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Buquer v. City of Indianapolis
Citations: 797 F. Supp. 2d 905; 75 A.L.R. 6th 765; 2011 U.S. Dist. LEXIS 68326; 2011 WL 2532935Docket: 1:11-cv-00708
Court: District Court, S.D. Indiana; June 24, 2011; Federal District Court
Plaintiffs Ingrid Buquer, Berlin Urtiz, and Louisa Adair filed a motion for a preliminary injunction against the City of Indianapolis regarding two provisions of Senate Enrolled Act 590, set to take effect on July 1, 2011. The challenged provisions include Section 19, which permits warrantless arrests by law enforcement based on immigration removal orders or probable cause of aggravated felonies, and Section 18, which establishes a new infraction for non-officers who accept consular identification cards as valid identification. The plaintiffs argue that these provisions are problematic, reflecting a broader trend among several states to enact similar laws in response to perceived federal immigration failures. The court recognizes that these state laws may struggle to remain within federal jurisdiction and constitutional limits. Ultimately, the judge finds that Indiana's legislative attempts in these areas have significant flaws that undermine their legality. Plaintiffs challenge the constitutionality of two sections of SEA 590, asserting violations of the Fourth Amendment, due process, and federal immigration regulations. They seek a preliminary injunction to prevent Indiana from enforcing these sections until the court resolves their constitutionality. The court heard oral arguments on June 20, 2011, and after reviewing briefs, evidence, and legal principles, granted the plaintiffs' motion for injunctive relief. The legal context includes the Immigration and Nationality Act (INA) of 1952, which establishes a federal framework for immigration regulation, empowering federal agencies like the Department of Homeland Security (DHS) to enforce immigration law. While state and local law enforcement can occasionally be authorized to enforce federal immigration laws through agreements with DHS, Indiana lacks such an agreement. Section 19 of SEA 590 modifies Indiana Code 35-33-1-1, allowing law enforcement to arrest individuals under specific conditions, including having a removal order, a detainer from DHS, or probable cause of serious felonies. The INA outlines the process for removal proceedings, which occur in administrative immigration courts, and specifies that unlawful presence is not a federal crime but may lead to civil removal proceedings initiated by DHS. Removal proceedings do not guarantee deportation for non-citizens, as they may be released on bond or conditional parole during the process, even after a removal order is issued, per 8 U.S.C. 1226(a). They retain the right to seek reconsideration and administrative or judicial review of the removal order, potentially remaining free on bond until a final decision is reached (8 U.S.C. 1229a(c)(5)). Post-final removal order, individuals can request to reopen proceedings, which may delay their removal (8 U.S.C. 1229a(c)(7)). If the Attorney General does not execute the removal within 90 days of the final order, the non-citizen is released under supervision (8 U.S.C. 1231(a)(3)). Additionally, the Attorney General may permit voluntary departure instead of deportation (8 U.S.C. 1229c). Regarding detainers, ICE may request law enforcement agencies to hold individuals on non-immigration charges for up to 48 hours to assume custody, as outlined in 8 C.F.R. 287.7. This detainer is not a criminal warrant but a notification request that expires after 48 hours. The Notice of Action Form, Form I-797, serves as the communication tool for federal immigration authorities to update individuals on their pending cases but does not reliably indicate immigration status or legal issues. In terms of aggravated felonies, individuals convicted of such crimes face strict removal and disqualification from asylum, citizenship, or cancellation of removal orders under 8 U.S.C. 1158(b)(2)(A)(ii), (b)(2)(B)(I), 1227(a)(2)(A)(iii), 1229b(a)(3). The definition of "aggravated felony" is complex, including 21 subsections that often lead to legal ambiguities and judicial challenges. Lastly, Section 18 of the Act, to be codified as Indiana Code 34-28-8.2, defines "consular identification" as non-passport identification issued by foreign governments for consular services in the U.S. Law enforcement officers are exempt from restrictions on accepting consular identification during crime investigations. Offering, accepting, or recording consular identification as valid identification constitutes a Class C infraction, escalating to a Class B infraction upon a second offense and a Class A infraction for a third or subsequent offense. Consular Identification Documents (CIDs) are issued by embassies and consulates, including those of the U.S., to assist their citizens abroad and to facilitate access to consular services. Under the Vienna Convention on Consular Relations (VCCR), foreign nationals in the U.S. must be informed of their right to consular notification if detained. CIDs are commonly used for identification in various transactions when other forms of ID are unavailable. While states can impose limitations on CIDs for official matters, the legality of their use in non-state governmental contexts is disputed. Ingrid Buquer, a Mexican citizen residing in Indiana, has applied for a U-Visa and received a CID from the Mexican Consulate, which she uses for banking and other identification-required activities. She has testified that she cannot obtain a state-issued ID. Plaintiffs argue that Ms. Buquer's pending U-Visa application puts her at risk of warrantless arrest under proposed legislation effective July 1, 2011. Under Section 18, effective July 1, 2011, Louisa Adair, a Nigerian citizen living in