PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 12-3991
                   _____________

               ERNESTO GALARZA,

                                     Appellant

                          v.

    MARK SZALCZYK; CITY OF ALLENTOWN;
         LEHIGH COUNTY; GREG MARINO;
               CHRISTIE CORREA


                   _____________

    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
            (Civil Action No. 10-cv-6815)
      District Judge: Hon. James Knoll Gardner
                   _____________

              Argued: October 10, 2013

Before: FUENTES, COWEN, and BARRY, Circuit Judges.

           (Opinion Filed: March 4, 2014)




                          1
Mary Catherine Roper, Esq.
Molly M. Tack-Hooper, Esq.
American Civil Liberty Union Foundation of Pennsylvania
P.O. Box 40008
Philadelphia, PA 19106

Omar C. Jadwat, Esq.
Esha Bhandari, Esq.
American Civil Liberties Union Foundation
Immigrants’ Rights Project
125 Broad Street, 18th Floor
New York, NY 10004

Jonathon H. Feinberg, Esq.
Kairy, Rudovsky, Messing & Feinberg LLP
718 Arch Street, Suite 501 South
Philadelphia, PA 19106

Cecilia Wang, Esq.
Katherine Desormeau, Esq. [ARGUED]
American Civil Liberties Union Foundation
Immigrants’ Rights Project
39 Drumm Street
San Francisco, CA 94111

Seith Kreimer, Esq.
3400 Chestnut Street
Philadelphia, PA 19104

Attorneys for Appellant Ernesto Galarza




                             2
Thomas M. Caffrey, Esq. [ARGUED]
532 Walnut Street
Allentown, PA 18101

Attorney for Appellee Lehigh County

Christopher N. Lasch, Esq.
University of Denver Envirorment Center
Environmental Law Clinic
2255 East Evans Avenue
Suite 335
Denver, CO 80298

Rebecca A. Sharpless, Esq.
University of Miami School of Law
E257
1311 Miller Drive
Coral Gables, FL 33146

Attorneys for Amicus Appellant Law Professors and Scholars
who Teach, Research, and Practice in the Area of
Immigration and Nationality Law and Criminal Law

Andrew C. Nichols, Esq.
Winston & Strawn
1700 K Street, N.W.
Washington, DC 2006

Attorney for Amicus Appellant National Immigration Project
of the National Lawyers Guild


                     _____________

               OPINION OF THE COURT
                   _____________



                             3
FUENTES, Circuit Judge.

        Ernesto Galarza is a U.S. citizen who was arrested for
a drug offense, posted bail, and instead of being released, was
held in custody by Lehigh County under an immigration
detainer issued by federal immigration officials. Three days
after Galarza posted bail, immigration officials learned that he
was a U.S. citizen. The detainer was withdrawn and Galarza
was released. Galarza then filed this § 1983 action against, in
relevant part, Lehigh County, contending that Lehigh County
detained Galarza without probable cause for more than 48
hours, without notice of the basis of his detention or the
ability to contest it. The District Court dismissed the
complaint against Lehigh County on the basis that it could not
be held responsible for Galarza’s detention because it was
compelled to follow the immigration detainer. On appeal,
Galarza argues that under a plain reading of the relevant
federal regulation, immigration detainers are permissive and,
to hold otherwise, would violate the anti-comandeering
principles inherent in the Tenth Amendment. We agree with
Galarza that immigration detainers do not and cannot compel
a state or local law enforcement agency to detain suspected
aliens subject to removal. Accordingly, we vacate and remand
for further proceedings.




                               4
                     I. BACKGROUND1

       This case arises out of Ernesto Galarza’s detention by
the Allentown Police Department and the Lehigh County
Prison in November 2008. Galarza is a U.S. Citizen, born in
Perth Amboy, New Jersey. He is a Hispanic man of Puerto
Rican heritage. On November 20, 2008, Galarza was
performing construction work on a house in Allentown,
Pennsylvania. Sometime that day, the contractor on the
construction site sold cocaine to an undercover Allentown
Police detective, Christie Correa. Detective Correa arrested
the contractor, along with Galarza and two other employees
who were working at the site. All were charged with
conspiracy to deliver cocaine in violation of Pennsylvania
law. Two of the other workers arrested were citizens of the
Dominican Republic, and the third was a citizen of Honduras.
At the time of Galarza’s arrest, he had a wallet, which
contained his Pennsylvania driver’s license, his Social
Security Card, a debit card, and his health insurance card.
After his arrest, Galarza was detained by the Allentown
Police Department. The Criminal Complaint prepared by
Correa at the time of Galarza’s arrest listed Galarza’s place of
birth as Perth Amboy, N.J. and contained Galarza’s Social
Security Number and date of birth. In accordance with

1
  The District Court had federal question jurisdiction over this
case pursuant to 28 U.S.C. § 1331. This Court has appellate
jurisdiction under 28 U.S.C. § 1291. Because we are
reviewing the appeal of a grant of a motion to dismiss under
Rule 12(b)(6), our review is plenary. Great W. Mining &
Mineral Co. v. Fox Rothschild LLP, 

, 163 (3d
Cir. 2010). For the same reason, we state the facts in the
amended complaint in the light most favorable to the non-
moving party below, Galarza. See Grammer v. John J. Kane
Reg’l Ctrs.-Glen Hazel, 

, 523 (3d Cir. 2009).




