Gerardo Gonzalez v. Ice

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GERARDO GONZALEZ; SIMON Nos. 20-55175
CHINIVIZYAN, 20-55252
Plaintiffs-Appellees/
Cross-Appellants, D.C. Nos.
2:12-cv-09012-
v. AB-FFM
2:13-cv-04416-
UNITED STATES IMMIGRATION AND AB-FFM
CUSTOMS ENFORCEMENT; DAVID
MARIN; DAVID C. PALMATIER;
THOMAS WINKOWSKI,
Defendants-Appellants/ OPINION
Cross-Appellees. ∗

Appeal from the United States District Court
for the Central District of California
André Birotte, Jr., District Judge, Presiding

Argued and Submitted July 13, 2020
Pasadena, California

∗
The United States Department of Homeland Security (DHS)
identified itself as a party to these cross appeals. Although DHS objected
to a subpoena in the district court, it was not, however, a defendant in the
underlying case. Although Defendant United States Immigration and
Customs Enforcement (ICE) is a component of DHS, DHS did not move
to intervene in the district court nor in these cross appeals, and thus it is
not technically a party. Accordingly, we amend the case caption to
remove DHS as a Defendant-Appellant/Cross-Appellee.
2 GONZALEZ V. USICE

Filed September 11, 2020

Before: MILAN D. SMITH, JR., JOHN B. OWENS, and
BRIDGET S. BADE, Circuit Judges.

Opinion by Judge Milan D. Smith Jr.;
Dissent by Judge Bade

SUMMARY **

Immigration

In a class action in which the district court issued two
permanent injunctions enjoining the issuance of certain
immigration detainers in light of Fourth Amendment
challenges, the panel: (1) affirmed the district court’s
certification of a subclass, (2) reversed and vacated one
injunction, (3) reversed and vacated the other injunction, and
remanded for the district court to reconsider the claim related
to that injunction, and (4) reversed and vacated summary
judgment for the Government on a claim related to another
subclass, and remanded for the district court to reconsider
that claim.

Gerardo Gonzalez is a citizen of the United States who
has never been removable. After he was arrested on state
law criminal charges, however, an Immigration and Customs
Enforcement (ICE) agent ran his name through electronic
databases and determined that he was removable. The

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 GONZALEZ V. USICE 3

officer issued an immigration detainer, a form by which the
Department of Homeland Security (DHS) requests, in
relevant part, that a federal, state, or local law enforcement
agency (LEA) temporarily detain an alien in that agency’s
custody “for a period not to exceed 48 hours, excluding
Saturdays, Sundays, and holidays in order to permit
assumption of custody by [DHS].” 8 C.F.R. § 287.7.

Gonzalez represents three certified classes that include
all current and future individuals who are subject to an
immigration detainer issued by an ICE agent located in the
Central District of California, excluding individuals with
final orders of removal or who are subject to ongoing
removal proceedings. The Probable Cause Subclass is
further limited to persons where the detainer was issued
solely on the basis of electronic database checks. The
district court entered two injunctions with respect to the
Probable Cause Subclass: the State Authority Injunction and
the Database Injunction. The district court also granted
summary judgment to the Government on a claim brought
by the Judicial Determination Class. A motions panel of this
court stayed the State Authority Injunction and denied the
request to stay the Database Injunction.

First, the panel held that Gonzalez had Article III
standing to seek prospective injunctive relief, concluding
that he faced an ongoing and prospective detention injury
when he commenced suit. The panel also concluded that the
Government’s cancellation of the detainer within hours of
Gonzalez bringing suit did not moot his claims, citing the
“inherently transitory” exception to mootness.

Second, the panel affirmed the certification of the
Probable Cause Subclass with Gonzalez as the class
representative. The panel concluded that the subclass
4 GONZALEZ V. USICE

satisfied the commonality requirement, explaining that the
challenged policy of issuing detainers solely on the basis of
electronic database checks is the “glue” that holds the class
together. The panel also concluded that the subclass
satisfied the typicality requirement. The panel rejected the
Government’s contention that Gonzalez, as a U.S. citizen, is
atypical of noncitizen class members over whose claims the
district court lacked subject matter jurisdiction under 8
U.S.C. § 1252(b)(9), which limits review of claims arising
from removal proceedings. Assuming the relevance of
jurisdiction over the unnamed noncitizen class members, the
panel concluded that § 1252(b)(9) does not bar jurisdiction
over the claims here because the claims challenge the
legality of detention and are independent of the removal
process. The panel also concluded that a determination
about the lawfulness of the challenged policy under the
Fourth Amendment and corresponding relief would provide
relief to the entire class.

Third, the panel held that injunctive relief in this case is
not barred by 8 U.S.C. § 1252(f)(1), which provides that “no
court (other than the Supreme Court) shall have jurisdiction
or authority to enjoin or restrain the operation of the
provisions of part IV of this subchapter, as amended
. . . .” The panel explained that § 1252(f)(1) does not bar
injunctive relief for the claims in this case because the only
provision of the Immigration and Nationality Act (INA)
whose text even refers to immigration detainers, 8 U.S.C.
§ 1357(d), is not located in “Part IV” and therefore is not
among the provisions that § 1252(f)(1) encompasses. The
panel also rejected the Government’s argument that its
detainer authority is implied by provisions covered by
§ 1252(f)(1), explaining that it must assume that Congress
acted intentionally, and that the detainers here do not directly
 GONZALEZ V. USICE 5

implicate the authority of the provisions cited by the
Government.

Fourth, the panel reversed and vacated the State
Authority Injunction, which enjoins the Government from
issuing detainers from the Central District to LEAs in states
that lack state law permitting state and local LEAs to make
civil immigration arrests based on civil immigration
detainers. The panel explained that the presence or absence
of probable cause determines whether the Government
violates the Fourth Amendment when issuing a detainer, not
state law restrictions. In so holding, the panel underscored
that it did not decide here whether immigration detainers
might violate principles of federalism or preemption, noting
that Plaintiffs had waived such claims.

Fifth, the panel reversed and vacated the Database
Injunction, which enjoins the Government from issuing
detainers to class members based solely on searches of
electronic databases to make probable cause determinations
of removability. The panel concluded that three errors
required reversal: (1) the district court’s incomplete set of
reliability findings concerning the databases at issue; (2) the
district court’s legal error in concluding that the databases
are unreliable because no database was intended to show
probable cause of removability; and (3) the district court’s
failure to address whether there was systemic error in ICE’s
probable cause determinations based on searches of the
databases. The panel remanded for the district court to
reconsider the claim.

Finally, the panel reversed the summary judgment for the
Government on Plaintiffs’ claim pursuant to Gerstein v.
Pugh, 420 U.S. 103 (1975), in which the Supreme Court
explained that the Fourth Amendment requires that probable
6 GONZALEZ V. USICE

cause be timely decided by a neutral and detached magistrate
whenever possible. The Gerstein claim was brought by the
Judicial Determination Class, which was defined, in relevant
part, to include those individuals detained pursuant to a
detainer for longer than 48 hours. Explaining that the district
court erred in concluding that Gerstein does not apply in the
civil immigration context, the panel concluded that, because
the Fourth Amendment requires probable cause to seize or
detain an individual for a civil immigration offense, it
follows that the Fourth Amendment requires a prompt
probable cause determination by a neutral and detached
magistrate to justify continued detention pursuant to an
immigration detainer. Therefore, the court remanded for the
district court to apply the correct legal standard.

Dissenting, Judge Bade wrote that Congress enacted a
clear jurisdictional bar to injunctive relief in § 1252(f)(1)
and that the majority erred in holding that § 1252(f)(1) does
not bar injunctive relief in this case. Judge Bade found the
majority’s approach flawed for two reasons: the majority (1)
ignored the plain language of the statute, and (2) erroneously
concluded that § 1357(d) is the sole source of ICE’s
authority to issue detainers. Judge Bade wrote that the
majority’s approach opens the door to sweeping challenges
to basic tools of immigration enforcement.

COUNSEL

Erez Reuveni (argued), Assistant Director; Francesca
Genova and Archith Ramkumar, Trial Attorneys; Lauren C.
Bingham, Senior Litigation Counsel; William C. Peachey,
Director, District Court Section; Scott G. Stewart, Deputy
Assistant Attorney General; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, Civil
 GONZALEZ V. USICE 7

Division, United States Department of Justice, Washington,
D.C.; for Objector-Appellant.

Jennifer Pasquarella (argued), Jessica Karp Bansal (argued),
and Zoe McKinney, ACLU Foundation of Southern
California, Los Angeles, California; Barrett S. Litt and
Lindsay B. Battles, Kaye McLane Bednarski & Litt,
Pasadena, California; Spencer E. Amdur and Cody Wofsy,
ACLU Foundation Immigrants’ Rights Project, San
Francisco, California; Omar C. Jadwat, ACLU Foundation
Immigrants’ Rights Project, New York, New York; Mark M.
Fleming and Ruben Loyo, National Immigrant Justice
Center, Chicago, Illinois; for Plaintiffs-Appellees/Cross-
Appellants.

Christopher J. Hajec, Immigration Reform Law Institute,
Washington, D.C., for Amicus Curiae Immigration Reform
Law Institute.

Saira Hussain and Jennifer Lynch, Electronic Frontier
Foundation, San Francisco, California, for Amicus Curiae
Electronic Frontier Foundation.

Brook Dooley and Andrew S. Bruns, Keker Van Nest Peters
LLP, San Francisco, California; Ilya Shapiro, Cato Institute,
Washington, D.C.; for Amicus Curiae Cato Institute.

Susan M. Krumplitsch, DLA Piper LLP (US), East Palo
Alto, California; Alexis Burgess, DLA Piper LLP (US), Los
Angeles, California; for Amici Curiae National Immigration
Project of the National Lawyers Guild; Immigrant Legal
Resource Center; University Of Nevada, Las Vegas
Immigration Clinic; National Association of Criminal
Defense Lawyers; Washington Defender Association;
8 GONZALEZ V. USICE

Brooklyn Defender Services; Bronx Defenders; and
Immigrant Defense Project.

Anne Lai, University of California, Irvine School of Law,
Irvine, California, for Amici Curiae Law and History
Professors.

Michael Shipley, Jonathan Faria, and Eric Sefton, Kirkland
Ellis LLP, Los Angeles, California; Katherine Evans,
Christine Mullen, Zachary Pollack, and Amanda Ng, Duke
Immigrant Rights Clinic, Duke University School of Law;
for Amici Curiae Organizations That Represent Individuals
Subject to Civil Arrest.

OPINION

M. SMITH, Circuit Judge:

Gerardo Gonzalez is a United States citizen. He has
never been removable from the United States. The United
States Immigration and Customs Enforcement (ICE),
however, came to a different conclusion in December 2012.
After Gonzalez was booked on state law criminal charges by
the Los Angeles Police Department (LAPD), an ICE agent
ran his name through electronic databases, an automated
procedure that ICE uses to determine whether an individual
is a removable noncitizen. Because one database flagged
Gonzalez’s birthplace as being in Mexico, and the agent
could not find records showing that Gonzalez had lawfully
entered the United States, the agent determined that
Gonzalez was removable from the United States. ICE issued
an immigration detainer, requesting that the Los Angeles
Sheriff’s Department (LASD) detain Gonzalez for up to an
additional five days in the Los Angeles County Jail after
 GONZALEZ V. USICE 9

when he was entitled to release from custody on state
criminal charges so that ICE could take him into its custody.
While the detainer remained pending, Gonzalez brought this
suit against the Government 1, raising Fourth Amendment,
Fifth Amendment, and statutory claims to challenge the
legality of the detainer.

Gonzalez represents three certified classes which are
defined to include, in relevant part, all current and future
individuals who are subject to an immigration detainer
issued by an ICE agent located in the Central District of
California, excluding individuals with final orders of
removal or who are subject to ongoing removal proceedings.
The district court entered a judgment and two permanent
injunctions in favor of Gonzalez and the Probable Cause
Subclass on Fourth Amendment claims following a seven-
day bench trial. The State Authority Injunction enjoins the
Government from issuing detainers from the Central District
to law enforcement agencies (LEAs) in states that lack state
law permitting state and local LEAs to make civil
immigration arrests based on civil immigration detainers.
The Database Injunction enjoins the Government from
issuing detainers to class members based solely on searches
of electronic databases to make probable cause
determinations of removability. The Government appeals
the injunctions, and Plaintiffs cross appeal a summary
judgment ruling in the Government’s favor.

We resolve several issues in this opinion. First, we hold
that Gonzalez had Article III standing to seek prospective
injunctive relief when he commenced suit. The

1
We refer to the Defendants as “the Government.” An uncapitalized
reference to the “government” should not be construed as a specific
reference to the Defendants.
10 GONZALEZ V. USICE

Government’s cancellation of the detainer against him does
not alter that conclusion. Second, we hold that the district
court did not abuse its discretion in certifying the Probable
Cause Subclass pursuant to Rule 23(b)(2) with Gonzalez as
the class representative. Third, we hold that 8 U.S.C.
§ 1252(f)(1) does not bar injunctive relief for the claims in
this case because the only provision of the Immigration and
Nationality Act (INA) whose text even refers to immigration
detainers is not among the provisions that § 1252(f)(1)
encompasses. Fourth, we reverse and vacate the State
Authority Injunction because the presence or absence of
probable cause determines whether the Government violates
the Fourth Amendment when issuing a detainer, not state law
restrictions. In so holding, we underscore that we do not
decide here whether immigration detainers might violate
principles of federalism or preemption. Fifth, we reverse
and vacate the Database Injunction because it is premised on
legal error and lacks critical factual findings. Notably, the
district court failed to assess error in the system of databases
on which ICE relies to make probable cause determinations
of removability. Finally, we reverse the summary judgment
for the Government on Plaintiffs’ claim pursuant to Gerstein
v. Pugh, 420 U.S. 103 (1975) (the Gerstein claim). Because
the Fourth Amendment requires probable cause to seize or
detain an individual for a civil immigration offense, it
follows that the Fourth Amendment requires a prompt
probable cause determination by a neutral and detached
magistrate to justify continued detention pursuant to an
immigration detainer. Thus, we affirm in part, reverse in
part, and remand.
 GONZALEZ V. USICE 11

FACTUAL AND PROCEDURAL BACKGROUND

I. The Use of Immigration Detainers

References to immigration detainers and immigration
holds on persons in state or federal criminal custody can be
found as early as the 1940s. See Chung Young Chew v. Boyd,
309 F.2d 857, 865 (9th Cir. 1962); Slavik v. Miller, 89 F.
Supp. 575, 576 (W.D. Pa. 1950), aff’d, 184 F.2d 575 (3d Cir.
1950); Ex parte Korner, 123 P.2d 111, 112 (Cal. Ct. App.
1942).

Congress, however, first codified the authority to issue
immigration detainers in 1986 as a provision of the INA. See
Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat.
3207–48, § 1751(d) (1986) (codified at 8 U.S.C. § 1357(d)).
Section 1357(d) authorizes the issuance of detainers to
federal, state, or local LEAs for individuals suspected of
being aliens and who are arrested for violating any law
relating to a controlled substance offense. 2 The provision

2
Section 1357(d), titled “detainer of aliens for violation of
controlled substances laws,” provides in full that:

In the case of an alien who is arrested by a Federal,
State, or local law enforcement official for a violation
of any law relating to controlled substances, if the
official (or another official)—

(1) has reason to believe that the alien may not
have been lawfully admitted to the United States
or otherwise is not lawfully present in the United
States,

(2) expeditiously informs an appropriate officer or
employee of the Service authorized and
12 GONZALEZ V. USICE

does not require that such an LEA actually detain an
individual.