Marion County, will be unable to use her CID for identification without incurring a civil infraction. She has a removal order from 1996 but is currently released under an Order of Supervision, reporting to ICE every six months. Ms. Adair holds a valid work authorization document from DHS and receives an I-797 Notice of Action for employment authorization renewals. She has filed a Motion to Reopen and Terminate her removal proceedings and requested that the ICE Chief Counsel exercise prosecutorial discretion in her favor. If granted, she could apply for lawful permanent residency through her U.S. citizen mother, supported by an approved I-130 visa petition. The plaintiffs argue that Ms. Adair’s removal order and Notice of Action forms expose her to warrantless arrest by Indiana law enforcement once Section 19 takes effect. Berlin Urtiz, a Mexican citizen and lawful permanent resident since 2001, was previously convicted of theft, later vacated, and re-sentenced for a misdemeanor offense that is not an aggravated felony. Although there are no pending removal proceedings against him, the plaintiffs contend that his past aggravated felony conviction subjects him to potential warrantless arrest under the same upcoming law. The legal standard for granting injunctive relief requires the moving party to demonstrate a reasonable likelihood of success on the merits, irreparable harm if relief is denied, and an inadequate legal remedy. If these criteria are met, the court assesses the balance of harms to the plaintiffs and defendants, considering public interest, and employs a "sliding scale" approach where the likelihood of success influences the necessary balance of irreparable harm. The sliding scale approach in legal relief is subjective and allows district courts to balance various considerations rather than relying on a strict mathematical formula. For a plaintiff to establish standing for injunctive relief, they must demonstrate actual and imminent injury that is concrete and traceable to the defendant's actions, with a likelihood that a favorable ruling will remedy the injury. Defendants argue that the named Plaintiffs lack standing due to insufficient evidence of imminent injury regarding Section 19. Specifically, they claim Mr. Urtiz does not have standing to challenge the constitutionality of Section 19 because he has not been indicted or convicted of an aggravated felony. Defendants assert that his two-year suspended sentence does not meet the one-year imprisonment requirement under the definition of aggravated felony in 8 U.S.C. 1101(a)(43). However, the statute's definition of "term of imprisonment" includes all court-ordered incarceration, regardless of suspension, allowing Mr. Urtiz’s sentence to qualify as exceeding the one-year threshold. Additionally, Defendants contend that Mr. Urtiz's subsequent conviction reduction to a misdemeanor negates his inclusion in Section 19’s provisions. Nonetheless, the statute permits arrest based on past convictions without regard for subsequent vacating or expungement, as indicated by the language used in the statute. Therefore, Mr. Urtiz is deemed subject to arrest under Section 19 when it becomes effective. Regarding Ms. Adair, despite having received a removal order from immigration, Defendants claim she lacks standing to challenge Indiana Code 35-33-1-1(a)(11) because her removal order was superseded by an Order of Supervision. Defendants incorrectly claim that an order of supervision supersedes a removal order. Instead, an order of supervision is issued pending removal and imposes conditions on an individual's release when the person has not been removed within the statutory timeframe, as outlined in 8 U.S.C. § 1231(a)(3). Ms. Adair's removal order remains valid despite her receiving an order of supervision, thus placing her within the category of individuals subject to arrest under Indiana Code 35-33-1-1(a)(11). Defendants argue that Ms. Adair and Ms. Buquer lack standing to challenge Indiana Code 35-33-1-1(a)(12) because their notices of action from the Department of Homeland Security (DHS) are deemed 'benign.' However, the statute does not differentiate between benign and non-benign notices and includes any notice issued by DHS. Since both women possess such notices, they are subject to arrest when Section 19 becomes effective on July 1, 2011, establishing their standing despite not having yet suffered a direct injury from the statute. Regarding ripeness, Defendants argue that Plaintiffs' challenge to Section 19 is not ripe for adjudication due to the absence of a specific threat related to the Act's application. A court assesses ripeness by determining if the issues are sufficiently focused for judicial resolution and whether the parties would face hardship from delaying judicial action. Here, the issues presented—concerning the Fourth Amendment and preemption—are legal rather than factual, thereby satisfying the initial ripeness requirement. The court concludes that the legal issues are ready for adjudication, and the parties have established standing to seek injunctive relief. Plaintiffs assert they will face arrest under Section 19 once it becomes effective on July 1, 2011, meeting the second factor of the ripeness doctrine. Defendants counter that this threat is speculative since the application of Section 19 is not fully developed, and arrest would depend on the discretionary actions of law enforcement officers. However, legal precedent allows for pre-enforcement challenges to statutes without requiring plaintiffs to experience arrest or prosecution first. The threat of enforcement is credible when a plaintiff’s conduct conflicts with a statute and the government does not affirmatively indicate it will not enforce it. Plaintiffs have demonstrated they are within the scope of potential enforcement under Section 19, and there is