Case 1:19-cv-11003-PBS Document 1 Filed 04/29/19 Page 1 of 48

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

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MARIAN RYAN, in her official capacity as )

Middlesex County District Attorney;

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RACHAEL ROLLINS, in her official capacity )

as Suffolk County District Attorney;

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COMMITTEE FOR PUBLIC COUNSEL

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SERVICES; and the CHELSEA

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COLLABORATIVE, INC.,

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Plaintiffs,

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v.

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U.S. IMMIGRATION AND CUSTOMS

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ENFORCEMENT; MATTHEW T.

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ALBENCE, in his official capacity as Acting )

Deputy Director of U.S. Immigration and

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Customs Enforcement and Senior Official )

Performing the Duties of the Director; TODD )

M. LYONS, in his official capacity as

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Immigration and Customs Enforcement,

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Enforcement and Removal Operations, Acting )

Field Office Director; U.S. DEPARTMENT )

OF HOMELAND SECURITY; and KEVIN )

McALEENAN, in his official capacity as

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Acting Secretary of United States Department )

of Homeland Security,

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Defendants.

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Civil Action No. ________

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

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INTRODUCTION 1. This case presents a challenge brought by Massachusetts prosecutors, public defenders, and civil litigants to the federal government’s appropriation of the Massachusetts state courts to carry out federal civil immigration policy. For the last two years, officers from U.S. Immigration and Customs Enforcement (“ICE”) have patrolled Massachusetts state courthouses—including courtrooms, hallways, clerk’s offices, parking lots and front steps— following, arresting, and detaining those they believe violated federal civil, not criminal, law. In the face of widespread opposition to this practice, ICE has not only refused to stop it, but has issued a formal Directive authorizing such civil courthouse arrests. ICE’s Directive, and its widespread practice of conducting civil arrests in state courthouses, are unprecedented in American history. Indeed, the U.S. Supreme Court and the Massachusetts Supreme Judicial Court have long recognized a privilege against civil arrests for those attending court on official business—a privilege that traces its roots back to English common law, and rests on the common-sense principle that the judicial system cannot function if parties and witnesses fear that their appearance in court will be used as a trap. 2. ICE’s decision to flout the long-standing common-law privilege against civil courthouse arrests and to commandeer the state courts for federal civil immigration purposes has led to effects on Plaintiffs, the Massachusetts justice system, and the public at large that are as dramatic as they are predictable. Entire communities now view the Massachusetts courts as places where they cannot go, for any reason, greatly impeding access to justice and undermining the administration of justice in these communities. Criminal defendants refuse to appear, defaulting rather than risk civil arrest, detention, and removal by ICE. Witnesses do not appear for fear of arrest and deportation, undermining prosecutions, depriving criminal defendants of their right to present a defense, and interfering with the operation of civil litigation. And civil
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litigants seeking relief such as restraining orders against violent partners, unpaid wages from an unscrupulous employer, or remedies from landlords providing illegal housing are forced to tolerate domestic violence, illegal working conditions, and unsafe living conditions to avoid ICE civil arrest.
3. Plaintiffs represent a range of actors in the state court system—prosecutors, defense attorneys, and civil litigants—all of whom have directly felt the impact of ICE’s policy of civilly arresting parties, witnesses, and others attending court on official business. Without any ability to ensure that Massachusetts residents can appear in court without ICE interference, Plaintiffs Marian Ryan and Rachael Rollins, the District Attorneys for Middlesex County and Suffolk County (the “District Attorneys”), are unable to prosecute many crimes because the victims, key witnesses, or even the defendants do not appear. Plaintiff Committee for Public Counsel Services, which is responsible for indigent criminal defense in the Commonwealth, cannot present meaningful defenses because its clients or defense witnesses do not appear. And Plaintiff Chelsea Collaborative is a membership organization with noncitizen members who have been unable to access the courts to enforce their state-law rights for fear of ICE arrest. This has not only led to harm to Chelsea Collaborative’s members, but has forced Chelsea Collaborative to spend significant resources assisting its members, including by instituting its own extrajudicial mediation program in an attempt to resolve disputes between Massachusetts residents who no longer feel safe appearing in Massachusetts state courts.
4. ICE’s civil-courthouse-arrest policy not only undermines the administration of justice in Massachusetts, it is also illegal for at least three reasons.
5. First, Congress never authorized ICE to conduct civil courthouse arrests because it never abrogated the longstanding and well-settled common-law privilege against such arrests.
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The Supreme Court has recognized that the common-law privilege against civil courthouse arrests is “well settled.” Stewart v. Ramsay, 242 U.S. 128, 129 (1916). When Congress acts in an area governed by “long-established and familiar” common-law principles, Congress is presumed to retain those principles. United States v. Texas, 507 U.S. 529, 534 (1993). Here, where Congress granted the federal government a general civil-arrest power to enforce civil immigration laws, Congress retained traditional common-law limitations on that arrest power— including that such arrests cannot be made against parties and witnesses attending court on official business. Indeed, finding that Congress abrogated the common-law privilege would be particularly inappropriate given the significant constitutional concerns relating to separation of powers and court access raised by federal appropriation of state courts for civil arrests. Because the INA does not grant the federal government the authority to conduct civil courthouse arrests in violation of the common-law privilege, ICE’s Directive authorizing such arrests, and its corresponding policy of conducting such arrests, exceed ICE’s statutory authority, and must be set aside under the Administrative Procedure Act. See 5 U.S.C. § 706(2).
6. Second, even if ICE’s Directive were authorized by statute, the Directive and the corresponding practice of civilly arresting parties, witnesses, and others attending Massachusetts state courts on official business exceed the powers granted to the federal government, and hence violate the Tenth Amendment of the U.S. Constitution. “[T]he Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.” Printz v. United States, 521 U.S. 898, 925 (1997). Yet that is precisely what ICE’s civil courthouse arrest program does. ICE has coopted the state’s justice system, using it as a tool for trapping those required to attend state court. ICE’s civil-courthouse-arrest policy triggers all of the concerns that the Supreme Court recently identified as signaling a Tenth Amendment
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violation, including the shifting the political responsibility for and costs of immigration enforcement to the states. See Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1477 (2018).
7. Third, ICE’s policy violates the Constitutional right of access to the courts, which prohibits “systemic official action [that] frustrates a plaintiff or plaintiff class in preparing and filing suits.” Christopher v. Harbury, 536 U.S. 403, 413, 415 & n.12 (2002). Conditioning litigants’ ability to access the courts on making themselves available for civil arrest creates precisely such impermissible frustration. Indeed, common-law courts created the privilege against civil courthouse arrest in recognition of the intolerable chilling effect of such arrests, explaining that the fear of arrest would “prevent [parties and witnesses’] approach,” obstructing “the administration of justice.” Halsey v. Stewart, 4 N.J.L. 366, 368 (N.J. 1817). Because of ICE’s policy, Chelsea Collaborative’s members have been unable to use the courts to obtain relief from domestic violence or other civil wrongs like illegal living and working conditions. In response, Chelsea Collaborative has been forced to establish its own extra-judicial mediation program—which handles three or four mediations per week—to attempt to resolve disputes between Massachusetts residents who are no longer willing to appear in Massachusetts court for fear of civil ICE arrest.
8. For these reasons, and as set forth below, Plaintiffs ask this Court to declare that ICE’s Directive authorizing the civil arrest of parties, victims, witnesses, and others attending court on official business, and ICE’s policy of conducting such arrests, are unlawful, and to enjoin ICE from such activity.
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JURISDICTION AND VENUE 9. The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1346. This Court has further remedial authority under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202 et seq. The United States has waived its sovereign immunity pursuant to 5 U.S.C. § 702. 10. Venue properly lies within the District of Massachusetts because this is an action against an officer, employee, and/or agency of the United States, all Plaintiffs reside in this judicial district, and a substantial part of the events or omissions giving rise to this action have occurred in this judicial district. See 28 U.S.C. § 1391(e)(1).
PARTIES 11. Plaintiff Marian Ryan is the Middlesex County District Attorney, and brings this suit in her official capacity. The Middlesex County District Attorney’s office is headquartered at 15 Commonwealth Avenue, Woburn, MA 01801. The Middlesex County District Attorney’s Office serves 54 cities and towns in and around the Boston area, and handles criminal prosecutions and investigations in district and municipal courts. Middlesex County is the largest county in the Commonwealth in terms of population and number of communities served. Middlesex County has a larger population than eleven states. 12. Plaintiff Rachael Rollins is the Suffolk County District Attorney, and brings this suit in her official capacity. The Suffolk County District Attorney’s office is headquartered at One Bulfinch Place, Boston, MA 02114. The Suffolk County District Attorney’s Office serves the cities and towns of Boston, Chelsea, Revere, and Winthrop, Massachusetts, and handles criminal prosecutions and investigations in district and municipal courts. 13. The combined population of Suffolk and Middlesex Counties is nearly 2.5 million people—approximately one-third of the Commonwealth’s population.
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14. Plaintiff Committee for Public Counsel Services (“CPCS”) is the public defender agency for the Commonwealth of Massachusetts. CPCS is headquartered at 44 Bromfield Street, Boston, Massachusetts, 02108, and is overseen by a fifteen-member body appointed by the heads of the executive, legislative, and judicial branches of Massachusetts. CPCS is responsible for the provision of legal representation, by both staff attorneys and court-appointed private attorneys, of all indigent persons in civil, criminal, and administrative cases in Massachusetts in which there is a right to appointed counsel.
15. As the key players on the prosecution and defense sides of the criminal justice system, the District Attorneys and CPCS have joined together to challenge what they collectively agree to be a profound threat to the Massachusetts criminal justice system. Both prosecutors and defense attorneys depend on witnesses to carry out investigations, prosecutions, and criminal defense. ICE’s civil-courthouse-arrest policy is undermining the work of both prosecutors and defense attorneys by deterring many victims and witnesses from appearing in court, forcing the District Attorneys to abandon otherwise promising prosecutions. ICE’s policy also makes it more difficult to obtain defendants’ appearance in court—both because defendants arrested, detained and subject to removal proceedings prior to resolution of their criminal cases may not be able to appear in court, and because the risk of ICE arrest leads some criminal defendants to default—which makes both prosecution and defense impossible. On information and belief, this case represents the first time that the District Attorneys and CPCS have joined as plaintiffs to challenge such a threat to the Massachusetts justice system.
16. Plaintiff Chelsea Collaborative, Inc. is a 501(c)(3) non-profit organization located at 318 Broadway, Chelsea, Massachusetts, 02150. The Collaborative, originally founded in 1988 as the Chelsea Human Services Collaborative, is an organization dedicated to the needs of the
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community of Chelsea. The mission of the Collaborative is to enhance the social, environmental, and economic health of the community and its people. The Collaborative provides numerous services to the immigrant community in Chelsea, including citizenship classes, summer employment for teenagers, landlord-tenant education, voter mobilizations, and assistance in accessing the judicial system.
17. Defendant U.S. Immigration and Customs Enforcement is a federal agency charged with enforcement of federal immigration laws, including execution of ICE Directive No. 11072.1 entitled “Civil Immigration Actions Inside Courthouses” (the “Directive”), dated January 10, 2018.
18. Defendant Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of U.S. Immigration and Customs Enforcement. On information and belief, Defendant Albence is responsible for executing the Directive. Deputy Director Albence is sued in his official capacity.
19. Defendant Todd M. Lyons is the Acting Boston Field Office Director of U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations. He is charged with ICE enforcement in the Boston area. Acting Field Office Director Lyons is sued in his official capacity.
20. Defendant the Department of Homeland Security (“DHS”) is a cabinet department of the U.S. federal government, which oversees Defendant U.S. Immigration and Customs Enforcement.
21. Defendant Kevin McAleenan is the Acting Secretary of the Defendant DHS. Acting Secretary McAleenan is responsible for executing relevant provisions of the Executive Order 13,768, entitled “Enhancing Public Safety in the Interior of the United States” (the “EO
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13,768” or “Executive Order”), issued on January 25, 2017. Acting Secretary McAleenan is sued in his official capacity.
STATEMENT OF FACTS 22. In January 2017, at the direction of President Trump, then-DHS Secretary John Kelly, and then-ICE Deputy Director Thomas Homan, ICE began a nationwide campaign specifically targeting state courthouses as sites for civil immigration enforcement. The practice sent a shockwave of fear and anxiety through immigrant communities in Massachusetts and across the country. This pervasive fear has paralyzed the effective administration of justice in dramatic yet predictable ways. So predictable in fact that centuries of English and American jurisprudence have guarded against such a chilling effect by affording individuals with a common-law privilege precluding such civil courthouse arrests. ICE’s Directive authorizing civil courthouse arrests, and its policy of conducting them, violate the long-standing commonlaw protection against civil arrests in and around courthouses, exceed ICE’s statutory authority under the INA, and violate the Constitution. There is a “well settled” common-law privilege against civil arrests of parties, witnesses, and others attending court on official business. 23. In England, and in the early years of this country, civil arrest, or civil capias, was a common means for initiating civil proceedings. See Nathan Levy, Jr., Mesne Process in Personal Actions at Common Law and the Power Doctrine, 78 Yale L.J. 52, 61-70 (1968). The possibility that such civil arrests could take place in court, however, posed a significant problem for the judicial system: If a party or witness’s appearance in one case could be used as a trap for a civil arrest in another case, many parties and witnesses would not attend court. To avoid this problem, courts both in England and the United States—including the U.S. Supreme Court, this Court, and the Massachusetts Supreme Judicial Court—all recognized and strictly enforced an
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“inflexib[le]” privilege, and an “absolute protection,” against the civil arrest of parties or witnesses attending court. E.g., Page Co. v. MacDonald, 261 U.S. 446, 448 (1923); Larned v. Griffin, 12 F. 590, 594 (D. Mass. 1882); Valley Bank & Trust Co. v. Marrewa, 354 Mass. 403, 406-07 (1968). As the Supreme Court explained, “the due administration of justice requires that a court shall not permit interference with the progress of a case pending before it, by the service of process in other suits, which would prevent, or the fear of which might tend to discourage, the voluntary attendance of those whose presence is necessary or convenient to the judicial administration in the pending litigation.” Lamb v. Schmitt, 285 U.S. 222, 225 (1932).
24. The common-law privilege against civil arrest while attending court on official business is longstanding, tracing its origins back at least to English courts in the eighteenth century. Blackstone’s Commentaries on the Laws of England explained the common-law rule that “[s]uitors, witnesses, and other persons, necessarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their necessary coming and returning.” 3 William Blackstone, Commentaries on the Laws of England 289 (1769); see also 6 Matthew Bacon, A New Abridgment of the Law 530 (London, A. Strahan, 7th ed. 1832) (“[A]ll [] persons whatsoever, are freed from arrests so long as they are in view of any of the courts at Westminster, or if near the courts, though out of view, lest any disturbance may be occasioned to the courts or any violence used.”). This principle was repeatedly endorsed by the English courts, which held that, “for the purpose of justice,” and “to encourage witnesses to come forward voluntarily,” they are privileged from arrest “in coming, in staying, and in returning” from court. The King v. Holy Trinity in Wareham, 99 Eng. Rep. 531 (1782); see also Meekins v. Smith, 126 Eng. Rep. 363 (1791) (“[A]ll persons who had relation to a suit which called for their attendance, whether they were compelled to attend by process or not, (in which
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number bail were included,) were intitled to privilege from arrest eundo et redeundo [i.e., coming and returning][.]”); Spence v. Stuart, 102 Eng. Rep. 530 (1802); Ex Parte Byne, 35 Eng. Rep. 123 (1813).
25. The U.S. Supreme Court has adopted this privilege and held that it bars service of any other civil process while attending court. For instance, in Stewart v. Ramsay, 242 U.S. 128 (1916), the Court described the privilege as “well settled,” explaining that a litigant “should be permitted to approach [the courts], not only without subjecting himself to evil, but even free from the fear of molestation or hindrance. He should also be enabled to procure, without difficulty, the attendance of all such persons as are necessary to manifest his rights.” Id. at 129. The Court described it as particularly firmly established that there was an “exemption from arrest,” or “capias,” and held that this exemption applied to any civil process to protect the “necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify.” Id. at 130. The Court has emphasized the “necessity of [the rule’s] inflexibility” in order to serve its purpose of protecting litigants and witnesses in appearing in court. Page Co., 261 U.S. at 448; see also Long v. Ansell, 293 U.S. 76, 83 (1934) (Brandeis, J.) (describing “the common-law rule that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit, are immune from service in another”); Lamb, 285 U.S. at 225.
26. The District of Massachusetts has also vigorously enforced this privilege. As this Court has explained, “[i]t has long been settled that parties and witnesses attending in good faith any legal tribunal . . . are privileged from arrest on civil process during their attendance, and for a reasonable time in going and returning.” Larned, 12 F. at 590. This is an “absolute protection.”
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Id. at 594. This Court therefore held that the civil arrest of the defendant while he was attending an Illinois state court proceeding was impermissible. See id. at 590.
27. The privilege against civil courthouse arrests is also firmly entrenched in Massachusetts common law. As the Supreme Judicial Court has explained, “[p]arties and witnesses, attending in good faith any legal tribunal, whether a court of record or not, having power to pass upon the rights of the persons attending, are privileged from arrest on civil process during their attendance, and for a reasonable time in going and returning, whether they are residents of this state or come from abroad, whether they attend on summons or voluntarily.” Valley Bank, 354 Mass. at 406-07 (quoting In re Thompson, 122 Mass. 428, 429 (1877)); see also M’Neil’s Case, 3 Mass. 288 (1807); Diamond v. Earle, 217 Mass. 499, 500 (1914). Indeed, just this past year, Justice Cypher recognized, in a Single Justice opinion, that the “privilege against civil arrest” in attending court is “well settled” in the Commonwealth. Matter of C. Doe, SJ-2018-119 at *10 (Mass. Sept. 18, 2018).
28. The consistent theme throughout the cases discussing this common-law privilege is that strict and absolute enforcement of the privilege is necessary to allow courts to serve their purpose of providing a forum where parties and witnesses can freely attend to testify and assert their rights. In a decision the Supreme Court recognized as a “leading authority” on the privilege, Stewart, 242 U.S. at 129, the New Jersey Supreme Court explained that “[c]ourts of justice ought, everywhere, to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them.” Halsey, 4 N.J.L. at 367. The “fear that . . . a capias might be served upon [parties and witnesses]” would “prevent [their] approach,” obstructing “this great object in the administration of justice.” Id. at 368. In sum:
This privilege of parties and witnesses is alike the privilege of the court and the citizen. It protects the court from interruption and