Although § 1357 is the only statutory provision that
refers to immigration detainers and concerns only suspected
aliens who are arrested for a controlled substance offense,
the Department of Homeland Security (DHS) and ICE, one
of its component agencies, use immigration detainers to
enforce federal immigration law more generally. See
8 C.F.R. § 287.7 (titled “detainer provisions under section
287(d)(3) of the Act”). Pursuant to § 287.7, a detainer is a
form by which DHS requests, in relevant part, that a federal,
state, or local LEA temporarily detain an alien in that
agency’s custody “for a period not to exceed 48 hours,
excluding Saturdays, Sundays, and holidays in order to
permit assumption of custody by [DHS].” Id. § 287.7(d).

designated by the Attorney General of the arrest
and of facts concerning the status of the alien, and

(3) requests the Service to determine promptly
whether or not to issue a detainer to detain the
alien,

the officer or employee of the Service shall promptly
determine whether or not to issue such a detainer. If
such a detainer is issued and the alien is not otherwise
detained by Federal, State, or local officials, the
Attorney General shall effectively and expeditiously
take custody of the alien.

8 U.S.C. § 1357(d).
 GONZALEZ V. USICE 13

Form I-247A is the current immigration detainer form. 3 Id.
§ 287.7(a). A detainer is not a warrant of any kind.

In 2008, DHS launched the Secure Communities
program, which automated the issuance of immigration
detainers. The program links DHS databases with the FBI’s
nationwide fingerprint database, which receives fingerprints
from state and local LEAs after bookings. All persons
arrested in the United States by a LEA have their fingerprints
and associated personal information automatically checked
against DHS databases for immigration purposes. The
issuance of detainers increased exponentially following
automation. Whereas ICE issued roughly 600 detainers per
month in FY 2005, monthly detainers exceeded 26,000 by
the end of FY 2011.

Until December 2012, ICE issued detainers based only
on the initiation of an investigation into whether an
individual was removable. In 2017, ICE changed its detainer
policy in response to litigation. 4 Under its current policy,
ICE issues a detainer in the case of an individual arrested for
a criminal offense when “the officer has probable cause to
believe that the subject is an alien who is removable from the
United States.” Under the policy, a signed administrative
arrest warrant issued pursuant to 8 U.S.C. §§ 1226 or
1231(a)—INA provisions concerning the Attorney

3
A publicly available version of Form I-247A is available here: U.S.
DEP’T OF HOMELAND SEC., U.S. Immigration & Customs Enf’t, Form I-
247A, https://www.ice.gov/sites/default/files/documents/Document/201
7/I-247A.pdf (last visited September 2, 2020).

4
See U.S. Immigration & Customs Enf’t, Policy No. 10074.2:
Issuance of Immigration Detainers by ICE Immigration
Officers, available at: https://www.ice.gov/sites/default/files/documents
/Document/2017/10074-2.pdf (last visited September 2, 2020).
14 GONZALEZ V. USICE

General’s authority to perform arrests by warrant and detain
certain aliens—must now accompany a detainer. This policy
is not reflected in the detainer regulation. See 8 C.F.R.
§ 287.7.

Although in issuing an immigration detainer, ICE
premises a probable cause determination of removability on
any one of four grounds, this case concerns one procedure in
particular: ICE’s use of biometric information to confirm an
individual’s identity and a search of electronic databases to
determine whether the individual lacks lawful immigration
status or has such status but is removable.

II. The Issuance of Immigration Detainers from the
Central District

The immigration detainers at issue in this case are
primarily lodged by ICE agents at the Pacific Enforcement
Response Center (PERC), located in Laguna Niguel,
California. PERC issues detainers 24 hours a day for
persons in federal, state, or local LEA custody in the Central
District, and issues detainers after hours for individuals in
such custody in some forty-two states and two U.S.
territories. To issue these detainers, law enforcement
specialists at the Law Enforcement Support Center (LESC)
and analysts at PERC search multiple electronic databases to
find “affirmative evidence of removability.” PERC agents
do not investigate beyond database checks.

This process commences when a law enforcement
officer arrests an individual. The individual’s fingerprints
are automatically sent to the FBI and run against two
databases, the Integrated Automatic Fingerprint
Identification System (IAFS) and the Automated Biometric
Identification System (IDENT). IDENT assigns a
Fingerprint Identification Number (FIN) to each individual’s
 GONZALEZ V. USICE 15

fingerprints. IDENT contains fingerprint data for certain
U.S. citizens, including those who the FBI believes belong
in the system, those who voluntarily enroll in certain trusted
traveler programs, those who have applied to naturalize as
U.S. citizens, and those who have filed applications for
certificates of citizenship. IDENT contains over 237 million
unique identities. IDENT captures all biometric and
biographical information on an individual regardless of
typographical errors. IDENT is a very accurate source of
biometric matching.

If there is a fingerprint match in IDENT, an Immigrant
Alien Query (IAQ) is automatically generated and sent to
LESC. The Alien Criminal Response Information
Management System (ACRIMe) automatically generates an
Immigrant Alien Response (IAR), which PERC receives. To
generate the IAR, ACRIMe automatically searches the
NCIC (National Crime Information Center), NLETS
(National Law Enforcement Telecommunications System),
CIS (Central Index System), CLAIMS 3, CLAIMS 4, EID,
IDENT, ADIS (Arrival and Departure System), SEVIS
(Student and Exchange Visitor Information System), and
EOIR (Executive Office for Immigration Review) databases
to match the FIN to any other encounter with that individual.
The IAR contains basic biographical information and
criminal history as well as a short statement about
immigration status and removability. An analyst, who is a
federal contractor, conducts a first level review of the IAR
and makes a recommendation to an ICE officer about
whether a detainer should issue. 5

5
Although the analyst has the discretion to run an independent
database check, which is done in “complex cases,” we are unaware of
16 GONZALEZ V. USICE

This system has resulted in the issuance of thousands of
detainers. For example, the Government estimates that it
issued nearly 50,000 detainers from PERC in FY 2019. Trial
evidence nevertheless indicated that ICE does not take into
custody up to 80% of the individuals for whom PERC issues
immigration detainers.

III. The District Court Proceedings

Gonzalez commenced this suit as a putative class action
on June 19, 2013 to challenge the outstanding immigration
detainer against him, which prevented him from posting bail
from custody on state criminal charges, and which
threatened an additional period of detention by LASD upon
his release from that custody. Within hours after he
commenced suit, the Government cancelled the detainer.
Simon Chinivizyan, a native of Uzbekistan and a U.S.
citizen, became a plaintiff upon the filing of the First
Amended Complaint. When he filed suit, he was detained
in the Los Angeles County Jail solely pursuant to the
detainer.

The case proceeded on the Third Amended Complaint
(TAC), filed in August 2014. 6 In relevant part, Plaintiffs
raised individual and class claims that the Government
violates the Fourth Amendment (1) because a detainer is an
unlawful seizure without probable cause or lawful authority,

any record evidence concerning the extent to which PERC has “complex
cases” for which its analysts perform independent database checks.

6
In 2015, the district court consolidated this case with Roy v. County
of Los Angeles, No. 12-cv-09012-BRO-FFM, Dkt. No. 91 (C.D. Cal.
July 28, 2015). For this reason, several citations herein bear the Roy case
caption. After the parties cross appealed, the district court de-
consolidated the cases. Id. Dkt. No. 590 (C.D. Cal. Mar. 18, 2020).
 GONZALEZ V. USICE 17

and (2) the Government fails to provide a prompt probable
cause determination by a neutral and detached magistrate
(the Gerstein claim). Plaintiffs sought declaratory and
injunctive relief.

The district court certified two classes pursuant to Rule
23(b)(2) that are relevant here, the Judicial Determination
Class and Probable Cause Subclass. Roy v. County of Los
Angeles, Nos. CV 12-09012-BRO(FFMx), CV 13-04416-
BRO(FFMx), 2016 WL 5219468 (C.D. Cal. Sept. 9, 2016).
The court certified the Judicial Determination Class with
both Plaintiffs as representatives. 7 Id. at *6, 21. The claims
of this class concern the Gerstein claim. The court also
certified the Probable Cause Subclass with Gonzalez as the
representative. Id. at *6, 21. We discuss herein the amended
class definition as well as the class claims decided at trial.

Plaintiffs later moved for summary judgment on the
Judicial Determination Class’s Gerstein claim. The district
court sua sponte granted summary judgment for the
Government. Roy v. County of Los Angeles, Nos. CV 12-
09012-BRO(FFMx), CV 13-04416-BRO(FFMx), 2017 WL
2559616 (C.D. Cal. June 12, 2017). The court determined
that Gerstein, including as elaborated in County of Riverside
v. McLaughlin, 500 U.S. 44 (1991), did not “directly” apply
to the immigration context because those cases arose in the
criminal context. Id. at *5. Focusing on the civil
immigration nature of this case, the court determined that it
is not unconstitutional for Congress to delegate probable
7
The class consists of “[a]ll current and future persons who are
subject to an immigration detainer issued by an ICE agent located in the
Central District [ ], 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” and “who were detained for more than
forty-eight hours.” Roy, 2016 WL 5219468, at *6, 14.
18 GONZALEZ V. USICE

cause determinations to executive officers, rather than an
immigration judge, magistrate judge, or federal judge. Id.
at *5–10. Thus, the claims of the Judicial Determination
Class did not proceed beyond summary judgment.

Shortly before the May 2019 bench trial, the district
court amended the Probable Cause Subclass definition as
follows:

all current and future persons who are subject
to an immigration detainer issued by an ICE
agent located in the Central District [ ], 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 and the detainer was
issued solely on the basis of electronic
database checks.

The court identified the class claims for trial as whether
(1) the Government violates the Fourth Amendment by
issuing immigration detainers to state and local LEAs in
states that do not authorize such LEAs to enforce civil
immigration law (the State Authority Claim) and (2) whether
the databases that ICE uses to issue immigration detainers
from the Central District are unreliable sources of
information for probable cause determinations (the Database
Claim).

Following trial, the court issued findings of fact and
conclusions of law. Gonzalez v. Immigration & Customs
Enf’t, 416 F. Supp. 3d 995 (C.D. Cal. 2019). On the State
Authority Claim, the court concluded that ICE “violates the
Fourth Amendment by issuing detainers to state and local
law enforcement agencies in states that do not expressly
authorize civil immigration arrests in state statute[.]” Id.
 GONZALEZ V. USICE 19

at 1016. On the Database Claim, the court concluded that
ICE violates the Fourth Amendment because it relies on
“inaccurate, incomplete, and error-filled databases” to make
probable cause determinations of removability for
immigration detainers. Id. at 1016–20. The court
determined that permanent classwide injunctive relief on
both claims was appropriate. Id. at 1020. A formal
judgment followed.

The Government timely appealed, sought an emergency
stay of the injunctions, and requested that we expedite its
appeal. A motions panel of our court stayed the State
Authority Injunction, denied the request to stay the Database
Injunction, and expedited the appeal. Plaintiffs timely cross
appealed.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction over the final judgment pursuant to
28 U.S.C. § 1291. We also have jurisdiction over previously
nonfinal orders that have merged with the judgment,
including the summary judgment and class certification
orders. Hall v. City of Los Angeles, 697 F.3d 1059, 1070–71
(9th Cir. 2012).

“We review for abuse of discretion the district court’s
class certification rulings[.]” Senne v. Kan. City Royals
Baseball Corp., 934 F.3d 918, 926 (9th Cir. 2019). “A
district court abuses its discretion where it commits an error
of law, relies on an improper factor, omits a substantial
factor, or engages in a clear error of judgment in weighing
the correct mix of factors.” Id. (citation omitted). We
review the district court’s standing determinations and
summary judgment rulings de novo. City of Sausalito v.
O’Neill, 386 F.3d 1186, 1196–97 (9th Cir. 2004). We
review the district court’s factual findings following a bench
20 GONZALEZ V. USICE

trial for clear error and its legal conclusions de novo. Fed.
Trade Comm’n v. Garvey, 383 F.3d 891, 900 (9th Cir. 2004).
Mixed questions of law and fact are reviewed de novo. Shea
Homes, Inc. & Subsidiaries v. Comm’r of Internal Revenue,
834 F.3d 1061, 1066 (9th Cir. 2016).

“We review a district court’s decision to grant a
permanent injunction for an abuse of discretion; the factual
findings underpinning the award for clear error; and the
rulings of law relied upon by the district court in awarding
injunctive relief de novo.” In re Nat’l Collegiate Athletic
Ass’n Athletic Grant-In-Aid Cap Antitrust Litig., 958 F.3d
1239, 1253 (9th Cir. 2020) (citation, internal quotation
marks, and alteration omitted).

ANALYSIS

I. Gonzalez’s Standing for Prospective Injunctive
Relief

The Government first argues that Gonzalez lacked
standing to seek prospective injunctive relief, and thus could
not represent the Probable Cause Subclass on whose behalf
the district court issued the State Authority and Database
Injunctions. 8 This is a “threshold issue” concerning an
“essential and unchanging part of the case-or-controversy
requirement of Article III.” Horne v. Flores, 557 U.S. 433,
445 (2009) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
560 (1992)). The Government additionally argues that
Gonzalez could not represent a class of individuals raising
Fourth Amendment claims concerning detention pursuant to
a detainer because a detainer is merely a request, and ICE

8
Chinivizyan is not a member of the Probable Cause Subclass.
Thus, his standing is irrelevant to either injunction at issue on appeal.
 GONZALEZ V. USICE 21

cancelled the detainer that it lodged against him within hours
after he brought suit. This argument is plainly a disguised
challenge to whether Gonzalez continued to have a personal
stake in the outcome of this case. We reject both arguments.

A. Article III Standing

“[A]s in all standing inquiries, the critical question is
whether [the plaintiff] has ‘alleged such a personal stake in
the outcome of the controversy as to warrant his invocation
of federal-court jurisdiction.’” Horne, 557 U.S. at 445
(quoting Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009)) (emphasis in original). The plaintiff must
demonstrate that: (1) he has suffered an “injury in fact” that
is concrete, particularized, and actual or imminent, (2) the
injury is “fairly traceable” to the defendant’s conduct, and
(3) the injury can be “redressed by a favorable decision.”
Lujan, 504 U.S. at 560–61 (alterations in original omitted).
As is relevant here, “a plaintiff must demonstrate standing
separately for each form of relief sought.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 185 (2000). And “[w]hile the proof required to
establish standing increases as the suit proceeds . . . the
standing inquiry remains focused on whether the party
invoking jurisdiction had the requisite stake in the outcome
when the suit was filed.” Davis v. Fed. Election Comm’n,
554 U.S. 724, 734 (2008) (international citations omitted)
(emphasis added). “Our threshold inquiry into standing ‘in
no way depends on the merits of the [plaintiff’s] contention
that particular conduct is illegal.’” Whitmore v. Arkansas,
495 U.S. 149, 155 (1990) (quoting Warth v. Seldin, 422 U.S.
490, 500 (1975)).