no evidence or legislative indication that the statute will not be enforced. This situation differs from a prior case where the challenged provisions had never been enforced. Given the political context surrounding immigration laws in Indiana, it is reasonable to anticipate enforcement of Section 19. Consequently, the court finds that Plaintiffs have a credible fear of enforcement, making their challenge ripe for adjudication. Additionally, Section 19 permits warrantless arrests for non-criminal matters, and Defendants acknowledge that Indiana law does not criminalize receiving certain immigration-related orders. Defendants acknowledge that arrests made solely under Section 19 may violate the Fourth Amendment. They argue, however, that since Plaintiffs have raised a facial challenge, the court should assume Section 19 will be applied constitutionally. The Fourth Amendment allows for reasonable arrests based on probable cause for criminal offenses. In assessing a facial challenge, federal courts must consider interpretations provided by state courts or enforcement agencies but cannot alter state laws to make them constitutional. Defendants assert that the court must presume that Section 19’s arrest provisions will be exercised lawfully and in compliance with due process. The court rebuts this by emphasizing that the statute explicitly empowers law enforcement to arrest individuals for non-criminal conduct, lacking any mention of Fourth Amendment protections or requirements for lawful reasons for arrest. This interpretation disregards the statute's text, which does not stipulate due process protections for arrestees, such as timely judicial review. Accepting Defendants' interpretation would effectively nullify the statute's explicit language and render it meaningless, which the court cannot do. The court concludes that Plaintiffs are likely to succeed in their claim that Section 19 permits warrantless arrests for non-criminal conduct, as the statute cannot be construed in a manner that contradicts its plain language. Section 19 is deemed unconstitutional as it violates the Fourth Amendment. Plaintiffs are expected to demonstrate that Section 19 is preempted by federal law, based on the Supremacy Clause which grants Congress the authority to override state law. Preemption can be explicit in statute language or implied through the statute’s structure and purpose. State law is preempted when Congress intends to occupy a specific field or when state law conflicts with federal law, which occurs if compliance with both is impossible or if state law obstructs federal goals. Defendants argue that Section 19 merely offers guidance to law enforcement without overstepping federal authority, claiming it allows Indiana officers discretion in assisting federal immigration enforcement. However, they lack any legal basis for states to independently assist in enforcing immigration laws without a federal agreement, such as a 287(g) agreement. Furthermore, Section 19 grants state and local law enforcement broader arrest powers than those permitted to federal officers under federal law. There is no indication in the Immigration and Nationality Act (INA) that Congress intended for state and local officials to have greater authority than federal officials in executing warrantless arrests. While state laws addressing legitimate local interests related to immigration may not face preemption, defendants have not identified any such interests that justify warrantless arrests of individuals with federal detainer orders or those indicted for aggravated felonies. The arrests authorized by Section 19 are likely to violate the carefully structured immigration enforcement system established by Congress. Section 19 of the law permits the arrest of individuals with removal orders; however, prior removal orders do not automatically warrant detention by federal authorities. In the case of Ms. Adair, despite having a removal order, she remains free and has work authorization due to federal discretion. The arrest of such individuals by state law enforcement, like those in Indiana, conflicts with federal immigration enforcement authority, undermining federal decisions regarding individual cases. Notices of action, which are non-criminal communications indicating that an immigration matter has been acknowledged or is under processing, could lead to unjust arrests under Section 19. The lack of definitions for terms like "substantive" or "non-benign" in the law creates ambiguity, making it difficult for law enforcement to make informed decisions, potentially resulting in arbitrary arrests based merely on administrative notifications. Moreover, federal law specifies that immigration penalties for aggravated felonies apply only post-conviction. In contrast, Section 19 allows arrests based on indictments, which may lead to significant abuse given the complexity of determining what constitutes an aggravated felony. This authority undermines the federal intent to limit penalties to actual convictions. Additionally, if the federal government resolves a case without imposing penalties, any subsequent arrest by state authorities would conflict with that federal decision, further exemplifying the potential harm posed to individuals like Mr. Urtiz. Federal immigration law is structured to balance various regulatory and policy objectives, granting the federal government discretion over the arrest of individuals without full lawful status. However, Section 19 disrupts this balance by allowing arrests in Indiana for immigration-related issues concerning individuals that the federal government does not intend to detain. This creates an interference with federal enforcement priorities, leading to a likelihood of the plaintiffs prevailing in their claim that Section 19 is preempted by federal law. Regarding Section 18, the defendants challenge