                               5
Allentown’s policy to contact Immigration and Customs
Enforcement (“ICE”)2 whenever persons arrested are
suspected of being “aliens subject to deportation,” Correa
called ICE and provided immigration officials with Galarza’s
name, date and place of birth, ethnicity, and Social Security
number. Galarza contends that, by making this call, Correa
gave ICE reason to believe that she suspected Galarza had
given false information about his identity.


        That evening, Galarza was transported to Lehigh
County Prison and his bail was set at $15,000. The following
morning, Friday, November 21, Galarza went through the
booking process, and during this process, he told prison
officials that he was born in New Jersey. The officials took
his wallet, containing his driver’s license, Social Security
Card, debit card, and health insurance card.


       At some point that day, ICE Agent Mark Szalczyk,
acting on the information relayed by Correa, filed an
immigration detainer with Lehigh County Prison. The
detainer described Galarza as a suspected “alien” and citizen
of the Dominican Republic. The detainer read:

      Investigation has been initiated to determine
      whether     this  person     is   subject      to
      removal/deportation from the United States. . . .



2
  ICE is the investigative arm of the Department of Homeland
Security (“DHS”). DHS assumed the responsibilities of the
former Immigration and Naturilization Service (“INS”) in
2002. See Homeland Security Act of 2002, 6 U.S.C. § 101 et
seq.



                             6
      It is requested that you: Please accept this notice
      as a detainer. This is for notification purposes
      only. . . . Federal regulations (8 CFR 287.7)
      require that you detain the alien for a period not
      to exceed 48 hours (excluding Saturdays,
      Sundays and Federal holidays) to provide
      adequate time for ICE to assume custody of the
      alien. You may notify ICE by calling (610) 374-
      0743 during business hours or 802 872-6020
      after hours in an emergency.

App. at 105. The detainer was accompanied by neither a
warrant, an affidavit of probable cause, nor a removal order.
That same day, a surety company posted bail for Galarza, and
a Lehigh County Prison official told Galarza that he would be
released. Shortly thereafter, the same official informed
Galarza that he would not be released because he was the
subject of a detainer.

       When Galarza protested that there should be no
detainer preventing his release, the official told Galarza that
he would have to wait through the weekend until Monday,
November 24 to speak with a counselor. Galarza had not been
interviewed by ICE or provided with a copy of the detainer. It
was not until that Monday, three days after his arrest, that a
Lehigh County Prison counselor told Galarza for the first time
that the detainer holding him was an immigration detainer
filed by ICE. Galarza immediately protested that he was a
U.S. Citizen, and he urged the counselor to retrieve his wallet
from the property room in order to look at Galarza’s driver’s
license and Social Security Card, but the counselor refused.
Shortly thereafter, Galarza met with two ICE officers, who
questioned him extensively about his statement that he was
born in New Jersey. Galarza gave the immigration officials
his Social Security Number and date of birth. The officials
left and returned to inform Galarza that the detainer was



                              7
being lifted. The detainer was in fact removed at 2:05 pm on
Monday, November 24. Lehigh County did not release him
until more than six hours later, at about 8:30 pm. Galarza was
eventually acquitted by a jury of the charge stemming from
his November 20, 2008 arrest.

        Galarza filed two complaints: the first against Lehigh
County, the City of Allentown, and various individual federal
and municipal defendants for violations of his constitutional
rights, and the second against the United States under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b).
These cases were consolidated. All defendants in the
consolidated case, except the United States, moved to dismiss
under Rule 12(b)(6). Galarza v Szalczyk, 

,
at *1 (E.D. Pa. Mar. 30, 2012). The District Court held that
the claims against ICE Agent Szalczyk and Allentown
Detective Correa, for violations of the Fourth Amendment
and the Equal Protection Clause, could go forward and that
these officials were not entitled to qualified immunity. 

The District Court dismissed a procedural due process
claim against ICE Agent Szalczyk on qualified immunity
grounds and dismissed all claims against another ICE official,
the City of Allentown, and Lehigh County. 

part, the District Court determined that
Galarza’s continued detention after he posted bail constituted
a seizure within the Fourth Amendment and that the seizure
was unsupported by probable cause. 

Specifically,
the District Court found that Galarza had stated a Fourth
Amendment claim against Correa and Szalczyk because these
officers lacked probable cause to issue an immigration
detainer. The District Court reasoned: “[t]he fact that Mr.
Galarza is Hispanic and was working at a construction site
with three other Hispanic men—two of whom are citizens of
foreign countries and another who claimed to have been born
in Puerto Rico but is a citizen of the Dominican Republic—



                              8
does not amount to probable cause to believe that Mr. Galarza
is an alien not lawfully present in the United States.” 

It also denied these officers’ motions to dismiss these
claims on grounds of qualified immunity. 