The parties’ arguments concern Gonzalez’s standing to
seek prospective injunctive relief based on the pleadings,
and thus that is our focus. See United States v. Sineneng-
22 GONZALEZ V. USICE

Smith, 140 S. Ct. 1575, 1579 (2020). “[W]hen a plaintiff
files a complaint in federal court and then voluntarily
amends the complaint, courts look to the amended complaint
to determine jurisdiction.” Rockwell Int’l Corp. v. United
States, 549 U.S. 457, 473–74 (2007). Although we “look to
the amended complaint to determine jurisdiction,” id. at 474,
“subject-matter jurisdiction depends on the state of things at
the time of the action brought,” i.e., at the time the plaintiff
commenced suit, id. at 473 (citation and internal quotation
marks omitted). Thus, we assess Gonzalez’s standing for
prospective injunctive relief as of the time when he
commenced suit, relying on the allegations in the operative
amended complaint. S. Utah Wilderness Alliance v. Palma,
707 F.3d 1143, 1153 (10th Cir. 2013). Because “[a] class of
plaintiffs does not have standing to sue if the named plaintiff
does not have standing,” B.C. v. Plumas Unified Sch. Dist.,
192 F.3d 1260, 1264 (9th Cir. 1999), Gonzalez’s standing
determines whether he could seek injunctive relief on behalf
of any class in this case.

We conclude that the TAC shows that Gonzalez had
standing to seek prospective injunctive relief when he
commenced suit, and thus he could represent the class on
whose behalf the district court entered the injunctions at
issue here.

1. Injury

We turn first to gravamen of the parties’ dispute: whether
Gonzalez suffered an injury sufficient to confer standing.
Although a past injury does not provide standing to seek
prospective injunctive relief “[a]bsent a sufficient likelihood
that [the plaintiff] will again be wronged in a similar way,”
City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983), the
Government errs in arguing that Gonzalez faced a past injury
when he brought suit.
 GONZALEZ V. USICE 23

The operative TAC recounts that Gonzalez came into
LASD custody on December 27, 2012. On December 31,
2012, ICE issued the immigration detainer against him.
Although the detainer had no effect on Gonzalez’s custody
when lodged due to a then-applicable parole hold, Gonzalez
became eligible for release on bail from LASD custody on
state criminal charges in May 2013 when the hold expired.
He attempted to post bail with the assistance of his girlfriend,
who went to a bondsman. The bondsman informed her that
Gonzalez was subject to an immigration detainer. The
detainer requested that LASD keep him in custody for up to
five additional days after his release from custody on state
criminal charges. The detainer, however, prevented him
from posting bail. Even if he posted the $95,000 bail as he
had intended to do, Gonzalez would remain in custody.
Indeed, it was LASD policy to comply with all ICE
detainers. Gonzalez did not post bail, but instead brought
this suit.

We have explained that “[r]emaining confined in jail
when one should otherwise be free is an Article III injury
plain and simple[.]” Mendia v. Garcia, 768 F.3d 1009, 1012
(9th Cir. 2014). Gonzalez’s allegations demonstrate that
Gonzalez faced an ongoing and a prospective detention
injury when he commenced suit. He faced the ongoing
injury of continued detention in LASD custody on the state
criminal charges by virtue of the detainer that prevented him
from posting bail although he was eligible to do so. He also
faced the imminent injury of an additional period of
detention in LASD custody solely by virtue of the detainer.
Because LASD complied with all ICE detainers, the detainer
posed a “real, immediate, and direct” threat of future harm
of unlawful detention by LASD solely by virtue of the
detainer upon his release from custody on state criminal
charges. Davis, 554 U.S. at 734 (citing Lyons, 461 U.S.
24 GONZALEZ V. USICE

at 102); Mendia, 768 F.3d at 1012. We reject the
Government’s arguments that neither of Gonzalez’s injuries
was sufficient.

With respect to the ongoing injury, the Government
argues that Gonzalez’s injury was “self-inflicted” because he
chose to remain in state custody by not posting the $95,000
bail. The Government’s argument correctly observes that
we have rejected a plaintiff’s choice to remain in state
custody following release on recognizance as a “self-
inflicted injury.” Id. at 1013 n.1. But the Government
ignores our caveat that a plaintiff’s decision to remain in
state custody does not defeat standing if it was “reasonably
incurred to mitigate or avoid the future harm [the plaintiff]
claimed to fear.” Id. (citation and internal quotation marks
omitted). Gonzalez delayed posting bail to avoid the harm
of additional detention. That harm was not speculative
because, as ICE was aware, LASD complied with all
immigration detainers when Gonzalez commenced suit.

Seeking to cast doubt on whether Gonzalez would have
been detained pursuant to the detainer, the Government also
argues that a detainer merely requests detention and is not a
command that an LEA detain an individual. 9 See Galarza v.

9
The Government frames this as a merits argument that Gonzalez
never suffered a Fourth Amendment seizure pursuant to the immigration
detainer and thus, he cannot represent a class of individuals who were
detained pursuant to a detainer. The Government relies on our decision
in Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018 (9th Cir.
2003). But that decision concerned Article III standing. Id. at 1022
(“[O]ur law makes clear that ‘if none of the named plaintiffs purporting
to represent a class establishes the requisite of a case or controversy with
the defendants, none may seek relief on behalf of himself or any other
member of the class.’” (quoting O’Shea v. Littleton, 414 U.S. 488, 494
(1974))); see also NEI Contracting & Eng’g, Inc. v. Hanson Aggregates
 GONZALEZ V. USICE 25

Szalczyk, 745 F.3d 634, 640–46 (3d Cir. 2014). Even if an
immigration detainer is a request, a detainer “results in the
detention—or further detention—of an individual” when
acted upon. Hernandez v. United States, 939 F.3d 191, 200
(2d Cir. 2019). The detainer against Gonzalez requested up
to five additional days of detention. Gonzalez alleged that
LASD had a policy of complying with all detainers. Thus,
he did not need to wait for that detention to challenge its
legality. See Davis, 554 U.S. at 734 (“[T]he injury required
for standing to sue need not be actualized. A party facing
prospective injury has standing to sue where the threatened
injury is real, immediate, and direct.”); Cent. Delta Water
Agency v. United States, 306 F.3d 938, 948 (9th Cir. 2002).

Finally, the Government focuses on Gonzalez’s
allegations that “he could be taken into ICE’s physical
custody and detained for 2 more days, and perhaps longer,”
to argue that Gonzalez faced a speculative injury that could
not support standing for prospective injunctive relief. But,
like the district court did 10, the Government conflates two

Pac. Sw., Inc., 926 F.3d 528, 532 (9th Cir. 2019) (confirming that
Lierboe concerned Article III standing). There, the plaintiff sued on the
theory that she had a stacking claim pursuant to Montana law. Lierboe,
350 F.3d at 1020. Because state law may create a right whose violation
may support constitutional standing, see In re Facebook, Inc. Internet
Tracking Litig., 956 F.3d 589, 600 (9th Cir. 2020), our inquiry
necessarily focused on whether the plaintiff actually had any such right
under state law, see Lierboe, 350 F.3d at 1022–23. Here, however, we
need look no further than Gonzalez’s ongoing and prospective detention
injuries when he commenced suit to conclude that he had standing. The
merits of any Fourth Amendment claim concerning that detention do not
alter our standing analysis.
10
We briefly dispose of the Government’s assertion that the district
court violated the law of the case doctrine by granting injunctive relief
following trial while failing to reconsider its earlier determination that
26 GONZALEZ V. USICE

distinct prospective detention injuries: (1) the injury of an
additional period of unlawful detention while in LASD
custody solely by virtue of the detainer and (2) the injury of
unlawful detention after being taken into ICE custody, at
which point the entire purpose of the detainer would have
already been served. Although both injuries were
prospective, the TAC shows only the latter to be too
speculative to support Article III standing.

2. Causal Connection

The fact that “ICE never had custody of” Gonzalez does
not defeat causation. Mendia, 768 F.3d at 1012. The alleged
link between the detainer that ICE lodged, and Gonzalez’s
detention was entirely plausible. Nat’l Audubon Soc’y, Inc.
v. Davis, 307 F.3d 835, 849 (9th Cir. 2002). Absent the
detainer that ICE had lodged against him, Gonzalez would
have posted bail and been released from LASD custody. He
would have faced no additional period of detention by LASD
based solely on ICE’s belief that he was removable from the

Plaintiffs lacked standing to seek prospective injunctive relief. “[T]he
doctrine of ‘law of the case’ does not apply to the fundamental question
of subject matter jurisdiction.” Green v. Dep’t of Commerce, 618 F.2d
836, 839 n.9 (D.C. Cir. 1980). Thus, the district court was not bound by
the earlier standing analysis that it implicitly reconsidered in granting
relief. We also reject the Government’s assertion that Plaintiffs forfeited
any claim for prospective injunctive relief because they declined to
amend the TAC following the district court’s determination that they
lacked standing to seek such relief. Although “the ordinary rules of
forfeiture apply to standing,” a party must fail to raise an argument in the
district court to forfeit it. Gov’t of Manitoba v. Bernhardt, 923 F.3d 173,
179 (D.C. Cir. 2019). Here, however, Plaintiffs did not fail to request
prospective injunctive relief. And their subsequent decision not to
further amend the pleadings on the issue of prospective injunctive relief
stemmed from the district court’s flawed standing analysis on the issue
of their standing to seek such relief.
 GONZALEZ V. USICE 27

United States. But because of the detainer, Gonzalez
“remain[ed] in pre-trial detention unnecessarily.” Mendia,
768 F.3d at 1013. Thus, Gonzalez satisfies the causation
element of standing.

3. Redressability

Because Gonzalez faced ongoing and prospective
detention injuries by virtue of the detainer when he
commenced suit, his “injury was at that moment capable of
being redressed through injunctive relief.” McLaughlin,
500 U.S. at 51 (rejecting the county’s “crabbed reading of
the complaint” as concerning a “completed” injury and
distinguishing Lyons “in which the constitutionally
objectionable practice ceased altogether before the plaintiff
filed his complaint”); Cent. Delta Water Agency, 306 F.3d at
947 (“[T]he possibility of future injury may be sufficient to
confer standing on plaintiffs; threatened injury constitutes
injury in fact . . . .” (citation and internal quotation marks
omitted)). A court order requiring ICE to rescind its existing
immigration detainer would have permitted Gonzalez to post
bail from custody on the state criminal charges, thus
addressing the ongoing injury he faced when he commenced
suit. But it would also have redressed the imminent harm of
additional detention that Gonzalez then faced based solely
on the detainer. In short, Gonzalez had standing to seek
prospective injunctive relief and thus he could seek to
represent classes seeking such relief.

B. ICE’s Post-Commencement Cancellation of the
Detainer

As a final matter, the Government argues that ICE’s
cancellation of the detainer against Gonzalez within hours
after he brought suit shows that he never had a Fourth
Amendment claim because LASD never detained him
28 GONZALEZ V. USICE

pursuant to the detainer. In making this argument, the
Government mistakes for a merits issue what is plainly a
mootness inquiry. See Friends of the Earth, 528 U.S. at 189
(explaining that “[a] case might become moot if subsequent
events make it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur”).

Mootness is the requirement that “an actual, ongoing
controversy exist at all stages of federal court proceedings.”
Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir.
2011) (citing Burke v. Barnes, 479 U.S. 361, 363 (1987)).
“The question is not whether the precise relief sought at the
time the case was filed is still available, but whether there
can be any effective relief.” Bayer v. Neiman Marcus Grp.,
861 F.3d 853, 862 (9th Cir. 2017) (citation and internal
quotation marks omitted). “The party asserting mootness
bears the heavy burden of establishing that there remains no
effective relief a court can provide.” Id. The Government
comes nowhere near meeting that burden; indeed, it fails to
even argue that its cancellation of the detainer mooted
Gonzalez’s individual claims, although the district court
expressly addressed whether Gonzalez’s claims were
mooted by subsequent events. The court determined that
Gonzalez’s claims are subject to the “inherently transitory”
exception to mootness. See Pitts, 653 F.3d at 1090–91. We
agree with the district court’s conclusion and thus reject the
Government’s argument here.

II. The Certification of the Probable Cause Subclass

We turn next to the Government’s challenge to the
district court’s certification of the Probable Cause Subclass
 GONZALEZ V. USICE 29

with Gonzalez as its representative. 11 Because both
injunctions grant relief to the Probable Cause Subclass, we
must first address the propriety of the district court’s
certification of this class. See Meredith v. Oregon, 321 F.3d
807, 814 (9th Cir. 2003).

The party seeking certification must satisfy Rule 23(a)’s
prerequisites and must establish that the proposed class
qualifies as a certifiable class pursuant to Rule 23(b). Ellis
v. Costco Wholesale Corp., 657 F.3d 970, 979–80 (9th Cir.
2011). District courts have “broad discretion to determine
whether a class should be certified, and to revisit that
certification throughout the legal proceedings before the
court.” United Steel, Paper & Forestry, Rubber, Mfg.
Energy v. ConocoPhillips Co., 593 F.3d 802, 810 (9th Cir.
2010) (citation omitted). Our review of the district court’s
grant of class certification is “noticeably more deferen[tial]”
than for a denial of certification. Senne, 934 F.3d at 926.
With these principles in mind, we address the Government’s
arguments concerning the Rule 23(a) prerequisites and the
Rule 23(b)(2) certification of the Probable Cause Subclass.

A. The Rule 23(a) Prerequisites

Pursuant to Rule 23(a), “one or more members of a class
may sue . . . as representative parties” if there is numerosity,
commonality, typicality, and adequacy. Fed. R. Civ. P.
23(a). We must engage in a “‘rigorous analysis’ of each
Rule 23(a) factor[.]” Ellis, 657 F.3d at 980 (quoting Gen.
Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982)). The

11
The Government has not challenged the district court’s
certification of the Judicial Determination Class. That issue is therefore
waived. Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
30 GONZALEZ V. USICE

Government challenges only the district court’s
commonality, typicality, and adequacy findings.

1. Commonality

A finding of commonality requires “questions of law or
fact common to the class.” Fed. R. Civ. P. 23(a)(2). “All
questions of fact and law need not be common to satisfy the
[commonality requirement]. The existence of shared legal
issues with divergent factual predicates is sufficient[.]”
Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036,
1041 (9th Cir. 2012) (citation omitted). A plaintiff must
“demonstrate that the class members have suffered the same
injury,” which means that “[t]heir claims must depend upon
a common contention.” Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 349–50 (2011) (citation and internal quotation
marks omitted). But “a common contention need not be one
that will be answered, on the merits, in favor of the class.”
Stockwell v. City & County of San Francisco, 749 F.3d 1107,
1112 (9th Cir. 2014) (citation and internal quotation marks
omitted). The Government asserts that the district court
abused its discretion in finding commonality. We disagree.

