In June 2017, the United States District Court for the Central District of California, in Roy v. County of Los Angeles,[1] concluded that the Fourth Amendment does not require judicial review of Immigration and Customs Enforcement (“ICE”) officers’ probable cause determinations.


Plaintiffs Geraldo Gonzalez and Simon Chinivizyan (“Plaintiffs”) are both United States’ citizens.  At the time they brought their lawsuit against Los Angeles County, they were each being held in a Los Angeles jail pursuant to ICE detainers.  Plaintiffs’ operative complaint was filed in August 2014.  In July 2015, the Court consolidated the Roy v. County of Los Angeles and Gonzalez v. Immigration & Customs Enforcement cases.[2]

In May 2016, Plaintiffs moved to certify a “Judicial Determination Class,” defined as “All current and future persons who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, where the detainer is not based upon a final order of removal signed by an immigration judge or the individual is not subject to ongoing removal proceedings. Plaintiffs proposed Judicial Determination Class will seek rescission of class members’ detainers and a declaration that Defendants’ issuance of detainers against class members without providing a judicial determination of probable cause violates the Fourth Amendment.” The Court granted the motion for class certification, but limited the Judicial Determination Class to only those who had been detained for at least 48 hours without receiving a judicial determination of probable cause.

In February 2017, Plaintiffs filed a Motion for Partial Summary Judgment as to the Judicial Determination Class and ICE’s policy of failing to provide a judicial probable cause determination within 48 hours of detention.  Plaintiffs argued that Defendants violated their Fourth Amendment rights by detaining them pursuant to an ICE detainer without ever providing them with a judicial determination of probable cause for their detainment, in violation of the 48-hour judicial determination requirement set forth in County of Riverside v. McLaughlin.[3] Defendants argued that judicial review of probable cause determinations set forth on ICE detainer forms is not required in the immigration context.


The Central District Court, on its own motion, granted summary judgment in favor of Defendants, concluding that the Fourth Amendment does not require judicial review of ICE officers’ probable cause determinations set forth on ICE detainer forms.

In reaching its decision, the Court first outlined the immigration statutory scheme. It explained that ICE is responsible for identifying, apprehending, and removing illegal aliens from the country, and that the Immigration and Nationality Act (“INA”) grants ICE the authority to arrest and detain aliens prior to removal.[4]  Pursuant to implementing regulations issued by the Department of Homeland Security, an alien arrested without a warrant must be examined by an ICE officer other than the arresting officer, unless no other officer is available and finding another officer would entail unnecessary delay.  The regulations provide that if the examining officer is satisfied that there is prima facie evidence that the arrested alien was entering, attempting to enter, or is present in the United States in violation of immigration laws, the examining officer will refer the case to an immigration judge for further inquiry.  Based on these regulations, the Court noted that it appears the Legislature has permitted an ICE officer to determine probable cause on his or her own and has permitted review of the arresting ICE officer’s probable cause determination by another ICE officer.

Here, the Court explained, ICE issues immigration detainers as part of the arrest and detainment process.  The immigration detainer forms require ICE officers to indicate they have probable cause to detain the individual as a removable alien and the basis for their probable cause determination. Defendants conceded that the ICE officers’ probable cause determinations are not judicially reviewed.  Rather, pursuant to applicable regulations, a detainee is taken before an ICE agent for processing into physical custody.

In assessing each party’s arguments, the Court noted that courts have consistently recognized that immigration proceedings are civil, rather than criminal, in nature and their implementation falls primarily within the legislative and executive, not judicial, branches of government.  It also noted that it appears courts have recognized that the executive and legislative branches have the authority to permit executive officers rather than judicial officers to make probable cause determinations.  It further noted that the cases relied upon by Plaintiffs recognize that there are differences in protections afforded to individuals in criminal proceedings as compared to civil immigration proceedings.

Noting that it must give deference to the executive and legislative branches in the immigration context and the distinction between protections afforded in criminal cases as compared with civil immigration proceedings, the Court found that it is not unconstitutional under the Fourth Amendment for the Legislature to delegate a probable cause determination authority to an executive officer, such as an ICE agent, rather than to an immigration, magistrate, or federal court judge.

The Court noted that its analysis would be different if Plaintiffs were alleging that Defendants failed to provide any probable cause determination within 48 hours, but Plaintiffs did not make such allegations.  Instead Plaintiffs alleged that their Fourth Amendment rights were violated because they were not granted judicial review of ICE officers’ probable cause determinations. Noting the Legislature has determined that removal pursuant to ICE officers’ probable cause determinations and examinations by ICE officers is sufficient in the civil immigration context, which appears to be within its purview, the Court indicated it was bound to follow precedent finding that the Fourth Amendment does not require judicial review of ICE officers’ probable cause determinations.

