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Media Alerts - Ernesto Galarza v. Mark Szalczyk - Third Circuit
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March 5, 2014
  Ernesto Galarza v. Mark Szalczyk - Third Circuit
Headline: Third Circuit Holds that Detainers Issued by Immigration and Customs Enforcement Do Not Require State and Local Agencies to Detain Suspects But Act Only As Requests that They Do So

Area of Law: Immigration

Issues Presented: Whether immigration detainers issued by Immigration and Customs Enforcement impose mandatory obligations on state and local law enforcement agencies to detain suspected aliens subject to removal?

Brief Summary: After posting bail, Ernesto Galarza, a U.S. citizen arrested for a drug offense, was held in custody by Lehigh County under an immigration detainer issued by federal immigration officials. Three days after posting bail, immigration officials found out he was a U.S. citizen, the detainer was withdrawn, and he was released. Galarza filed a § 1983 action against Lehigh County arguing that it had detained him without probable cause and without notice of the reason for his detention or an ability to contest it. The District Court dismissed Galarza's complaint, finding that Lehigh County could not be held responsible for the detention because it was compelled to follow an immigration detainer. On appeal, Galarza argued that the relevant federal regulation was permissive and not mandatory. He further contended that holding otherwise would violate the anti-commandeering doctrine of the Tenth Amendment. The Third Circuit found that the relevant regulation used the words "request" and "advise" to describe its purpose; thus a plain reading would render the regulation a request, not a command. Even if the regulation were considered ambiguous, the Court noted that no other federal appellate court had ever described an immigration detainer as mandatory, that the controlling statute did not use mandatory language, and that no agency of the federal government had ever taken the position that immigration detainers were mandatory. Finally, the Third Circuit held that if a detainer were deemed mandatory it would violate the anti-commandeering principle of the Tenth Amendment. Thus, the Court reversed the District Court's judgment and remanded the matter for further proceedings consistent with the opinion. Judge Barry dissented.