        However, the District Court dismissed the Fourth
Amendment and procedural due process claims against
Lehigh County on the ground that “neither of the policies
identified    in    plaintiff’s   Amended      Complaint      is
unconstitutional [because] both are consistent with federal
statutes and regulations.” 

In doing so, the District
Court relied on 8 C.F.R. § 287.7, concluding that detainers
issued pursuant to this regulation impose mandatory
obligations on state or local law enforcement agencies
(“LEA”s), including municipalities, to follow such a detainer
once it is received. 

The District Court also
dismissed Galarza’s procedural due process claim on the
ground that Lehigh County complied with the federal
regulation setting the time limits on detention because it did
not hold Galarza for more than 48 hours, not including
weekends. 

then dismissed the procedural due
process claim against Szalczyk on grounds of the qualified
immunity doctrine, noting that “even if the period of
detention specified by the regulation were found to be
unconstitutional, it would not be clear to every reasonable
officer that the detention for a period expressly provided by
federal regulation was unlawful.” 

        Following the issuance of the District Court opinion,
Galarza reached a settlement with the remaining individual
defendants, the City of Allentown, and the United States,
resulting in a final order dismissing the case as to all
defendants. Galarza appeals only the dismissal of his
complaint against Lehigh County.




                               9
                      II. DISCUSSION

       Galarza’s claims against Lehigh County arise under 42
U.S.C. § 1983. To establish municipal liability under § 1983,
Galarza must plead two elements: first, that he was deprived
of rights, privileges, or immunities secured by the
Constitution and laws, and, second that the deprivation of
those rights was caused by an official government policy or
custom. Mulholland v. Gov’t Cnty. of Berks, Pa., 

, 238 (3d Cir. 2013). Regarding his Fourth Amendment
rights, Galarza contends that his detention resulted from
Lehigh County’s stated policy and practice of enforcing all
immigration detainers received from ICE, regardless of
whether ICE had, or even claimed to have, probable cause to
detain the suspected immigration violator. To support his
claim, Galarza contends that: (1) when a Lehigh County
Prison counselor first told Galarza that he had been held on an
immigration detainer, the official refused to look into
Galarza’s stated proof that he was a U.S. Citizen, instead
waiting for ICE officers to arrive; (2) Lehigh County Prison
honored the ICE detainer in this case on less than probable
cause; and (3) ICE has a history of issuing and then
cancelling improper ICE detainers lodged against inmates at
the Lehigh County Prison. Regarding his procedural due
process claim, Galarza contends that, under Lehigh County’s
policies, he was held for three days without any notice of the
basis for his detention or a meaningful opportunity to explain
that he was a U.S. Citizen, despite his repeated requests to
contest his detention.

        At oral argument, counsel for Lehigh County conceded
that the policies as alleged would be unconstitutional, and that
Lehigh County’s sole basis for seeking dismissal of Galarza’s
claims is the allegedly mandatory nature of ICE detainers. In
this light, the only question on appeal is whether Galarza has



                              10
sufficiently pleaded facts to support his claims that Lehigh
County’s unconstitutional policies or customs caused the
deprivations of his Fourth Amendment and procedural due
process rights.

       A.     Interpretation of 8 C.F.R. § 287.73

       The parties’ dispute centers on whether immigration
detainers issued pursuant to 8 C.F.R. § 287.7 impose
mandatory obligations on state and local LEAs to detain
suspected aliens subject to removal. The regulation at issues
provides, in relevant part, as follows:


3
 It is true, as the dissent points out, that neither the U.S.
Government or any of its agencies continues to be a party in
this appeal. However, as the dissent also recognizes, the U.S.
Government, as well as two of its agents, were parties to this
case when the District Court articulated the principle that we
review here. See Galarza v. Szalczyk, 10-cv-6815, Docs. 96 &
99 (July 26, Aug. 22, 2012, E.D. Pa.) (orders dismissing the
claims against ICE Agent Scalczyk and the U.S.
Government); Galarza, 

, at * 22
(dismissing claims against ICE Agent Gregory Marino). In
any event, as further 

, Part II.A., we doubt
that the U.S. Government and its immigration agencies would
disagree with our interpretation of the regulation. In fact, the
Office of Immigration Litigation of the Department of Justice
representing Janet Napolitano, then Secretary of the
Department of Homeland Security, and other federal officials,
admitted in a request for admission in a recent litigation that
“ICE has no legal authority to require state o[r] local law
enforcement to detain an individual during the 48-hour
detention period.” Supp. App. at 8 (Apr. 5, 2013); see Jose
Jimenez Moreno v. Janet Napolitano,11-cv-5452 (N.D. Ill.,
Nov. 8, 2011) (date of case filing).



                              11
      (a) Detainers in general. Detainers are issued
      pursuant to sections 236 and 287 of the Act and
      this chapter 1. Any authorized immigration
      officer may at any time issue a Form I–247,
      Immigration Detainer–Notice of Action, to any
      other Federal, State, or local law enforcement
      agency. A detainer serves to advise another law
      enforcement agency that the Department seeks
      custody of an alien presently in the custody of
      that agency, for the purpose of arresting and
      removing the alien. The detainer is a request
      that such agency advise the Department, prior to
      release of the alien, in order for the Department
      to arrange to assume custody, in situations
      when gaining immediate physical custody is
      either impracticable or impossible.
      ...