As explained in more detail below, the Central District’s decision in Roy is the first decision in which a federal court has indicated that no judicial review of ICE officers’ probable cause determinations is required.

Prior Decisions Relating to ICE Detainers

In 2014 and 2015, we issued a series of Client Alerts addressing issues surrounding ICE detainers.[5]  Within those Client Alerts, we discussed two cases where individuals had been detained in custody beyond the date upon which they could have been released as a result of the issuance of ICE detainers.

Miranda-Olivarez v. Clackamas County

In the first case, Miranda-Olivarez v. Clackamas County,[6] Maria Miranda-Olivarez was arrested and booked into Clackamas County, Oregon’s jail.  The next day, ICE issued an immigration detainer (Form I-247) for Miranda-Olivarez.  The ICE detainer had a box checked indicating that the Department of Homeland Security (DHS) had initiated an investigation to determine whether Miranda-Olivarez was subject to removal from the United States. The ICE detainer did not state any basis, or probable cause determination, for the investigation and was not accompanied by any other charging document.  The same day as the County received the ICE detainer, Miranda-Olivarez was arraigned and charged, and the judge set bail.

At that time, the County’s practice when it received ICE detainers was to hold the person subject to the detainer for up to 48 hours beyond the time when the person would otherwise be released, even if the underlying criminal state charges were resolved or bail was posted.  The County’s practice was the same whether or not the ICE detainer was accompanied by an arrest warrant, a statement of probable cause, or a removal or deportation order.

After her arraignment, Miranda-Olivarez remained in custody.  Jail officials indicated that even if her family posted bail, she would not be released from custody due to the County’s policy relating to ICE detainers.  Two weeks after the ICE detainer was issued, Miranda-Olivarez pled guilty to the charges and was sentenced to 48 hours in jail, with credit for time served, and placed on probation.  She would have been released from custody that day but for the ICE detainer.  The County instead kept her in custody for an additional 19 hours, when she was released from the County to ICE agents.

Miranda-Olivarez filed suit under 42 U.S.C. § 1983, arguing, among other things, that the County violated her Fourth Amendment right to be free from unreasonable seizure.

In assessing Miranda-Olivarez’s claim that the County violated her Fourth Amendment rights by refusing to release her during the two weeks when she could have posted bail and by continuing to incarcerate her for 19 hours after her release on the state charges, the Oregon District Court explained that the continued incarceration of Miranda-Olivarez constituted a new seizure independent of the initial finding of probable cause for violating state law.

The Court explained that the Fourth Amendment applied to the County’s detention of Miranda-Olivarez after she was entitled to pre-trial release on bail and again after she was entitled to release after her state charges were resolved. To hold a person beyond the period necessary to execute an order of legal authority to continue detention, the Court explained, the County was required to meet the clearly defined reasonable seizure standards of the Fourth Amendment. It noted that full custodial confinement without a warrant must be based on probable cause.

Applying these principles to Miranda-Olivarez, the Court explained she was not charged with a federal crime and was not subject to an arrest warrant or order for removal or deportation from ICE.  The Court stated that the ICE detainer alone did not demonstrate probable cause to hold Miranda-Olivarez.  It only stated that an investigation had been initiated.  The stated purpose of the request that the County hold Miranda-Olivarez in custody was to give ICE adequate time to assume custody. Therefore, the Court concluded, it was not reasonable for the County to believe it had probable cause to detain Miranda-Olivarez based upon the specific box checked on the ICE detainer form.

Galarza v. Szalczyk

In the second case, Galarza v. Szalczyk,[7] Ernesto Galarza, a United States citizen, was arrested along with the contractor at a job site where he was working after the contractor sold cocaine to an undercover police detective.  Throughout his arrest and booking, Galarza indicated that he was born in New Jersey. The criminal complaint prepared at the time of his arrest listed his place of birth as New Jersey.  Due to the police department’s policy to contact ICE whenever an arrested person was suspected of being an alien subject to deportation, a police detective contacted ICE and provided ICE with Galarza’s name, date and place of birth, and Social Security number.  Galarza’s bail was set at $15,000.

The next day, a Friday, an ICE agent, acting on information provided by the police detective, filed an immigration detainer with the county jail.  The detainer form listed Galarza as a suspected alien and citizen of the Dominican Republic.  The detainer was not accompanied by a warrant, an affidavit of probable cause, or a removal order.