At class certification, Plaintiffs proffered evidence that,
in Southern California, “ICE issues . . . approximately
seventy percent [] of its detainers relying only on electronic
database checks to determine whether there is probable
cause for detainment.” Roy, 2016 WL 5219468, at *3, 11.
The district court thus found that the Probable Cause
Subclass satisfied commonality because they alleged that the
Government has an “unlawful policy to base probable cause
determinations on only a check of an online database.” Id.
at *14. We see no error here. Indeed, we have already held
that “in a civil-rights suit . . . commonality is satisfied where
the lawsuit challenges a system-wide practice or policy that
affects all of the putative class members.” Armstrong v.
 GONZALEZ V. USICE 31

Davis, 275 F.3d 849, 868 (9th Cir. 2001) (abrogated on other
grounds by Johnson v. California, 543 U.S. 499 (2005) as
recognized in B.K. by next friend Tinsley v. Snyder, 922 F.3d
957, 974 (9th Cir. 2019)); see also La Duke v. Nelson,
762 F.2d 1318, 1332 (9th Cir. 1985) (concluding that
“[p]lainly, the constitutionality of the INS ranch check
technique as it affects the defined class is a ‘question of law
or fact common to the class’”), as amended, 796 F.2d 309
(9th Cir. 1986).

Moreover, the claims of the Probable Cause Subclass
turn on the Fourth Amendment’s requirement of “a fair and
reliable determination of probable cause as a condition for
any significant pretrial restraint of liberty.” Baker v.
McCollan, 443 U.S. 137, 142 (1979) (citing Gerstein,
420 U.S. at 103). Because the class is defined as those
individuals against whom ICE issued a detainer based solely
on searches of electronic databases, ICE’s policy of making
probable cause determinations based solely on such searches
is the “glue” that holds the class together. See Parsons v.
Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (explaining that the
“police and practices” “to which all members of the class are
subjected” “are the ‘glue’ that holds together the putative
class and the putative subclass; either each of the policies
and practices is unlawful as to every inmate or it is not.”). A
determination concerning the reliability of the system of
databases on which the Government relies will resolve
Plaintiffs’ claims on a classwide basis. 12 See Dukes,
564 U.S. at 350.

12
Although Plaintiffs did not need to prove the merits of their Fourth
Amendment claim for the district court to find commonality, the court
observed that Plaintiffs had introduced evidence undermining the
legality of ICE’s reliance on the databases, including that the databases
32 GONZALEZ V. USICE

The Government’s assertions of error here
conspicuously conflate Rule 23(b)(3)’s predominance
requirement with commonality under Rule 23(a)(2). The
Government points to Amchem Products, Inc. v. Windsor,
521 U.S. 591 (1997), to suggest that the range of individual
circumstances that may surround the issuance of an
individual detainer preclude commonality. But, in Amchem,
the Supreme Court upheld the denial of certification of a
Rule 23(b)(3) class. The Court explained that “the
predominance criterion [of Rule 23(b)(3)] is far more
demanding” than the commonality requirement of Rule
23(a)(2). Id. at 624 (emphasis added). There, in the context
of a case that did not involve a challenge to a single policy
or practice of a single defendant, the court determined that
certification pursuant to Rule 23(b)(3) was improper because
individual questions predominated over common questions.
Id. at 624–25. The Probable Cause Subclass, however, is not
a Rule 23(b)(3) class and thus need only satisfy Rule
23(a)(2)’s “less demanding” commonality requirement.
Stockwell, 749 F.3d at 1113. We can find no abuse of
discretion pursuant to a standard that does not actually apply
here.

The Government also reprises its argument against class
certification in the district court that “probable cause is a
highly fact specific inquiry.” Roy, 2016 WL 5219468,
at *14. The Government argues that probable cause
“depends on the totality of the circumstances” surrounding
an individual arrest, Maryland v. Pringle, 540 U.S. 366, 371
(2003), including the “experience and specialized training”
of the officer, United States v. Arvizu, 534 U.S. 266, 273

are “outdated and not updated properly” and that ICE relies on “either
no or inconclusive evidence” in the databases to make probable cause
determinations. Roy, 2016 WL 5219468, at *3–4.
 GONZALEZ V. USICE 33

(2002). Contending that a database search is but one part of
the totality-of-the-circumstances analysis, the Government
asserts that the lawfulness of an individual detainer must be
assessed on its own terms “even if the database alone is
unreliable.” The district court rejected this argument,
explaining that “the Probable Cause Subclass does not
challenge whether ICE actually had probable cause; rather,
it challenges the alleged practice of basing probable cause
only on information contained in an online database . . .”
Roy, 2016 WL 5219468, at *14. The district court correctly
rejected the Government’s argument.

Although we have no doubt that “[t]he constitutional
validity of a warrantless search is pre-eminently the sort of
question which can only be decided in the concrete factual
context of [an] individual case,” that question is “quite
different from the question of the adequacy of the
procedur[es]” on which the government relies to make
arrests and detain individuals. Sibron v. New York, 392 U.S.
40, 58 (1968) (emphasis added). On the latter issue, Fourth
Amendment claims concerning government policies,
practices or procedures for probable cause determinations
are plainly suitable for classwide resolution. See
McLaughlin, 500 U.S. at 47, 58–59 (considering the legality
of a county’s policy and practice of combining probable
cause determinations with its arraignment procedures, which
resulted in delays before receipt of probable cause
determinations); Gerstein, 420 U.S. at 116–19 (considering
the Fourth Amendment claims of a certified Rule 23(b)(2)
class of individuals subject to pretrial detention who
challenged a state law procedure concerning probable cause
determinations). Because the claims here are such a
challenge, the district court did not err in finding
commonality.
34 GONZALEZ V. USICE

2. Typicality 13

The claims of the representative party must be typical of
the class claims. Fed. R. Civ. P. 23(a)(3). This “inquiry
focuses on the nature of the claim . . . of the class
representative, and not . . . the specific facts from which it
arose.” Ramirez v. TransUnion LLC, 951 F.3d 1008, 1033
(9th Cir. 2020) (citation and internal quotation marks
omitted) (emphasis added). “[W]hether other members have
the same or similar injury, whether the action is based on
conduct which is not unique to the named plaintiffs, and
whether other class members have been injured by the same
course of conduct” inform the analysis. Hanon v.
Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)
(citation omitted). Rule 23(a)(3) is “permissive” and
requires nothing more than that a class plaintiff’s claims be
“reasonably coextensive with those of absent class
members.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020
(9th Cir. 1998). We address in turn the Government’s
assertions of atypicality due to (a) Gonzalez’s U.S.
citizenship and (b) Gonzalez’s circumstances.

a. Gonzalez’s U.S. Citizenship

The Government asserts that Gonzalez, as a U.S. citizen,
is atypical of the class because it includes noncitizens. We
disagree.

i. 8 U.S.C. § 1252(b)(9)

The Government argues that Gonzalez is atypical of
unnamed noncitizen class members over whose claims the
13
The Government’s challenge to adequacy is coextensive with its
challenge to Gonzalez’s typicality. Thus, our analysis here applies
equally to adequacy.
 GONZALEZ V. USICE 35

district court lacked subject matter jurisdiction pursuant to
8 U.S.C. § 1252(b)(9). “The usual rule in class actions is
that to establish subject matter jurisdiction one looks only to
the named plaintiffs and their claims.” Pruell v. Caritas
Christi, 645 F.3d 81, 83 (1st Cir. 2011). The Government
implicitly concedes that § 1252(b)(9) could not affect
jurisdiction over Gonzalez’s claims. Nevertheless, we will
assume that whether the district court would have
jurisdiction over the claims of unnamed noncitizen class
members is relevant here.

Section 1252(b)(9), titled “[c]onsolidation of questions
for judicial review,” provides that “[j]udicial review of all
questions of law and fact . . . arising from any action taken
or proceeding brought to remove an alien from the United
States . . . shall be available only in judicial review of a final
order” of removal and “no court shall have jurisdiction . . . .
to review such an order or such questions of law or fact”
other than through a review of a final order of removal.
8 U.S.C. § 1252(b)(9). We have described § 1252(b)(9) as
“vise-like in grip,” channeling jurisdiction over “any issue—
whether legal or factual—arising from any removal-related
activity” to the courts of appeal through a petition for review
of a final order of removal. J.E.F.M. v. Lynch, 837 F.3d
1026, 1031 (9th Cir. 2016) (internal quotation marks
omitted) (emphasis omitted). But we have also explained
that “§ 1252(b)(9) has built-in limits,” specifically, “claims
that are independent of or collateral to the removal process
do not fall within the scope of § 1252(b)(9).” Id. at 1032.

The Supreme Court has since instructed that
§ 1252(b)(9) is a “targeted” and “narrow” provision that “is
certainly not a bar where, as here, the parties are not
challenging any removal proceedings.” Dep’t of Homeland
Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1907
36 GONZALEZ V. USICE

(2020). The Probable Cause Subclass is defined to exclude
individuals against whom there is a final order of removal as
well as any individual subject to ongoing removal
proceedings. The Government has also admitted that an
immigration detainer is not an administrative warrant for the
arrest of an individual on civil immigration charges. As in
Regents, § 1252(b)(9) is not a bar to jurisdiction over the
claims of any class members—noncitizen or U.S. citizens—
because none “ask[s] for review of an order of removal, the
decision to seek removal, or the process by which
removability will be determined.” Id. (cleaned up); see also
E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1269
(9th Cir. 2020) (observing that “[§] 1252(b)(9) . . . applies
only to removal orders. . . .”).

Section 1252(b)(9) is also not a bar to jurisdiction over
noncitizen class members’ claims because claims
challenging the legality of detention pursuant to an
immigration detainer are independent of the removal
process. See Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir. 2007)
(reading “arising from” “to exclude claims that are
independent of, or wholly collateral to, the removal process”
and identifying “challenges to the legality of detention” as
squarely outside § 1252(b)(9)’s scope); Hernández v.
Gonzales, 424 F.3d 42, 42–43 (1st Cir. 2005) (holding that
detention claims are independent of removal proceedings
and, thus, not barred by section 1252(b)(9)). Because
§ 1252(b)(9) does not bar jurisdiction over the claims of
noncitizen class members here, it cannot render Gonzalez
atypical.

ii. Rebuttable Presumption of Alienage

The Government also argues that Gonzalez is atypical of
noncitizen class members because evidence of foreign
birth—“even with citizen-class members”—gives rise to a
 GONZALEZ V. USICE 37

rebuttable presumption of alienage on which an immigration
officer may rely as part of a probable cause determination,
which does not apply to “someone who is or who the
government should have known is a citizen. 14 Setting aside
that the challenge here concerns the legality of a policy that
applies equally to all class members, the Government makes
no suggestion that it raised this atypicality argument in the
district court, and the class certification order suggests that
the Government did not do so. See Roy, 2016 WL 5219468,
at *15. Although we may consider an argument raised for
the first time on appeal in “exceptional circumstances,” Club
One Casino, Inc. v. Bernhardt, 959 F.3d 1142, 1153 (9th Cir.
2020), the Government does not argue that such
circumstances apply nor do we see any. The Government
conceded in the district court that “evidence of foreign birth
and no match in a federal immigration database is not
probable cause of removability.” A party remains bound by
a concession in the district court notwithstanding a contrary
position on appeal. See Reynoso v. Giurbino, 462 F.3d 1099,
1110 (9th Cir. 2006). Thus, we deem the argument waived.

b. Gonzalez’s Individual Circumstances

Finally, the Government asserts that Gonzalez is also
atypical in light of the circumstances pertaining to his
immigration detainer. The Government first argues that
Gonzalez is unlike other class members detained pursuant to
an immigration detainer because it cancelled the detainer
against him within hours after he filed this suit. By
14
The Government relies on our decision in Scales v. I.N.S.,
232 F.3d 1159 (9th Cir. 2000), for this argument. Scales, however,
concerned a presumption in a burden-shifting framework in removal
proceedings. Id. at 1163. We did not hold that, nor consider whether
that presumption applies to a probable cause determination of
removability.
38 GONZALEZ V. USICE

concluding that his claims fall within the inherently
transitory exception to mootness, the district court evaluated
his claims as they stood before the Government’s
cancellation of the detainer. Although the Government
asserts that the court confused mootness with whether
Gonzalez’s claims are typical, the Government does not
identify any authority showing the court’s analysis to be
erroneous. A bare assertion of error does not establish an
abuse of discretion.

The Government argues further that because an LAPD
officer incorrectly wrote on Gonzalez’s booking record that
he was born in Mexico, Gonzalez has “unique”
circumstances that make him atypical. The Government
ignores its own stipulation in the district court that an ICE
agent “issued Plaintiff Gonzalez’s detainer” because one
database—the Los Angeles County Consolidated Criminal
History System—“erroneously stated that [he] was born in
Mexico and no records of Plaintiff Gonzalez were found in
[two other databases] showing that [he] legally entered the
United States or was legally present in the United States.”
Howsoever the error was introduced into one of the
databases, it was nonetheless an error in a database on which
ICE relied to determine whether Gonzalez was removable,
as the district court acknowledged at class certification. See
Roy, 2016 WL 5219468, at *3, 15. Gonzalez’s claim is thus
no different than any other class member who challenges the
Government’s issuance of an immigration detainer based
solely on a search of electronic databases. Gonzalez is
typical of the class. Thus, the district court did not abuse its
discretion in concluding that the Probable Cause Subclass
satisfied Rule 23(a)’s prerequisites.
 GONZALEZ V. USICE 39

B. The Certification of the Class Pursuant to Rule
23(b)(2)

The district court properly certified the Probable Cause
Subclass as a Rule 23(b)(2) class. Id. at *21. Rule 23(b)(2)
provides that “[a] class action may be maintained if Rule
23(a) is satisfied and if . . . the party opposing the class has
acted . . . on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” Fed. R. Civ. P.
23(b)(2). “Rule 23(b)(2) applies only when a single
injunction or declaratory judgment would provide relief to
each member of the class.” Jennings v. Rodriguez, 138
S. Ct. 830, 852 (2018) (citation omitted). The Probable
Cause Subclass is narrowly defined to include only those
individuals against whom ICE issued an immigration
detainer pursuant to its policy of relying solely on a search
of electronic databases to make a probable cause
determination. The district court properly concluded that a
determination about the lawfulness of this policy under the
Fourth Amendment and corresponding injunctive or
declaratory relief would provide relief to the entire class.
See Roy, 2016 WL 5219468, at *21. The Government’s
assertions of error here repeat the Government’s challenges
to commonality. Because we have already rejected those
arguments, they fail here as well. Thus, the district court did
not abuse its discretion in concluding that the Probable
Cause Subclass satisfied Rule 23(b)(2). Accordingly, we
affirm the district court’s certification of this class.

III. Jurisdiction to Order Injunctive Relief for the
Detainer Claims

Before we turn to the merits of the State Authority and
Database Injunctions, we must also consider the
Government’s assertion that 8 U.S.C. § 1252(f)(1) precludes
40 GONZALEZ V. USICE

the injunctive relief that the district court granted for the
detainer claims underlying the classwide injunctions. The
plain language of § 1252(f)(1) and the relevant statutory
provisions compel us to reject the Government’s assertion.

Section 1252(f)(1) is straightforward. It provides that:

Regardless of the nature of the action or claim
. . . , no court (other than the Supreme Court)
shall have jurisdiction or authority to enjoin
or restrain the operation of the provisions of
part IV of this subchapter, as amended by the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, other than with
respect to the application of such provisions
to an individual alien against whom
proceedings under such part have been
initiated.

8 U.S.C. § 1252(f)(1). “Part IV” is a reference to the
provisions titled “Inspection, Apprehension, Examination,
Exclusion, and Removal,” which currently include 8 U.S.C.
§§ 1221–1232 of the INA.