      (d) Temporary detention at Department request.
      Upon a determination by the Department to
      issue a detainer for an alien not otherwise
      detained by a criminal justice agency, such
      agency shall maintain custody of the alien for a
      period not to exceed 48 hours, excluding
      Saturdays, Sundays, and holidays in order to
      permit assumption of custody by the
      Department.

8 C.F.R. § 287.7(a), (d) (emphasis added). Lehigh County
argues that the phrase “shall maintain custody” contained in
§ 287.7(d) means that detainers issued under § 287.7 are
mandatory. Lehigh County acknowledges that § 287.7(d) is
titled “Temporary detention at Department request” and that
§ 287.7(a) provides that “[t]he detainer is a request.”
However, Lehigh County maintains this language is
overshadowed by the use of the word “shall” in § 287.7(d).



                             12
According to Lehigh County, the word “shall” means that the
“request” is not really a request at all, but an order. Meaning,
Lehigh County cannot be held responsible for Galarza’s
three-day detention after he posted bail. Galarza argues that
the word “shall” serves only to inform an agency that
otherwise decides to comply with an ICE detainer that it
should hold the person no longer than 48 hours.

        We believe that Galarza’s interpretation is correct. The
words “shall maintain custody,” in the context of the
regulation as a whole, appear next to the use of the word
“request” throughout the regulation. Given that the title of
§ 287.7(d) is “Temporary detention at Department request”
and that § 287.7(a) generally defines a detainer as a “request,”
it is hard to read the use of the word “shall” in the timing
section to change the nature of the entire regulation. Cf.
Almendarez-Torres v. United States, 

, 234
(1998) (observing that a statute’s title and a section’s heading
may be considered in resolving doubt about a provision’s
meaning).

       However, even if we credit that the use of the word
“shall” raises some ambiguity as to whether detainers impose
mandatory obligations, this ambiguity is clarified on
numerous fronts. First, no U.S. Court of Appeals has ever
described ICE detainers as anything but requests. Second, no
provisions of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1101 et seq., authorize federal officials to command
local or state officials to detain suspected aliens subject to
removal. Lastly, all federal agencies and departments having
an interest in the matter have consistently described such
detainers as requests. We will address each of these factors in
turn.

     First is the case law. All Courts of Appeals to have
commented on the character of ICE detainers refer to them as



                              13
“requests” or as part of an “informal procedure.” See, e.g.,
Ortega v. U.S. Immigration & Customs Enforcement, 

, 438 (6th Cir. Dec. 10, 2013) (noting that federal
immigration officials issue detainers to local LEAs “asking
the institution to keep custody of the prisoner for the [federal
immigration] agency or to let the agency know when the
prisoner is about to be released”); Liranzo v. United States,

, 82 (2d Cir. 2012) (noting that “ICE issued an
immigration detainer to [jail] officials requesting that they
release Liranzo only into ICE’s custody” so that he could be
removed from the United States); United States v. Uribe-Rios,

, 350 n.1 (4th Cir. 2009) (defining detainers as a
“request that another law enforcement agency temporarily
detain an alien” to permit immigration officials to assume
custody (citing 8 C.F.R. § 287.7)); United States v. Female
Juvenile, A.F.S., 

, 35 (1st Cir. 2004) (noting that a
“detainer . . . serves as a request that another law enforcement
agency notify the INS before releasing an alien from
detention” (citing 8 C.F.R. § 287.7(a))); Giddings v.
Chandler, 

, 1105 n.3 (5th Cir. 1992)
(describing the procedure under § 287.7 as “an informal [one]
in which the INS informs prison officials that a person is
subject to deportation and requests that officials give the INS
notice of the person’s death, impending release, or transfer to
another institution”).

       Second, Congress’s only specific mention of detainers
appears in INA § 287, 8 U.S.C. § 1357(d). The Act does not
authorize federal officials to command state or local officials
to detain suspected aliens subject to removal. Moreover, in
reviewing this statute, the Supreme Court has noted that
§ 1357(d) is a request for notice of a prisoner’s release, not a
command (or even a request) to LEAs to detain suspects on
behalf of the federal government. Arizona v. United States,

, 2507 (2012) (observing that “[s]tate officials
can also assist the Federal Government by responding to



                              14
requests for information about when an alien will be released
from their custody. See § 1357(d).”).