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delay. It takes away a strong inducement to disobey its process, and enables the citizen to prosecute his rights without molestation, and procure the attendance of such as are necessary for their defence and support. Id. at 368-69. 29. The same sentiment has been consistently expressed across all courts discussing the privilege. As the Supreme Court explained in Stewart v. Ramsay, the privilege “is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify.” 242 U.S. at 130. This Court and the Massachusetts Supreme Judicial Court have also recognized that the privilege is “necessary to the due administration of justice,” Larned, 12 F. at 594, and “is a prerogative exerted by the sovereign power through the courts for the furtherance of the ends of justice,” Valley Bank, 354 Mass. at 405. “[T]he reason upon which [the privilege] rests is that justice requires the attendance of witnesses cognizant of material facts, and hence that no unreasonable obstacles ought to be thrown in the way of their freely coming into court to give oral testimony.” Diamond v. Earle, 217 Mass. 499, 501 (1914). Thus, a litigant “in every claim of right which he exhibits, and every defense which he is obliged to make, should be permitted to approach [the courts], not only without subjecting himself to evil, but even free from the fear of molestation or hindrance. He should also be enabled to procure, without difficulty, the attendance of all such persons as are necessary to manifest his rights.” Stewart, 242 U.S. at 129 (quoting Halsey, 4 N.J.L. at 367-68). 30. Because of the privilege’s importance, courts have recognized numerous different ways in which courts can enforce the privilege, including ordering the person arrested immediately discharged and holding the arresting officers in contempt for violating the privilege.
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See Arding v. Flower, 8 T.R. 533 (1800); Parker v. Marco, 136 N.Y. 585 (1893) (“[A wrongfully detained individual] may move in the court whose privilege has been violated to punish the party in that court who has been guilty of such violation, or he may move in the court out of which the process has been improperly issued to vacate it, and the motion will be granted.”).
31. Similarly, courts have recognized that because the privilege inherently involves two different proceedings, often the court that enforces the privilege is different than the court with jurisdiction over the proceeding in which the improper arrest would or could take place. Thus, the English courts held that a claim for discharge out of custody can be made to the court out of which “the process was issued,” because that court has “a right to see that it is not improperly enforced.” Selby v. Hills, 131 Eng. Rep. 364, 365 (1832). The U.S. Supreme Court reached the same conclusion in Page Co. v. MacDonald, 261 U.S. at 447-48. In that case, a party was served in a federal case filed in this Court while attending court for a Massachusetts state court case. The served party asked the federal court to hold the service improper. The plaintiff argued that a party in state court could not claim immunity from service “from the judicial process of a different sovereignty,” but the Supreme Court disagreed. As the Court explained, “the courts, federal and state, have equal interests in [the necessities of the judicial administration],” and they “are both instruments of judicial administration within the same territory, available to suitors, fully available, neither they nor their witnesses subject to be embarrassed or vexed while attending, the one for the protection of his rights; the others while attending to testify.” Id. at 448. The Court therefore enforced the privilege against civil arrest and service of process on behalf of the state court.
32. Federal district courts, including this Court, thus routinely held that federal and state courts should enforce the privilege on each other’s behalf. In Larned, for instance, this
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Court upheld an assertion of the privilege against an arrest carried out in an Illinois state court proceeding. 12 F. at 590. And in Bridges v. Sheldon, 7 F. 17, 45 (D. Vt. 1880), the court held that it can enforce the privilege to invalidate service of state civil process on those attending federal court because the privilege is a “protection which all courts furnish to litigants before them, without regard to the subject of that litigation,” and violations of the privilege are “a contempt, which the court should punish.”
Congress grants ICE a general civil arrest power, which ICE interprets to authorize civil courthouse arrests.
Congress grants ICE generic civil-arrest authority, without any suggestion that it intended to abrogate the common-law limits that apply to civil arrests. 33. The provisions authorizing civil immigration arrests originate in the Immigration and Nationality Act of 1952, Pub. L. 82-414, 66 Stat. 163. That statute includes two provisions authorizing civil immigration arrests. Section 242(a) of that statute states that, “[p]ending a determination of deportability in the case of any alien as provided in subsection (b) of this section, such alien may, upon warrant of the Attorney General, be arrested and taken into custody.” Section 287(a)(2) of that statute authorizes an immigration officer to carry out a warrantless civil arrest “if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.” 34. The language Congress enacted in 1952 remains largely unchanged today. Specifically, 8 U.S.C. § 1226(a) states: “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.” And 8 U.S.C. § 1357(a)(2) authorizes an immigration officer to perform a civil immigration arrest “if he has reason to believe that the alien so arrested is in the United States in
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violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.”
35. The statute thus gives the government the same type of civil-arrest authority that had historically been used to institute civil proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to remain in this country”). The statute today, as in 1952, gives no indication that the authority Congress granted differs in any way from the civil-arrest authority that existed at common law— including the limitation privileging those attending court on official business from civil courthouse arrest.
ICE unilaterally decides to exercise its civil-arrest authority in state courthouses. 36. The federal government’s exercise of its civil-arrest powers changed dramatically after President Trump assumed office in 2017—sixty-five years after Congress first authorized civil immigration arrests. Shortly after taking office, President Trump issued Executive Order 13,768, entitled “Enhancing Public Safety in the Interior of the United States” (“EO 13,768”). In that Order, President Trump abandoned past deportation prioritization programs embraced by both the Bush and Obama Administrations, calling for the deportation of anyone potentially removable from the United States—likely more than 10 million people. As EO 13,768 recognized, administering this massive increase in immigration enforcement would require a correspondingly massive increase in federal resources, including a near-tripling of ICE’s capacity. 37. One way ICE has attempted to reduce the federal resources necessary to implement this federal policy is to coopt the state court system by using parties’ appearances in state courts as a trap for purposes of federal immigration enforcement. Early in the Trump
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administration, ICE officials began conducting courthouse surveillance and arrest raids at state courthouses. Exhibit A. The practice began almost immediately after President Trump’s inauguration and escalated quickly. Courthouse arrest and surveillance operations have continued to expand in geographic scope and severity.
38. ICE officials have repeatedly acknowledged and defended the practice of civil courthouse arrests. On March 29, 2017, then-Homeland Security Secretary John Kelly and thenAttorney General Jefferson Sessions acknowledged the civil courthouse arrest practice and stated adamantly that ICE would continue the practice. See Exhibit B at 2. Further, they have admitted that using state courthouses to trap those suspected of civil immigration violations is a way of using the state’s resources for federal benefit. Sessions and Kelly emphasized the benefit to ICE of this forced cooperation by state officers, noting that “[b]ecause courthouse visitors are typically screened upon entry to search for weapons and other contraband, the safety risks for the arresting [ICE] officers and persons being arrested are substantially decreased.” Exhibit B at 2.
39. DHS and ICE have also made clear that anyone is subject to an ICE civil arrest while attending court, including victims. For instance, in April 2017, a DHS spokesman stated:
Just because they’re a victim in a certain case does not mean there’s not something in their background that could cause them to be a removable alien[.] Just because they’re a witness doesn’t mean they might not pose a security threat for other reasons. Similarly, on August 30, 2017, the Boston Field Officer Director for ICE told immigration advocates they should not assure restraining order applicants with no prior criminal record that ICE would not arrest them if they went to the courthouse to seek protection. Indeed, ICE has arrested at least one woman while appearing in court to obtain a protective order from an abusive partner. In public remarks throughout 2017, DHS and other Trump Administration officials continued to clarify their intent to arrest victims and witnesses, including an ICE spokeswoman’s
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statement: “If [a courthouse is] the only place we can find them, why wouldn’t we? . . . We will continue to make those arrests.”
40. Consistent with these official statements and conduct, ICE has refused, as a more formal matter, to rule out the possibility of conducting enforcement against anyone, anywhere in court. In a “frequently asked questions” document, ICE responded to the question of whether there is “any place in a courthouse where enforcement will not occur” by stating, in effect, “no”:
ICE officers and agents will generally avoid enforcement actions in courthouses, or areas within courthouses, that are dedicated to non-criminal (e.g., family court, small claims court) proceedings. In those instances in which an enforcement action in such locations is operationally necessary, the approval of the respective Field Office Director (FOD), Special Agent in Charge (SAC), or his or her designee is required. Exhibit C at 3 (emphases added). ICE provided no information concerning when it would deem such enforcement “operationally necessary,” maintaining full discretion to civilly arrest anyone in any courthouse. ICE formalizes its courthouse-arrest policy in Directive No. 11072.1. 41. On January 10, 2018, ICE formalized its courthouse arrest policy in Directive No. 11072.1, entitled “Civil Immigration Actions Inside Courthouses” (the “Directive”; attached as Exhibit D). This Directive “sets forth [ICE’s] policy regarding civil immigration enforcement inside federal, state, and local courthouses.” 42. While ostensibly setting some limitations to ICE enforcement at courthouses, the Directive ultimately vests ICE with the unbridled discretion to make civil arrests in virtually any courthouse location when ICE deems it “necessary,” providing noncitizens with no assurance that they will be safe from arrest at any courthouse or under any specific circumstances. Exhibit D at 2.
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43. The Directive states that ICE’s courthouse arrests will “include” actions against “specific, target aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed.” But it pointedly does not limit its arrests to these “target aliens.” Exhibit D at 1.
44. Similarly, the Directive provides that “[a]liens encountered during a civil immigration enforcement action inside a courthouse” who are not “targeted alien[s] . . . will not be subject to . . . enforcement action, absent special circumstances.” The Directive provides no information concerning what ICE considers “special circumstances,” but simply states that “ICE officers and agents will make enforcement determinations on a case-by-case basis in accordance with federal law and consistent with U.S. Department of Homeland Security (DHS) policy.” Exhibit D at 1.
45. The Directive does not state what this DHS policy is, but instead cross-references two other internal DHS memoranda. Those two memoranda, however, say nothing about courthouse arrests. Exhibits E and F. Indeed, one of the memoranda simply reiterates EO 13,768, stating that DHS “no longer will exempt classes or categories of removable aliens from potential enforcement.” Exhibit F at 2. This memorandum suggests, if anything, that anyone potentially removable would be a fair target of a courthouse arrest.
46. Ultimately, the Directive simply formalizes the Trump Administration’s consistent policy that ICE has complete discretion to use federal and state courthouses as a trap to arrest anyone suspected of a civil immigration violation—including criminal defendants, victims, witnesses, and parties to civil proceedings.
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ICE officers are routinely present in Massachusetts state courthouses, making multiple arrests per week, causing significant disturbances, and sending a clear signal that appearing in Massachusetts courts entails risking civil ICE arrest. 47. ICE does not disclose the frequency of, or details concerning, its civil courthouse arrests in Massachusetts. Nevertheless, Plaintiffs have attempted, through their own and others’ observations of ICE in Massachusetts courts, and through reviewing the limited data that is available from the Massachusetts courts, to capture the extent of ICE’s presence in Massachusetts courts. It is readily apparent that ICE officers are regularly present in Massachusetts state courts such that appearing in a Massachusetts state court requires exposing oneself to the possibility of civil ICE arrest. 48. The presence of ICE officers in Massachusetts state courts is sufficiently routine that those regularly practicing in state courts—including Assistant District Attorneys and public defenders—recognize the ICE officers even though they are generally in plain clothes, not in uniform. 49. On information and belief, based on Plaintiffs’ own observations and incident reports filed with the Massachusetts state trial courts, ICE conducts a civil arrest against someone attending a Massachusetts state court on official business approximately two or three times a week. A significant percentage of these arrests appear to take place in Middlesex and Suffolk Counties. This includes arrests in and around the courthouse, including the parking lot and the front steps. It does not include arrests of those who are brought to court while in state criminal custody. It also does not include incidents in which ICE attempts, but fails, to make an arrest. Many of the most disruptive incidents involve such attempted arrests. 50. Arrests of those brought into court while in state criminal custody do not raise the same concerns as arrests of those who come to court under their own power. Plaintiffs here are not challenging ICE’s authority to arrest those brought into court while in state criminal custody.
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51. On information and belief, the following are characteristics of ICE’s civil courthouse arrests:
a. ICE agents are in plain clothes, but are readily identifiable by those who frequent the courts.
b. ICE agents are, on information and belief, generally, if not always, armed. c. Though ICE officers often appear to have some target in mind when they
arrive in court, they sometimes question and arrest others in court who the ICE officers believe may have committed civil immigration infractions. This can include family members who are accompanying someone ICE has targeted for arrest. ICE often reviews court dockets upon arriving in court, and sometimes arrests or attempts to arrest others who happen to appear in court that day, and who ICE believes may have committed a civil immigration infraction. d. ICE’s arrests and attempted arrests are disruptive and may even involve violence. There have been reports of slamming family members against walls, dragging individuals from cars, and pulling guns on people while leaving court. ICE has handcuffed family members who turn out to be lawfully present in the United States. In one such instance in Massachusetts, ICE was unable to remove the handcuffs because it had lost the keys, and was forced to obtain a handsaw to saw the handcuffs off in a courthouse conference room. These incidents often occur in public areas of the court, including the court lobby. Given the physical nature of some of these incidents, ICE arrests can require intervention of state court staff.
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e. ICE agents, who are typically in plain clothes, frequently fail to show their badges or show any documentation while making arrests, which has at times led members of the public to believe that ICE agents are kidnapping their targets.
f. ICE arrests often interfere with ongoing state court proceedings. When criminal defendants are arrested and detained by ICE while their criminal cases are still pending, the defendants often are unable to return to state court to resolve their criminal cases.
52. The following paragraphs provide several examples that demonstrate the nature of ICE’s presence in the Massachusetts court system. These examples are far from exhaustive, but show the type of disruption often caused by ICE’s presence in the Massachusetts courts.
53. March 2018 seizure and interrogation at Lawrence Juvenile Court. A juvenile defendant was meeting with counsel in the library of the courthouse when five ICE officers barged into the room and surrounded the defendant. ICE demanded that the juvenile put his hands up and they began to question him. His counsel was able to successfully stop the interrogation, and prevent the arrest of his client, but the officers proceeded to follow the juvenile and his counsel throughout the courthouse.
54. April 2018 harassment of court interpreter in Lynn District Court. An ICE Officer was seen verbally harassing a court interpreter regarding a communication she had interpreted between a defendant and counsel. The officer’s threatening tone prompted onlookers to intervene to force the officer to leave the interpreter alone.
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55. June 27, 2018 arrest at Marlboro District Court. A criminal defendant was taken into custody just outside of the courtroom door, in a public area, by plain-clothes ICE agents. ICE had to tell the target that they were not kidnapping him.
56. July 2018 interrogation at Boston Municipal Court. While a criminal defendant was retrieving documents from the clerk’s office, an ICE officer present in the clerk’s office approached the defendant, demanded identification and forced him into a private room in the courthouse reserved for police and prosecutors for further questioning.
57. December 2018 attempted arrest at Roxbury District Court. A criminal defendant was attending court for a pretrial hearing. As the defendant, his girlfriend, and her young child were leaving the courthouse, they were approached by four ICE officers in plain clothes who asked for identification. The defendant went back into the courthouse to find his attorney. From that point on, the ICE officers followed the defendant and his attorney as he awaited a second hearing, telling him that they were going to arrest him as soon as his hearing was over and showing him handcuffs. Six ICE officers sat in the gallery directly behind the defendant whispering to him that they were going to get him as soon as the hearing ended. During the second hearing, the defendant fainted from the stress of the ICE officers’ constant threats. Ultimately, the court ordered bail and the defendant was placed in criminal custody. When asked for an administrative warrant or an immigration detainer, ICE could not produce any document. The defendant subsequently posted bail and was released. At the defendant’s next hearing, his case was almost certainly going to be dismissed because the witness against him had recanted and the Commonwealth was unable to prove the charges against him. But the defendant did not appear at that hearing and could not be contacted by his defense attorney. The court thus entered a criminal default against him.
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58. February 2019 arrest in Somerville District Court. A criminal defendant had attended a pretrial conference. When leaving the courtroom, two ICE agents tackled him in the public lobby of the courthouse, bringing him to the ground. Onlookers believed it was a civilian fist fight (unrelated to law enforcement) because the officers were in plain clothes with no visible law enforcement identification and they had chased a man through the courthouse and tackled him. The disruption was sufficiently violent that state court officers were required to intervene.
59. January 2019 attempted arrest in Middlesex Superior Court. A criminal defendant and his uncle were waiting for a hearing to begin, seated in a conference room open to the public. ICE officers entered the conference room and handcuffed both the defendant and his uncle. The ICE officers then blocked access to the conference room, preventing the defendant’s attorney from entering. The ICE officers ultimately realized that the defendant’s uncle was not removable, but by that time they had lost the keys to the handcuffs. The officers were ultimately forced to obtain a handsaw to saw the handcuffs off of the uncle.
60. Notably, many of the individuals ICE has targeted for its civil courthouse arrests have no criminal records and are charged with only minor misdemeanors. However, because of ICE arrests or the fear of such arrests, they are unable to defend against these charges. For instance, ICE arrested an individual who had lived lawfully in the United States for years on a non-immigrant work visa. This individual remained in the United States after his visa expired and was a popular youth athletic coach for many years. Then, he was involved in a car accident; the other driver fled, but this individual remained at the scene and called the police. The police charged him with operating under the influence. ICE arrested this individual while he was leaving the courthouse after his first pre-trial conference; he was subsequently deported and never able to defend himself against the criminal charge. In another example, ICE arrested a
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lawful permanent resident entering court for a probation violation hearing. Because he could not appear in court and missed his hearing, a default warrant was issued against him. In another example, ICE arrested a man outside of East Boston District Court before he could answer to charges of unlicensed operation of a motor vehicle, prompting the issuance of a default against him. Defendants frequently miss criminal hearings, and even trials, because of ICE’s civilcourthouse-arrest policy.