By its terms, § 1252(f)(1) does not, as the dissent
imagines, categorically insulate immigration enforcement
from “judicial classwide injunctions.” Section 1252(f)(1)
places limitations on the jurisdiction and authority of district
and circuit federal courts to grant injunctive relief that
restrains or enjoins the operation of §§ 1221–1232. See
Jennings, 138 S. Ct. at 851; Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 481 (1999). But by
specifying only “the provisions of Part IV” and reinforcing
its focus on only “such provisions,” 8 U.S.C. § 1252(f)(1)
(emphasis added), the statute’s plain text makes clear that its
limitations on injunctive relief do not apply to other
 GONZALEZ V. USICE 41

provisions of the INA. Unremarkably, we have repeatedly
recognized this textual limitation. See Catholic Soc. Servs.
v. I.N.S., 232 F.3d 1139, 1150 (9th Cir. 2000) (en banc)
(upholding a preliminary injunction because it was issued
under “Part V” of the subchapter and thus “by its terms, the
limitation on injunctive relief [in § 1252(f)(1)] does not
apply to the preliminary injunction granted by the district
court”); see also Gonzales v. Dep’t of Homeland Sec., 508
F.3d 1227, 1233 (9th Cir. 2007) (concluding that
§ 1252(f)(1) did not bar injunction concerning application of
statutory provisions regarding adjustment of status because
“as in the Catholic Social Services injunction, [the
injunction] directly implicates the adjustment of status
provision which falls under part V of subchapter II,
notwithstanding that a reinstatement proceeding may be a
collateral consequence of an unsuccessful adjustment
application.” (emphasis added)).

The Government tells us that the injunctions contravene
§ 1252(f)(1) because its detainer authority is “now codified
in, among other statutes, [] §§ 1226 and 1231, both covered
by § 1252(f)(1).” But the Government predicates that
argument on its detainer regulation, 8 C.F.R. § 287.7. 15 “An
administrative regulation, of course, is not a ‘statute.’”
United States v. Mersky, 361 U.S. 431, 437 (1960). And, by
its clear terms, § 1252(f)(1), places limitations only on
injunctive relief that would “enjoin or restrain the operation
of the provisions of Part IV[.]” 8 U.S.C. § 1252(f)(1)
(emphasis added). The regulation is not a provision of Part

15
Although we reject the Government’s argument for other reasons,
we observe that the Government’s argument in part rewrites its own
regulation, which does not even refer to § 1231. See 8 C.F.R. § 287.7.
42 GONZALEZ V. USICE

IV, and thus cannot run afoul of § 1252(f)(1). 16 Relatedly,
Plaintiffs’ challenge to the legality of the Government’s
detainer policies and procedures at issue here could not run
afoul of § 1252(f)(1) because such procedures are not—as
the Government concedes—even codified in the statutory
provisions that § 1252(f)(1) encompasses. See Grace v.
Barr, 965 F.3d 883, 907 (D.C. Cir. 2020) (explaining that
§ 1252(f)(1) “refers only to ‘the operation of the
provisions’—i.e., the statutory provisions themselves, and
thus places no restriction on the district court’s authority to
enjoin agency action found to be unlawful.” (emphasis in
original)).

The Government’s assertions here avoid statutory text
because none of the provisions of Part IV, let alone §§ 1226
and 1231, even refer to “detainers.” See generally 8 U.S.C.
§§ 1221–1232. The only provision of the INA whose plain
language refers to “detainers” is located in 8 U.S.C. § 1357
(“Powers of immigration officers and employees”), a
statutory provision contained in Part IX. See 8 U.S.C.
§ 1357(d). That provision provides for the issuance of

16
We recognize that Congress has authorized the promulgation of
regulations to carry out the provisions of the INA. See 8 U.S.C. § 1103.
Whether the detainer regulation is valid pursuant to this grant of general
authority, see Comm. for Immigrant Rights of Sonoma Cty. v. Cty. of
Sonoma, 644 F. Supp. 2d 1177, 1199 (N.D. Cal. 2009), is not a question
that we decide here. What matters here is that that general grant of
authority is not located in “Part IV.” Nor, as we discuss shortly, is the
only statutory provision that even refers to immigration detainers. See
8 U.S.C. § 1357(d). These deliberate structural choices by Congress—
both in § 1252(f)(1) and elsewhere in the INA—determine whether
§ 1252(f)(1)’s limitations preclude the issuance of injunctive relief
concerning detainers by district and circuit courts. See Nken v. Holder,
556 U.S. 418, 431 (2009) (“[T]he Court frequently takes Congress’s
structural choices into consideration when interpreting statutory
provisions.”).
 GONZALEZ V. USICE 43

immigration detainers only when an individual is arrested for
a controlled substance offense and is a suspected alien. Id.
We have already recognized that “[t]he INS has authority to
lodge a detainer against a prisoner under 8 U.S.C.
§ 1357(d).” McLean v. Crabtree, 173 F.3d 1176, 1185 n.12
(9th Cir. 1998). The Supreme Court has also recognized the
distinct role that § 1357(d) plays in federal immigration law
enforcement with state officials. See Arizona v. United
States, 567 U.S. 387, 410 (2012) (“State officials can also
assist the Federal Government by responding to requests for
information about when an alien will be released from their
custody.” (citing 8 U.S.C. § 1357(d))). The upshot is that
§ 1357(d) is not located in Part IV, and thus § 1252(f)(1)’s
limitations do not apply.17 See Gonzales, 508 F.3d at 1233;
Catholic Soc. Servs., 232 F.3d at 1150.

17
Although its own detainer regulation is titled “detainer provisions
under section 287(d)(3) of the Act”—a reference to § 1357(d)—and
identifies detainers as “issued pursuant to” § 1357, see 8 C.F.R.
§ 287.7(a), the Government conspicuously ignored § 1357(d) in its
opening brief. In its reply brief, the Government acknowledged
§ 1357(d) for the first time, but only to explain it away as a mere statutory
road bump to the conclusion that any detainer authority necessarily arises
from the provisions that § 1252(f)(1) encompasses. The dissent
embraces the Government’s approach but goes further. The dissent
conjectures that § 1357(d)—a provision that the Government’s own
detainer regulation cites three times as a basis for issuing immigration
detainers—does not actually authorize detainers at all. We cannot agree
with either the Government or the dissent for the simple reason that we
are not free to ignore Congress’s choice to locate the only statutory
reference to immigration detainers outside the provisions that
§ 1252(f)(1) encompasses, even if we might disagree with that choice as
a policy matter. See United States v. State of Washington,—F.3d—,
2020 WL 4814127, at *6 (9th Cir. Aug. 19, 2020); Planes v. Holder,
652 F.3d 991, 996 (9th Cir. 2011) (explaining that we are not free to stray
from statutory text “[r]egardless of our view on the wisdom or efficacy
of Congress’s policy choices”).
44 GONZALEZ V. USICE

Unable to anchor its arguments in the text of §§ 1226 or
1231, the Government tells us that its detainer authority is
nonetheless implied under those provisions, and thus
§ 1252(f)(1)’s limitations apply. 18 The dissent embraces this
argument, relying on a single unpublished district court
decision to surmise that any implied detainer authority must
necessarily arise under the provisions that § 1252(f)(1)
encompasses. See Santoyo v. United States, No. 5:16-CV-
855-OLG, 2017 WL 6033861, at 3* (W.D. Tex. Oct. 18,
2017). We cannot, however, “create[] out of thin air”
statutory text that does not exist. Hamama v. Adduci,
912 F.3d 869, 879 (6th Cir. 2018); see also Ariz. State Bd.
for Charter Sch. v. U.S. Dep’t of Educ., 464 F.3d 1003, 1007
(9th Cir. 2006) (observing that a court may not add or
subtract statutory text). That is particularly true here.
Whereas Congress did not include any reference to
immigration detainers among the provisions to which
§ 1252(f)(1)’s limitations apply, Congress codified
immigration detainers in a provision to which the limitations
of § 1252(f)(1) do not apply. We must presume that
Congress acted intentionally. See Barnhart v. Sigmon Coal
Co., Inc., 534 U.S. 438, 452 (2002) (“When Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” (citation and internal
quotation marks omitted)).

Although the Government attempts to conjure an implied
detainer authority in the shadow of §§ 1226 and 1231, we

18
The classes exclude individuals for whom a detainer issued
pursuant to a final order of removal. Thus, the injunction could not
restrain or enjoin the operation of § 1231 for this additional reason.
Nevertheless, we address the Government’s arguments on their terms.
 GONZALEZ V. USICE 45

observe further that the detainers here do not directly
implicate the authority of those provisions. Section 1231
codifies the Attorney General’s authority to remove and
detain aliens who are already subject to a final order of
removal. 8 U.S.C. § 1231(a)(2), (6). The classes in this
case, however, exclude individuals to whom the
Government issues a detainer due to a final order of removal.
Section 1226 in turn authorizes “the Attorney General” to
arrest aliens “[o]n a warrant” and detain them pending
removal proceedings. Id. § 1226(a), (c); see also Jennings,
138 S. Ct. at 838 (explaining that “[§] 1226 governs the
process of arresting and detaining [certain] aliens pending
their removal”). But it is undisputed that a detainer is not a
warrant of any kind. More critically, neither DHS, nor ICE
arrests or detains any individual by issuing an immigration
detainer to a state or local LEA. Instead, DHS and ICE rely
on the LEA to do so. Although the Government may use
detainers issued to state and local LEAs with the purpose of
arresting and detaining a suspected alien, the possibility that
the Government may eventually arrest and detain an
individual by virtue of the detainers at issue here is of no
moment because the INA provisions directly implicated by
such detainers fall outside § 1252(f)(1)’s scope. 19

19
Congress has addressed the arrest and detention authority of state
and local LEAs for aliens, and delimited ICE’s role in provisions to
which § 1252(f)(1)’s limitations do not apply. See 8 U.S.C. § 1252c(a)
(provision located in Part V and is thus also outside the scope of
§ 1252(f)(1)). And Congress has addressed elsewhere ICE’s authority
to make a warrantless arrest of an individual who ICE has “reason to
believe” is a removable alien, 8 U.S.C. § 1357(a)(2), the authority of
state and local LEAs to carry out federal immigration functions, id.
§ 1357(g), and the ability of such LEAs to cooperate with the Federal
Government specifically on the issue of detainers, id. § 1357(d). None
of these provisions is located in Part IV.
46 GONZALEZ V. USICE

Our task here is simple: “when the express terms of a
statute give us one answer and extratextual considerations
suggest another, it’s no contest. Only the written word is the
law, and all persons are entitled to its benefit.” Bostock v.
Clayton County, 140 S. Ct. 1731, 1737 (2020). 20 The written
word of the INA is quite clear: none of the provisions that
§ 1252(f)(1) encompasses refers to immigration detainers. It
follows that § 1252(f)(1)’s limitations on injunctive relief do
not apply, and thus do not compel vacatur of the injunctions
for lack of jurisdiction or authority by the district court to
grant such relief. We therefore turn to the merits of the
injunctions.

IV. The State Authority Injunction

The State Authority Injunction permanently enjoins ICE
“from issuing detainers seeking the detention of Probable
Cause Subclass members to law enforcement agencies in
states that lack state law permitting state and local law
enforcement agencies to make civil immigration arrests
based on civil immigration detainers only.”

Plaintiffs contend that this injunction is “merely an
alternative basis” on which the district court granted relief to
the Probable Cause Subclass. Because the class is defined
in part by ICE’s reliance on electronic database searches to
issue immigration detainers, Plaintiffs argue that we should

20
The dissent objects to the analysis here in part because of the
consequences that it speculates will ensue, namely, that some future
plaintiffs could challenge the regulation, or the possibility that the
Government’s detainer “enforcement tools” could be affected by an
injunction at some point. These extratextual considerations are
insufficient to tip the statutory scales in favor of the Government’s
desired outcome, or the dissent’s approach. See Bostock, 140 S. Ct.
at 1737.
 GONZALEZ V. USICE 47

limit our analysis to the Database Injunction to avoid the
constitutional issues underlying the State Authority
Injunction. We are unpersuaded. That both injunctions
pertain to the same class does not render “alternative” the
State Authority Injunction’s imposition of, as Plaintiffs
recognize, “totally independent” restrictions with distinct
legal and factual issues. There are also no constitutional
questions to avoid because, as discussed in Part V, the
Database Injunction is infirm. Thus, we must decide the
merits of the State Authority Injunction. 21

At the outset, we must clarify what we do not decide
here. In issuing the State Authority Injunction, the district
court relied on principles of preemption and federalism to
reason that a state “must consent to the delegation of federal
immigration functions,” in the absence of which ICE
violates the Fourth Amendment by issuing an immigration
detainer. Gonzalez, 416 F. Supp. 3d at 1015. But neither
Plaintiffs’ operative complaint, nor the final pre-trial order
hinted at claims against the Government premised on
preemption or federalism. Here, Plaintiffs disavow reliance
on preemption principles. And, although we have noted the
federalism concerns that immigration detainers may raise,
City & County of San Francisco v. Trump, 897 F.3d 1225,
1241 n.7 (9th Cir. 2018), Plaintiffs do not raise and have
therefore waived any federalism arguments concerning the
State Authority Injunction. See United States v. Dreyer,

21
The Government perfunctorily suggests that the State Authority
Injunction is invalid because the district court permitted Plaintiffs to
raise the underlying claim before trial. The Government, however, failed
to brief and thus has waived this issue. Cal. Pac. Bank v. Fed. Deposit
Ins. Corp., 885 F.3d 560, 570 (9th Cir. 2018).
48 GONZALEZ V. USICE

804 F.3d 1266, 1277 (9th Cir. 2015) (“[A]n appellee waives
any argument it fails to raise in its answering brief.”).

The only issue that we must decide is whether state law
restrictions on the authority of state or local officers to
enforce federal civil immigration law determine whether the
Government violates the Fourth Amendment by issuing an
immigration detainer. The Supreme Court’s decision in
Virginia v. Moore, 553 U.S. 164 (2008), instructs that the
answer is “no.”

In Moore, the defendant was charged with possession of
cocaine with intent to distribute after Virginia state officers
discovered crack cocaine on him as part of a search incident
to his warrantless arrest for the misdemeanor of driving with
a suspended license. Id. at 166–67. Moore moved to
suppress the crack cocaine on the ground that his arrest
violated the Fourth Amendment because driving with a
suspended license was not an arrestable offense in Virginia
and thus the officers lacked authority to arrest him. Id.
at 167–68. In reversing the trial court’s denial of the motion,
the Virginia Supreme Court “reasoned that since the
arresting officers should have issued Moore a citation under
state law, and the Fourth Amendment does not permit search
incident to citation, the arrest search violated the Fourth
Amendment.” Id. at 168. The United States Supreme Court
reversed.