       Contrary to Lehigh County’s assertion, ICE’s (and its
precursor INS’s) policy statements also hold persuasive
weight in this context. See Mercy Catholic Med. Ctr. v.
Thompson, 

, 155 (3d Cir. 2004). Since at least
1994, and perhaps as early as 1988, ICE (and its precursor
INS) have consistently construed detainers as requests rather
than mandatory orders. In 1994, when responding to
comments provided in the process of administrative “Notice
and Comment” before a “Final Rule” change amending 8
C.F.R. § 287.7, the INS wrote that, “A detainer is the
mechanism by which the Service requests that the detaining
agency notify the Service of the date, time, or place of release
of an alien who has been arrested or convicted under federal,
state, or local law.” 59 Fed. Reg. 42406, 42407 (Aug. 17,
1994). Moreover, in a 2010 policy memo, ICE describes a
detainer as a “request that the LEA maintain custody of an
alien who would otherwise be released for a period not to
exceed 48 hours.”4 This description is restated on ICE’s
website under “Frequently Asked Questions” about ICE
detainers in response to the specific question “What is an
immigration detainer?”5 In response to a local official’s letter
asking whether “localities are required to hold individuals
4
  ICE, Interim Policy Number 10074.1: Detainers, ¶ 2.1 (Aug.
2, 2010), available at
http://cironline.org/sites/default/files/legacy/files/ICEdetainer
policy.PDF (last visited Dec. 13, 2013).
5
    ICE, ICE Detainers: Frequently Asked Questions,
http://www.ice.gov/news/library/factsheets/detainer-faqs.htm
(last visited Dec. 23, 2013) (noting that an immigration
detainer serves, in relevant part, as a “request that the LEA
maintain custody of an alien who would otherwise be released
for a period not to exceed 48 hours”).



                               15
pursuant to [ICE detainers],” a senior ICE official responded:
“ICE views an immigration detainer as a request that a law
enforcement agency maintain custody of an alien who may
otherwise be released[.]”6 And in a 2010 briefing to the
Congressional Hispanic Caucus, agency representatives told
congressional staff that “local [law enforcement] are not
mandated to honor a detainer, and in some jurisdictions they
do not.”7

        These policy statements are also consistent with ICE’s
(and previously INS’s) litigation position that detainers are
requests or notifications. For example, in 1998, the INS
argued that a detainer it issued was “not a detainer but merely
serve[d] to advise [a] correctional facility that the INS may
find [an inmate] excludable and request[ed] that the
institution inform the INS of Vargas’s expected release.”
Vargas v. Swan, 

, 1030 (7th Cir. 1988).
Furthermore, the immigration agency there noted “that the
face of the detainer states that it is ‘for notification purposes
only,’” and that it was “nothing more than ‘an internal
administrative mechanism,’ . . . accompanied by neither a
warrant of arrest nor by an order to show cause.” 

from David Venturella, Secure Communities
Assistant Director, ICE, to Miguel Márquez, Santa Clara
County Counsel, ¶ 2(a) (Sept. 27, 2010) (emphasis added),
available at http://www.scribd.com/doc/38550589/ICELetter-
Responding-to-SCC-Re-S-Comm-9-28-10 (last visited Dec.
23, 2013).
7
   ICE FOIA 2674.020612, Draft Memorandum to David
Venturella, Secure Communities Assistant Director, ICE,
“Secure Communities Briefing (Congressional Hispanic
Caucus)” at 3 (Oct. 28, 2010), available at
http://altopolimigra.com/wpcontent/uploads/2011/12/ICE-
FOIA-2674.020612.pdf (last visited Dec. 23, 2013).




                               16
       To rebut the evidence that detainers are not mandatory
or commands to other LEAs, Lehigh County suggests that
these statements are contradicted by the language of the
detainer form that was issued in Galarza’s case. Lehigh
County’s argument here is similar to the one it made
regarding the regulation itself: Because the detainer issued to
Lehigh County stated that “Federal regulations (8 CFR 287.7)
require that you detain the alien for a period not to exceed 48
hours (excluding Saturdays, Sundays and Federal holidays),”
the detainer was mandatory. App. at 105. Again, Lehigh
County overlooks the first part of the detainer filed with
Lehigh County, which read at the time, “It is requested that
you: Please accept this notice as a detainer. This is for
notification purposes only.” 

       Lehigh County seeks to bolster its argument by
highlighting the fact that the detainer forms were altered in
2010 so that the word “require” does not appear anywhere on
the current detainer form. The form now reads: “IT IS
REQUESTED THAT YOU: Maintain custody of the subject
for a period NOT TO EXCEED 48 HOURS.”8 We believe
that, on its own, this alteration in the detainer form does not
support Lehigh County’s conclusion that ICE’s position
changed—the alteration is also consistent with the view that
ICE was merely clarifying its detainer form to reflect its
longstanding interpretation of the regulation. In short, the
position of federal immigration agencies has remained
constant: detainers are not mandatory.9
8
    DHS, IMMIGRATION DETAINER-NOTICE OF
ACTION, available at http://www.ice.gov/doclib/secure-
communities/pdf/immigration-detainer-form.pdf (last visited
Dec. 23, 2013).
9
  To further respond to Lehigh County’s argument that these
policy statements and litigation positions should not be



                              17
       B.     Constitutional Concerns

       Even if there were any doubt about whether
immigration detainers are requests and not mandatory orders
to local law enforcement officials, settled constitutional law
clearly establishes that they must be deemed requests. When
confronted with two plausible interpretations of a statute, one
which could require the Court to interpret the regulation as
unconstitutional and one which poses no constitutional
problem, we are obliged to adopt the latter interpretation,
“unless such construction is plainly contrary to the intent of
Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast
Bldg. & Const. Trades Council, 

, 575 (1988).

