Judge won't toss out challenge to arrests by private ICE contractors

4 minute read

The badge of ICE Field Office Director, Enforcement and Removal Operations, David Marin and U.S. Immigration and Customs Enforcement's (ICE) Fugitive Operations team search for a Mexican national at a home in Hawthorne, California, U.S., March 1, 2020. REUTERS/Lucy Nicholson

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  • Lawsuit says only federal officers can make immigration arrests
  • ICE said claims were moot, couldn't be reviewed in court
  • Judge said unclear if ICE is following written policy

A federal judge in California has denied U.S. Immigration and Customs Enforcement's bid to dismiss a proposed class action claiming its use of private contractor G4S Secure Solutions Inc to make thousands of immigration arrests in the state each year violates federal law.

U.S. District Judge Andre Birotte in Los Angeles on Thursday said it was unclear whether ICE is actually following a written policy adopted in 2018 and reaffirmed in March that says only immigration officials have the authority to make arrests.

Birotte also said named plaintiff Gabriela Solano's claims in the February lawsuit were not barred from judicial review because they do not directly involve immigration proceedings. Solano is not challenging the decision to detain her, her removal or the process in determining whether she is eligible for deportation, the judge said.

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Solano, who is represented by the American Civil Liberties Union and Munger, Tolles & Olson, says that since 2016 ICE has illegally farmed out its power to make arrests to London-based G4S, which regularly subjects detained immigrants in California to "burdensome and lengthy voyages" with limited access to food, water and toilets.

ICE, which is part of the Department of Homeland Security, did not immediately respond to a request for comment. Nor did Solano's lawyers. G4S is not involved in the lawsuit.

According to the complaint, Solano came to the U.S. when she was 2 years old and now faces ICE detention after serving 20 years in prison for her role in an attempted robbery that led to a murder.

The complaint describes the experiences of more than a dozen people who were arrested by G4S employees acting on behalf of ICE after serving time in county and state prisons in California.

Upon release from prison, all of them had their arms and legs shackled and were transported to ICE facilities, which often took hours, to be detained and await deportation, Solano said.

Solano's lawyers say nothing in the Immigration and Nationality Act allows ICE to contract out the power to make arrests to private entities such as G4S, which currently has a contract with the agency that runs through July 31, 2023. Solano is seeking to represent a class of all individuals in custody at California prisons and who are the subject of an ICE detainer request.

ICE in a June motion to dismiss argued that the lawsuit is moot because the agency in March reaffirmed an April 2018 notice stating that only immigration officers can facilitate custody transfers.

The agency also said Solano lacked standing because she was arrested by an ICE officer and not a private contractor, and that her claims were barred by a provision of the INA that prohibits court review of the commencement of immigration proceedings.

Birotte on Thursday rejected all of those claims. Solano claims ICE is using contracts despite the 2018 notice, and the dispute cannot be resolved on a motion to dismiss, he said.

And ICE failed to offer proof that Solano was arrested by an ICE officer, Birotte found. The fact that her warrant was signed by an ICE field officer in Fresno does not show that she was arrested by an ICE officer at a jail in Chowchilla, California, the judge said.

The case is Solano v. U.S. Immigration and Customs Enforcement, U.S. District Court for the Central District of California, No. 2:21-cv-01576.

For Solano: David Moreshead of Munger, Tolles & Olson; Vasudha Talla and William Freeman of the American Civil Liberties Union Foundation of Northern California

For ICE: Joseph Darrow of the U.S. Department of Justice

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ICE's use of private contractors to make arrests is illegal- lawsuit

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.