Two aspects of the Court’s analysis are key here. First,
the Court reinforced the primacy of probable cause in the
evaluation of whether a warrantless arrest comports with the
Fourth Amendment. Id. at 171 (“[W]hen an officer has
probable cause to believe a person committed even a minor
crime . . . the arrest is constitutionally reasonable.”); id.
at 173 (“[A]n arrest based on probable cause serves interests
that have long been seen as sufficient to justify the
 GONZALEZ V. USICE 49

seizure.”); id. at 174–75 (explaining that even if state law
restrictions somehow altered the policy interests, the Court
“would adhere to the probable-cause standard . . . because of
the need for a bright-line constitutional standard”). Second,
the Court squarely rejected the notion that “state-law arrest
limitations” dictate whether a Fourth Amendment violation
has occurred. Id. at 175. The Court explained that “linking
Fourth Amendment protections to state law would cause
them to ‘vary from place to place and from time to time.’”
Id. at 176 (quoting Whren v. United States, 517 U.S. 806,
815 (1996)). To avoid the “vague and unpredictable”
consequences of tethering the Fourth Amendment to the
laws of the fifty states, id. at 175, the Court held that “state
restrictions do not alter the Fourth Amendment’s
protections,” id. at 176. In resolving the case, the Court
concluded that even if Moore’s arrest violated state law, “it
is not the province of the Fourth Amendment to enforce state
law.” Id. at 178. Because the officers had probable cause to
believe that Moore violated state law by driving with a
suspended license, his warrantless arrest and ensuing search
were constitutional. Id.

Plaintiffs tell us that Moore is distinguishable because it
concerned criminal rather than civil arrests. We do not
understand why that distinction matters to the general Fourth
Amendment principles that Moore articulated concerning
warrantless arrests and seizures. It is undisputed that an
immigration detainer requests detention of an individual.
“Detention, of course, is a type of seizure of the person to
which Fourth Amendment protections attach.” Alcocer v.
Mills, 906 F.3d 944, 953 (11th Cir. 2018). Moreover, those
protections apply in the civil immigration context. United
States v. Brignoni-Ponce, 422 U.S. 873, 881–82, 884 (1975);
Alcocer, 906 F.3d at 953 (“[T]he Supreme Court long ago
held that, beyond a Terry stop, any detention of a suspected
50 GONZALEZ V. USICE

alien ‘must be based on consent or probable cause’ that the
person is, in fact, an alien.’” (citation omitted)); Tejeda-
Mata v. Immigration & Naturalization Serv., 626 F.2d 721,
724–25 (9th Cir. 1980) (applying “the constitutional
requirement of probable cause” to immigration arrests).

Critically, we have already applied Moore to conclude
that the absence of state authorization for a state officer to
enforce federal immigration law does not render the officer’s
seizure of an individual for the suspected civil immigration
offense of unlawful presence in the United States a Fourth
Amendment violation. See Martinez-Medina v. Holder,
673 F.3d 1029, 1031–32 (9th Cir. 2011). There, the
petitioners sought to suppress evidence of alienage for an
allegedly egregious Fourth Amendment violation. Id.
at 1036. They argued that an Oregon deputy sheriff who had
arrested them lacked state law authority to do so, pointing to
a provision of Oregon law that expressly forbade law
enforcement agencies from apprehending someone whose
only violation of law was the violation of federal
immigration law. Id. (citing Or. Rev. Stat. § 181.850). “We
assume[d], without deciding, that the deputy sheriff, like the
officers in Moore, violated state law when he apprehended
the aliens without the authority to do so.” Id. at 1037. We
nonetheless held that “the deputy sheriff’s violation of
Oregon law does not constitute a violation of the Fourth
Amendment” and thus “cannot be the basis for finding an
egregious Fourth Amendment violation.” Id. at 1036 (citing
Moore, 553 U.S. at 173–74). We concluded that “like the
state law violation in Moore, the deputy sheriff’s violation
of Oregon law does not constitute a Fourth Amendment
violation.” Id. at 1037. Martinez-Medina thus confirms
Moore’s application here.
 GONZALEZ V. USICE 51

In finding for Plaintiffs on the State Authority Claim and
entering the resulting State Authority Injunction, the district
court erred by failing to account for Moore and Martinez-
Medina. See Gonzalez, 416 F. Supp. 3d at 1015–16. The
court thereby concluded that the Government violates the
Fourth Amendment by issuing a detainer to state or local
LEAs in a state that does not authorize federal civil
immigration enforcement. 22 Id. Thus, even when the
Government has probable cause of removability, the
Government would nevertheless violate the Fourth
Amendment due to the happenstance of the state in which an
individual is located when ICE issues a detainer.

Moore, however, rejected the unpredictability and
vagaries of such a regime with a bright-line rule: the
constitutionality of a warrantless arrest under the Fourth
Amendment does not depend on whether state law
authorizes state or local officers to make the arrest, but on
whether there is probable cause. Moore, 553 U.S. at 171,
176–78; Martinez-Medina, 673 F.3d at 1036–37; Brobst,
558 F.3d at 989 (concluding that Moore forecloses reliance
on state law to determine whether a seizure violates the
Fourth Amendment); United States v. Turner, 553 F.3d
1337, 1346 (10th Cir. 2009) (applying Moore to conclude
that “because arrests made in violation of state law are not
per se unreasonable under the Fourth Amendment, it does
not matter for the purposes of our analysis whether [state

22
The district court relied on the plurality decision in Ker v.
California, 374 U.S. 23, 37 (1963), for the proposition that “under the
Fourth Amendment . . . the lawfulness of arrests for federal offenses is
to be determined by reference to state law.” Gonzalez, 416 F. Supp. 3d
at 1016. We, however, have already explained that Moore “distinguishes
Ker,” including, as is relevant here, that Ker did not concern a federal
offense. United States v. Brobst, 558 F.3d 982, 989–90 (9th Cir. 2009).
Thus, the district court erred in relying on Ker.
52 GONZALEZ V. USICE

officers] had jurisdictional authority under state law, as long
as the officers’ actions were otherwise reasonable”). That
issue concerns the Database Claim and Database
Injunction. 23 But because “state restrictions do not alter the
Fourth Amendment’s protections,” Moore, 553 U.S. at 17,
the district court erred in concluding otherwise and abused
its discretion in entering the State Authority Injunction. We
therefore reverse and vacate the State Authority Injunction.

V. The Database Injunction

Plaintiffs have challenged the Government’s issuance of
immigration detainers from the Central District based solely
on searches of electronic databases to make probable cause
determinations of removability. In finding for Plaintiffs on
this Database Claim, the district court concluded that the
databases are unreliable for determining probable cause of
removability, and thus the Government violates the Fourth
Amendment by issuing detainers based solely on searches of
the databases. See Gonzalez, 416 F. Supp. 3d at 1016–21.
The court enjoined the Government from issuing detainers
from the Central District based solely on searches of
electronic databases to make probable cause determinations
of removability. We first outline Fourth Amendment

23
The Government argues that probable cause may be imputed to
state or local officers who act pursuant to an immigration detainer issued
by an ICE agent who has probable cause. Two of our sister circuits have
suggested as much. See City of El Cenizo v. Texas, 890 F.3d 164, 187
(5th Cir. 2018) (concluding that pursuant to the “collective-knowledge
doctrine” “the ICE officer’s knowledge may be imputed to local officials
even when those officials are unaware of the specific facts that establish
probable cause of removability”); Mendoza v. U.S. Immigration &
Customs Enf’t, 849 F.3d 408, 414–15 (8th Cir. 2017) (similar).
Imputation of probable cause, however, requires that probable cause
exist, which still leads us to the Database Claim.
 GONZALEZ V. USICE 53

principles that apply here, and then turn to the factual
findings and legal conclusions underlying the injunction.

A. Fourth Amendment Principles

The Fourth Amendment protects against unreasonable
seizures by the government. U.S. Const. amend. IV. “The
infringement on personal liberty of any ‘seizure’ of a person
can only be ‘reasonable’ under the Fourth Amendment if we
require the police to possess ‘probable cause’ before they
seize him.” Terry v. Ohio, 392 U.S. 1, 38 (1968) (emphasis
added); see also Henry v. United States, 361 U.S. 98, 102
(1959).

“[P]robable cause is a fluid concept—turning on the
assessment of probabilities in particular factual contexts—
not readily, or even usefully reduced to a neat set of legal
rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). “Neither
certainty nor a preponderance of the evidence is required.”
United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007).
“Probable cause is not a high bar.” District of Columbia v.
Wesby, 138 S. Ct. 577, 586 (2018) (citation and internal
quotation marks omitted). It is well-settled that a “fair and
reliable determination of probable cause [is] a condition for
any significant pretrial restraint of liberty.” Baker, 443 U.S.
at 142. Thus, the government must rely on “reasonably
trustworthy information sufficient to warrant a prudent
person in believing” that an individual has committed an
offense. Rohde v. City of Roseburg, 137 F.3d 1142, 1144
(9th Cir. 1998) (citation omitted).

As is relevant here, the government may rely on a
computer database to make a probable cause determination.
Herring v. United States, 555 U.S. 135, 146–47 (2009). But
when the government chooses “to enjoy the substantial
advantages this technology confers,” the government
54 GONZALEZ V. USICE

accepts “the burden of corresponding constitutional
responsibilities.” Arizona v. Evans, 514 U.S. 1, 17–18
(1995) (O’Connor, J., concurring). And when 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[.]” United States v. Esquivel-Rios,
725 F.3d 1231, 1238 (10th Cir. 2013) (Gorsuch, J.); see also
Morales v. Chadbourne, 235 F. Supp. 3d 388, 401 (D.R.I.
2017) (“A database search is only successful and its results
are only reliable under a probable cause analysis if the
information contained in the database is complete and if the
search is thorough and based on available identifiers.”),
appeal dismissed, No. 17-1300, 2017 WL 4574440 (1st Cir.
May 24, 2017).

Although probable cause is “incapable of precise
definition or quantification into percentages because it deals
with probabilities and depends on the totality of the
circumstances,” Pringle, 540 U.S. at 371, the reliability of a
computer database may lend itself to such an inquiry. See
Esquivel-Rios, 725 F.3d at 1237–38. A database may also
have shortcomings by virtue of the data that it contains. For
example, a database may lack complete records. See
Orhorhaghe v. I.N.S., 38 F.3d 488, 498–99 (9th Cir. 1994)
(concluding that reliance on the Immigrant Index System
database, which did not contain entry records predating 1983
and excluded “millions of people who are legitimately
present in the United States,” did not provide sufficient cause
for immigration agents to seize individual for suspected
illegal presence). Similarly, a database may have static or
outdated information. See Smith v. City of Oklahoma City,
696 F.2d 784, 787 (10th Cir. 1983) (finding no probable
cause for an arrest warrant when “a computer check” used
pursuant to city procedure to issue the parking tickets
 GONZALEZ V. USICE 55

underlying the warrant established only who owned vehicle
on the date of check, but not who owned the vehicle on
earlier or later dates). But howsoever a database is
unreliable, the ultimate inquiry is whether the database
provides officers with “reasonably trustworthy information”
for determining probable cause. Rohde, 137 F.3d at 1144
(citation omitted). With these principles in mind, we turn to
the Database Injunction.

B. The Errors Underlying the Database Injunction

The claims of the Probable Cause Subclass concern the
Government’s issuance of immigration detainers from the
Central District. The Government must have probable cause
to lodge an immigration detainer, i.e., before an individual is
detained pursuant to the detainer. See Hernandez, 939 F.3d
at 200; Morales v. Chadbourne, 793 F.3d 208, 211 (1st Cir.
2015); Cervantez v. Whitfield, 776 F.2d 556, 560 (5th Cir.
1985). Because only an individual who is not a U.S. citizen
and who lacks lawful immigration status is removable from
the United States, probable cause here hinges on the
information about an individual’s citizenship and
immigration status on which the government relies to issue
a detainer. See Brignoni-Ponce, 422 U.S. at 884;
Orhorhaghe, 38 F.3d at 497; Tejeda-Mata, 626 F.2d at 725.
Moreover, because the Database Claim challenges the
Government’s practice of issuing immigration detainers
based solely on searches of electronic databases, the
probable cause determinations here hinge entirely on the
reliability of the databases. See Esquivel-Rios, 725 F.3d
at 1238.

The district court concluded “that ICE violates the
Fourth Amendment by relying on an unreliable set of
databases to make probable cause determinations for its
detainers.” Gonzalez, 416 F. Supp. 3d at 1018. We do not
56 GONZALEZ V. USICE

recount all the underlying factual findings because it is
unnecessary to do so. Instead, we focus on three interrelated,
yet distinct errors that require reversal: (1) the district court’s
incomplete set of reliability findings, (2) the district court’s
legal error in concluding that any database is unreliable due
to its intended purpose, and (3) the district court’s failure to
address whether the system of databases on which ICE relies
routinely fails to provide sufficiently trustworthy evidence
of removability.

1. The Incomplete Database Reliability Findings

Throughout the district court’s order are a number of
sweeping, categorical conclusions about the databases on
which ICE relies. See id. at 1011 (“All told, the collection
of datapoints ICE gathers from the various databases does
not provide affirmative indicia of removability to satisfy
probable cause . . . because the aggregation of information
ICE receives from the databases is largely erroneous and
fails to capture certain complexities and nuances of
immigration law.”); id. at 1019 (“[T]he set of databases ICE
checks, and the information stored therein, contain serious
errors.”).

These categorical findings, however, suffer from a key
shortcoming: the district court did not make reliability
findings for all the databases on which ICE relies. Although
trial occurred in May 2019, the district court anchored its
analysis in the databases on which ICE relied as of
December 2017 and identified sixteen databases on which
ICE relied at that point. Id. at 1007–08 & n.12. Its
unreliability findings, however concerned only six
databases. Id. at 1008–11, 18–19 (examining the CIS,
CLAIMS 3 and CLAIMS 4, ADIS, SEVIS, and TECS
databases). Although the court identified them, the court
failed to make any findings for PCQS (Person Centric Query
 GONZALEZ V. USICE 57

Search), EOIR, EID, SQ11, SQ94, ELIS 1 & 2, the
California Birth Index, the CCD database, the RAPS
(Refugee, Asylum and Parole System) database, or the NCIC
and NLETS databases. 24 Id.

Plaintiffs argue that the district court did not need to
make reliability findings about all the databases on which
ICE relies because they are not relevant to the Probable
Cause Subclass for one reason or another. But Plaintiffs’
assertions in their briefing are not findings by the district
court. Moreover, contrary to Plaintiffs’ arguments, the court
expressly recognized that some of the databases for which it
failed to make any determinations of reliability contain
information that bears on probable cause determinations of
removability for Probable Cause Subclass members. For
example, the district court recognized that the NCIC and
NLETS criminal databases “are relevant for removability
purposes,” but failed to assess their reliability. Id. at 1008.
The district court also recognized that the CCD database
contains information about visas for which noncitizens have
applied, id. at 1007 n.12, but the court apparently thought
that the database was irrelevant because “it is not a broad-
reaching database that captures all U.S.-born citizens, id. at
1011 n.17. Notably, Plaintiffs offer no explanation for the
district court’s failure to address the NCIC, NLETS, and
CCD databases.

In a case concerning the reliability of the databases on
which ICE relies to make probable cause determinations, the
district court could not make categorical findings of
unreliability without actually addressing each database on

24
The district court apparently excluded the RAPS database because
“ICE is not required to search” it. Gonzalez, 416 F. Supp. 3d at 1011.
But trial evidence showed that ICE searched that database.
58 GONZALEZ V. USICE

which ICE relies or explaining why an evaluation of a given
database was unnecessary. Because the court failed to do so,
the court erred in concluding that ICE’s practice of relying
solely on searches of “the databases” to make probable cause
determinations violates the Fourth Amendment.