       Under the Tenth Amendment, immigration officials
may not order state and local officials to imprison suspected
aliens subject to removal at the request of the federal
government. Essentially, the federal government cannot
command the government agencies of the states to imprison
persons of interest to federal officials.

relevant in our analysis, we note that the particular weight to
give to ICE’s and INS’s policy statements depends on a
number of factors. These include “the thoroughness evident in
[their] consideration, the validity of [their] reasoning, [their]
consistency with earlier and later pronouncements, and all
those factors which give [them] power to persuade, if lacking
power to control.” 

(internal quotation
marks omitted). ICE’s and INS’s policy statements and
litigation positions are probative here because they are
internally consistent over a lengthy period of time and align
with the most logical reading of the regulation, thus lending
further support to our determination that ICE detainers are
indeed permissive, not mandatory.




                               18
       As we have previously recognized, “all powers not
explicitly conferred to the federal government are reserved to
the states, a maxim reflected in the text of the Tenth
Amendment.” Nat’l Collegiate Athletic Ass’n (“NCAA”) v.
Governor of N.J., 

, 227 (3d Cir. 2013). It follows
that “any law that commandeers the legislative processes [and
agencies] of the States by directly compelling them to enact
and enforce a federal regulatory program is beyond the
inherent limitations on federal power within our dual system.”

v. Va. Surface Mining & Reclamation
Ass’n, 

, 283 (1981)) (internal quotation marks
omitted). In other words, a conclusion that a detainer issued
by a federal agency is an order that state and local agencies
are compelled to follow, is inconsistent with the anti-
commandeering principle of the Tenth Amendment.

       On two occasions the Supreme Court has struck down
portions of federal laws that compelled states or local state
agencies on anti-commandeering grounds. The first case was
New York v. United States, 

(1992), which
concerned a federal law to regulate the disposal of radioactive
wastes by the states. The most problematic aspect of this
complex regulatory scheme was the requirement that a state
“take title” to radioactive material, if that state could not
arrange for disposal of the hazardous material within a
specified date. 

The Supreme Court struck down
the “take title” provision based on the idea that “Congress
may not simply ‘commandeer the legislative processes of the
States by directly compelling them to enact and enforce a
federal regulatory program.’” 

(quoting 

) (alterations omitted). As we stated in NCAA, the
Court concluded that the “take title” provision did, in fact,
“compel the states to either enact a regulatory program, or
expend resources in taking title to the waste.” 

(citing New 

). The Court



                              19
also observed that “the anti-commandeering principle was
designed, in part, to stop Congress from blurring the line of
accountability between federal and state officials and from
skirting responsibility for its choices by foisting them on the
states.” 

).

        The Court next applied this anti-comandeering
principle in Printz v. United States, 

(1997), to
invalidate provisions of the Brady Handgun Violence
Prevention Act that compelled local authorities of certain
states to conduct background checks on persons applying to
purchase guns. Printz is relevant in determining whether
federal officials can order local and state LEAs to hold
suspected aliens subject to removal in detention on behalf of
the federal government. The Court noted that, “[t]he power of
the Federal Government would be augmented immeasurably
if it were able to impress into its service—and at no cost to
itself—the police officers of the 50 States.” 

The
Court concluded that Congress “may neither issue directives
requiring the States to address particular problems, nor
command the States’ officers . . . to administer or enforce a
federal regulatory program.” 

The Court was clearly
concerned that portions of the Brady Act required states to
“absorb the financial burden of implementing a federal
regulatory program” and “tak[e] the blame for its . . .
defects.” 

       In light of these principles, it is clear to us that reading
§ 287.7 to mean that a federal detainer filed with a state or
local LEA is a command to detain an individual on behalf of
the federal govenment, would violate the anti-commandeering
doctrine of the Tenth Amendment. As in New York and
Printz, immigration officials may not compel state and local
agencies to expend funds and resources to effectuate a federal
regulatory scheme. The District Court’s interpretation of
§ 287.7 as compelling Lehigh County to detain prisoners for



                                20
the federal government is contrary to the Federal Constitution
and Supreme Court precedents.

        There is no meaningful distinction between the Brady
Act provisions and the regulation at issue here which would,
according to Lehigh County, require state and local
governments to spend public funds in order to detain suspects
on behalf of the federal government for the 48-hour period. In
fact, the federal government has made clear that local LEAs
have to foot the bill, providing that “[n]o detainer issued as a
result of a determination made under this chapter . . . shall
incur any fiscal obligation on the part of the Department.”
8 C.F.R. § 287.7(e). Even though, as the Amici Curiae Law
Professors explain, the issue of commandeering is not one of
degree, “[s]uch direct federal control over state officials far
exceeds the regulatory regime Printz invalidated.” Br. for
Law Professors at 14.