Ms. Buquer's standing to contest its constitutionality, arguing she has not demonstrated an inability to obtain a valid identification card. However, Ms. Buquer provided affidavits stating her lack of requisite documents for obtaining such identification, establishing her standing to challenge the law once it becomes effective on July 1, 2011. The plaintiffs assert that Section 18 conflicts with rights granted by treaties and the federal government’s foreign relations duties, thus preempting the statute. While the defendants argue that Section 18 does not directly conflict with any treaty or impede foreign affairs management, it significantly limits the use of Consular Identification Documents (CIDs) issued by foreign governments, effectively rendering them almost useless for private transactions. This limitation suggests a direct interference with treaty-bestowed rights and could impact the executive branch's discretion in foreign affairs, an area governed by implied constitutional powers. Federal executive authority supersedes state law when there is a clear conflict between their respective policies, as established in Tube Co. v. Sawyer and further supported by American Ins. Ass'n v. Garamendi. The State Department has advised against federal actions that could provoke foreign countries to restrict consular identification documents (CIDs) for U.S. citizens. The U.S. Treasury allows financial institutions to accept CIDs but does not mandate it, highlighting the federal government's cautious approach to CID regulation. Indiana's statute, which makes using CIDs as valid identification a civil infraction, conflicts with federal supremacy and its measured regulatory strategy. While defendants argue that Indiana's law is a general regulation affecting state matters, the law specifically targets CIDs issued by foreign governments and imposes broad restrictions on their acceptance, undermining its claim to neutrality. Regulations targeting foreign government-issued identification are deemed to significantly impact U.S. relations with foreign nations, which cannot be governed by state law. Plaintiffs have demonstrated a likelihood of success in arguing that Section 18 of the statute is preempted. Additionally, the statute is challenged on due process and equal protection grounds, with Plaintiffs asserting it is arbitrary and lacks a rational connection to legitimate government interests. While Defendants argue the statute serves to ensure reliable identification and prevent fraud, the court finds that the extensive restrictions imposed by Section 18—banning the presentation or acceptance of foreign identification in all transactions—far exceed its stated purpose. Although the state has authority to regulate identification forms, Section 18's scope unjustifiably limits private transactions involving foreign identification. Evidence presented indicates that foreign identification documents (CIDs) are as secure as other accepted forms of identification in Indiana, challenging the rationale behind the statute. Consequently, the court concludes that the selective prohibition of CIDs fails to rationally promote the stated goals of fraud prevention and identification reliability. The legal document indicates that the distinction made in the law appears to target foreign nationals, which raises concerns under the Equal Protection Clause. The Supreme Court has established that a mere desire to harm a politically unpopular group does not constitute a legitimate governmental interest. In terms of irreparable harm and inadequate legal remedy, the plaintiffs have demonstrated that the infringement of their constitutional rights typically negates the need for further proof of injury. The balance of harms favors the plaintiffs, who would suffer significant harm without a preliminary injunction, while defendants would face minimal harm since federal control would remain over the affected areas. Additionally, a preliminary injunction aligns with public interest, as the vindication of constitutional rights is crucial, and it is not in the public interest to allow state violations of federal law. Regarding the bond requirement under Rule 65(c), the court finds that a bond is unnecessary in this case, as the defendants would not incur monetary damage from the injunction. Consequently, the court grants the plaintiffs' motion for a preliminary injunction, prohibiting the enforcement of specified sections of the Senate Enrolled Act 590 and ordering defendants to notify relevant state entities of the injunction. The terms "benign" and "non-benign" are not defined in the statute and are used by defense counsel to support their legal arguments. Defendants argue the applicability of the Fourth Amendment to undocumented aliens is uncertain; however, case law, including the Supreme Court's ruling in Immigration and Naturalization Service v. Lopez-Mendoza, confirms that the Fourth Amendment applies to undocumented individuals. Courts, such as the Seventh Circuit and the Eighth Circuit, routinely uphold this principle in relevant cases. Under 8 U.S.C. § 1252c, state and local officers may arrest and detain undocumented individuals who have felony convictions, but only with confirmation from the Immigration and Naturalization Service (INS) regarding their status and for the duration necessary for the INS to take custody. Furthermore, 8 U.S.C. § 1357(a)(2) empowers federal officers to arrest undocumented aliens without a warrant if they witness violations of immigration laws or believe an alien is likely to flee before a warrant can be obtained. Finally, concerns are raised about the potential retaliatory actions from foreign governments due to state laws, as evidenced by amicus curiae briefs from Mexico, Brazil, Guatemala, El Salvador, and Colombia regarding the implications of Section 18 on international relations.