2. The Database Purpose Error

In evaluating the reliability of the databases on which
ICE relies, the district court relied on Footnote 7 of our
decision in Millender v. County of Los Angeles, 620 F.3d
1016, 1029 n.7 (9th Cir. 2010) (en banc), rev’d and vacated
on other grounds by Messerschmidt v. Millender, 565 U.S.
535 (2012), to reason that whether a database was intended
to provide probable cause of removability determines
whether that database is reliable for that purpose. See
Gonzalez, 416 F. Supp. 3d at 1017–18. Applying that lens,
the court concluded that “the databases ICE uses are
unreliable because no single database used was intended to
provide any indication of probable cause of removability.”
Id. at 1019.

The district court’s conclusion, however, stemmed from
a fundamental misreading of Millender. In Millender, we
rejected the dissent’s reliance on a statement in an affidavit
used to support a search warrant, which referred to
information contained in the “cal-gang database.” Compare
Millender, 620 F.3d at 1029 n.7 (opinion of the court), with
id. at 1036 n.1 (Callahan, J., dissenting). We explained that
the magistrate judge could not infer a prior felony conviction
from that reference because the advisory note for the
database expressly “warn[ed] that the [] database ‘is not
designed to provide users with information upon which
official actions may be taken,’ and ‘cannot be used to
provide probable cause for an arrest or be documented in an
affidavit for a search warrant.’” Id. at 1029 n.7 (citation
 GONZALEZ V. USICE 59

omitted). We did not suggest that an express admonition not
to use a database to make a probable cause determination
meant that database purpose more generally determines the
reliability of a database; indeed, we did not address the
reliability of the database at all.

Properly understood, our reasoning in Millender would
support the exclusion of a database from the probable cause
calculus for evaluating the merits of the Database Claim if a
database on which ICE relies warns against reliance on it to
make probable cause determinations of removability
specifically or, more generally, for civil immigration
purposes. But the district court made no such findings.
Because we cannot extricate the court’s erroneous reading of
Millender from its conclusion that the databases on which
ICE relies are unreliable, we conclude that the district court
committed legal error.

3. The Failure to Find or Analyze Systematic
Error

Finally, we come to the most fundamental error in the
district court’s analysis: the absence of any findings on or an
assessment of systemic error in ICE’s probable cause
determinations based on searches of electronic databases.
The Database Claim that Plaintiffs raise is a challenge to a
system of databases on which ICE relies to issue detainers
from the Central District for class members. Thus, to find
for Plaintiffs on this claim, it was not enough for the district
court to identify errors in individual databases on which ICE
relies. Instead, the district court had to make findings about
and explain how this system of databases results in
“unreliable” probable cause determinations. Herring,
555 U.S. at 146; see also Evans, 514 U.S. at 17 (“Surely it
would not be reasonable for the policy to rely, say, on a
recordkeeping system . . . that has no mechanism to ensure
60 GONZALEZ V. USICE

its accuracy over time and that routinely leads to false
arrests.”).

Unreliable here means that ICE routinely issues
immigration detainers without reasonably trustworthy
evidence of removability. As the experiences of Gonzalez
and other individuals who are not removable but have been
subject to an immigration detainer underscores, unreliability
has tangible consequences. One way to assess the
trustworthiness of ICE’s system is to quantify these unlawful
arrests and use them to determine the nature and extent of
any systematic error. We are unable, however, to identify
any findings by the district court of systematic error in the
issuance of detainers from the Central District, let alone a
reasoned analysis on this issue.

To be sure, the district court briefly touched on “the
effect of ICE’s reliance on the databases for probable cause
determinations.” Gonzalez, 416 F. Supp. 3d at 1011.
Focusing on data from when PERC relied on fewer
databases, the court observed that PERC issued some 12,797
detainers between May 2015 and February 2016. Id. Of
these detainers, ICE lifted 771 detainers because the
individuals were either U.S. citizens or otherwise not subject
to removal and, of those, 42 were U.S. citizens. Id. But the
court did not translate this data into findings about detainer
lift rates that might illuminate whether the Government’s
system of databases routinely results in the Government
issuing detainers for class members who are not
removable. 25 Nor did the district court identify any evidence

25
Although the parties dispute the lift rates of this data and whether
the true error rate is higher, it is not our role to make factual findings.
 GONZALEZ V. USICE 61

of lift or error rates based on the system of databases on
which ICE actually relied as of December 2017.

Relatedly, the court failed to account for or examine
systematic error in its analysis of whether the Government’s
database practices violate the Fourth Amendment. Id.
at 1017–20. Even if an individual database provides
incomplete information, other databases may compensate
for those weaknesses, resulting in a sufficiently reliable
accumulation of evidence to furnish probable cause.
Although the court’s finding of a Fourth Amendment
violation turned on error in individual databases in light of
case law concerning individual databases, the fact of such
error in individual databases here could not lead to the
conclusion that ICE’s system of databases routinely fails to
provide reasonably trustworthy evidence of removability.

It may be that despite our disagreements with the district
court’s analysis here, the court will ultimately be proven
correct about the unreliability of ICE’s system of databases.
But we cannot take the laboring oar on resolving factual
issues and performing legal analysis that the district court
never did when it found in favor of Plaintiffs on the Database
Claim and permanently enjoined the Government from
relying solely on searches of electronic databases to issue
immigration detainers from the Central District. See
Gonzales v. Thomas, 547 U.S. 183, 185 (2006) (per curiam).
When a district court has applied the wrong legal standard,
“we ordinarily remand the case so that it may apply the
correct one in the first instance.” Kirkpatrick v. Chappell,
872 F.3d 1047, 1058 (9th Cir. 2017).

In light of the foregoing errors, the district court abused
its discretion when it entered the Database Injunction. We
reverse and vacate the judgment and injunction on the
Database Claim, and remand for the district court to
62 GONZALEZ V. USICE

reconsider the claim, including by making additional
findings of fact as are necessary to properly resolve it.

VI. The Gerstein Claim

Finally, we come to Plaintiffs’ cross appeal concerning
the district court’s grant of summary judgment for the
Government on the Gerstein claim of the Judicial
Determination Class. The class is defined, in relevant part,
to include those individuals detained pursuant to a detainer
for longer than 48 hours. The legal contention undergirding
the Gerstein claim is that the Fourth Amendment requires
prompt review of a probable cause determination of
removability “by an independent, neutral official who is not
engaged in law enforcement activities” to justify detention
pursuant to an immigration detainer. The district court
thought that Gerstein was inapposite because Gerstein arose
in the criminal context rather than the civil immigration
context. The district court erred in concluding so, and thus
we reverse on this issue.

In Gerstein v. Pugh, the Supreme Court considered the
legality of state law criminal procedures, which permitted a
person arrested without a warrant and charged by a
prosecutor’s information to be jailed pending trial without
any opportunity for a probable cause determination.
420 U.S. at 116. In holding this procedure to be
unconstitutional, the Court explained that it “has required
that the existence of probable cause be decided by a neutral
and detached magistrate whenever possible” “[t]o
implement the Fourth Amendment’s protection against
unfounded invasions of liberty and privacy[.]” Id. at 112.
The Court explained that a “neutral and detached magistrate”
is one who is “independent of police and prosecution.” Id.
at 112–13, 118. The Court recognized that “a policeman’s
on-the-scene assessment of probable cause provides legal
 GONZALEZ V. USICE 63

justification for arresting a person suspected of crime, and
for a brief period of detention to take the administrative steps
incident to arrest.” Id. at 113–14. But “[o]nce the suspect is
in custody, however, the reasons that justify dispensing with
the magistrate’s neutral judgment evaporate.” Id. at 114.
“When the stakes are [as] high” as “prolonged detention,”
“the detached judgment of a neutral magistrate is essential if
the Fourth Amendment is to furnish any meaningful
protection from unfounded interference with liberty.” Id.
Thus, “the Fourth Amendment requires a judicial
determination of probable cause as a prerequisite to extended
restraint of liberty following arrest.” Id. That determination
must be “timely.” Id. at 126.

The Court elaborated on the timeliness aspect of
Gerstein in County of Riverside v. McLaughlin. The Court
explained that “[a] . . . judicial determination[] of probable
cause within 48 hours of arrest will, as a general matter,
comply with the promptness requirement of Gerstein.”
500 U.S. at 56. “Where an arrested individual does not
receive a probable cause determination within 48 hours, the
calculus changes. In such a case, the arrested individual does
not bear the burden of proving an unreasonable delay.” Id.
at 57. Instead, the government bears the burden “to
demonstrate the existence of a bona fide emergency or other
extraordinary circumstance.” Id.

The critical question here is whether the Fourth
Amendment principle that Gerstein articulated applies to the
civil immigration context. The answer to this question is
necessarily “yes.” The Supreme Court confirmed long ago
that any detention of a suspected alien “must be based on
consent or probable cause” that the person is in fact an alien.
Brignoni-Ponce, 422 U.S. at 881–82. In short, the “broad
congressional power over immigration . . . cannot diminish
64 GONZALEZ V. USICE

the Fourth Amendment rights of citizens who may be
mistaken for aliens.” Id. at 884. It necessarily follows that
the Fourth Amendment requires a prompt probable cause
determination by a neutral and detached magistrate to justify
detention beyond that which may be initially justified by any
probable cause determination of removability.

We are not persuaded by the Government’s objections to
the application of Gerstein in this context. 26 The
Government argues that immigration detainers are exempt
from Gerstein based on the Supreme Court’s observation in
a different context that “[a] deportation hearing is a purely
civil action to determine the eligibility to remain in the
country” and thus “various protections that apply in the
context of a criminal trial do not apply in a deportation
hearing.” Immigration & Naturalization Serv. v. Lopez-
Mendoza, 468 U.S. 1032, 1038 (1984). Lopez-Mendoza,
however, has no bearing on whether Gerstein applies to
arrests or detention for civil immigration purposes. That
case concerned the application of the judge-made
exclusionary rule—a “prudential doctrine” that concerns “an
issue separate from the question whether the Fourth
Amendment rights of the party seeking to invoke the rule
were violated.” Davis v. United States, 564 U.S. 229, 236,
244 (2011) (internal quotation marks and citations omitted).

The Government’s reliance on Abel v. United States,
362 U.S. 217 (1960), as a basis for not applying Gerstein
here is also unavailing. In Abel, the Supreme Court opined
that, consistent with the Fourth Amendment, immigration

26
We summarily reject the Government’s reliance on United States
v. Tejada, 255 F.3d 1 (1st Cir. 2001), a decision which concerned the
application of Federal Rule of Criminal Procedure 5(a). Id. at 2. That
decision is irrelevant to the constitutional issue here.
 GONZALEZ V. USICE 65

authorities may arrest individuals for civil immigration
removal purposes pursuant to an administrative arrest
warrant issued by an executive official, rather than by a
judge. Id. at 230–34. Although an immigration detainer is
not an administrative warrant, we will assume that Abel
nevertheless applies here. Even with that assumption, Abel
is of no help.

Nothing in Gerstein, or the principle that it articulated,
requires review of a probable cause determination by an
Article III judge. See, e.g., Shadwick v. City of Tampa,
407 U.S. 345, 350 (1972) (allowing “neutral and detached”
municipal court clerks to issue arrest warrants). Plaintiffs
concede here that they do not claim that the Fourth
Amendment requires that an Article III judge make a
probable cause determination. Instead, they ask only for
review by a sufficiently detached and neutral executive
official, such as an immigration judge. We have previously
acknowledged the permissibility of such review. Flores v.
Meese, 942 F.2d 1352, 1358, 1364 (9th Cir. 1991) (requiring
immigration judges to “determine probable cause for [an
immigration] arrest”), rev’d on other grounds by Reno v.
Flores, 507 U.S. 292 (1993). And such review is otherwise
consistent with Abel’s recognition that Congress may
delegate certain decisions to executive officials in the
immigration context without violating the Fourth
Amendment.

Finally, the Government relies on our decision in Rhoden
v. United States, 55 F.3d 428 (9th Cir. 1995), a case
concerning a border detention. We do not understand how
Rhoden affects whether Gerstein applies to the immigration
detainers at issue here. Properly understood, Rhoden
concerns whether the unique circumstances of a particular
type of detention affects the timing of a probable cause
66 GONZALEZ V. USICE

determination by a detached and neutral magistrate, not
whether such a determination is required at all. We
acknowledged there that “[i]n the context of a criminal
arrest, a detention of longer than 48 hours without a probable
cause determination violates the Fourth Amendment as a
matter of law in the absence of a demonstrated emergency or
other extraordinary circumstance.” Id. at 432 n.7 (citing
McLaughlin, 500 U.S. at 44). But we explained that “border
detentions involve a distinct set of considerations and require
different administrative procedures.” Id. With these unique
circumstances in mind, we remanded Rhoden for additional
factfinding regarding the reasonableness of the detention
without a probable cause hearing. Id. at 432. Unlike
Rhoden, this case does not concern border detention. We do
not otherwise see what unique set of considerations could
apply to the issuance of immigration detainers to individuals
who are already in the custody of a state or local LEA.

In short, we conclude that the district court erred when it
granted summary judgment for the Government on the
Judicial Determination Class’s Gerstein claim based on the
conclusion that Gerstein does not apply to the civil
immigration context. Detaining persons for more than
48 hours pursuant to an immigration detainer implicates
Gerstein. We therefore reverse and remand for the district
court to apply the correct legal standard in the first
instance. 27 See Kirkpatrick, 872 F.3d at 1058; Zetwick v.
County of Yolo, 850 F.3d 436, 442 (9th Cir. 2017).

27
Remand is especially appropriate here because, in the time since
the district court considered Plaintiffs’ Gerstein claim, the Government
has changed its immigration detainer policy to require the issuance of an
administrative warrant alongside any immigration detainer. Although
Plaintiffs argue that this policy still violates Gerstein, the district court
 GONZALEZ V. USICE 67

CONCLUSION

For the foregoing reasons, we conclude that Gonzalez
had standing at the time that he brought suit to seek
prospective injunctive relief and ICE’s cancellation of the
detainer it placed on Gonzalez did not moot his claim. We
hold that § 1252(f)(1)’s limitations on injunctive relief do
not apply to the claims at issue in this case. We AFFIRM
the district court’s certification of the Probable Cause
Subclass. We REVERSE and VACATE the State
Authority Injunction. We REVERSE and VACATE the
Database Injunction, and REMAND for the district court to
reconsider the Database Claim. Finally, we REVERSE and
VACATE the summary judgment for the Government on
the Gerstein claim, and REMAND for the district court to
reconsider the claim.

AFFIRMED IN PART; REVERSED AND
VACATED IN PART; and REMANDED for
proceedings consistent with this opinion. EACH SIDE
SHALL BEAR ITS OWN COSTS.

BADE, Circuit Judge, dissenting:

The plaintiffs in this case seek classwide orders
enjoining Immigrations and Customs Enforcement (ICE)
from using certain databases when deciding whether to issue
immigration detainers and from collaborating with law
enforcement in certain states to detain suspected removable

never considered that issue. Because we are a court of review and not
first view, Gonzales, 547 U.S. at 185, we decline to consider the issue
here.
68 GONZALEZ V. USICE

aliens. It is difficult to see how such orders would not work
to “enjoin or restrain the operation of the provisions of part
IV” of the Immigration and Nationality Act (INA). 1 See
8 U.S.C. § 1252(f)(1). Because Congress has enacted a clear
jurisdictional bar to such relief in § 1252(f)(1), I respectfully
dissent.