61. ICE has also used courthouse arrests to target those with a path towards legal residence. For instance, ICE arrested a juvenile defendant who had been approved for Special Immigrant Juvenile status and was waiting to apply for legal permanent residence. On the day the juvenile court dismissed his pending delinquency charges, finding him incompetent to stand trial, ICE arrested him as he was walking out of the courthouse.
62. Given the publicity around these stories and others like them, and given the myriad other incidents of ICE courthouse arrests that occur without disruption or violence but where news of the arrest travels throughout the local communities, ICE’s civil-courthouse-arrest policy has sent a strong message that appearing in Massachusetts courts requires exposure to civil ICE arrest. As discussed below, this has had a dramatic impact on many noncitizens’ willingness to appear in Massachusetts courts.
Because of ICE’s courthouse arrest policy, many noncitizen Massachusetts residents will not attend Massachusetts state courts for fear of civil arrest and detention, causing significant harm to Plaintiffs. 63. The impact of ICE’s civil-courthouse-arrest policy has made clear that the concerns that underlie the privilege against civil arrest of those attending court on official business are well founded. Civil plaintiffs, criminal defendants, prosecutors, defense attorneys, and civil and criminal legal aid societies all suffer the negative effects of the chill on the immigrant community’s willingness to engage with courts—a direct result of ICE’s policy.
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Plaintiffs’ experience makes clear that the targets of ICE’s civil arrests no longer view Massachusetts state courts as places they can attend—a result that significantly harms not just Plaintiffs, but the entire Massachusetts justice system.
Many noncitizen Massachusetts residents refuse to appear in Massachusetts state courts for fear of civil immigration arrest. 64. Prior to the current administration’s civil-courthouse-arrest policy, Massachusetts state courts were understood to be open to everyone, even noncitizens potentially subject to removal. Chelsea Collaborative regularly assists with its members’ litigation in Massachusetts state courts, including members who are noncitizens. Prior to the current civil-courthouse-arrest policy, Chelsea Collaborative’s members, including those who are potentially subject to removal, were regularly willing to participate in state court proceedings. For example, in the past, the Collaborative filled courtrooms with members to show community support for the vindication of the rights of other Collaborative members. 65. In one instance in or around 2008, the Collaborative brought claims on behalf of victims of a consumer fraud scheme involving a travel agency that promised to book travel for the victims, but instead took the money and provided no services. The Collaborative brought over sixty community members, including some who were potentially subject to removal, to the trial to show support and to testify against the fraudsters. Similarly, from 2013-2014, the Collaborative helped with a criminal prosecution related to the Chelsea Housing Authority, asserting the rights of its members suffering the uninhabitable conditions of Chelsea public housing as a result of the then-executive director of the Housing Authority’s misappropriation of funds. The Collaborative loaded two buses of member-victims and their supporters, including some who were potentially subject to removal, to appear in court on behalf of the community. None of these members expressed any fear of attending a Massachusetts courthouse.
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66. This has completely changed because of the new policy authorizing civil courthouse arrests. Now, the Collaborative can hardly convince anyone to appear in court or bring suits that could ultimately require a court appearance. With accounts of ICE officers in the courthouses spreading through Massachusetts communities, and with the increased likelihood that a courthouse arrest will lead to prolonged detention given other policies of the current administration, noncitizens fear engagement with the courts either as witnesses, claimants, victims, or supporters. The following paragraphs provide just a few examples of the Collaborative’s recent experiences reflecting the pervasive fear that ICE’s presence in the courthouses has instilled in the community. These examples are not exhaustive but provide illustrations of the harm to Chelsea Collaborative’s members, and the type of conduct that is no longer being reported and acted upon by many noncitizen Massachusetts residents.
67. Domestic violence victims fear reporting abuse. Under Massachusetts General Law ch. 209A, victims of domestic violence may seek abuse prevention orders where they have a close relationship with their abuser (e.g., they are married or residing together) and they are suffering physical harm at the hands of this individual. Prior to 2017, Chelsea Collaborative assisted members, including noncitizens, in securing such orders. Currently, some members of Chelsea Collaborative are victims of domestic violence and would qualify for an abuse prevention order under chapter 209A. Yet, despite encouragement by the Collaborative and other organizations, many noncitizen Collaborative members who are victims of domestic violence and would qualify for an abuse prevention order, are now not willing to seek such an order because it requires going to court, where the victims fear ICE arrest for themselves and their families. Abusers prey on the vulnerability of these victims, using the threat of deportation to silence survivors and drive them further into the shadows. Though the Collaborative
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encourages victims to seek relief in court, given ICE’s Directive, the Collaborative cannot guarantee these victims that they can appear in court without being arrested by ICE.
68. The Collaborative’s experience of the chilling effect of ICE’s policy on victims of domestic violence is consistent with trends that have been documented nationally. For instance, a survey by the National Immigrant Women’s Advocacy Project, partnering with the American Civil Liberties Union, found that of the prosecutors they interviewed across 19 states, “82 percent of prosecutors reported that since President Trump took office [in 2017], domestic violence is now underreported and harder to investigate and/or prosecute [compared to in 2016]. Seventy percent of prosecutors reported the same for sexual assault, while 55 percent state the same difficulties for human trafficking and 48 percent for child abuse.” See American Civil Liberties Union, Freezing Out Justice: How immigration arrests at courthouses are undermining the justice system, 2 (2018). Similarly, the Domestic Violence Bureau of the Bronx District Attorney’s office has publicly reported that numerous complaining witnesses expressed fear of testifying or otherwise participating in criminal proceedings due to ICE presence in the courthouse, including at least one instance in which a previously cooperative complaining witness became extremely reluctant to testify following several news reports regarding ICE arrests occurring in courthouses. There are numerous other reports of the increased refusal among noncitizens to report domestic violence in light of ICE’s presence in courts.
69. Victims of fraud refuse to seek judicial relief, fearing ICE in court. A scam artist has victimized many in the Chelsea community, building false trust and security with unknowing victims of an investment scheme to defraud the victims of hundreds of thousands of dollars. Since early 2018, this fraudster has stolen hundreds of thousands of dollars by convincing Collaborative members to invest in a shell company with false promises of returns.
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After months of requests for an accounting of the use of the funds and recovery of the original investment, the fraudster refuses, threatening the victims with the immigration consequences of appearing in court to vindicate their rights. Despite wanting to seek relief from the courts and the return of their stolen funds, and despite the fact that the conduct at issue is clearly actionable as fraud under Massachusetts law, the undocumented victims have refused to initiate civil claims against the fraudster due to the fear of ICE arrest upon appearing in court, and the threat that their families would be torn apart by deportation.
70. Victims of church embezzlement scheme refuse to sue or assist with prosecution, fearing ICE in courts. Close to fifty parishioners of a local, now-defunct church, including many Collaborative members, sought to recover $140,000 of their offerings to the church that were embezzled by a former pastor. Due to the fear of ICE’s presence in the courthouses, the noncitizen victims fear pursuing their rights in court and have sought the advice and help of the Collaborative. In an effort to provide some mechanism to help these exploited victims, the Collaborative instituted an ad hoc investigation in cooperation with the Suffolk District Attorney to seek some form of justice for these victims.
71. Victims of employer abuses and wage theft refuse to assert their rights, fearing ICE in court. Massachusetts General Law chapter 151, sections 1A-1B requires that employers provide overtime of one and one-half times their regular wage for hours worked above 40 hours per week and creates a cause of action to recover unpaid overtime owed under these provisions. One Collaborative member’s home was destroyed in a fire, and she took time off of work to relocate her family. After returning to work, the woman was fired. After being fired, she realized that she had not been paid in accordance with chapter 151 section 1A-1B, and that she had not even been paid minimum wage. Despite offers by the Collaborative to represent
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her in suing her employer to recover what she was owed under these provisions, the victim refused to file a complaint in court, fearing ICE arrest.
72. Victims of landlord abuses refuse to challenge illegal eviction, fearing ICE in court. A family of noncitizens, including Collaborative members, was threatened by their landlord after an illegal rent increase and notice to vacate the premises if they did not agree to the substantial rent increase. Fearing ICE arrest if they appeared in court, the family moved out rather than seek relief from the landlord’s abusive and illegal tactics.
By making courthouses unavailable to many noncitizen residents of Massachusetts, ICE’s policy has injured Chelsea Collaborative’s members and forced Chelsea Collaborative to spend additional resources helping its members access justice and resolve disputes. 73. These examples alone demonstrate that ICE’s Directive and ICE’s policy of civilly arresting witnesses, parties, and others attending court on official business concretely harm Chelsea Collaborative’s members by depriving them of a judicial forum in which to assert their rights, forcing them to endure domestic violence and employment and housing practices that violate Massachusetts law. 74. The Directive and ICE’s policy of civilly arresting witnesses, parties, and others attending court on official business also harm the Collaborative by forcing it to spend and divert resources to assist its members in responding to ICE’s civil courthouse arrests. Most importantly, the Collaborative has instituted a mediation program to resolve disputes in the community involving members and other Chelsea residents who refuse to go to court. At no point prior to the current administration’s civil-courthouse-arrest policy did the Collaborative have to create such an alternative-dispute-resolution mechanism for its noncitizen members, because those members were always willing to resolve their disputes in court. Now, Collaborative staff conduct approximately three to four mediations a week, each lasting several
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hours. The subject matters range from resolution of family disputes, consumer fraud claims, wage theft allegations, and others. This program has placed an incredible strain on the organization’s resources, forcing the Collaborative to divert resources it would otherwise spend on its core mission. Although a necessary stopgap measure, this extra-judicial program suffers from obvious shortcomings, including that participation cannot be compelled and agreements reached in the mediation are not enforceable as a court judgment would be.
75. As discussed above, prior to ICE’s Directive and prior to ICE’s policy of regularly carrying out civil immigration arrests in Massachusetts courthouses, Chelsea Collaborative’s members regularly appeared in Massachusetts state courts. Thus, if ICE were enjoined from conducting civil arrests in and around courthouses, Chelsea Collaborative’s members would be willing to appear in Massachusetts courts, and Chelsea Collaborative would not need to continue its costly mediation program.
By making courthouses unavailable to many noncitizen Massachusetts residents, ICE’s policy injures the District Attorneys and CPCS by deterring victims, witnesses, and criminal defendants from appearing in court. 76. The criminal justice system cannot function if the key players in that system— victims, witnesses, and criminal defendants—are not willing and able to appear in court. 77. As the above illustrations demonstrate, many noncitizen victims, witnesses, and defendants are no longer willing to appear in court as a result of ICE’s policy of civil courthouse arrests. Crime victims, especially domestic violence victims, endure abuse rather than risk civil ICE arrest. Defendants sometimes refuse to appear for hearings and trials and sometimes are unable to appear due to ICE arrests, even in instances when the result of the hearings will most likely be dismissal of the cases. 78. The illustrations above are consistent with the District Attorneys’ experience. It is difficult for the District Attorneys to capture the full extent of ICE’s interference with their
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work because both the Middlesex and Suffolk District Attorneys do not generally ask victims and witnesses about their immigration status. Further, even if they do ask, many victims and witnesses refuse to disclose their immigration status to the District Attorneys and Assistant District Attorneys because the victims and witnesses often do not differentiate between state prosecutors and federal ICE officials. Thus, when a given victim or witness does not appear in court, it is difficult to know why that person has not appeared.
79. The illustrations above are also consistent with CPCS’s experience. When a given criminal defendant does not appear at a scheduled hearing or trial, it is sometimes difficult to know whether that failure was caused by fear of ICE arrest, actual ICE arrest outside the courthouse prior to the hearing or trial, or some other factor. But, like the District Attorneys, CPCS attorneys have noted a significant increase in criminal defendants expressing fear of appearing in court, and an increase in defendants’ failure to appear, since ICE’s Directive and since ICE began implementing its policy of regularly carrying out arrests in state courthouses. Indeed, as the Roxbury example discussed above demonstrates, criminal defendants that have encountered ICE in courthouses are often unwilling to appear at a subsequent hearing, even when the result of the hearing is almost certain dismissal of the criminal charges.
80. By causing victims, witnesses, and defendants to refuse to appear in court, ICE’s civil-courthouse-arrest policy injures the District Attorneys in concrete ways:
a. Most importantly, it makes some prosecutions impossible. For crimes like domestic violence in which a singular victim is often the only witness, if the victim is a noncitizen who is unwilling to risk ICE arrest by appearing in court, then prosecution is impossible.
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b. Prosecution is also impossible when the defendant refuses to appear due to fear of ICE arrest or fails to appear because of ICE arrest prior to resolution of the criminal case.
c. Even for prosecutions in which there are multiple victims and the defendant does appear, ICE’s policy sometimes makes prosecution significantly more costly, time-consuming and difficult. For example, the Suffolk County District Attorney’s prosecution of the former pastor who stole $140,000 from his congregation was significantly complicated by the fact that many of the victims refused to appear in court for fear of ICE arrest.
d. ICE’s courthouse arrests also force the District Attorneys’ Victim Witness Advocates to spend additional time finding ways for victims and witnesses to feel comfortable attending court, diverting their resources from their other responsibilities.
e. ICE’s courthouse arrests also force Assistant District Attorneys to spend significant time and resources preparing for hearings and trials that do not occur because the defendant and/or key witnesses do not appear because of either fear or actual ICE arrest.
81. Other District Attorneys in Massachusetts have noted the same problems. For example, Johnathan W. Blodgett, Essex County District Attorney, has stated that “[ICE] arrests at courthouses in our county have impacted witnesses appearing for trial, victims of crime (especially those of domestic violence), and criminal defendants we are seeking to prosecute. This practice often impedes access to justice for victims, as well as our ability to prosecute cases.”
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82. For similar reasons, ICE’s civil-courthouse-arrest policy injures CPCS in concrete ways:
a. Most importantly, it directly impacts CPCS in its representations. When a CPCS attorney’s client fails to appear at a hearing or trial due to fear or actual ICE arrest, the hearing or trial cannot go forward. Moreover, if a defense witness refuses to appear due to fear of ICE arrest, defending the client becomes significantly more difficult, and at times impossible.
b. ICE’s courthouse arrests force CPCS attorneys to spend significant time and resources preparing for hearings and trials that do not occur because either the defendant and/or key witnesses do not appear due to fear or actual ICE arrest.
83. As discussed above, prior to ICE’s policy of regularly carrying out civil immigration arrests in state courthouses, noncitizens potentially subject to ICE arrest did not fear arrest upon appearing in Massachusetts courts, and regularly appeared in those courts. Thus, if ICE were not permitted to conduct civil arrests in and around courthouses—either by policy or by court order—then the District Attorneys and CPCS would no longer suffer the concrete harms identified above.
84. A study conducted by Northeastern University’s Immigrant Justice Clinic summarized the disruptions it observed in Massachusetts courts at the hands of the ICE policy as follows:
ICE enforcement practices routinely interfere with court proceedings. ICE frequently arrests immigrants prior to the resolution of their criminal case. ICE detention can have grave impacts on a criminal proceeding, resulting in probation violations, default warrants, and other adverse consequences. ICE interference with the criminal process does not just harm defendants. It also harms victims, whose rights are compromised when defendants are not available to stand trial, and it disrupts the
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entire operation of the courts. In addition, the climate of fear created by ICE courthouse enforcement deters immigrant victims and witnesses from seeking assistance or participating in legal proceedings. Northeastern University School of Law, Immigrant Justice Clinic, Blocking the Courthouse
Doors: ICE Enforcement at Massachusetts Courthouses and Its Effects on the Judicial Process, 7
(March 2018). There has been widespread recognition, including by numerous judges, that ICE’s policy of civil courthouse arrests has caused precisely the harms to the administration of justice that the common law recognized. 85. Stakeholders participating in every facet of state judicial systems have spoken out
about the pervasive and destabilizing effect that ICE’s civil arrest practices have had on the
proper functioning of this core state institution. States have been vocal in rejecting the
courthouse arrest practice and in calling on ICE to terminate it entirely, or to impose significant
limitations on its frequency.
86. State court judges and justices in the Commonwealth and across the country from
California, Connecticut, New Jersey, New York, Oregon, and Washington have issued multiple
letters and public statements to ICE objecting to the courthouse arrest practice, citing to
disruptions to the administration of justice and public safety, and calling on ICE to substantially
alter its practice.
87. Paula M. Carey, Chief Justice of the Massachusetts Trial Court, summarized the
negative consequences stemming from the ICE policy as follows:
It is essential that these individuals [victims and litigants] be free to seek relief from the Court without fear that their presence in Court will be the cause of an immigration enforcement action. If not, the unfortunate result will be that public safety will decrease, communities will become less safe and perpetrators of domestic violence will feel empowered to abuse their victims with impunity. Further, individuals who currently come to our Courts to help themselves or a loved one in obtaining a civil commitment for
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detox or treatment will be reluctant to come forward if they fear immigration consequences. Any increased immigration enforcement in these civil matters would mean fewer applications, more withdrawn cases, and more defaults, resulting inevitably in violence, injustice, and threats to public safety. In my view, it would ultimately affect the Court’s ability to carry out its mission to provide the protections guaranteed by the laws of this Commonwealth. Exhibit G at 2. 88. Chief Justice Tani G. Cantil-Sakauye of the California Supreme Court wrote a letter to then-Attorney General Sessions, expressing concerns about ICE’s policy of arresting undocumented immigrants at California trial courts. Chief Justice Cantil-Sakauye echoed concerns felt by judges and lawyers across the nation: Our courthouses serve as a vital forum for ensuing access to justice and protecting public safety. . . . [ICE’s courthouse arrest policy is not only unsafe and unfair, but] undermine[s] the judiciary’s ability to provide equal access to justice. Exhibit H at 1-2. 89. She further explained that ICE’s policy affects a wide array of individuals, including “[c]rime victims, victims of sexual abuse and domestic violence, witnesses to crimes who are aiding law enforcement, limited-English speakers, unrepresented litigants, and children and families,” by limiting their ability to “come to our courts seeking justice and due process of law.” Exhibit H at 1. 90. Chief Justice Mary E. Fairhurst of the Supreme Court of Washington has also recognized that the ICE courthouse arrest policy “impede[s] the fundamental mission of [all] courts, which is to ensure due process and access to justice for everyone, regardless of their immigration status.”
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91. In a joint letter, dozens of former state and federal judges stressed that “for courts