       Furthermore, the command to detain federal prisoners
at state expense is exactly the type of command that has
historically disrupted our system of federalism. As Galarza
points out, the federal government has made requests to states
to house federal prisoners since the Founding of the Republic,
and such requests represent the quintessential type of
cooperation sanctioned by the Framers. The Court in Printz
relied on this history in developing the contours of the
concept of commandeering that must have existed at the time
of the Constitution’s Framing. See 

(discussing the practice of early Congress (1789-91) issuing
recommendations to state legislatures to house federal
prisoners and noting that when states failed to comply,
Congress’s reaction was simply “to rent a temporary jail until
provision for a permanent one could be made”).

      Because of this potential constitutional problem, and
because Congress has made no mention in the INA that it



                              21
intends for DHS to issue mandatory detainers, 

Part
II.A., we must read the regulation as authorizing only
permissive requests that local LEAs keep suspected aliens
subject to deportation in custody. In fact, in recognition of
their right to refuse requests under § 287.7, a number of local
governments, the District of Columbia, and now the state of
California, have established official policies whereby they
will only detain suspects pursuant to ICE detainers in
situations where the suspect named in an immigration
detainer has been convicted of or is charged with a serious
crime.10
10
   See, e.g., Santa Clara County, Cal., Board of Supervisors’
Policy Manual § 3.54, Civil Immigration Detainer Requests
(resolution adopting § 3.54) (2010), available at
http://bit.ly/YiQ8y6 (“No County department, agency, officer,
or employee shall use any County funds, resources, or
personnel to investigate, question, apprehend, or arrest an
individual solely for an actual or suspected civil violation of
federal immigration law.”); Cook County, Ill., Ordinance
§ 46-37, available at http://bit.ly/15SWpFY (“WHEREAS, 8
CFR § 287.7 expressly provides that ICE detainers are merely
‘requests’ that local law enforcement advise DHS when the
individual is due to be released, and that the agency continue
holding the individual beyond the scheduled time of release
for up to 48 hours, excluding weekends and federal holidays,
in order for ICE to arrange to assume custody … (a) The
Sheriff of Cook County shall decline ICE detainer requests
unless there is a written agreement with the federal
government by which all costs incurred by Cook County in
complying with the ICE detainer shall be reimbursed.”);
Chicago Municipal Code §§ 2-173-05, 2-173-042 (first
adopted 2012), available at http://bit.ly/ZQxQFD (declining
to honor detainers unless the subject of the investigation has
an oustanding criminal warrant, has been convicted of a
felony, has a felony charge pending, or has been identified as



                              22
       Thus, any remaining ambiguity must be resolved in
favor of a constitutional reading of the regulation. In this
case, that means we must read the regulation as authorizing
only requests that state and local law enforcement agencies
detain suspected aliens subject to removal.

                    III. CONCLUSION

        For these reasons, we conclude that 8 C.R.F. § 287.7
does not compel state or local LEAs to detain suspected
aliens subject to removal pending release to immigration
officials. Section 287.7 merely authorizes the issuance of
detainers as requests to local LEAs. Given this, Lehigh
County was free to disregard the ICE detainer, and it
therefore cannot use as a defense that its own policy did not
cause the deprivation of Galarza’s constitutional rights.
Accordingly, the District Court’s judgment dismissing
Galarza’s complaint against Lehigh County is VACATED

a known gang member); N.Y.C., N.Y., Administrative Code
§ 9-131(first adopted 2012) (same, and adding a condition
that a detainer could be honored for a terrorism suspect as
well); City of Berkeley, California Council, Regular Meeting
Annotated Agenda (Oct. 30, 2012), available at
http://bit.ly/WOmMfO (similar to N.Y.C. and Chicago
policies); D.C. Acts 19-442, Immigration Detainer
Compliance Amendment Act of 2012, 59 D.C. Reg. 10153-55
(same); Brent Begin, San Francisco County Jail Won’t Hold
Inmates for ICE, SF EXAMINER (May 6, 2011) (describing
policy adopted by San Francisco Sheriff Michael Hennessey
to not honor detainers for those arrested for minor crimes). In
fact, just recently, California adopted a statute limiting LEAs
throughout the entire state from cooperating with ICE
detainers. Cal Gov’t Code § 7282 et seq. (effective Jan. 1,
2014).




                              23
and the matter is REVERSED for proceedings consistent with
this opinion.




                           24
Galarza v. Lehigh County, No. 12-3991

BARRY, Circuit Judge, dissenting

      I am deeply concerned that the United States has not
been heard on the seminal issue in this appeal, an issue that
goes to the heart of the enforcement of our nation’s
immigration laws. And make no mistake about it. The
conclusion reached by my friends in the Majority that
immigration detainers issued pursuant to 8 C.F.R. § 287.7 do
not impose any obligation on state and local law enforcement
agencies to detain suspected aliens subject to removal, but are
merely requests that they do so, has enormous implications
and will have, I predict, enormous ramifications.