I

The majority reasons that because 8 U.S.C. § 1357(d) is
the only provision in the INA that explicitly mentions
immigration detainers, and it “is not located in ‘Part IV,’”
§ 1252(f)(1) does not bar injunctive relief in this case. Maj.
Op. 42 n.16. I find this approach flawed for two reasons.

First, the majority purportedly relies on the plain
language of the statute to conclude that § 1252(f)(1) does not
bar injunctive relief in this case. Maj. Op. 40. But its
interpretation ignores the plain language of the statute,
which prohibits classwide injunctive relief that would
“enjoin or restrain the operation of the provisions of part
IV.” § 1252(f)(1) (emphasis added). Under the majority’s
interpretation, § 1252(f)(1) would not bar an order that
enjoins or restrains any important law enforcement tool that
ICE employs to enforce the provisions of part IV (such as
the tools identified in § 1357, “Powers of immigration
officers and employees”), 2 unless that tool is specifically

1
The reference in § 1252(f)(1) to “part IV” is to 8 U.S.C. § 1221–
1232, a series of provisions addressing the “Inspection, Apprehension,
Examination, Exclusion, and Removal” of aliens. See 8 U.S.C. ch. 12,
subch. II, pt. IV.
2
These powers include: warrantless interrogations, arrests, and
searches of vessels, railway cars, aircraft, or vehicles, § 1357(a);
carrying a firearm and executing or serving any order, warrant,
 GONZALEZ V. USICE 69

identified in part IV. Thus, the majority reads the words “the
operation of” out of the statute.

Second, the majority’s analysis of § 1252(f)(1) relies on
the apparent conclusion that § 1357(d) is the entire source of
ICE’s detainer authority. Maj. Op. 42–43. But the statute’s
plain language renders that conclusion implausible.
Section 1357(d) does not authorize or define detainers.
Instead, it provides that, under certain circumstances, an
immigration officer must promptly determine “whether or
not to issue a detainer” for an alien arrested for a controlled
substances offense. § 1357(d)(3). In fact, nothing about the
structure or text of the INA suggests that § 1357(d) is the
sole source of ICE’s authority to issue detainers to facilitate
the arrest and detention of suspected removable aliens.

A

The majority concludes that § 1252(f)(1) does not apply
to provisions that fall outside of part IV of the INA. Maj.
Op. 40–41. But § 1252(f)(1) does not insulate provisions
from injunctive relief; it insulates the operation of those
provisions. Thus, § 1252(f)(1) bars classwide injunctive
relief that restrains “the operation of” provisions within part
IV of the INA, even if ICE’s authority to enforce the
provisions of part IV comes, in part, from provisions that are

subpoena, summons, or other process, § 1357(a)(5)(B); administering
oaths and taking evidence, § 1357(b); warrantless searches of the person
and of personal effects in the possession of any person seeking admission
to the United States, § 1357(c); fingerprinting and photographing certain
aliens, § 1357(f); and entering agreements with state and local
governments for their officers or employees to function as immigration
officers for the investigation, apprehension, or detention of aliens,
§ 1357(g).
70 GONZALEZ V. USICE

not within part IV. See § 1252(f)(1) (emphasis added). The
statute reads:

(f) Limit on injunctive relief

(1) In general

Regardless of the nature of the action or claim
or of the identity of the party or parties
bringing the action, no court (other than the
Supreme Court) shall have jurisdiction or
authority to enjoin or restrain the operation of
the provisions of part IV of this subchapter
. . . other than with respect to the application
of such provisions to an individual alien
against whom proceedings under such part
have been initiated.

§ 1252(f)(1). By barring the lower courts from issuing
classwide relief that “enjoin[s] or restrain[s] the operation of
the provisions of part IV,” id., Congress requires the lower
courts to determine whether the requested relief has the
effect of enjoining or restraining the operation of the
provisions at issue; if so, then the lower courts lack
jurisdiction to grant that relief. 3 See Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 481–82 (1999) (“By
its plain terms, and even by its title, [§ 1252(f)(1)] is nothing
more or less than a limit on injunctive relief. It prohibits

3
Thus, in Gonzales v. Department of Homeland Security, when
analyzing whether an injunction restricting DHS from unlawfully
denying adjustment of status applications ran afoul of § 1252(f)(1), this
court held that § 1252(f)(1) did not apply because the injunction only
enjoined or restrained the operation of “[a] provision which falls under
part V.” 508 F.3d 1227, 1233 (9th Cir. 2007).
 GONZALEZ V. USICE 71

federal courts from granting classwide injunctive relief
against the operation of §§ 1221–1231, but specifies that this
ban does not extend to individual cases.”).

The majority, however, does not undertake this analysis.
Instead, in its view, § 1252(f)(1) is inapplicable unless the
object of the requested relief—in this case a detainer—is
mentioned in a provision that appears in part IV. Thus, the
majority erroneously focuses exclusively on what it
considers the source of the detainer power without regard for
the effects of restricting that power. See, e.g., Vazquez Perez
v. Decker, 18-cv-10683, 2019 WL 4784950, at *5 (S.D.N.Y.
Sept. 30, 2019) (“The relevant inquiry, then, is whether the
. . . injunctive relief [the plaintiff] seeks on a classwide basis
would enjoin or restrain the method or manner of
functioning of Sections 1221–1232.”). Even if some
provision outside part IV authorizes immigration detainers,
we must go further and ask whether the classwide
injunctions sought here, by restricting ICE’s ability to
apprehend and detain suspected removable aliens, impose
“limitations on what the government can . . . do under the
removal and detention provisions.” Hamama v. Adducci,
912 F.3d 869, 880 (6th Cir. 2018).

Although the § 1252(f)(1) inquiry may involve locating
the statute authorizing the conduct at issue, that is not the
whole inquiry. The ultimate question is not simply whether
the authority for that conduct comes from part IV, but
whether a court order restricting that conduct “enjoin[s] or
restrain[s] the operation of” part IV. § 1252(f)(1) (emphasis
added). If the majority reached this question, it could not
avoid concluding that the classwide relief Plaintiffs request
directly implicates ICE’s statutory charge under part IV to
apprehend and detain suspected removable aliens because it
restricts ICE’s power to issue detainers, which serve “the
72 GONZALEZ V. USICE

purpose of arresting and removing [] alien[s].” Mendia v.
Garcia, 768 F.3d 1009, 1011 (9th Cir. 2014) (quoting
8 C.F.R. § 287.7(a)).

B

Moreover, the majority ties its analysis of § 1252(f)(1)
to what it apparently considers the source of ICE’s authority
to issue detainers, § 1357(d). Because this is the only INA
provision that explicitly mentions detainers, and because
§ 1357(d) falls outside part IV, the majority concludes that
the analysis is complete and § 1252(f)(1) does not apply.
Maj. Op. 44. I disagree. Even if we assume that the
§ 1252(f)(1) inquiry turns on the source of the detainer
power, it is implausible that ICE’s power to issue
immigration detainers stems entirely from § 1357(d).

That provision, entitled “Detainer of aliens for violation
of controlled substances laws,” reads:

In the case of an alien who is arrested by a
Federal, State, or local law enforcement
official for a violation of any law relating to
controlled substances, if the official (or
another official)—

(1) has reason to believe that the alien
may not have been lawfully admitted to the
United States or otherwise is not lawfully
present in the United States,

(2) expeditiously informs an appropriate
officer or employee of the Service authorized
and designated by the Attorney General of
the arrest and of facts concerning the status of
the alien, and
 GONZALEZ V. USICE 73

(3) requests the Service to determine
promptly whether or not to issue a detainer to
detain the alien,

the officer or employee of the Service shall
promptly determine whether or not to issue
such a detainer. If such a detainer is issued
and the alien is not otherwise detained by
Federal, State, or local officials, the Attorney
General shall effectively and expeditiously
take custody of the alien.

§ 1357(d).

Although it uses the term “detainer” in its title and three
more times in its text, § 1357(d) never defines the term. The
statute seems to assume that there are standards to guide an
officer in “determin[ing] whether or not to issue such a
detainer,” but it does not provide or point to any standards
itself. Id. In fact, § 1357(d) never explicitly authorizes the
issuance of detainers at all—even though the same statute
enumerates, in three other places, actions that “[a]ny officer
of employee of the Service . . . shall have the power” to take.
§ 1357(a)–(c) (emphasis added); see Russello v. United
States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (alteration in original) (citation
omitted)). Nothing in the text of § 1357(d) suggests that it
is the source of congressional authorization for ICE to issue
detainers; rather, it simply mandates ICE’s prompt response
to detainer requests under certain, very specific
circumstances involving controlled substances offenses.
74 GONZALEZ V. USICE

To conclude otherwise by disregarding the plain
language of § 1357(d) and interpreting it as the sole source
of ICE’s detainer authority—rather than as a requirement for
ICE to respond promptly to detainer requests in cases
involving controlled substances offenses—carries troubling
implications. If § 1357(d) is the sole source of authorization
for immigration detainers, future plaintiffs could argue that
ICE acts ultra vires whenever it issues a detainer for a
suspect who was not arrested for a controlled substance
offense. See, e.g., Comm. for Immigrant Rts. of Sonoma
Cnty. v. County of Sonoma, 644 F. Supp. 2d 1177, 1198
(N.D. Cal. 2009) (rejecting plaintiffs’ argument “that
[8 C.F.R.] § 287.7 is facially invalid because its authorizing
statute, § 1357, limits ICE’s authority to issue detainers for
aliens in custody for violating laws relating to controlled
substances”). 4 Such an argument would have far-reaching
consequences, and although unsupported by the plain
language of INA provisions at issue, it would seem to garner
support from the majority’s conclusion that § 1357(d) is the
sole source of ICE’s detainer authority.

In contrast to what the text of § 1357(d) actually
provides, the majority’s citation to McLean v. Crabtree,
173 F.3d 1176, 1185 n.12 (9th Cir. 1999), bears little weight.
There, the court noted in dicta that “[t]he INS has authority
to lodge a detainer against a prisoner under 8 U.S.C.
§ 1357(d).” Id. Thus, the court in McLean suggested that
§ 1357(d) is a source of detainer authority, but it certainly
did not hold that it is the only source.

4
Perhaps recognizing these implications, the majority cites
Commission for Immigrant Rights, 644 F. Supp. 2d at 1199, but
concludes that it need not decide whether the regulation authorizing
detainers, 8 C.F.R. § 287.7, is valid. Maj. Op. 42 n.16.
 GONZALEZ V. USICE 75

The majority also notes that 8 U.S.C. § 1103 authorizes
DHS “to promulgat[e] regulations to carry out the provisions
of the INA,” but asserts that “[w]hat matters here is that that
general grant of authority is not located in ‘Part IV.’” Maj.
Op. 42 n.16. Thus, the majority seems to suggest that, even
if we consider § 1103 an additional or alternative source of
ICE’s detainer power, § 1252(f)(1) does not bar the
classwide relief Plaintiffs request because § 1103 is not in
part IV of the INA. 5 But grounding ICE’s detainer power in
§ 1103—a “general grant of power to administer and enforce
all immigration laws,” Castaneda-Gonzalez v. INS, 564 F.2d
417, 423 (D.C. Cir. 1977)—does not answer whether
§ 1252(f)(1) bars the relief Plaintiffs request. Section 1103
is ultimately the statutory source of all of ICE’s authority,
including ICE’s detainer authority, but that does not mean
that ICE does not also derive its detainer authority from other
provisions of the INA, including part IV, which authorizes
the “Inspection, Apprehension, Examination, Exclusion, and
Removal” of aliens.

Although we need not determine the sources of ICE’s
detainer authority to determine whether enjoining that
authority “enjoin[s] or restrain[s] the operation of the
provisions of part IV,” § 1252(f)(1), we can nonetheless
avoid all these problems of the majority’s approach by
acknowledging that the power to issue detainers—that is, to
request that another law enforcement officer detain a
suspect—arises impliedly from the INA statutes authorizing

5
This argument also fails for the same reason the majority’s
arguments based on § 1357(d) fail: even if the source of ICE’s detainer
authority is outside part IV, a restriction on ICE’s ability to use detainers
“enjoin[s] or restrain[s] the operation of the provisions of part IV,”
§ 1252(f)(1), because it restrains ICE’s ability to arrest and detain
suspected removable aliens.
76 GONZALEZ V. USICE

officers to arrest and detain suspects themselves. See, e.g.,
Santoyo v. United States, No. 5:16-CV-855-OLG, 2017 WL
6033861, at *3 & n.3 (W.D. Tex. Oct. 18, 2017) (collecting
cases and concluding that “[a]lthough no other provision of
the INA specifically authorizes the issuance of detainer
requests, that authority predates the INA and has long been
viewed as implied by federal immigration enforcers’
authority to arrest those suspected of being removable.”).
Indeed, this is the Department of Homeland Security’s
interpretation of the statutes it administers.6 The
Department has stated that it issues detainers “pursuant to
sections 236 [8 U.S.C. § 1226] and 287 [8 U.S.C. § 1357] of
the Act.” 8 C.F.R. § 287.7(a).

Section 1357 is not in part IV, but § 1226 is, and its
broad authorization to arrest and detain aliens accords with
the conclusion that the detainer power stems from ICE’s
arrest and detention powers under part IV. Compare
8 U.S.C. § 1226(a) (“On 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.”), with 8 C.F.R. § 287.7(a) (stating that
detainers serve “the purpose of arresting and removing the
alien”). 7 Thus, even under the majority’s flawed approach

6
The government has not argued for Chevron deference, and the
majority appropriately declines to reach this issue. See, e.g., Neustar,
Inc. v. FCC, 857 F.3d 886, 893–94 (D.C. Cir. 2017). Nonetheless, the
Department’s interpretation of its detainer authority in the INA presents,
by far, the most reasonable approach.

7
The majority suggests that § 1226 is inapplicable because it only
explicitly authorizes DHS to arrest aliens, and “critically, neither DHS,
nor ICE arrests or detains any individual by issuing an immigration
detainer.” Maj. Op. 45. But this misses the point that what the statute
authorizes DHS to do directly, it impliedly authorizes DHS to do through
 GONZALEZ V. USICE 77

of applying § 1252(f)(1)’s bar only to law enforcement tools
that part IV itself authorizes, it should have concluded that
classwide relief was barred here because part IV does
authorize detainers, albeit impliedly, when it authorizes ICE
to arrest and detain suspected removable aliens.

II

The majority’s approach overlooks § 1252(f)(1)’s
insulation of “the operation of” the immigration enforcement
provisions in part IV of the INA from judicial classwide
injunctions. §1252(f)(1). And because the majority
misapplies its own purportedly textualist approach, it
erroneously concludes that the sole source of ICE’s entire
detainer power is a statute that merely requires officers to
promptly decide whether to issue detainers for aliens
arrested for controlled substances offenses. Because the
majority’s approach misreads § 1252(f)(1) and opens the
door to sweeping challenges to basic tools of immigration
enforcement, I respectfully dissent.

cooperative state and local law enforcement. Rather than engage with
this point, the majority employs circular reasoning: § 1226 cannot
impliedly authorize detainers because § 1226 contains no explicit
authorization for detainers.