to effectively do justice, ensure public safety, and serve their communities, the public must be

able to access courthouses safely and without fear of retribution. For many, however, ICE’s

courthouse arrests have made courts places to avoid.” Exhibit I at 1.

92. These judges also recognized that the ICE policy has caused recognizable and

tangible fear in individuals who would otherwise petition courts for redress:

Surveys of law enforcement and legal service providers confirm that ICE’s reliance on immigration arrests in courthouses instills fear in clients and deters them from seeking justice in a court building. Affidavits detail persons “terrified” to request orders protecting them from violence or enforcing child support, to serve as witnesses, and to defend themselves.

Exhibit I at 1.

93. The Victim Rights Law Center has also seen the ICE courthouse arrest policy’s

chilling effect in action, expressing that “The immigrant [sexual assault] survivors we work with

unanimously express significant fear of detention or deportation when contemplating engaging in

criminal justice and/or civil legal remedies in the aftermath of their assaults.”

94. The Boston Bar Association believes that the chilling effect that ICE courthouse

arrests fosters has “significantly impair[ed] the ability of the Commonwealth to ensure access to

our courts and fair administration of justice for all our residents.”

95. Similarly, the Massachusetts Law Reform Institute has summarized the negative

impact of the ICE courthouse arrest policy as follows:

The recent ICE presence in the courthouses of the Commonwealth . . . has already chilled access to civil legal remedies by legal services clients and is likely to imperil the participation of litigants and witnesses in key areas of our practice, including the following: [Housing, Child Welfare, Family Law, Domestic Abuse and Harassment Protection, and Employment Rights].

*

*

*

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96. A clear consensus has emerged in Massachusetts, and across the nation, among all stakeholders in the legal community that ICE’s civil-courthouse-arrest policy has resulted in a noticeable chill on court access, and as a result, on access to justice. Massachusetts judges, prosecutors, defense attorneys, and legal aid societies are united against this destructive ICE policy. These stakeholders agree that ICE courthouse arrests at the very least chill—and in some cases, outright prevent—noncitizens from accessing courthouses, and in turn justice, across Massachusetts.
CAUSES OF ACTION COUNT I
ICE’s Directive No. 11072.1 Violates the Administrative Procedure Act, 5 U.S.C. § 706(2), and the Immigration and Nationality Act, 8 U.S.C. §§ 1226(a), 1357(a) (by all Plaintiffs)
97. Plaintiffs repeat and incorporate by reference each and every allegation contained in paragraphs 1 through 96 as if fully set forth herein.
98. The Administrative Procedure Act instructs courts to “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” as well as agency action that is “in excess of statutory jurisdiction, authority, or limitations.” 5 U.S.C. § 706(2).
99. ICE’s Directive is a final agency action subject to review under the Administrative Procedure Act.
100. Congress has not given ICE the power to conduct civil arrests of parties, witnesses and others attending court on official business. “[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.” Louisiana Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 374 (1986). The validity of ICE’s Directive authorizing civil arrest of parties and witnesses attending court thus depends on whether the general grant of power to
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conduct civil arrests somehow abrogated the well-settled common law privilege that such civil arrests cannot be used to arrest parties, witnesses and others attending court on official business.
101. Given the “longstanding [] principle that statutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar principles,” a statute must “speak directly to the question addressed by the common law” to “abrogate a common-law principle.” Texas, 507 U.S. at 534 (1993) (internal quotation marks and alterations omitted). The statute authorizing ICE to conduct civil immigration arrests does not “speak directly to the question addressed by the common law”—i.e., it does not speak to the question of whether ICE can use a party or witness’s appearance in court as a trap for purposes of a civil arrest. Instead, the statute simply authorizes arrest and detention, while saying nothing about how, when, or where such arrests can take place. 8 U.S.C. § 1226(a), 1357(a). Thus, the power Congress granted to ICE to conduct civil arrests inherently contains within it the commonlaw limitation that parties, witnesses, and others attending court on official business are privileged from civil arrest.
102. To the extent there is any ambiguity concerning whether the INA incorporates or abrogates the common-law privilege, the constitutional concerns raised by the Directive resolve that ambiguity in favor of interpreting the statute to limit ICE’s authority. See Clark v. Martinez, 543 U.S. 371, 380-82 (2005) (when there are “competing plausible interpretations of a statutory text,” courts should apply “the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts”).
103. Abrogating the common-law privilege would violate the Constitutional right of access to the courts, which prohibits “systemic official action [that] frustrates a plaintiff or plaintiff class in preparing and filing suits.” Christopher, 536 U.S. at 413, 415 & n.12. Such
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“frustrat[ion]” includes not only policies that ban access outright, but also those that obstruct it. E.g., id. at 413. Forcing noncitizen litigants potentially subject to removal to risk civil arrest in order to access the courts creates such impermissible frustration. See ¶¶ 118-122, infra.
104. Abrogating the privilege would likely deprive criminal defendants of their Sixth Amendment rights. A “fundamental element of due process of law” is criminal defendants’ “right to present a defense,” which includes the “right to offer the testimony of witnesses, and to compel their attendance, if necessary.” Washington v. Texas, 388 U.S. 14, 19 (1967). Government acts that “cause[] the loss or erosion” of favorable testimony violate that right. United States v. Hoffman, 832 F.2d 1299, 1303 (1st Cir.1987). By conditioning court appearance on potential civil arrest, ICE’s Directive threatens noncitizen witnesses with potential arrest upon appearance in court, likely depriving many criminal defendants of key testimony. Criminal defendants also have the right to testify on their own behalf, e.g., Rock v. Arkansas, 483 U.S. 44, 51-53 (1987), and to be present at crucial phases of the trial, e.g., Illinois v. Allen, 397 U.S. 337, 338 (1970). ICE’s Directive impermissibly conditions a criminal defendant’s exercise of these rights on exposing herself to potential civil immigration arrest.
105. The federalism and Tenth Amendment concerns involved with abrogating state courts’ ability to protect their litigants and witnesses from courthouse arrests further supports interpreting Congress’s general grant of civil-arrest authority to incorporate the common-law privilege against courthouse arrests. If Congress intends to “pre-empt the historic powers of the States,” it must do so “plain[ly]”—making its intention “unmistakably clear”—in acknowledgment of the fact that “States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.” Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991). Authorizing ICE to police the halls of state courts—
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dissuading parties and witnesses from attending state judicial proceedings—creates a serious threat to the “usual constitutional balance between the States and the Federal Government.” Id. at 460-61. Indeed, authorizing such conduct effectively commandeers state resources for implementing a federal program. See ¶¶ 112-117, infra. Such authorization should not be presumed absent express language not present in the statute.
106. ICE’s Directive authorizes civil courthouse arrests that Congress did not authorize ICE to conduct. The Directive is thus “in excess of statutory jurisdiction, authority, or limitations,” and is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” This Court should therefore hold it unlawful and set it aside under the Administrative Procedure Act.
COUNT II ICE’s Directive No. 11072.1, and Its Policy of Conducting Civil Courthouse Arrests,
Violate the Federal and Massachusetts Common-Law Privilege Against Such Arrests (by all Plaintiffs)
107. Plaintiffs repeat and incorporate by reference each and every allegation contained in paragraphs 1 through 106 as if fully set forth herein.
108. ICE’s arrests based on alleged civil immigration infractions are civil arrests. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to remain in this country”).
109. There is a longstanding common-law privilege against civil arrest of witnesses, parties, and others attending court on official business. This privilege has been recognized by federal courts, including the Supreme Court and this Court, as well as by the Massachusetts Supreme Judicial Court. The privilege is one that courts enforce on each other’s behalf. Federal courts enforce the privilege on behalf of those attending state courts, and state courts enforce the
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privilege on behalf of those attending federal courts. The privilege is thus best understood as existing as a matter of both federal and Massachusetts common law.
110. The federal common law privilege must, at the very least, prevent arrest of those attending state court to the extent those arrests are privileged under state law.
111. ICE’s Directive, and its policy of carrying out civil arrests against parties, witnesses, and others attending courts on official business, violate the privilege against civil courthouse arrests.
COUNT III ICE’s Directive No. 11072.1, and Its Policy of Conducting Civil Courthouse Arrests,
Exceed the Federal Government’s Powers Under the Tenth Amendment (by all Plaintiffs)
112. Plaintiffs repeat and incorporate by reference each and every allegation contained in paragraphs 1 through 111 as if fully set forth herein.
113. The Constitution leaves in the states “‘a residuary and inviolable sovereignty.’” Printz v. United States, 521 U.S. 898, 918-19 (1997) (quoting The Federalist No. 39, at 245 (J. Madison)). Key to protecting this “inviolable sovereignty” is the states’ ability to prevent the federal government from conscripting key state functions for its own end: “[U]sing the States as the instruments of federal governance [is] both ineffectual and provocative of federal-state conflict.” Id. The Supreme Court has thus repeatedly “made clear that the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.” Id. at 925; see also Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018).
114. The states’ judicial and police powers are among the most important powers that the Constitution reserves to the states. Indeed, there is “no better example of the police power, which the Founders denied the National Government and reposed in the States, than the
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suppression of violent crime and vindication of its victims.” United States v. Morrison, 529 U.S. 598, 618 (2000); see also United States v. Lopez, 514 U.S. 549, 567 (1995) (discussing “areas such as criminal law enforcement . . . where states historically have been sovereign”). There is therefore particular reason to avoid allowing the federal government to coopt that system for purposes of carrying out its own civil policies, especially when such cooption interferes with the state’s administration of its police powers.
115. ICE’s Directive, and its corresponding policy of civilly arresting parties, witnesses, and others attending court on official business, impermissibly commandeer the state criminal justice and judiciary systems for purposes of carrying out the federal government’s civil immigration policy. There can be little doubt that the federal government could not order state district attorneys, public defenders, and judges to provide ICE with lists of people who the state officers know are scheduled to appear in court—let alone, to make those people available for ICE arrest. See Murphy, 138 S. Ct. at 1477 (“The Federal Government may not command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” (internal alterations and citations omitted)). However, that is precisely the effect of ICE’s civil-courthouse-arrest policy, which simply places federal officials in state courthouses to accomplish indirectly what the federal government could not permissibly do directly. Stationing armed federal agents within the state government to extract what the federal government could not order the state to provide directly heightens, not minimizes, the intrusion on state sovereignty. See Murphy, 138 S. Ct. at 1478 (telling the state legislature it cannot do something is “as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.”).
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116. The federal government’s use of state courts for civil immigration enforcement shifts the political accountability for and the economic costs of federal immigration policy to the states in precisely the way the Tenth Amendment prohibits. See Murphy, 138 S. Ct. at 1477. When those called into court by state prosecutors or state judges are then arrested by federal agents upon appearing in state court, it becomes difficult for members of the public to attribute responsibility for the arrests. Similarly, ICE’s Directive and corresponding policy of arresting those attending state courts on official business shift the costs of immigration enforcement from the federal government to the states. The federal government saves money by using the state judicial system to trap those the federal government seeks to civilly arrest and detain, while placing significant strains on state resources by requiring the involvement of state court officers, hindering the state judicial process, and making the state’s administration of justice more costly, slow, and disordered.
117. The Tenth Amendment violation is made more acute by the importance of the state institutions ICE is commandeering, and the significance of ICE’s interference with those institutions. The execution of the police power and the administration of justice are core sovereign powers reserved to the states. See Younger v. Harris, 401 U.S. 37, 43 (1971) (recognizing a “policy against federal court interference with state judicial proceedings”); In re Justices of Superior Court Dep’t of Massachusetts Trial Court, 218 F.3d 11, 16 (1st Cir. 2000) (same); Morrison, 529 U.S. at 618 (“we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”); United States v. Lopez, 514 U.S. 549, 564, 567 (1995) (“areas such as criminal law enforcement or education where states
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historically have been sovereign.”). ICE’s Directive and civil-courthouse-arrest policy significantly interfere with these core sovereign functions and violate the Tenth Amendment.
COUNT IV ICE’s Directive No. 11072.1, and Its Policy of Conducting Civil Courthouse Arrests,
Violate the Right of Access to the Courts (by Chelsea Collaborative) 118. Plaintiffs repeat and incorporate by reference each and every allegation contained in paragraphs 1 through 117 as if fully set forth herein. 119. Defendants’ actions deprive Plaintiffs of meaningful access to the courts in violation of Plaintiffs’ rights under the First, Fifth and Fourteenth Amendments. 120. The right of access to the courts prohibits “systemic official action [that] frustrates a plaintiff or plaintiff class in preparing and filing suits.” Christopher, 536 U.S. at 413, 415 & n.12; see also Tennessee v. Lane, 541 U.S. 509, 522-23 (2004); Rogan v. City of Boston, 267 F.3d 24, 28 (1st Cir. 2001); Simmons v. Dickhaut, 804 F.2d 182, 183 (1st Cir. 1986). Such “frustrat[ion]” includes not only policies that ban access outright, but also those that obstruct it in more subtle ways. See Christopher, 536 U.S. at 413 (citing M.L.B. v. S.L.J., 519 U.S. 102, 10607 (1996)) (excessive filing fees); Lane, 541 U.S. at 522-23 (inaccessibility for individuals with disabilities); see also Bounds v. Smith, 430 U.S. 817, 822 (1977) (“access to the courts [must be] adequate, effective, and meaningful”). 121. Forcing noncitizens potentially subject to removal to risk civil arrest to access the courts creates such impermissible frustration. Indeed, the cases establishing the common-law privilege recognized precisely this, explaining that the fear of arrest would “prevent [parties and witnesses’] approach,” obstructing “the administration of justice.” Halsey, 4 N.J.L. at 368. The impact of ICE’s Directive has vindicated this common-law wisdom: Noncitizen victims of domestic violence and landlord and employer abuse have been forced to continue to suffer abuse and decline to obtain remedies available under Massachusetts law rather than risk ICE arrest.
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Plaintiff Chelsea Collaborative has been forced to establish its own extra-judicial mediation program to resolve disputes between those who are no longer willing to attend court.
122. Chelsea Collaborative’s members have meritorious claims—including claims for restraining orders against abusive partners and unpaid wages against former employers—that they are frustrated from bringing by ICE’s civil-courthouse-arrest policy, in violation of the Constitutional right of access to the courts.
PRAYER FOR RELIEF Wherefore, Plaintiffs pray that this Court grant the following relief:
A. An order holding unlawful, vacating, and setting aside ICE’s Directive No. 11072.1 authorizing the civil arrest of parties, witnesses, and others attending court on official business.
B. A declaration pursuant to 28 U.S.C. § 2201 that: a. ICE does not have statutory authority to civilly arrest parties, witnesses and others attending court on official business, and hence ICE’s Directive is in excess of statutory jurisdiction, authority, or limitations, and is arbitrary, capricious, an abuse of discretion, and not in accordance with law; b. ICE’s Directive and ICE’s policy of civilly arresting parties, witnesses and others attending court on official business violate the federal and Massachusetts common-law privilege against such civil courthouse arrests; c. ICE’s Directive and ICE’s policy of civilly arresting parties, witnesses and others attending court on official business violate the constitutional right of access to the courts; and
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Case 1:19-cv-11003-PBS Document 1 Filed 04/29/19 Page 47 of 48 d. ICE’s Directive and ICE’s policy of civilly arresting parties, witnesses and others attending court on official business exceed the federal government’s constitutional authority under the Tenth Amendment.
C. An injunction enjoining ICE from implementing its Directive, and from civilly arresting parties, witnesses, and others appearing in court on official business while they are going to, attending, or leaving the courthouse.
D. Attorneys’ fees. E. Such other relief as the Court deems just and proper.
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Dated: April 29, 2019

Respectfully submitted,

/s/ David J. Zimmer

.

David J. Zimmer (BBO# 692715)

Special Assistant Attorney General

Daryl L. Wiesen (BBO# 634872)

Alicia Rubio-Spring (BBO# 692640)

Katherine M. Fahey (BBO# 699003)

Christopher J.C. Herbert (BBO# 703492)

Jordan Benson (BBO# 703215)

GOODWIN PROCTER LLP

100 Northern Avenue

Boston, MA 02210

(617) 570-1000

DZimmer@goodwinlaw.com

DWiesen@goodwinlaw.com

ARubio-Spring@goodwinlaw.com

KFahey@goodwinlaw.com

CHerbert@goodwinlaw.com

JBenson@goodwinlaw.com

/s/ Wendy S. Wayne

.

Wendy S. Wayne (BBO# 555665)

Committee for Public Counsel Services

Immigration Impact Unit

21 McGrath Highway, Somerville, MA 02143

(617) 623-0591

wwayne@publiccounsel.net

Attorney for Plaintiff the Committee for Public Counsel Services

/s/ Oren N. Nimni

.

Oren N. Nimni (BBO# 691821)

Lawyers for Civil Rights

61 Batterymarch St., 5th Floor

Boston, MA 02110

(617) 482-1145

onimni@lawyersforcivilrights.org

Attorneys for Plaintiffs Marian Ryan, in her official capacity as Middlesex County District Attorney, and Rachael Rollins, in her official capacity as Suffolk County District Attorney

David J. Zimmer (BBO# 692715) Daryl L. Wiesen (BBO# 634872) Alicia Rubio-Spring (BBO# 692640) Katherine M. Fahey (BBO# 699003) Christopher J.C. Herbert (BBO# 703492) Jordan Benson (BBO# 703215) GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 (617) 570-1000 DZimmer@goodwinlaw.com DWiesen@goodwinlaw.com ARubio-Spring@goodwinlaw.com KFahey@goodwinlaw.com CHerbert@goodwinlaw.com JBenson@goodwinlaw.com

Attorneys for Plaintiff Chelsea Collaborative, Inc.

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 </s> Case 1:19-cv-11003-PBS Document 6 Filed 04/29/19 Page 1 of 28

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

MARIAN RYAN, in her official capacity as )

Middlesex County District Attorney;

)

RACHAEL ROLLINS, in her official capacity )

as Suffolk County District Attorney;

)

COMMITTEE FOR PUBLIC COUNSEL

)

SERVICES; and the CHELSEA

)

COLLABORATIVE, INC.,

)

)

Plaintiffs,

)

)

v.

)

)

U.S. IMMIGRATION AND CUSTOMS

)

ENFORCEMENT; MATTHEW T.

)

ALBENCE, in his official capacity as Acting )

Deputy Director of U.S. Immigration and

)

Customs Enforcement and Senior Official )

Performing the Duties of the Director; TODD )

M. LYONS, in his official capacity as

)

Immigration and Customs Enforcement,

)

Enforcement and Removal Operations, Acting )

Field Office Director; U.S. DEPARTMENT )

OF HOMELAND SECURITY; and KEVIN )

McALEENAN, in his official capacity as

)

Acting Secretary of United States Department )

of Homeland Security,

)

)

Defendants.

