U.S. Department of Justice headquarters in Washington, D.C. (Photo: Diego M. Radzinschi/ ALM)

A federal magistrate judge in Sacramento on Wednesday said he's “strongly inclined” to allow California's attorney general to depose two federal immigration enforcement officials who want to block California's sanctuary laws.

Magistrate Judge Kendall Newman of California's Eastern District acknowledged during a hearing that the state's request to depose the two officials—Thomas Homan, deputy director of U.S. Immigration and Customs Enforcement, and Todd Hoffman of the U.S. Customs and Border Protection department—is unusual.

Homan, acting director of ICE for most of last year, was nominated in November to serve as director. His nomination is pending. Hoffman is head of the admissibility and passenger program at the customs agency.

The federal government “teed up” the officials for depositions when it included their declarations for its motion for a preliminary injunction, Newman said.

“I can't believe you really were thinking, 'We're going to put this declaration in,'” Newman said, and then argue that the official is “not an appropriate person for you to depose.”

Newman did not issue a formal ruling from the bench. He planned to limit the depositions of Homan and Hoffman to four hours each—less than the state had sought. The interviews will be held at U.S. Department of Justice offices in Washington before April 13, he said.

Newman agreed to limit the state's questioning largely to the sources behind assertions that California's sanctuary immigration laws are causing irreparable harm. He told U.S. Justice Department attorneys to make sure the officials bring documents with them to the depositions.

“I'm fine if [the deponent] says, 'I don't have a document. I heard it on Fox News,'” Newman said. “OK, but if there are statistics and records, I think [the state] is entitled to drill down.”

Appearing for the DOJ, special counsel August Flentje and trial attorney Lauren Bingham argued that the depositions were unnecessary at this point in litigation and set a bad precedent for discovery motions. The state can already get relevant information through its own data and other document requests, they said. Bingham also noted that it would be difficult for two high-ranking agency officials to find time for depositions.

“You've made your point,” Newman said, “and it doesn't fly anywhere.”

The Justice Department sued California on March 8, arguing that three state laws designed to limit the reach of federal immigration enforcement actions in the Golden State violate the Constitution's supremacy clause.

California is seeking to move the case from U.S. District Judge John Mendez in Sacramento to the Northern District court in San Francisco. Mendez has not ruled on that request yet.

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