U.S. Constitution or the provisions of the

INA under which the regulations were implemented, the court is persuaded that defendants’

reasonable interpretation of § 287.7 does not dispose of each and every constitutional and

statutory claim raised by plaintiffs. Accordingly, the court GRANTS the motions to the

extent that defendants seek a ruling that plaintiffs may not bring a claim alleging violation of

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 For example, plaintiffs seek damages for violations of their due process rights by

arresting them without warrants and ordering them to be held in the custody of Sonoma County

and Sheriff Cogbill through issuance of immigration detainers that violate 8 C.F.R. §§ 287.3

and 287.7 and 8 U.S.C. § 1357; and by denying them procedural protections. See SAC ¶ 165.

4

 For example, plaintiffs seek injunctive and declaratory relief, as well as damages, in

connection with their claims that defendants have implemented a policy and practice of

stopping persons and vehicles without reasonable suspicion of criminal activity or traffic

infraction; unreasonably prolonging traffic and other stops beyond the time they would

otherwise take in order to question individuals about matters unrelated to the purported

purpose of the stop or other criminal activity; conducting personal and vehicle searches without

probable cause to believe that the areas searched contain evidence of criminal activity or

without a reasonable belief that the person searched or the car’s occupants are dangerous and

may gain access to a weapon in the area searched; unreasonably arresting individuals without

probable cause; and holding persons in the County jail on immigration detainers for more than

48 hours without a probable cause determination. See SAC ¶¶ 135-137. 

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§ 287.7 (or § 287.3). The court DENIES the motions to the extent that defendants assert

that plaintiffs may not bring a claim alleging that defendants’ implementation of the

regulations violated their constitutional or statutory rights.3

Similarly, the motions to dismiss the various constitutional and statutory claims are

DENIED, as the court finds, to the extent that claims are comprehensible, that the issues

raised by defendants in their motions are not amenable to resolution through a Rule

12(b)(6) motion.4 At this stage of the litigation, it is impossible to determine whether any of

the constitutional claims asserted against the individual defendants are barred by qualified

immunity, which actions were or were not taken under color of state law, or whether the

County defendants are immune from suit based on any of the Government Code

provisions.

The court is unwilling to pore through the SAC in an attempt to identify every claim

and every legal theory asserted, in order to determine which acts alleged to be

unconstitutional would necessarily fall within the reasonable interpretation of the regulations

(particularly since the moving parties were unwilling to do so in the first instance), but finds

in general that plaintiffs have stated a claim sufficient to withstand dismissal under Rule

12(b)(6). 

Finally, because the court finds that the validity of the claims for injunctive relief

cannot be determined until the questions regarding the alleged constitutional and statutory

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violations have been resolved, the court DENIES the motion to dismiss for lack of subject

matter jurisdiction without prejudice.

CONCLUSION

In accordance with the foregoing, the court GRANTS defendants’ motions in part

and DENIES them in part. 

All parties may now proceed with discovery.

IT IS SO ORDERED.

Dated: March 10, 2010 ______________________________

PHYLLIS J. HAMILTON

United States District Judge

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