)

Civil Action No. ________

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 1:19-cv-11003-PBS Document 6 Filed 04/29/19 Page 2 of 28

TABLE OF CONTENTS

Page

INTRODUCTION .......................................................................................................................... 1
FACTS ............................................................................................................................................ 3
As the U.S. Supreme Court has recognized, the government’s civil-arrest power is limited at common law by a “well settled” privilege against civil arrests of parties, witnesses, and others appearing in court on official business........................... 3
The Immigration and Nationality Act grants a general civil-arrest power, without specifying its scope........................................................................................... 7
ICE’s Directive No. 11072.1 authorizes civil immigration arrests of parties and witnesses attending court, in violation of the “well settled” common-law privilege. ........................................................................................................................ 7
ARGUMENT .................................................................................................................................. 9
Plaintiffs are likely to succeed in demonstrating that ICE’s policy of conducting civil courthouse arrests exceeds its statutory authority.................................................. 9
A. The civil-arrest power granted by the Immigration and Nationality Act incorporates, not abrogates, common-law limitations on civil arrest, including the common-law privilege against civil courthouse arrests.............. 10
B. Finding abrogation would be particularly inappropriate given the significant constitutional concerns raised by ICE’s Directive.......................... 14
ICE’s Directive is causing Plaintiffs ongoing and irreparable harm. .......................... 17
The public interest and the balance of harms weigh strongly in favor of preliminary injunctive relief. ....................................................................................... 19
CONCLUSION............................................................................................................................. 20

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TABLE OF AUTHORITIES

Page(s)

Cases

Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519 (1983)...........................................................................................................11, 12

Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296 (2017) .............................................................................................................12

Christopher v. Harbury, 536 U.S. 403 (2002)...........................................................................................................14, 15

Clark v. Martinez, 543 U.S. 371 (2005).................................................................................................................14

Diamond v. Earle, 105 N.E. 363 (Mass. 1914) ........................................................................................................6

Ex Parte Byne, 35 Eng. Rep. 123 (1813) ............................................................................................................5

Gregory v. Ashcroft, 501 U.S. 452 (1991).................................................................................................................16

Halsey v. Stewart, 4 N.J.L. 366 (N.J. 1817)...................................................................................................6, 7, 15

Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258 (1992).................................................................................................................12

Illinois v. Allen, 397 U.S. 337 (1970).................................................................................................................15

INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).................................................................................................................7

Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013).................................................................................................................11

La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355 (1986).............................................................................................................2, 10

Lamb v. Schmitt, 285 U.S. 222 (1932)...............................................................................................................4, 5

Larned v. Griffin, 12 F. 590 (D. Mass. 1882) .............................................................................................1, 4, 5, 6
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Case 1:19-cv-11003-PBS Document 6 Filed 04/29/19 Page 4 of 28
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014).............................................................................................................2, 11
Long v. Ansell, 293 U.S. 76 (1934) ....................................................................................................................5
Matter of C. Doe, No. SJ-2018-119 (Mass. Sept. 18, 2018) ...................................................................................6
In re M’Neil, 3 Mass. 287 (1807) ....................................................................................................................6
Malley v. Briggs, 475 U.S. 335 (1986).................................................................................................................12
Manoharan v. Rajapaksa, 711 F.3d 178 (D.C. Cir. 2013) .................................................................................................12
Meekins v. Smith, 126 Eng. Rep. 363 (1791) ..........................................................................................................4
Meyer v. Holley, 537 U.S. 280 (2003)...........................................................................................................11, 12
Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018) .............................................................................................................17
Nken v. Holder, 556 U.S. 418 (2009).................................................................................................................19
Norfolk Redevelopment & Hous. Auth. v. Chesapeake & Potomac Tel. Co. of Va., 464 U.S. 30 (1983).............................................................................................................12, 13
Odebrecht Construction, Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268 (11th Cir. 2013) .........................................................................................17, 18
Page Co. v. MacDonald, 261 U.S. 446 (1923).........................................................................................................4, 5, 10
Patriot, Inc. v. U.S. Dep’t of Hous. & Urban Dev., 963 F. Supp. 1 (D.D.C. 1997) ..................................................................................................20
Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006) ....................................................................................................11
Printz v. United States, 521 U.S. 898 (1997).................................................................................................................17
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Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56 (1st Cir. 2005) ......................................................................................................18
Rock v. Arkansas, 483 U.S. 44 (1987)...................................................................................................................15
Samantar v. Yousuf, 560 U.S. 305 (2010)...........................................................................................................10, 11
Scharfeld v. Richardson, 133 F.2d 340 (D.C. Cir. 1942) .................................................................................................11
Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978 (8th Cir. 2011) ...................................................................................................18
Simmons v. Dickhaut, 804 F.2d 182 (1st Cir. 1986) ..............................................................................................14, 15
Spence v. Stuart, 102 Eng. Rep. 530 (1802) ..........................................................................................................5
Stewart v. Ramsay, 242 U.S. 128 (1916)......................................................................................................... passim
Tennessee v. Lane, 541 U.S. 509 (2004)...........................................................................................................14, 15
The King v. Holy Trinity in Wareham, 99 Eng. Rep. 530 (1782) ............................................................................................................4
United States v. Bestfoods, 524 U.S. 51 (1998)...................................................................................................................13
United States v. Hoffman, 832 F.2d 1299 (1st Cir. 1987) ..................................................................................................15
United States v. Morrison, 529 U.S. 598 (2000).................................................................................................................16
United States v. Texas, 507 U.S. 529 (1993).......................................................................................................2, 10, 13
Valley Bank & Trust Co. v. Marrewa, 237 N.E.2d 677 (Mass. 1968) ..............................................................................................6, 16
Washington v. Texas, 388 U.S. 14 (1967)...................................................................................................................15
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Case 1:19-cv-11003-PBS Document 6 Filed 04/29/19 Page 6 of 28
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008).......................................................................................................................9
Statutes 5 U.S.C. § 706(2) .......................................................................................................................2, 10 8 U.S.C. § 1226(a) .................................................................................................................2, 7, 13 8 U.S.C. § 1357(a)(2).............................................................................................................2, 7, 13 Immigration and Nationality Act of 1952, Pub. L. 82-414, 66 Stat. 163 ..................................7, 13 Other Authorities Matthew Bacon, A New Abridgment of the Law (London, A. Strahan, 7th ed.
1832) ..........................................................................................................................................4 Devlin Barrett, DHS: Immigration agents may arrest crime victims, witnesses at
courthouses, Wash. Post (Apr. 4, 2017), available at: https://wapo.st/2ZkdwCx ...........................................................................................................8 William Blackstone, Commentaries on the Laws of England (1768)..............................................4 Nathan Levy, Jr., Mensne Process in Personal Actions at Common Law and the Power Doctrine, 78 Yale L.J. 52 (1968)....................................................................................3 P.R. Lockhart, Immigrants Face a Choice Between Domestic Violence and Deportation, Mother Jones (March 20, 2017), available at: http://bit.ly/2VPCYxn ................................................................................................................8 Letter from Sessions and Kelly to Cantil-Sakauye (Mar. 29, 2017), available at: https://wapo.st/2vaJYt5 ..............................................................................................................8
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TABLE OF ABBREVIATIONS

Chelsea Collaborative or Collaborative

Plaintiff Chelsea Collaborative, Inc.

CPCS

Plaintiff Committee for Public Counsel Services

DHS

United States Department of Homeland Security

Directive

ICE Directive No. 11072.1, “Civil Immigration Enforcement Actions Inside Courthouses”

District Attorneys

Plaintiffs Marian Ryan, Middlesex County District Attorney, and Rachael Rollins, Suffolk County District Attorney

Espinoza Decl.

Declaration of Ivan Espinoza-Madrigal in Support of Plaintiffs’ Motion for Preliminary Injunction, attached as Exhibit 13 to the Zimmer Decl.

Foley Decl. ICE INA Klein Decl. Moshier Decl. Vega Decl. Zimmer Decl.

Declaration of Anne Foley in Support of Plaintiffs’ Motion for Preliminary Injunction, attached as Exhibit 12 to the Zimmer Decl.
United States Immigration and Customs Enforcement
Immigration and Nationality Act
Declaration of Jennifer Klein in Support of Plaintiffs’ Motion for Preliminary Injunction, attached as Exhibit 11 to the Zimmer Decl.
Declaration of Michaela Moshier in Support of Plaintiffs’ Motion for Preliminary Injunction, attached as Exhibit 14 to the Zimmer Decl.
Declaration of Gladys Vega in Support of Plaintiffs’ Motion for Preliminary Injunction, attached as Exhibit 10 to the Zimmer Decl.
Declaration of David Zimmer in Support of Plaintiffs’ Motion for Preliminary Injunction