That day, a surety company posted bail for Galarza.  Galarza was informed that he would not be released because he was the subject of a detainer.  He was also informed that he would have to wait through the weekend to speak with a counselor.  He had not been provided a copy of the detainer or interviewed by ICE.  On Monday, Galarza was told for the first time that he was the subject of an immigration detainer.  He protested that he was a United States’ citizen.  Galarza eventually spoke to two ICE officers, who, after extensive questioning, wherein Galarza provided his Social Security Number and date of birth, informed him that the detainer was being lifted.  The detainer was lifted at 2:05 p.m. Galarza was released at about 8:30 p.m.

Galarza filed suit against the county, the city, and several individual federal and municipal defendants for violation of his constitutional rights.  The district court concluded that Galarza’s continued detention after he posted bail constituted a seizure within the Fourth Amendment and that the seizure was unsupported by probable cause.  The district court found that the officers involved lacked probable cause to issue an immigration detainer, noting that the fact that he is Hispanic and was working with other Hispanic men who were born in foreign countries did not amount to probable cause to believe that Galarza was an alien not lawfully present in the United States.

Although the Third Circuit Court of Appeals did not address the district court’s determination that the seizure was unsupported by probable cause, the district court’s determination reflects that court’s position that the immigration detainer must be supported by probable cause.


As outlined above, previous cases from other district courts within the Ninth Circuit as well as the Third Circuit reflect the position of federal courts that holding persons in custody past the time they would otherwise be released on State charges pursuant to ICE detainers that are not supported by probable cause determinations would  violate the Fourth Amendment.  In Miranda-Olivarez and Galarza, neither immigration detainer contained a probable cause determination. Differing from those cases, the immigration detainers at issue in Roy contained probable cause determinations; however, such determinations were not judicially reviewed.

The Roy decision is the first decision in which a federal court in the Ninth Circuit has held that the Fourth Amendment does not require judicial review of ICE officers’ probable cause determinations. As a decision of a federal district court, the case serves only as persuasive authority. However, because it was issued by the Central District, which is within the jurisdiction of the Ninth Circuit, the decision is particularly persuasive as it relates to law enforcement agencies located within the Ninth Circuit.

Accordingly, unless and until the Ninth Circuit weighs in, the Roy decision provides persuasive authority that, if ICE has made a probable cause determination in accordance with applicable federal regulations, the Fourth Amendment does not require judicial review of such determination.  The Roy decision would be of assistance in a determination of whether a California law enforcement officer would be entitled to qualified immunity if the officer is sued for a Fourth Amendment violation for detaining a person past his or her release date on State charges if that officer did so pursuant to an ICE detainer form setting forth a probable cause determination.  Qualified immunity, however, is only available to individual defendants, and not municipalities.

Notwithstanding the foregoing, it should be noted that the Roy decision does not affect law enforcement agencies’ obligations under State law pursuant to the TRUTH Act,[8] the Trust Act,[9] or the recently enacted California Values Act.[10]

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 2017 U.S. Dist. LEXIS 138911 (C.D. Cal. June 12, 2017).

[2] This action involves two consolidated cases, Duncan Roy et al. v. County of Los Angeles et al.  (Case No. 12-cv-09012-BRO-FFM) and Gonzalez v. Immigration & Customs Enforcement et al. (Case No. 13-cv-04416-BRO-FFM). The motion at issue before the Central District Court was brought by plaintiffs in the Gonzalez matter. “Plaintiffs” as used in this Client Alert refers to the Gonzalez plaintiffs.

[3] 500 U.S. 44 (1991) (finding that a probable cause determination within 48 hours following arrest is reasonable).

[4] “Specifically, the INA provides that ‘[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.’ 8 U.S.C. § 1226(a).  An ICE officer may arrest an alien without a warrant ‘if he has reason to believe that the alien so arrested is in the United States in violation of any . . . law or regulation and is likely to escape before a warrant can be obtained for his arrest,’ so long as the alien is taken ‘without unnecessary delay for examination before an officer of [ICE] having authority to examine aliens as to their right to enter or remain in the United States.’ See 8 U.S.C. § 1357(a)(2).”

[5] Please see Client Alert Vol. 29, No. 10, ICE Says Detainers Are Optional (April 9, 2014); Client Alert Vol. 29, No. 21, ICE Detainers and ACLU Threat of Litigation (July 8, 2014); Client Alert Vol. 30, No. 19, ICE Detainers Put Sheriffs’ in Untenable Position (July 21, 2015).

[6] 2014 U.S. Dist. LEXIS 50340 (D. Or. Apr. 11, 2014).

[7] 745 F.3d 634 (3d Cir. 2014).

[8] Enacted by Assembly Bill 2792 (2016).

[9] Enacted by Assembly Bill 4 (2013).

[10] Enacted by Senate Bill 54 (2017). The legislation is effective January 1, 2018.