LOS ANGELES (CN) - Two U.S. citizens get one more chance to persuade a federal judge that their civil rights were violated when Immigration and Customs Enforcement detained them on "immigration holds."
In June 2013, Gerardo Gonzalez sued ICE and its officials John Morton, David Marin, and David Palmatier in a federal class action alleging unlawful seizure and unreasonable detention.
Simon Chinivizyan, placed on an immigration hold after he was arrested last year on drug charges and receiving stolen property, joined the lawsuit when Gonzalez filed a first amended complaint a month later.
They claimed that since 2008, ICE has issued immigration detainers, or "holds," that allow local authorities to keep detainees an extra 48 hours so ICE could check if they were subject to deportation.
ICE has detained thousands of U.S. citizens and legal residents, the lawsuit claimed. The holds prevent detainees from posting bail, accepting plea agreements, and affect their eligibility for work programs in jail, according to the complaint.
Gonzalez and Chinivizyan asked the court to certify the lawsuit as a class action, declare that the detainers violate the Fourth and Fifth Amendment, and enjoin ICE from issuing the holds without probable cause.
But U.S. District Judge Beverly Reid O'Connell said the plaintiffs' third amended complaint had not persuaded her to issue an injunction because it failed to demonstrate a "substantial likelihood of future injury."
The judge gave them one more chance to remedy the deficiencies, either by including more facts or adding another plaintiff.
The judge, however, rejected ICE's claim that Gonzalez and Chinivizyan lack standing because they were no longer on immigration holds when they filed an amended complaint in August.
"(T)he operative dates for determining plaintiffs' standing are the dates they initially entered this action, and it is undisputed that both Gonzalez and Chinivizyan were subject to a detainer when each became involved in these proceedings," O'Connell wrote.
The judge denied class certification, finding that the "early state of the proceedings" makes the motion "premature." She said the plaintiffs may submit a motion for class certification later, should the case move forward.
At the time he filed suit, Gonzalez, now 25, was in a Los Angeles County jail awaiting trial on a charge of possession of methamphetamine.
According to Gonzalez, officers mistakenly identified him as a Mexican national even though FBI records of his prior arrests make it clear that he was born in Pacoima, Calif., and is a native-born U.S. citizen. Those records were available to ICE, he claimed.
Gonzalez learned of the hold when his girlfriend tried to post bail, according to court records.
"When it comes to immigration holds, ICE's mantra is: Detain first, investigate later," Gonzalez's complaint stated.
ICE canceled the detainer hours after Gonzalez filed the lawsuit.
Gonzalez said that immigration officers, rather than courts or judicial officials, issue the immigration detainer form, the I-247. He claims in the lawsuit that prisoners with immigration detainers spend an average of 20 extra days in jail.
Gonzalez and Chinivizyan were given until Nov. 7 to file a final amended complaint.
They are represented by Jennifer Pasquarella with the ACLU Foundation of Southern California.
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