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INTRODUCTION For more than two centuries, courts, including the Supreme Court and this Court, have strictly enforced a “well settled” and “absolute” common-law privilege against civil arrest of those attending court on official business, recognizing that the judicial system cannot function if victims, parties, and witnesses are deterred from appearing in court by the threat that their appearance could be used as a trap. E.g., Stewart v. Ramsay, 242 U.S. 128, 129-130 (1916); Larned v. Griffin, 12 F. 590, 594 (D. Mass. 1882). In complete disregard for that wellrecognized limitation on the government’s civil-arrest power, United States Immigration and Customs Enforcement (“ICE”) has ordered its agents to arrest parties and witnesses appearing in court—arrests based on alleged civil, not criminal, immigration infractions. As a result, tens of thousands of Massachusetts residents will not set foot in Massachusetts courts. Victims of domestic violence or of abusive practices by landlords and employers tolerate that abuse rather than risk ICE arrest. Criminal defendants accept default rather than risk appearing in court. And when prospective plaintiffs, victims, witnesses, and defendants do not appear in court, civil and criminal prosecution and defense often become impossible. In short, ICE’s new and unprecedented policy has undermined access to justice in the precise way that common-law courts have predicted and protected against for centuries. Plaintiffs—the District Attorneys for two of the largest counties in Massachusetts, the Massachusetts public defender agency, and a membership-based community organization that protects the rights of many immigrant Massachusetts residents—bring this suit to stop ICE from carrying out this unprecedented policy. Given the plainly unlawful nature of ICE’s conduct, and the irreparable harm it is causing to Plaintiffs and the Massachusetts public, this Court should enjoin ICE from civilly arresting victims, parties, and witnesses attending Massachusetts courts during the pendency of this lawsuit.
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Plaintiffs are likely to succeed on the merits of all of their claims, but this Court need only reach the first: Congress did not grant ICE the authority to violate the common-law privilege and civilly arrest parties, witnesses, and others attending court on official business, and ICE’s Directive authorizing these arrests is thus “in excess of statutory jurisdiction, authority, or limitations” and must be “set aside” under the Administrative Procedure Act. 5 U.S.C. § 706(2). As a federal agency, ICE “literally has no power to act . . . unless and until Congress confers powers upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). The INA confers only a general civil-arrest power—the statute is silent concerning the scope of that power. See 8 U.S.C. §§ 1226(a), 1357(a)(2). Under longstanding principles of statutory interpretation, such a Congressional authorization of a well-understood power like civil arrest presumptively carries with it the limitations that accompanied that power at common law. See, e.g., United States v. Texas, 507 U.S. 529, 534 (1993); Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 (2014). That interpretive principle is directly applicable here: Congress’s general grant of civil-arrest power does not give ICE unbridled authority to conduct civil arrests whenever and however it wants, but instead incorporates within it the common-law limitations on the civil-arrest power, including the well-settled common-law rule that the government cannot civilly arrest victims, witnesses, and parties appearing in court. This interpretation is further supported by the serious constitutional questions that would arise from authorizing federal agents to conduct civil arrests against victims, witnesses, and parties attending state courts.
ICE’s policy is not only unlawful, it is causing ongoing and irreparable harm to Plaintiffs and the public. As the supporting declarations show, the chilling effect of ICE’s policy is real, and its effects are dramatic. For instance, prior to ICE’s policy, Plaintiff Chelsea Collaborative’s noncitizen members routinely appeared in Massachusetts courts. But since ICE’s civil-
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courthouse-arrest policy, even those suffering from domestic violence or clear violations of Massachusetts law will not use the courts for fear of ICE arrest. The problem has become so severe that Chelsea Collaborative has been forced to devote significant resources to establishing its own, entirely new, mediation system to attempt to resolve disputes involving those who will not appear in Massachusetts courts for fear of civil ICE arrest. Noncitizens’ refusal to appear in court also creates obvious and irreparable harms to the District Attorneys and the Committee for Public Counsel Services (“CPCS”)—if crime victims, witnesses, and defendants will not appear in court, prosecution and criminal defense become much more difficult, and at times impossible.
Because ICE’s policy plainly exceeds its statutory authority, and because it is causing continuous and irreparable harm to Plaintiffs and the public, this Court should enjoin Defendants from carrying out these unlawful civil arrests during the pendency of this suit.1
FACTS As the U.S. Supreme Court has recognized, the government’s civil-arrest power is limited at common law by a “well settled” privilege against civil arrests of parties, witnesses, and others appearing in court on official business. In England, and in the early years of this country, civil proceedings were often initiated by having the government civilly arrest the defendant to guarantee his or her appearance in court. See Nathan Levy, Jr., Mensne Process in Personal Actions at Common Law and the Power Doctrine, 78 Yale L.J. 52, 61-70 (1968). The possibility that such civil arrests could take place in court, however, posed a significant problem for the judicial system: If a party or witness’s appearance in one case could be used as a trap for a civil arrest in another case, many parties and witnesses would not attend court. To avoid this problem, courts both in England and the United States, including the Supreme Court and this Court, all recognized and strictly enforced an
1 This Memorandum uses the phrase “civil courthouse arrests” to mean arrests of those attending court for official business under their own power. Plaintiffs are not challenging in this litigation ICE’s authority to arrest those brought into court while in state custody.
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“inflexib[le]” privilege, and an “absolute protection,” against the civil arrest of parties or witnesses attending court. Page Co. v. MacDonald, 261 U.S. 446, 448 (1923); Larned, 12 F. at 594. As the Supreme Court explained, “the due administration of justice requires that a court shall not permit interference with the progress of a cause pending before it, by the service of process in other suits, which would prevent, or the fear of which might tend to discourage, the voluntary attendance of those whose presence is necessary or convenient to the judicial administration in the pending litigation.” Lamb v. Schmitt, 285 U.S. 222, 225 (1932).
The common-law privilege against civil arrest while attending court on official business traces its origins back at least to English courts in the eighteenth century. Blackstone’s Commentaries on the Laws of England explained the common-law rule that “[s]uitors, witnesses, and other persons, necessarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their necessary coming and returning.” 3 William Blackstone, Commentaries on the Laws of England 289 (1768); see also 6 Matthew Bacon, A New Abridgment of the Law 530 (London, A. Strahan, 7th ed. 1832) (“[A]ll other persons whatsoever, are freed from arrests, so long as they are in view of any of the courts at Westminster, or if near the courts, though out of view, lest any disturbance may be occasioned to the courts or any violence used.”). This principle was repeatedly endorsed by the English courts, which held that, “for the purposes of justice,” and “to encourage witnesses to come forward voluntarily,” they are privileged from arrest “in coming, in staying, and in returning” from court. The King v. Holy Trinity in Wareham, 99 Eng. Rep. 530 (1782); see also Meekins v. Smith, 126 Eng. Rep. 363 (1791) (“[A]ll persons who had relation to a suit which called for their attendance, whether they were compelled to attend by process or not, (in which number bail were included,) were intitled to privilege from arrest endo et redeundo [i.e., coming and returning][.]”); Spence v.
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Stuart, 102 Eng. Rep. 530 (1802); Ex Parte Byne, 35 Eng. Rep. 123 (1813).2 The Supreme Court has not only adopted this privilege, but also held that it bars service
of any other civil process while attending state or federal court. For instance, in Stewart, the Court described the privilege as “well settled,” explaining that citizens “should be permitted to approach [the courts], not only without subjecting himself to evil, but even free from the fear of molestation or hindrance. He should also be enabled to procure, without difficulty, the attendance of all such persons as are necessary to manifest his rights.” Stewart, 242 U.S. at 129. The Court described it as particularly firmly established that there was an “exemption from arrest,” or “capias,” and held that this exemption applied to any civil process to protect the “necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify.” Id. at 129-30. The Court has emphasized the “necessity of [the rule’s] inflexibility” in order to serve its purpose of protecting litigants and witnesses in appearing in court. Page Co., 261 U.S. at 448; see also Long v. Ansell, 293 U.S. 76, 83 (1934) (Brandeis, J.) (describing “the common-law rule that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit, are immune from service in another”); Lamb, 285 U.S. at 225. The Court has thus held that a federal court can apply the privilege on behalf of a state court. Page Co., 261 U.S. 488.
This Court has recognized a similarly “absolute protection.” Larned, 12 F. at 594. As the Court explained, “[i]t has long been settled that parties and witnesses attending in good faith any legal tribunal . . . are privileged from arrest on civil process during their attendance, and for a reasonable time in going and returning.” Id. at 590. The Court therefore applied the privilege in
2 The sources cited in this paragraph are attached as Exhibits 1 through 6 of the Zimmer Declaration.
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favor of a witness appearing in a state court proceeding. Id. The privilege against civil courthouse arrests is also firmly entrenched in Massachusetts
common law. As the Supreme Judicial Court has explained, “[p]arties and witnesses, attending in good faith any legal tribunal, whether a court of record or not, having power to pass upon the rights of the persons attending, are privileged from arrest on civil process during their attendance, and for a reasonable time in going and returning.” Valley Bank & Trust Co. v. Marrewa, 237 N.E.2d 677, 680 (Mass. 1968) (quoting In re Thompson, 122 Mass. 428, 429 (1877)); see also In re M’Neil, 3 Mass. 287 (1807); Diamond v. Earle, 105 N.E. 363, 363 (Mass. 1914). Indeed, Justice Elspeth Cypher recently recognized, in a Single Justice opinion, that the “privilege against civil arrest” in attending court is “well settled” in the Commonwealth. Matter of C. Doe, No. SJ-2018-119, at 10-11 (Mass. Sept. 18, 2018) (Zimmer Decl. Ex. 7).
The consistent theme throughout these cases is that strict and absolute enforcement of the privilege is necessary to allow courts to serve their purpose of providing a forum where parties and witnesses can freely attend to testify and assert their rights. In a decision the Supreme Court recognized as a “leading authority” on the privilege, Stewart, 242 U.S. at 129, the New Jersey Supreme Court explained that “[c]ourts of justice ought, everywhere, to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them.” Halsey v. Stewart, 4 N.J.L. 366, 367 (N.J. 1817). The “fear that . . . a capias might be served upon [parties and witnesses]” would “prevent [their] approach,” obstructing “this great object in the administration of justice.” Id. at 368. In sum:
This privilege of parties and witnesses is alike the privilege of the court and the citizen. It protects the court from interruption and delay. It takes away a strong inducement to disobey its process, and enables the citizen to prosecute his rights without molestation, and procure the attendance of such as are necessary for their defence and support.
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Id. at 368-69. Thus, “[t]he citizen in every claim of right which he exhibits, and every defense which he is obliged to make, should be permitted to approach [the courts], not only without subjecting himself to evil, but even free from the fear of molestation or hindrance. He should also be enabled to procure, without difficulty, the attendance of all such persons as are necessary to manifest his rights.” Stewart, 242 U.S. at 129 (quoting Halsey, 4 N.J.L. at 367-68).
The Immigration and Nationality Act grants a general civil-arrest power, without specifying its scope. The INA’s two civil-arrest provisions originated in the Immigration and Nationality Act of 1952, Pub. L. 82-414, 66 Stat. 163, and have changed little since then. Section 242(a) of the 1952 Act states that, “[p]ending a determination of deportability in the case of any alien as provided in subsection (b) of this section, such alien may, upon warrant of the Attorney General, be arrested and taken into custody.” Section 287(a)(2) of that Act authorizes an immigration officer to carry out a warrantless civil arrest “if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.” That Act thus granted a general civil-arrest power to immigration officers, without suggesting that the power exceeds the scope of the government’s civil-arrest power at common law. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“A deportation proceeding is a purely civil action[.]”). The language Congress enacted in 1952 remains largely unchanged today. See 8 U.S.C. §§ 1226(a), 1357(a)(2). ICE’s Directive No. 11072.1 authorizes civil immigration arrests of parties and witnesses attending court, in violation of the “well settled” common-law privilege. For more than six decades after Congress granted the federal government authority to carry out civil immigration arrests, no federal agency ever officially interpreted that authority to extend to arresting parties and witnesses appearing in court. Starting with President Trump’s inauguration in 2017, however, the federal government began publicly insisting that it had the
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right to carry out such arrests. For instance, in March 2017, in response to a letter from the Chief Justice of the California Supreme Court expressing concern based on reports that ICE officers had been “stalking” individuals attending the California courts, then-Homeland Security Secretary John Kelly and then-Attorney General Jefferson Sessions insisted that ICE could and would continue the practice.3 DHS and ICE have also made clear that anyone is subject to an ICE civil arrest while attending court, including victims of crimes. For instance, a DHS spokesman defended the practice of arresting crime victims in court, stating:
Just because they’re a victim in a certain case does not mean there’s not something in their background that could cause them to be a removable alien[.] Just because they’re a witness doesn’t mean they might not pose a security threat for other reasons.4 ICE has, in fact, followed through on such statements, arresting at least one woman when she appeared in court to obtain a protective order from an abusive partner.5 On January 10, 2018, ICE formalized its courthouse-arrest policy in Directive No. 11072.1, entitled “Civil Immigration Enforcement Actions Inside Courthouses” (the “Directive”). Zimmer Decl. Ex. 8. This Directive “sets forth [ICE’s] policy regarding civil immigration enforcement actions inside federal, state, and local courthouses.” Id. at 1. While ostensibly setting some limitations on ICE enforcement at courthouses, the Directive ultimately vests ICE with the unbridled discretion to arrest anyone in virtually any courthouse location when they deem “necessary,” providing noncitizens no assurance that they will ever be safe from arrest at court. Id. at 1-2. The Directive states that ICE’s courthouse arrests will “include actions against specific,
3 See Letter from Sessions and Kelly to Cantil-Sakauye (Mar. 29, 2017), https://wapo.st/2vaJYt5. 4 Devlin Barrett, DHS: Immigration agents may arrest crime victims, witnesses at courthouses, Wash. Post (Apr. 4, 2017), https://wapo.st/2ZkdwCx. 5 P.R. Lockhart, Immigrants Face a Choice Between Domestic Violence and Deportation, Mother Jones (March 20, 2017), http://bit.ly/2VPCYxn.
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target aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed.” Id. at 1. But it does not in any way limit its arrests to these “target aliens.” Similarly, the Directive provides that “[a]liens encountered during a civil immigration enforcement action inside a courthouse” who are not “target alien[s] . . . will not be subject to . . . enforcement action, absent special circumstances.” Id. The Directive does not explain what ICE considers “special circumstances,” but simply states that ICE’s decision will be consistent with an unspecified “U.S. Department of Homeland Security (DHS) policy.” Id. at 1 n.1. Making matters worse, the Directive suggests that DHS policy includes broad enforcement against anyone potentially removable by cross-referencing another DHS memorandum that states that DHS “no longer will exempt classes or categories of removable aliens from potential enforcement.” Zimmer Decl. Ex. 9 at 2. Ultimately, the Directive simply formalizes the Trump Administration’s consistent policy that ICE has complete discretion to use federal and state courthouses to arrest anyone suspected of a civil immigration infraction—including victims, witnesses, criminal defendants, and parties to civil proceedings.
ARGUMENT “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). All four factors strongly favor Plaintiffs. Plaintiffs are likely to succeed in demonstrating that ICE’s policy of conducting civil courthouse arrests exceeds its statutory authority. ICE’s Directive authorizing civil courthouse arrests is impermissible for the simple reason that Congress never granted ICE the power to make such arrests. ICE’s civil-arrest power
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is only as broad as the power granted by Congress, see La. Pub. Serv. Comm’n, 476 U.S. at 374, and, under well-settled interpretive principles, the INA’s generic grant of civil-arrest authority extends only so far as the government’s civil-arrest authority at common law. At common law, the government’s civil-arrest power was limited by the “well settled” and “inflexib[le]” privilege against the civil arrest of parties, witnesses, and others attending court on official business. Stewart, 242 U.S. at 129; Page Co., 261 U.S. at 448. ICE’s civil-arrest authority is therefore cabined by that common-law privilege. Further, to the extent there were any ambiguity in the scope of ICE’s authority, that ambiguity is resolved by the serious constitutional questions raised by allowing ICE to arrest victims, witnesses, and parties attending state court proceedings. Plaintiffs are therefore likely to succeed in showing that ICE’s Directive is “in excess of statutory jurisdiction, authority, or limitations,” and is otherwise “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and must be “set aside” under the Administrative Procedure Act. 5 U.S.C. § 706(2).
A. The civil-arrest power granted by the Immigration and Nationality Act incorporates, not abrogates, common-law limitations on civil arrest, including the common-law privilege against civil courthouse arrests.
It is a “longstanding . . . principle that statutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” Texas, 507 U.S. at 534 (quotation marks and alterations omitted). In such cases, “Congress does not write upon a clean slate,” and thus “[i]n order to abrogate a common-law principle, the statute must speak directly to the question addressed by the common law.” Id. (quotation marks omitted). Put slightly differently, “courts may take it as a given that Congress has legislated with an expectation that the common law principle will apply” absent a “statutory purpose to the contrary.” Id. (quotation marks and alterations omitted); see also Samantar v. Yousuf, 560 U.S. 305, 320 n.13 (2010) (“Congress is
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understood to legislate against a background of common-law principles,” and “when a statute covers an issue previously governed by the common law, we interpret the statute with the presumption that Congress intended to retain the substance of the common law” (internal quotation marks and alterations omitted)); Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 538 (2013); Meyer v. Holley, 537 U.S. 280, 285 (2003); Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 142 (1st Cir. 2006); Scharfeld v. Richardson, 133 F.2d 340, 341 (D.C. Cir. 1942) (“The courts have consistently held legislation derogative of the common law accountable to an exactness of expression, and have not allowed the effects of such legislation to be extended beyond the necessary and unavoidable meaning of its terms.”).
The Supreme Court has repeatedly applied this principle and held that when Congress invokes a general common-law principle, it intends to incorporate common-law limitations on that principle. For instance, the Court has repeatedly held that when Congress creates a tort-like cause of action, it presumptively incorporates common-law principles governing tort actions, even if those principles are not apparent in the statute’s text. The Lanham Act, for instance, creates a broad cause of action for “any person who believes that he or she is likely to be damaged” by false advertising—language that, “[r]ead literally,” would allow anyone with Article III standing to bring suit. See Lexmark, 572 U.S. at 129. But, this “broad language notwithstanding,” the Lanham Act incorporates “well established” common-law limitations on tort liability, like proximate cause, because “Congress, we assume, is familiar with the commonlaw rule and does not mean to displace it sub silentio.” Id. at 132. The Court has similarly interpreted many other statutes creating causes of action that, read literally, “encompass every harm that can be attributed directly or indirectly to the consequences of a[] [statutory] violation” to incorporate “common-law damages” principles like proximate cause. Associated Gen.
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Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 529, 535 (1983) (Sherman Act); see also Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 266-67 (1992) (RICO); Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1305 (2017) (Fair Housing Act).
The Supreme Court (and other courts) have similarly read tort-like statutes as incorporating other common-law limits and rules. For instance, in Malley v. Briggs, 475 U.S. 335, 339-40 (1986), the Court held that, though 42 U.S.C. § 1983 “on its face admits of no immunities” because it creates liability for “[e]very person” who violates its terms, it must be read “in harmony” with common-law tort limitations, rather than “in derogation of them.” The D.C. Circuit similarly held that, though the Torture Victims Protection Act imposes, without limitation, liability on “an individual” that violates its terms, it does not “abrogate the preexisting common law” of “head of state immunity.” Manoharan v. Rajapaksa, 711 F.3d 178, 180 (D.C. Cir. 2013). And in Meyer v. Holley, the Court held that the Fair Housing Act’s cause of action, which “says nothing about vicarious liability,” nevertheless imposes such liability. Because a statute only “abrogate[s] a common-law principle” when it “speak[s] directly to the question addressed by the common law,” the Court held that “when Congress creates a tort action, it legislates against a legal background of ordinary tort-related vicarious liability rules and consequently intends its legislation to incorporate those rules.” Meyer, 537 U.S. at 285 (internal quotation marks omitted).
Courts have applied this interpretive principle in numerous other contexts as well. For instance, in Norfolk Redevelopment & Hous. Auth. v. Chesapeake & Potomac Tel. Co. of Va., 464 U.S. 30, 32 (1983), a utility company sought to recover the cost of relocating its facilities based on a federally-funded project under the Uniform Relocation Act, which entitled any “displaced person” to such relocation benefits. Though the Court expressed “no doubt” that the
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utility company qualified as a “displaced person” under the statute’s text, it held that the statute did not expressly abrogate the “traditional common law rule [that] utilities have been required to bear the entire cost of relocating from a public right-of-way whenever requested to do so by state or local authorities.” Id. at 35-36 (internal quotation marks and alterations omitted). Relying on the “well-established principle of statutory construction that the common law ought not to be deemed repealed, unless the language of a statute be clear and explicit for this purpose,” the Court held that the utility was not entitled to recover—despite the facially broad statutory provision. Id. at 36; see also United States v. Bestfoods, 524 U.S. 51, 55, 63 (1998) (though CERLA only imposes liability on those who “owned or operated” a facility, it nevertheless incorporates the “well-settled” common-law rules regarding corporate veil piercing because a statute only “abrogate[s] a common-law principle” if it “speak[s] directly to the question addressed by the common law”).
This case presents a straightforward application of that well-settled interpretive principle. The INA is directly analogous to the statutes at issue in the cases discussed above: Its two civilarrest provisions invoke a general common-law concept without specifying its precise scope. See 8 U.S.C. §§ 1226(a), 1357(a)(2). Neither provision touches on where civil immigration arrests are authorized, let alone “speak[s] directly” to an intention to abrogate the common-law rule that civil arrests cannot be carried out on those attending court. Texas, 507 U.S. at 534. The history of these civil-arrest provisions similarly suggests no intent to grant authority exceeding that at common law. Both of these provisions were initially adopted in the Immigration and Nationality Act of 1952 §§ 242(a), 287(a)(2), Pub. L. 82-414, 66 Stat. 163, 208-209, 233, and have not been substantively revised since that time, see 8 U.S.C. §§ 1226(a), 1357(a)(2). Neither the legislative history of the 1952 Act, nor the history of subsequent acts that made non-
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substantive amendments to these provisions, include any relevant discussion of the civil-arrest provisions. Absent any indication of Congressional intent, the statute does not grant the full scope of civil-arrest authority Congress could constitutionally authorize, but instead simply grants a civil-arrest authority commensurate with the scope of that authority at common law. And, as discussed above, the government’s common-law civil-arrest authority did not include the power to arrest victims, witnesses, and parties attending court.
Because ICE’s civil-arrest authority is limited to the government’s authority at common law, and because ICE’s Directive authorizes the very civil arrests that are prohibited at common law, ICE’s Directive exceeds its statutory authority, and must be set aside.
B. Finding abrogation would be particularly inappropriate given the significant constitutional concerns raised by ICE’s Directive.
To the extent there is any ambiguity as to whether the INA abrogates the common-law privilege against civil arrest, the canon of constitutional avoidance resolves it. See, e.g., Clark v. Martinez, 543 U.S. 371, 380-82 (2005). Under that canon, when there are “competing plausible interpretations of a statutory text,” courts should apply “the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” Id. at 381. Interpreting the INA to authorize civil courthouse arrests—effectively conditioning appearance in court on the risk of ICE arrest and detention—would create at least three significant “constitutional doubts” that reinforce the need to interpret ICE’s civil-arrest authority as limited by the common-law privilege against civil courthouse arrests.
First, abrogating the common-law privilege implicates the constitutional right of access to the courts, which prohibits “systemic official action [that] frustrates a plaintiff or plaintiff class in preparing and filing suits.” Christopher v. Harbury, 536 U.S. 403, 413, 415 & n.12 (2002); see also Tennessee v. Lane, 541 U.S. 509, 522-23 (2004); Simmons v. Dickhaut, 804 F.2d 182,
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183 (1st Cir. 1986). Such “frustrat[ion]” includes not only policies that ban access outright, but also those that obstruct it by, for instance, imposing significant filing fees, Christopher, 536 U.S. at 413 (citing M.L.B. v. S.L.J., 519 U.S. 102, 106-07 (1996)), or making courts inaccessible to those with disabilities, Lane, 541 U.S. at 522-23. Forcing noncitizen litigants to risk civil arrest to access the courts creates such impermissible frustration. Indeed, the cases establishing the common-law privilege recognized precisely this, explaining that the fear of arrest would “prevent [parties and witnesses’] approach,” obstructing “the administration of justice.” Halsey, 4 N.L.J. at 367-68. The impact of ICE’s Directive has vindicated this common-law wisdom: Noncitizen victims of domestic violence and landlord and employer abuse have been forced to continue to suffer abuse rather than risk ICE arrest, and Plaintiff Chelsea Collaborative has been forced to establish its own extra-judicial mediation program to attempt to resolve disputes between those who are no longer willing to attend court. See Vega Decl. ¶¶ 12-20.
Second, abrogating the privilege would likely deprive criminal defendants of their Sixth Amendment rights. A “fundamental element of due process of law” is criminal defendants’ “right to present a defense,” which includes the “right to offer the testimony of witnesses, and to compel their attendance, if necessary.” Washington v. Texas, 388 U.S. 14, 19 (1967). Government acts that “cause[] the loss or erosion” of favorable testimony violate that right. United States v. Hoffman, 832 F.2d 1299, 1303 (1st Cir. 1987). By conditioning court appearance on potential civil arrest, ICE’s Directive threatens noncitizen witnesses with potential arrest upon appearance in court, likely depriving many criminal defendants of key testimony. Criminal defendants also have the right to testify on their own behalf, e.g., Rock v. Arkansas, 483 U.S. 44, 51-53 (1987), and to be present at crucial phases of the trial, e.g., Illinois v. Allen, 397 U.S. 337, 338 (1970). ICE’s Directive impermissibly conditions a criminal defendant’s exercise
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of these rights on exposing herself to potential civil immigration arrest—and, if the defendant is civilly arrested and detained, often denies those rights completely. See Klein Decl. ¶¶ 7, 10.
Third, the Directive raises significant federalism and Tenth Amendment concerns, which further caution against reading the INA to abrogate the common-law privilege. Because “States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere,” when Congress intends to “pre-empt the historic powers of the States,” it must do so “plain[ly],” making its intention “unmistakably clear.” Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991). There can be little doubt that it “pre-empt[s] the historic powers of the States” to install ICE agents in state courts to civilly arrest victims, witnesses, and parties attempting to access those courts. Indeed, ICE’s Directive flies in the face of settled Massachusetts law prohibiting such civil courthouse arrests specifically because such a prohibition is necessary for the Massachusetts justice system to function. See Valley Bank, 237 N.E.2d at 679 (recognizing that the privilege “is a prerogative exerted by the sovereign power through the courts for the furtherance of the ends of justice”). The Directive also intrudes on the Commonwealth’s police power—a power “the Founders denied the National Government and reposed in the States,” United States v. Morrison, 529 U.S. 598, 618 (2000)—as the Directive interferes with the ability to investigate and prosecute crime. See Foley Decl. ¶¶ 4-6; Vega Decl. ¶¶ 10-11, 16. Nothing in the INA suggests an intent to allow such intrusion into state judicial and police powers—and the INA certainly does not do so “plain[ly]” and “unmistakably.”
Indeed, even if the INA did include a plain and unmistakable indication of intent to use state courts for purposes of civil immigration arrests, such conduct would likely violate the Tenth Amendment. The Supreme Court has repeatedly held that the federal government cannot commandeer state resources, and cannot “compel the States to implement, by legislation or
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executive action, federal regulatory programs.” Printz v. United States, 521 U.S. 898, 925 (1997); see also Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018). Thus, the federal government could not force the District Attorneys, CPCS, or state courts to identify to ICE every defendant, witness, or party they know will be appearing in state court, let alone make any such person available for ICE arrest. See Murphy, 138 S. Ct. at 1477. ICE’s Directive is functionally equivalent—though it does not explicitly order the state government to provide this information, it installs federal officers in state courts to simply extract it, in violation of state law. Cf. id. at 1478 (barring state legislature from doing something is “as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.”). Further, ICE’s Directive raises precisely the concerns around federal shifting of political accountability and costs to the states that underlie the anti-commandeering principle. See id. at 1477. This Court should not permit such an end-run around established Tenth Amendment law.
Because the INA does not abrogate the common-law rule against civil courthouse arrests, and because any such abrogation would raise serious constitutional doubts, Plaintiffs are likely to establish that ICE’s Directive exceeds its statutory authority, and must be set aside.
ICE’s Directive is causing Plaintiffs ongoing and irreparable harm. ICE’s Directive is inflicting ongoing harm on Plaintiffs—harm that is irreparable, as it “cannot adequately be compensated for either by a later-issued permanent injunction, after a full adjudication on the merits, or by a later-issued damages remedy.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005). This includes financial harm from the need to expend significant additional resources in response to ICE’s Directive—harm that is unrecoverable given the government’s sovereign immunity. Odebrecht Construction, Inc. v.
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Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1289 (11th Cir. 2013) (citing cases). And it also includes harm that is, by its very nature, irreparable, such as lost opportunities for prosecution.
Chelsea Collaborative—a non-profit membership-based organization—is suffering irreparable harm in at least two different ways. First, it has had to divert significant resources responding to ICE’s unauthorized Directive. Most notably, because many of its members and others in the Chelsea community are noncitizens who are not willing to use the Massachusetts courts to resolve their disputes because of ICE’s Directive, Chelsea Collaborative has been forced to establish, at significant expense, an extra-judicial mediation and dispute-resolution system to attempt to resolve disputes between those unwilling to appear in court. Vega Decl. ¶¶ 17-20. Chelsea Collaborative is currently conducting three to four mediations per week. Id. This is a program that had never been needed prior to ICE’s civil-courthouse-arrest policy. Id. Second, Chelsea Collaborative’s members have been unable to vindicate important rights, suffering ongoing domestic violence, unpaid wages, and other legal violations against them due to the risk that an attempt to vindicate their rights would lead to civil arrest by ICE.6 Id. ¶¶ 1216. This not only harms Chelsea Collaborative’s members, but also the Collaborative itself, as it prevents the Collaborative from fulfilling its mission of protecting its members’ rights.
The District Attorneys are also suffering ongoing and irreparable harm in multiple, predictable ways. ICE’s civil-courthouse-arrest policy has increased noncitizen victims’ and witnesses’ fear of reporting crime and appearing in court. Vega Decl. ¶¶ 10-11, 13; Espinoza Decl. ¶ 7. It has also made it impossible for the District Attorneys and their staff to tell potentially removable noncitizen victims and witnesses that their fears of civil ICE arrest upon appearing in court are unfounded given that the Directive specifically authorizes their arrest.
6 Courts consider irreparable harm to a plaintiff’s members in the preliminary-injunction inquiry. E.g., Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978, 996 (8th Cir. 2011).
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Foley Decl. ¶¶ 4-6. This leads to an inability to prosecute certain cases at all when the victims and witnesses refuse to come forward. Vega Decl. ¶¶ 10-11, 13; Moshier Decl. ¶¶ 3-4. Finally, the threat of ICE arrests often leads defendants to not appear for fear of ICE arrest, which prevents the District Attorneys from completing prosecutions, and victims from having their day in court. Klein Decl. ¶¶ 7, 10. It also leads to additional resource diversion, as Assistant District Attorneys are forced to prepare for trials that do not occur.
CPCS has suffered and will continue to suffer similar irreparable harm during the pendency of this suit. CPCS’s three-person Immigration Impact Unit (“IIU”) is tasked with advising all Massachusetts court-appointed criminal defense attorneys concerning the immigration consequences of criminal convictions to ensure effective representation under Padilla v. Kentucky, 559 U.S. 356 (2010). Klein Decl. ¶¶ 2-3. But since ICE’s policy took effect, IIU staff have been forced to devote considerable resources to addressing defense attorneys’ concerns about the problems caused by potential ICE arrest, assisting defense attorneys in locating their clients who have been arrested and civilly detained by ICE and assisting those attorneys in securing their clients’ appearances in court, distracting IIU staff from their core responsibility of ensuring effective assistance of counsel. Id. ¶¶ 12-14. Criminal defendants’ increased failure to appear at hearings and trials—whether out of fear of ICE arrest or because they were actually arrested by ICE upon appearing in court—also creates significant harm to CPCS, forcing its attorneys to prepare for hearings and trials that do not take place, and making it impossible for CPCS to carry out its criminal-defense responsibilities. Id. ¶¶ 11,13.
The public interest and the balance of harms weigh strongly in favor of preliminary injunctive relief. The final two factors generally “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). Here, the public interest strongly favors preliminary
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injunctive relief, as ICE’s Directive not only harms Plaintiffs, but also the public at large. First, as to the specific policy at issue, tens of thousands of Massachusetts residents are potentially subject to civil ICE arrest, and are currently forced to risk such arrest as a condition for accessing the court system. That impacts not only those individuals and their families, but also safety and the rule of law more generally. When crime goes unreported, or when victims’ or witnesses’ unwillingness to appear in court makes prosecution impossible, criminals are not punished and remain at large. Indeed criminals often use the threat of ICE arrest to deter victims and witnesses from reporting the crimes—an issue that is a particular problem in the context of domestic violence. See Foley Decl. ¶ 5; Moshier Decl. ¶¶ 3, 6. Second, and more generally, “the public interest is best served by having federal agencies comply with the requirements of federal law.” Patriot, Inc. v. U.S. Dep’t of Hous. & Urban Dev., 963 F. Supp. 1, 6 (D.D.C. 1997).
No countervailing government interest in conducting civil arrests at courthouses outweighs the ongoing and irreparable harm being caused to Plaintiffs and the public. Plaintiffs seek only an injunction limiting where ICE can carry out operations—it does not seek to limit, in any way, who ICE can arrest, let alone who ICE can seek to remove. The fact that the federal government will have to use its own resources to identify and arrest these individuals—rather than simply commandeering state resources—weighs in favor, not against, an injunction.
CONCLUSION This Court should enjoin Defendants from implementing ICE’s Directive, and from arresting individuals attending court on official business, during the pendency of this suit.
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Dated: April 29, 2019