Extended Summary: This case concerns the detention of Ernesto Galarza by Lehigh County Prison after federal immigration officials issued an immigration detainer. On November 20, 2008, Galarza and three other men were arrested at a construction site for conspiracy to deliver cocaine. Galarza was born in New Jersey and is a citizen of the United States. The other men arrested were not U.S. citizens. At the time of the arrest, Galarza had a wallet which contained his Pennsylvania driver's license, his Social Security Card, a debit card, and his health insurance card. The arresting police officer contacted Immigration and Customs Enforcement ("ICE") and provided immigration officials with Galarza's information, in accordance with a policy that ICE be contacted whenever persons arrested are suspected of being "aliens subject to deportation." Galarza was transported to Lehigh County Prison and his bail was set. On Friday, November 21, ICE agent Mark Szalczyk filed an immigration detainer with Lehigh County Prison, describing Galarza as a suspected "alien" and asking that he be detained for a period not exceeding 48 hours to provide time for ICE to assume custody (although the language of the detainer did say that "[f]ederal regulations require that you detain the alien for a period not to exceed 48 hours"). Galarza posted bail that day and was told he would not be released because he was the subject of a detainer. On Monday, November 24, Galarza was first told by a Lehigh County counselor that the detainer holding him was an immigration detainer filed by ICE. Galarza urged the counselor to check his license and Social Security Card, but the counselor refused. Thereafter, Galarza was questioned by two ICE officials, and eventually the officials informed him his detainer was being lifted. Galarza was released by Lehigh County Prison at about 8:30 pm on Monday, November 24. At his subsequent trial, Galarza was acquitted on the charge of conspiracy to deliver cocaine.
Galarza filed complaints against Lehigh County, the City of Allentown, various federal and municipal defendants for violations of his constitutional rights, and against the United States under the Federal Tort Claims Act. The District Court dismissed his Fourth Amendment and procedural due process claims against Lehigh County on the grounds that the policies employed were not unconstitutional because they were consistent with federal statutes and regulations. The District Court found that detainers issued pursuant to this regulation imposed mandatory obligations on state or local law enforcement agencies to follow such a detainer once it was received. Further, the District Court concluded Lehigh County complied with the federal regulation because it did not hold him for more than 48 hours, not including weekends. Following the District Court's opinion, Galarza reached settlement with the remaining defendants. Galarza only appealed the dismissal of his complaint against Lehigh County.
On appeal, Galarza argued that his detention resulted from Lehigh County's policy of enforcing all immigration detainers from ICE, regardless of whether ICE had probable cause to detain the suspected immigration violator. Regarding his due process claim, Galarza contended that he was held for three days without any notice of the basis for his detention or a meaningful opportunity to explain that he was a U.S. citizen, despite repeated requests. During oral argument, Lehigh County conceded that the policies as alleged would be unconstitutional and its sole basis for seeking dismissal was the allegedly mandatory nature of ICE detainers. Thus, the question on appeal was whether immigration detainers issued pursuant to 8 C.F.R. § 287.7 imposed mandatory obligations on state and local law enforcement agencies to detain suspected aliens subject to removal.
In reviewing the relevant regulations, the Third Circuit emphasized the following key phrases: "[a] detainer serves to advise," "[t]he detainer is a request," "[t]emporary detention at Department request," and "such agency shall maintain custody." While Lehigh County argued that the phrase "shall maintain custody" meant that all detainers were mandatory because this language overshadowed the other phrases, Galarza countered that the word "shall" only served to inform an agency that chose to comply with the ICE detainer that it should hold the person. The Third Circuit agreed with Galarza, finding it difficult to read the use of the word "shall" in the timing section to change the nature of the entire regulation. The Court added that, even if it agreed that the word "shall" created ambiguity, that ambiguity was clarified on numerous fronts. The Third Circuit found the following: (1) no U.S. Court of Appeals has ever described ICE detainers as anything but requests, (2) no provisions of the Immigration and Nationality Act authorized federal officials to command state or local officials to detain suspected aliens, and (3) all federal agencies and departments with an interest in the matter have consistently described detainers as requests.
Finally, the Third Circuit stated that, even if there were any doubts about whether immigration detainers were requests, settled constitutional law established that they must be deemed requests. The Court cited two cases where the Supreme Court struck down portions of federal laws that compelled states or local state agencies on anti-commandeering grounds. In light of this, the Third Circuit found that a detainer commanding a local law enforcement agency to detain an individual on behalf of the federal government would violate the anti-commandeering doctrine of the Tenth Amendment. The Court found Lehigh County was free to disregard the non-mandatory detainer, thus eliminating the defense that the county's own policy did not cause the deprivation Galarza's constitutional rights. Accordingly, the District Court's judgment dismissing Galarza's complaint against Lehigh County was reversed and the matter remanded for further proceedings consistent with the opinion. Judge Barry dissented, on the grounds that the federal government was not a party to the case and, therefore, was not able to argue the merits of treating immigration detainers as mandatory orders to state and local detention facilities.
To read the full opinion, please visit

Panel (if known): Fuentes, Cowen, and Barry, Circuit Judges

Argument Date: October 10, 2013

Date of Issued Opinion: March 4, 2014

Docket Number: No. 12-3991

Decided: Vacated and reversed

Case Alert Author: Shannon Zabel

Counsel: Mary Catherine Roper, Esq., Molly M. Tack-Hooper, Esq., Omar C. Jadwat, Esq., Esha Bhandari, Esq., Jonathon H. Feinberg, Esq., Cecilia Wang, Esq., Katherine Desormeau, Esq., Seth Kreimer, Esq. for the Appellant Ernesto Galarza; and Thomas M. Caffrey, Esq. for Appellee Lehigh County' and Christopher N. Lasch, Esq., Rebecca A. Sharpless, Esq. for Amicus Appellant Law Professors and Scholars who Teach, Research, and Practice in the Area of Immigration and Nationality Law and Criminal Law; and Andrew C. Nichols, Esq. for Amicus Appellant National Immigration Project of the National Lawyers Guild

Author of Opinion: Judge Fuentes

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 03/05/2014 02:26 PM     3rd Circuit  

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