March 26, 2021 Feature

Immigration Detainers After Gonzalez v. United States Immigration & Customs Enf’t, 975 F.3d 788, 818 (9th Cir. 2020)

By Kristopher Kalkowski

An emerging and complex area of constitutional law involves local governments coordinating with the United States Immigration and Customs Enforcement (ICE) by recognizing ICE’s immigration detainers. An immigration detainer essentially requests that a law enforcement agency continue to temporarily detain a person in order for ICE to assume custody and start removal proceedings.1

Recently, the Court of Appeals for the Ninth Circuit weighed in on this area of law with Gonzalez v. United States Immigration & Customs Enf’t, 975 F.3d 788 (9th Cir. 2020). The case involved a class-action challenge against ICE brought by lead plaintiff Gerardo Gonzalez. The Los Angeles Police Department arrested and detained Gonzalez on state criminal charges, and ICE issued an immigration detainer against him after an ICE agent reviewed immigration records from several electronic databases. ICE requested that the Los Angeles Sheriff’s Department continue their detention of Gonzalez for up to five additional days after he was entitled to release from custody on state charges so that ICE could take over custody. Gonzalez, who was actually a U.S. citizen, challenged the immigration detainer’s legality with claims under the Fourth Amendment, Fifth Amendment, and federal statutes.

Below is a brief summary of several rules articulated in Gonzalez, each of which can impact current and future legal challenges to ICE’s immigration detainers. Of course, Gonzalez holds much more worth exploring.

The Constitutionality of Detention Does Not Depend on State Law

The Circuit in Gonzalez highlighted the principle that state law does not dictate whether an arrest or detention violates the Fourth Amendment.2 To some extent, this is nothing new. Indeed, the court in Gonzalez parroted U.S. Supreme Court precedent saying this since 2008.3 But what is unique from Gonzalez is that it reaffirmed this principle in the context of local officers enforcing federal immigration detainers based on a “suspected civil immigration offense.”4

The effect of this holding in Gonzalez was that the lead plaintiff’s Fourth Amendment claim depended on whether there was probable cause to issue the immigration detainer, not whether there was state authorization for local officials to enforce the detainer.5 The rationale underlying this result is that the federal Constitution imposes minimum standards, and these minimum standards do not vary based on state law.6

Probable Cause Must Support an Immigration Detainer

To issue a valid immigration detainer, there must be probable cause to believe that the person “is, in fact, an alien.”7 And, probable cause in the immigration context is the same as in a criminal context: The government must rely on “reasonably trustworthy information sufficient to warrant a prudent person in believing that an individual has committed an offense.”8

In terms of the detainer in Gonzalez, the Circuit explained how probable cause may arise simply from computer databases that ICE reviewed to determine the suspect’s immigration status. But, there is risk in that form of reliance. “[W]hen the government relies solely on a computer database to make a probable cause determination, the legality of a resulting seizure or detention ‘hinges entirely on the reliability of [the] computer database[.]’”9 The Circuit remanded the case for further fact-finding on database reliability.

Federal Immigration Detainers Generally Permit 48 Hours of Custody

Aside from the necessary legal support for an immigration detainer, Gonzalez addressed how long state officials can hold a detainee on a detainer alone. On that issue, Gonzalez held that the U.S. Supreme Court’s decision in Gerstein v. Pugh, 420 U.S. 103 (1975), applies in the civil context of immigration.10

Several legal standards arise from this application of Gerstein. First, once detention based on an immigration detainer begins, a “neutral and detached magistrate” must promptly review it for probable cause.11 The neutral and detached magistrate need not be an Article III judge; he or she can be an immigration judge or executive official not tasked with prosecuting immigration violations.12

Second, a neutral and detached magistrate’s review of the detention within 48 hours will often satisfy the “prompt” requirement. But, 48 hours is just a general benchmark, not a hardline measure that controls every case.

Third, if detainment for immigration purposes alone exceeds 48 hours, the government gains the burden of demonstrating emergency or extraordinary circumstances requiring the additional detainment.13 The court in Gonzalez did not, however, opine on what emergency or extraordinary circumstances would be.

Ultimately, the Circuit in Gonzalez remanded for the district court to consider these standards from Gerstein in the first instance. In doing so, the Circuit continued its theme of leaving it to the district court (both in the case and, in turn, those within the Ninth Circuit) to interpret these broad principles outlined in Gonzalez.


1. 8 C.F.R. § 287.7(a); Ochoa v. Campbell, 266 F. Supp. 3d 1237, 1246 (E.D. Wash. 2017)

2. Gonzalez v. United States Immigration & Customs Enf’t, 975 F.3d 788, 817 (9th Cir. 2020)

3. Id. at 816–17 (citing Virginia v. Moore, 553 U.S. 164 (2008))

4. Id. at 817

5. Id. at 817

6. Id. at 817–819

7. Id. at 817 (quoting Alcocer v. Mills, 906 F.3d 944, 953 (11th Cir. 2018))

8. Id. at 819 (internal quotations omitted)

9. Id. at 819 (quoting United States v. Esquivel-Rios, 725 F.3d 1231, 1238 (10th Cir. 2013) (Gorsuch, J.))

10. Id. at 824

11. Id. at 824–25; Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015)

12. See id.

13. Id. at 825–26


By Kristopher Kalkowski

Kristopher Kalkowski is an associate attorney at Kaempfer Crowell in Las Vegas.