Respectfully submitted,

/s/ David J. Zimmer

.

David J. Zimmer (BBO# 692715)

Special Assistant Attorney General

Daryl L. Wiesen (BBO# 634872)

Alicia Rubio-Spring (BBO# 692640)

Katherine M. Fahey (BBO# 699003)

Christopher J.C. Herbert (BBO# 703492)

Jordan Benson (BBO# 703215)

GOODWIN PROCTER LLP

100 Northern Avenue

Boston, MA 02210

(617) 570-1000

DZimmer@goodwinlaw.com

DWiesen@goodwinlaw.com

ARubio-Spring@goodwinlaw.com

KFahey@goodwinlaw.com

CHerbert@goodwinlaw.com

JBenson@goodwinlaw.com

/s/ Wendy S. Wayne

.

Wendy S. Wayne (BBO# 555665)

Committee for Public Counsel Services

Immigration Impact Unit

21 McGrath Highway, Somerville, MA 02143

(617) 623-0591

wwayne@publiccounsel.net

Attorney for Plaintiff the Committee for Public Counsel Services

/s/ Oren N. Nimni

.

Oren N. Nimni (BBO# 691821)

Lawyers for Civil Rights

61 Batterymarch St., 5th Floor

Boston, MA 02110

(617) 482-1145

onimni@lawyersforcivilrights.org

Attorneys for Plaintiffs Marian Ryan, in her official capacity as Middlesex County District Attorney, and Rachael Rollins, in her official capacity as Suffolk County District Attorney

David J. Zimmer (BBO# 692715) Daryl L. Wiesen (BBO# 634872) Alicia Rubio-Spring (BBO# 692640) Katherine M. Fahey (BBO# 699003) Christopher J.C. Herbert (BBO# 703492) Jordan Benson (BBO# 703215) GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 (617) 570-1000 DZimmer@goodwinlaw.com DWiesen@goodwinlaw.com ARubio-Spring@goodwinlaw.com KFahey@goodwinlaw.com CHerbert@goodwinlaw.com JBenson@goodwinlaw.com

Attorneys for Plaintiff Chelsea Collaborative, Inc.

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 </s> Case 1:19-cv-11003-IT Document 34 Filed 05/15/19 Page 1 of 29

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

MARIAN RYAN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

U.S. IMMIGRATION AND CUSTOMS )

ENFORCEMENT, et al.,

)

)

Defendants.

)

_____________________________________ )

CASE NO. 1:19-CV-11003-IT

DEFENDANTS’ OPPOSITION TO THE MOTION FOR PRELIMINARY INJUNCTION (LEAVE TO FILE GRANTED - MAY 15, 2019)