        Maybe the Majority is right when it says that the
language that the particular agency “shall maintain custody,”
§ 287.7(d), is really only “a request,” § 287.7(a). And maybe
the Majority is wrong. I’m simply not ready to make that
call; indeed, I believe that it is a mistake to do so without the
input of the United States, on whom the Opinion will impact
most immediately and most profoundly. 1 And even aside
from that impact will be the impact on state and local law
enforcement agencies, not the least of which will be for them
to figure out what hoops they will have to jump through to
inform their decision as to whether or not to grant a particular
“request.” Will, for example, they have to determine if, in the
first instance, ICE had probable cause to issue the detainer?
Will the detainee have a right to be heard? And, pray tell,
how and when will they do all of that? And that’s just for
starters.

1
  ICE issued 273,982 immigration detainers from October 1,
2011 to September 30, 2012 (Fiscal Year 2012). In the first
four months of Fiscal Year 2013, it issued 73,709 detainers,
corresponding to an annualized figure of 221,124. See
Number of ICE Detainers Drops by 19 Percent.
Transactional Records Access Clearinghouse at Syracuse
Univ.                (July              25,           2013),
http://trac.syr.edu/immigration/reports/325/. These numbers,
I recognize, cover all detainers issued by ICE, and not just
those which direct a law enforcement agency to maintain
custody over a suspected removable alien.
        This was, until now, a comparatively uncomplicated
case brought by Mr. Galarza, who, as relevant here, was
detained within the brief period of time set forth in § 287.7(d)
after bail was posted on his criminal charges. The United
States was not a party in this § 1983 action,2 and the only
defendants were Lehigh County, the City of Allentown and
one of its detectives, and two ICE agents, named only in their
individual capacities. Parenthetically, although the ICE
agents were represented by counsel from the Department of
Justice, counsel made it abundantly clear to the District Court
that she did not represent ICE and represented only her
clients. See, e.g., Tr. of Dec. 15, 2011 at 48-49. The District
Court well understood that fact. 

appellee in this case is Lehigh County, whose
only involvement with reference to the central issue before us
on appeal is that Galarza was briefly housed in one of its
prisons, and that it, through its prison, complied with the
immigration detainer once the detainer kicked in. The
County, not surprisingly, argued to the District Court why the
“shall maintain custody” language was mandatory—it had, it
said, no choice in the matter. Galarza, also not surprisingly,
argued that the language was not mandatory, and that the
District Court’s erroneous conclusion to the contrary was the
result of a “misunderstanding of immigration detainers”
because of Lehigh County’s arguments, “not the federal
government’s.” Appellant’s Br. at 23, 29. Indeed, Galarza
concedes that the United States was not heard as to § 287.7
nor even as to its “own statements” that immigration detainers

2
  The United States was named as a defendant in a separate
negligence action filed by Galarza under the Federal Tort
Claims Act. The central issue before us here was never
squarely raised there, and neither the Majority nor Galarza
suggests that it was or should have been. Although the FTCA
action was subsequently consolidated with this § 1983 action,
presumably so that they could be before one judge, not two, it
was separately treated and resolved. Thus, it is only in the
most technical sense that one can say, as the Majority says at
note 3, that the “U.S. Government,” which it “doubt[s]”
would disagree with its interpretation of § 287.7, was a
“part[y] to this case” when the District Court articulated the
principle before us on appeal.
                               2
are requests, not orders. 

Of course, we don’t know
what the “federal government” would have argued—it was
not in the case.

        And the record before the District Court on the central
issue before us was barebones. In this connection, it bears
emphasis that that issue, i.e. whether or not detainers issued
pursuant to § 287.7 impose a mandatory obligation to detain
on state and local law enforcement agencies, was but one of
numerous issues raised in the District Court against the
various defendants and combinations of defendants. The
District Court issued an extremely thoughtful and very
thorough 56-page Opinion, with its finding as to the issue
before us essentially tucked away in little more than one
paragraph near the end, see JA 55-56, undoubtedly because
there had been no emphasis on the issue in the District Court
and little record made as to it.

        In the face of all of this, the Majority, in a sweeping
Opinion, has decided this enormously important issue. And it
did not stop there. Rather, it went on to conclude that “[e]ven
if there were any doubt about whether immigration detainers
are requests and not mandatory orders,” to read § 287.7 to
mean that a federal detainer is a command to a law
enforcement agency to detain an individual would violate the
anti-commandeering principle of the Tenth Amendment.
Maj. Op. at 17.

       Maybe it would, and maybe it wouldn’t, even
assuming, with no great confidence, that the Tenth
Amendment issue should have been reached. Galarza did,
indeed, raise the issue in the District Court. The County,
however, never offered a full-throated response on the merits,
or lack thereof, of that issue, arguing instead that the
constitutionality of § 287.7 should be litigated in another,
more appropriate, case. Not unimportantly, the District Court
did not in its lengthy Opinion even mention, much less
decide, anything to do with the Tenth Amendment. Very
importantly, the United States was not heard as to it.

       All of this makes me very uncomfortable. Given the
posture of the case before the District Court, I’m not sure
how, if at all, the United States could have been brought in.

                              3
What I am sure of is that we have gone very far in this very
important case without any input from the United States, and
we should pull back now. For now, though, I’m not prepared
to say, on what has essentially been a one-sided presentation,
that “shall” really doesn’t mean “shall” but, instead, means
“please.” I respectfully dissent.




                              4