Case 1:19-cv-11003-IT Document 34 Filed 05/15/19 Page 2 of 29
INTRODUCTION “[T]he formulation of policies pertaining to the entry of aliens and their right to remain here is entrusted exclusively to Congress.” Herrera-Inirio v. I.N.S., 208 F.3d 299, 307 (1st Cir. 2000). Exercising that “plenary” and “pervasive” authority, id., Congress has codified the Executive Branch’s constitutional and inherent authority to investigate, arrest, and detain aliens who are suspected of being, or found to be, unlawfully present in the United States. See 8 U.S.C. §§ 1182, 1225, 1226, 1231, 1357. The Executive may, among other things, arrest aliens with or without a warrant pending a decision on whether they are to be removed from the United States. Id., §§ 1226(a), 1357(a)(2). Upon arrest, an immigration court normally decides whether detention is appropriate. Immigration and Customs Enforcement (“ICE”) has long exercised its arrest authority in and around courthouses given its strong interest in removing aliens engaging in criminal activity. ICE recently promulgated, ICE Directive 11072.1: Civil Immigration Enforcement Inside Courthouses (Ex. A), articulating revised policy guidance for the exercise of ICE’s discretionary arrest authority in federal and state courthouses. Per the Directive, ICE targets aliens convicted of crimes, gang members, national security of public safety risks, and aliens subject to final orders of removal or who have illegally reentered the country. Notwithstanding the Executive’s “broad” and “undoubted power” to implement its statutory arrest authority, Arizona v. United States, 567 U.S. 387, 394 (2012), Plaintiffs, two Massachusetts District Attorneys (DAs), a public defender agency, and an organization, assert that ICE Directive 11072.1 exceeds ICE’s authority under 8 U.S.C. §§ 1226 and 1357, and therefore violates the Administrative Procedure Act (APA). Specifically, Plaintiffs contend that a purported “common-law privilege against civil courthouse arrests,” Compl. ¶ 2, precludes the Executive from exercising its arrest authority under sections 1226 and 1357, and that the ICE Directive thus is
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arbitrary and capricious because it is “in excess of statutory jurisdiction, authority, or limitations.” 5 U.S.C. § 706(2)(C). Based on that single claim—and even though this case is not a class action— Plaintiffs seek a nationwide preliminary injunction prohibiting ICE from implementing the Directive. Compl., Prayer For Relief (C).
The motion should be denied. To start, Plaintiffs, none of whom are aliens subject to ICE arrest or detention, lack Article III standing or a cognizable cause of action. Moreover, the Directive is unreviewable under the APA because it is committed to agency discretion by law, and because it is not final agency action under the APA. 5 U.S.C. §§ 701(a)(2), 704. Further, Plaintiffs’ reliance on an “absolute common-law privilege against civil arrest of those attending court on official business,” Mot. 1, fails for two reasons: (1) federal common law has never provided immunity from immigration enforcement; and (2) even if the common law once conferred such immunity, Congress abrogated it by enacting a comprehensive immigration arrest and detention scheme. And Plaintiffs cannot assert any harm that outweighs the harm that the government suffers when it is unable to enforce the immigration laws. Accordingly, the Court should deny Plaintiffs’ motion.
BACKGROUND Federal law. The federal government “has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012); see U.S. Const. art. I, § 8, cl. 4 (granting Congress the power to “establish an uniform Rule of Naturalization”). Pursuant to that power, Congress has provided that “[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien
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is to be removed from the United States.”1 8 U.S.C. § 1226(a). Congress also has provided that “without [a] warrant,” a federal officer may “arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any [] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” Id. § 1357(a)(2). These statutes confer arrest authority that is generally plenary and unqualified.
The arrest is a critical component for initiating removal proceedings before an immigration judge. Those proceedings are initiated through the issuance of a Notice to Appear (NTA), which ICE files with the immigration court. 8 C.F.R. §§ 1239.1(a), 1003.14, 1003.18. First ICE, through an initial custody assessment, id. § 236.1(c)(8, and then an immigration court, through a bond determination “at the earliest possible date,” will consider if detention is necessary during immigration proceedings. See Immigration Court Practice Manual, Chapter 9.3(d). If the alien is subject to mandatory detention based on prior serious criminal activity, the immigration judge will address whether the alien qualifies for such detention. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). An alien may appeal any decision of the immigration court, including a bond decision, to the Board of Immigration Appeals (“BIA”). 8 C.F.R. § 1003.38. An alien also may move to terminate removal proceedings on constitutional, statutory, or regulatory grounds, and may petition for review of any BIA decision in the U.S. Courts of Appeals. 8 U.S.C. § 1252(a)(5).
Prior Guidance and Directive 11072.1. ICE has long exercised its arrest authority at and around courthouses given its strong interest in removing aliens who engage in criminal activity, often pursuant to a detainer issued to another law enforcement agency with custody of an alien to obtain a direct transfer of an alien once state or federal criminal proceedings and detention has
1 Congress has transferred immigration enforcement functions from the Attorney General to the Secretary of Homeland Security. 6 U.S.C. § 251; Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005).
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concluded. Since at least 2014, ICE policy has permitted courthouse arrests in limited circumstances. Enforcement Actions at or Near Courthouses (Mar. 19, 2014) (Ex. B). In a 2014 policy, ICE explained that arrests in and around courthouses was important to ensure that aliens convicted of crimes, gang members (16 years or older), and national security or public safety risks can be safely apprehended for removal. Id. The 2014 policy restricted enforcement actions against “collaterally” present aliens, “such as family members and friends” of the “target alien” and directed that enforcement actions should, “whenever practicable,” “take place outside public areas of the courthouse,” “be conducted in collaboration with court security and staff,” and “utilize the court building’s non-public entrances and exits.” Id.
Until recently, the state courts of Massachusetts generally cooperated with federal immigration enforcement efforts, including ICE’s courthouse enforcement policy. However, in 2017 the Supreme Judicial Court of Massachusetts held that State judicial and law-enforcement officers lack authority to transfer detainees to the federal government in civil immigration matters. Lunn v. Commonwealth, 477 Mass. 517, 531 (2017); see also Mass. Executive Office of the Trial Court, Policy and Procedures Regarding Courthouse Interactions with the Department of Homeland Security (Nov. 8, 2017) (“Trial Court employees shall not hold any individual who would otherwise be entitled to release based solely on a civil immigration detainer or civil immigration warrant.”). Accordingly, in Massachusetts, many dangerous aliens involved in criminal activity who were previously transferred to ICE custody in secure locations like jails or prisons, are now released to the streets often immediately following proceedings in state courthouses. ICE, FAQ on Sensitive Locations and Courthouse Arrests, ECF 1-3. Massachusetts law leaves courthouses as one of the few places where “safety risks for the arresting officers, the arrestee, and members of the community are substantially diminished.” Id.
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In 2018, ICE promulgated Directive 11072.1 (the “Directive”), which revised ICE’s policy “regarding civil immigration enforcement actions” in courthouses. The Directive indicates that courthouse arrests can be operationally necessary when local jurisdictions decline “to cooperate with ICE in the transfer of custody of aliens from” secure locations like “their prisons and jails” because, given that persons who enter courthouses are typically screened for weapons, “immigration enforcement actions taken inside courthouses can reduce safety risks to the public, targeted alien(s), and ICE officers and agents.” Id. The Directive substantively differs from the 2014 policy only in two main respects: (1) it adds two categories of targeted aliens: “aliens who have re-entered the country illegally after being removed” (a federal felony under 8 U.S.C. § 1326) and “aliens who have been ordered removed from the United States but have failed to depart,” and (2) it articulates “exceptional circumstances” in which ICE may arrest non-target aliens, such as “when the individual poses a threat to public safety or interferes with ICE’s enforcement actions.” ECF 1-4 at 1. As to witnesses and victims of crimes (including domestic violence), ICE policy and 8 U.S.C. § 1367 set additional limitations, which have remained unchanged for nearly a decade. Mem. on Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011) (Ex. C). The Directive instructs ICE officers “generally [to] avoid enforcement actions in courthouses,” and proscribes enforcement in areas “that are dedicated to non-criminal (e.g. family court, small claims court) proceedings.” Id. at 2.
Under the Directive, when an enforcement action inside a courthouse is “operationally necessary,” it may be conducted with the approval of a high-level officer. Id. at 1. The Directive “has provisions that attempt to make enforcement actions within courthouses orderly, safe, and nondisruptive.” Matter of Doe, No. SJ-2018-119 (Mass. Sup. Jud. Ct. Sept. 18, 2018), ECF 7-7 at 7 n.5. It mandates that, “when practicable,” ICE officers “conduct enforcement actions discreetly
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to minimize their impact on court proceedings.” ECF 1-4 at 1. In line with prior policy, the Directive states that enforcement actions in courthouses “should, to the extent practicable, continue to take place in non-public areas of the courthouse, be conducted in collaboration with court security staff, and utilize the court building’s non-public entrances and exits.” Id. at 3. It directs ICE officers and agents to “exercise sound judgment” and “make substantial efforts to avoid unnecessarily alarming the public;” and it requires them to “make every effort to limit their time at courthouses while conducting civil immigration enforcement actions.” Id. Thus, the Directive strikes a balance between ICE’s legitimate interests in enforcing immigration law, protecting the safety of its officers, and minimizing interference with judicial proceedings.
Procedural Background. On April 29, 2019, Plaintiffs filed their complaint and the instant motion for preliminary injunction. ECF No. 6. Plaintiffs are: the Middlesex County and Suffolk County DAs (the “DAs”); the Committee for Public Counsel Services (“CPCS”), Massachusetts’ public defender agency; and the Chelsea Collaborative (the “Collaborative”), “an organization dedicated to the needs of the community of Chelsea.” Compl. ¶¶ 11, 12, 14, 16. The complaint asserts four claims, but Plaintiffs seek preliminary injunctive relief only on Count One. See Mot. 9 (“[T]his Court need only reach the first [claim]”). In Count One, Plaintiffs claim that the 2018 ICE Directive violates the APA because it is “not in accordance with” ICE’s statutory authority under the INA. According to Plaintiffs, ICE’s statutory arrest authority “inherently contains within it the common-law limitation that parties, witnesses, and others attending court on official business are privileged from civil arrest.” Compl. ¶ 101. For preliminary relief on Count One, Plaintiffs ask the Court to enjoin ICE “from implementing [the] Directive, and from arresting individuals attending court on official business, during the pendency of this suit.” Mot. 20.
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ARGUMENT A. Plaintiffs Lack Article III Standing and Are Not Within the INA’s Zone of Interests.
Federal courts sit to decide cases and controversies, not to resolve disagreements about policy or politics. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006). Article III standing “is an essential and unchanging part of the case-or-controversy requirement.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 576 (1992). To establish standing, a plaintiff must show that (1) it suffered an injury in fact to a legally protected interest; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
In Count One (the sole count on which Plaintiffs move for preliminary relief), Plaintiffs claim that the ICE Directive is not “in accordance with” the INA. Compl. ¶¶ 97-106. At the outset, all Plaintiffs lack a legally protected interest sufficient to establish an Article III injury because the alleged privilege against arrest applies, if at all, only to individuals conducting court business in specific litigation. The privilege, like any privilege, does not exist as an abstract legal right that any citizen or organization can invoke on behalf of non-litigants. See 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2463.1 (3d ed. 2019) (party must invoke “a personal right or privilege”). The challenged policy applies only to certain aliens—generally those involved in criminal activity—who are subject to immigration detention to allow removal proceedings or removal efforts to be commenced. Thus, only a “person arrested by ICE in a Massachusetts courthouse” would have standing to invoke it. See Matter of C. Doe, No. SJ-2018119 at 5 (Mass. Sept. 18, 2018), ECF No. 7-7, at 9–10; cf. N. Light Tech., Inc. v. N. Lights Club, 236 F.3d 57, 63 (1st Cir. 2001) (rejecting, “[i]n lieu of a specific request for immunity” from process by a specific individual, a request “to fashion a broad, per se” rule of immunity unmoored
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for a specific person’s situation). And even if Plaintiffs could assert the privilege, they would lack standing and not be within the statutory zone of interests.
1. ICE Has Not Prosecuted Plaintiffs or Threatened to Do So. A party “lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). That is because a third party “lacks a judicially cognizable interest in the prosecution or nonprosecution of another,” id., including “enforcement of the immigration laws” against someone else. Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883, 897 (1984). Plaintiffs challenge a policy that articulates circumstances in which ICE may conduct enforcement actions against individual aliens. Plaintiffs, who are not individuals, do not face a threat that the Directive will be applied against them. Because they seek to “contest the policies of the prosecuting authority” as applied to others, their alleged incidental harms—increased costs and diverted resources—do not establish standing.2 Linda, 410 U.S. at 619. 2. The DAs and Public Defenders Lack a Cognizable Injury in Fact. The DAs and CPCS lack a judicially cognizable injury. They appear to assert standing on the basis that the ICE Directive increases their costs, diverts their resources, and makes their prosecutions more “time consuming and difficult.” Compl. ¶¶ 80, 82. These alleged difficulties do not constitute a cognizable injury. In our system of dual sovereignty, state actors regularly incur
2 Plaintiffs lack cognizable injury of their own, and so cannot establish standing to sue on behalf of third-parties. See Eulitt ex rel. Eulitt v. Maine, Dep't of Educ., 386 F.3d 344, 351 (1st Cir. 2004); Parinejad v. ICE, 501 F. Supp. 2d 280, 283 n.3 (D. Mass. 2007). Also, Plaintiffs do not show that they have “a close relationship to the third party” aliens who may be arrested in courthouses, or “that some hindrance exists that prevents the third party from protecting its own interest.” Id.
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costs that result incidentally from federal action. See New York v. United States, 505 U.S. 144, 162-66 (1992). Such costs are not cognizable injuries under Article III. See Massachusetts v. Mellon, 262 U.S. 447, 488 (1923). Indeed, a state actor “possesses no legitimate interest in protecting its citizens from the government of the United States.” Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011). On this point, the DAs and CPCS allege that state defendants and “key witnesses” fear arrest by ICE; that these fears make defendants and witnesses less likely to attend court proceedings; and that when defendants and witnesses do not attend court, the DAs’ and CPCS’ duties become more difficult. Compl. ¶¶ 80, 82. For one, as will be explained below, the 2018 policy does not substantially impact ICE’s policy relating to witnesses, which was promulgated in 2011. More importantly, these alleged difficulties do not suffice to establish standing because, if they did, a state prosecutor would have standing to challenge any federal criminal statute under which a state defendant or key witness feared arrest. A fugitive from federal criminal law-enforcement officials surely feels as “[un]comfortable attending court” as a fugitive from civil immigration arrest. Compl. ¶ 80. Defendants are not aware of any case in which a court found that a state prosecutor had standing to challenge a federal law on the basis that the law made her prosecutorial duties more difficult. A state prosecutor does not suffer an injury in fact merely because a federal law-enforcement action (or the threat of it) increases the time or costs associated with state prosecutions. Thus, the DAs and public defenders lack standing. 3
3 The DAs may not invoke parens patriae standing. Although a state may sue on behalf of its citizens, a county or other political subdivision may not do so. Aderholt v. Bureau of Land Mgmt., No. 7:15-CV-162, 2016 WL 3541857, at *7 (N.D. Tex. June 29, 2016) (collecting authorities). “The power of a political subdivision of a state is ‘derivative and not sovereign,’ and it may only sue to vindicate its own interests.” Prince George's Cty., Md. v. Levi, 79 F.R.D. 1, 4 (D. Md. 1977).
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3. All Plaintiffs Lack Any Injury that Is Traceable to the Directive. Even if Plaintiffs alleged judicially cognizable injuries, those injuries would not be fairly traceable to the ICE Directive because they “result[] from the independent action of some third party not before the court.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976). Like the DAs, CPCS alleges that the Directive causes defendants and witnesses to fear courthouse arrests, which makes CPCS’s “representations . . . more difficult” and “force[s]” CPCS to expend additional resources.” Compl. ¶ 82. The Collaborative similarly alleges that the Directive causes its members to fear courthouse arrests, which “forc[es] it to spend and divert resources.” Id. ¶ 74. But these alleged injuries are caused by third-party aliens’ decisions not to attend Massachusetts courts in an effort to evade arrest and removal proceedings. That evasive conduct breaks the chain of causation between the ICE Directive and Plaintiffs’ putative injuries, “[b]ecause the opposing party must be the source of the harm,” so “causation is absent if the injury stems from the independent action of a third party” Katz v. Pershing, LLC, 672 F.3d 64, 71–72 (1st Cir. 2012); see Simon, 426 U.S. at 42–43 (no standing where plaintiffs alleged that government policy harmed them, but alleged harm depended on speculation as to third-party conduct). Indeed, with or without the Directive, aliens may avoid courthouses in an effort to avoid arrest by ICE, so Plaintiffs cannot show that “invalidating [the Directive] will be reasonably likely to cause” third party aliens seeking to avoid arrest or removal to come to court. See Renal Physicians Ass’n v. U.S. HHS., 489 F.3d 1267, 1276 (D.C. Cir. 2007). Moreover, aliens lack a cognizable interest in evading law enforcement, so a fortiori, Plaintiffs lack an injury that is traceable to the Directive. See Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir. 2006) (“[A] person complaining that government action will make his criminal activity more difficult lacks standing because his interest is not ‘legally protected.’”); Jadeja v. Redflex Traffic Sys, 764 F. Supp. 2d 1192, 1196
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(N.D. Cal. 2011) (no standing where party “alleg[ed] [city] fined him for running a red light, because he does not have a legally protected interest to break the law by running red lights”).4
4. Plaintiffs Are Not Within the Zone of Interests of Sections 1226 or 1357 Plaintiffs also lack a cognizable cause of action under zone-of-interests principles. To be “aggrieved” under the APA for purposes of the zone-of-interests analysis, “the interest sought to be protected by the complainant [must] be arguably within the zone of interests to be protected or regulated by the statute . . . in question.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 396 (1987). The relevant statutes here are 8 U.S.C. §§ 1226 and 1357, which govern ICE’s arrest authority and aliens’ rights with respect to ICE arrests. Those statutes do not govern Plaintiffs’ conduct or actions in any way, and do not create any entitlement or interest that Plaintiffs may invoke. When Justice O’Connor confronted a similar challenge brought by “organizations that provide legal help to immigrants,” she concluded that the relevant INA provisions were “clearly meant to protect the interests of undocumented aliens, not the interests of [such] organizations,” and that the fact that a “regulation may affect the way an organization allocates its resources . . . does not give standing to an entity which is not within the zone of interests the statute meant to protect.” INS v. Legalization Assistance Project, 510 U.S. 1301, 1302, 1305 (1993) (O’Connor, J., in chambers); see Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897, 900–04 (D.C. Cir. 1996). Importantly, the INA provides a process, led by immigration courts, for addressing detention issues, and also provides individual aliens with a means to challenge their arrest and the initiation of removal proceedings,
4 The Collaborative also lacks “associational standing” because “the claim asserted [and] the relief requested require[] the participation of individual members in the lawsuit” given that their claims turn entirely on the application of the Directive to individual aliens who are not before the Court. See Am. Postal Workers Union v. Frank, 968 F.2d 1373, 1375 (1st Cir. 1992).
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see 8 U.S.C. § 1252, including a means to obtain review in the courts of appeals. But the INA provides Plaintiffs with no right of action. Accordingly, Plaintiffs do not fall within the zone of interests of the relevant statutes. B. Plaintiffs Lack a Valid Cause of Action under the APA to Challenge ICE’s Arrest Policies.
Plaintiffs also lack a cause of action under the APA, so this Court lacks any basis to enter an injunction on that claim.
First, the ICE Directive is policy guidance implementing prosecutorial decisions concerning when to institute enforcement actions, is therefore regarded as ‘committed to agency discretion’” under the APA, Lincoln v. Vigil, 508 U.S. 182, 192 (1993), and is thus not subject to judicial review. See 5 U.S.C. § 701(a)(2) (waiving sovereign immunity only if agency action is not “committed to agency discretion by law”). The “initiation or prosecution of various stages in the deportation process,” including the choice of when to “commence” a proceeding, is a “regular” and longstanding example of an action that is committed to agency discretion. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999). Just as “the decision whether or not to prosecute” presumptively “rests entirely in [the prosecutor’s] discretion,” United States v. Armstrong, 517 U.S. 456, 464 (1996), an agency’s decision to bring a specific type of civil enforcement action or to invoke a specific enforcement provision—like 8 U.S.C. § 1226 or § 1357—is generally immune from judicial scrutiny. See Wayte v. United States, 470 U.S. 598, 607-08 (1985) (“[T]he decision to prosecute is particularly ill-suited to judicial review”). Under these principles, the Directive is unreviewable because it provides guidance to immigration officers about how and when to exercise their discretion to arrest aliens who are properly subject to ICE’s detention authority. And even where prosecutorial-discretion decisions are formalized through guidance documents, they are not subject to review if the ultimate decision is
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discretionary. See, e.g., Morales de Soto v. Lynch, 824 F.3d 822, 828 (9th Cir. 2016). ICE’s decisions concerning what categories of aliens to arrest and in what circumstances inherently involve the exercise of prosecutorial discretion, so Plaintiffs cannot obtain review of the Directive under the APA.
Second, “[t]he APA only provides for judicial review of ‘final agency action’ and … statements of policy generally do not qualify because they are not finally determinative of the issues or rights to which [they are] addressed.” Am. Tort Reform Ass’n v. OSHA, 738 F.3d 387, 395 (D.C. Cir. 2013); see 5 U.S.C. § 704. The Directive “provides only internal ICE policy guidance,” “is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural,” and places “no limitations … on the otherwise lawful enforcement or litigative prerogatives of ICE.” Ex. A, ¶ 9. Because the Directive merely explains what ICE may do, and does not create substantive rules or rights, see Perez v. Mort. Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015), or “bind” ICE officers, Broadgate Inc. v. USCIS, 730 F. Supp. 2d 240, 246 (D.D.C. 2010), it is unreviewable.5 C. Plaintiffs’ APA Claim Is Not Likely to Succeed on the Merits.
Plaintiffs’ APA claim also fails on the merits. The INA unambiguously authorizes ICE to arrest any person who is in the United States in violation of immigration law and does not restrict the location of those arrests. There is no federal-common-law immunity from immigration enforcement for persons who are subject to ICE arrest. Plaintiffs’ central contention — that “[f]or
5 To be sure, if the policy were applied to an actual alien, it may be final agency action as to that alien. See, e.g., Nat’l Min. Ass’n v. McCarthy, 758 F.3d 243, 253 (D.C. Cir. 2014). But that alien could not challenge his arrest in federal court, and could only raise such claims in his removal proceedings. See, e.g., 8 U.S.C. § 1252; Rajah v. Mukasey, 544 F.3d 427, 447 (2d Cir. 2008).
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more than two centuries, courts, including the Supreme Court and this Court, have strictly enforced a well settled and absolute common-law privilege against civil arrest of those attending court on official business”—is simply incorrect. Mot. 1; see id. 3-4 (similar). And, even if an expansive common-law privilege existed, Congress has spoken clearly in establishing a uniform system of immigration, which dictates when and where immigration arrests are lawful, thereby abrogating any such privilege.
1. There Is No Common-Law Privilege Against Federal Immigration Enforcement in Courthouses. Plaintiffs propound a novel theory of federal common law. They attempt to analogize
immigration arrests—which concern the federal government’s plenary authority over immigration law—with civil arrests in private suits when one has entered a jurisdiction to which he is not normally subject, which, in the modern context, has been superseded by immunity from service of process based on transient jurisdiction when attending court. See, e.g., Mot. 1, 1-7. They claim that, because the federal-common-law immunity from civil arrests is “well-settled,” Congress in the INA legislated against that background principle, id. at 13, and “invoke[d] a general commonlaw concept without specifying its precise scope.” Mot. 13. This argument fails because it is based on two faulty premises about the nature of the privilege.
First, Plaintiffs assert an overbroad privilege that finds no support in Supreme Court precedent: a privilege against all civil arrests regardless of jurisdiction or arresting authority. The Supreme Court’s cases recognize a much narrower privilege: the immunity from service of process in a civil suit based on transient jurisdiction, when the only reason that a person is in the jurisdiction is to attend a court proceeding as a witness or party. See Lamb v. Schmitt, 285 U.S. 222, 225 (1932) (service on an Illinois resident when he was in the Northern District of Mississippi “in attendance
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on the court”); Page Co. v. MacDonald, 261 U.S. 446, 446-47 (1923) (service on a Canadian resident who was in Massachusetts “in attendance before a special master appointed by the superior court”); Stewart v. Ramsay, 242 U.S. 128, 129 (1916) (service on a Colorado resident when in the Northern District of Illinois solely as a witness in a case).6 As the Supreme Court made clear in Stewart, “[t]he true rule, well founded in reason and sustained by the weight of authority, is that suitors, as well as witnesses, coming from another state or jurisdiction, are exempt from the service of civil process while in attendance upon court, and during a reasonable time in coming and going.” Stewart, 242 U.S. at 129 (emphasis added). Indeed, when a person is traveling to another state for court and is arrested by the federal government, a person cannot complain of “a violation of the rule of comity” when the arrest is from “the courts or the sovereignty which is [the] common superior.” Morse v. United States, 267 U.S. 80, 82 (1925).
In no case has the Supreme Court applied the rule so broadly as to encompass persons who, even if they were not attending a court proceeding, would otherwise be subject to arrest or service of process in the relevant jurisdiction. And in no case has the Supreme Court or any other court suggested that this limited privilege would be applicable to immigration enforcement—where the United States clearly has authority to initiate process against the alien within the United States. To the contrary, the privilege applies only when a jurisdiction would otherwise lack authority over the person but for their appearance in it to attend a court proceeding. The subjects of the privilege would otherwise lawfully be able to avoid suit in the foreign jurisdiction by not entering that jurisdiction. The privilege’s purpose is to “fill[] the gap only where it needs to be filled, that is, in
6 Plaintiffs also cite dicta from Long v. Ansell, which addressed senators’ constitutional privilege from arrest. 293 U.S. 76 (1934), but that case merely cites Lamb and is factually irrelevant. Id. at 83.
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cases where a district court wishes to shield an individual from service of process to encourage his or her travel to the forum state.”7 N. Light Tech, 236 F.3d at 62 (emphasis added). Here, the alien is already in the jurisdiction that subjects him to immigration custody, so the rationale behind the common law rule has no applicability.
The process-immunity privilege is also narrower than the “absolute” privilege Plaintiffs assert. They cite Page Co. to suggest that the privilege is “inflexible,” but that case did not go so far. Mot. 4. The privilege is limited if it impinges the “due administration of justice,” Lamb. 285 U.S. at 227, and so “process immunity should be meted out sparingly.” N. Light Tech., 236 F.3d at 62. And “the public interest in apprehending” a person for violating immigration laws, like the interest in prosecution, “outweighs the public interests … in encouraging vindication of private rights and in preventing the interruption of judicial proceedings.”8 Conley, 80 F. Supp. at 701-02.
Service of process in private suits is entirely distinct from immigration enforcement, and Plaintiffs cite no case that applies that process immunity against federal immigration enforcement.
7 Plaintiffs cite state common law, Mot. 6, but state common law has no application in federal court in a challenge to federal statutes because “federal courts may not use state common law to re-write a federal statute. Nachwalter v. Christie, 805 F.2d 956, 960 (11th Cir. 1986) (citing Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 456–57 (1957)). 8 Plaintiffs rely on Larned v. Griffin, 12 F. 590 (D. Mass. 1882), which dealt with civil arrest. That case involved transient jurisdiction of a person present in one state to attend depositions in another. 12 F. at 590. The court used the phrase “absolute protection” to mean that the immunity covers “civil process,” rather than merely permitting “common bail.” Id. at 594. In doing so, the court rejected the “narrower view” that the privilege is “wholly the privilege of the court rather than of the suitor.” Id. But the Supreme Court adopted the “narrower view” in Lamb. 285 U.S. at 225.
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The now-defunct privilege from extra-jurisdictional arrest involved arrests to initiate civil suits by private parties. Those private parties were not enforcing a public law and could not claim superior rights over the public interest. Meanwhile, “[t]he Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012). “This authority rests, in part, on the National Government’s constitutional power to ‘establish an uniform Rule of Naturalization.’” Id. (quoting Const. art. I, § 8, cl. 4). “The federal power to determine immigration policy is well settled[,]” and “[a] principal feature of the removal system is the broad discretion exercised by immigration officials.” Id. at 396. That discretion—including arrest authority—is “plenary” and “pervasive,” and “is uniquely a matter of federal, not local, concern.” Herrera-Inirio, 208 F.3d at 307. Accordingly, a court’s authority over an alien under its jurisdiction “and detention of a removable alien pursuant to the INA are separate functions that serve separate purposes and are performed by different authorities.” United States v. Vasquez-Benitez, 919 F.3d 546, 552 (D.C. Cir. 2019). When ICE detains an alien for the purpose of removal, it thus “does not infringe upon the judiciary’s role in criminal proceedings.” Id. That reasoning applies to all instances of immigration detention for purposes of removal and to all types of judicial proceeding. See id; United States v. Veloz-Alonso, 90 F.3d 266, 270 (6th Cir. 2018).
Second, any privilege against civil arrest was superseded by the process-immunity privilege long before the codification of the current immigration scheme. By the time that Congress established the comprehensive immigration-arrest statutory scheme, any privilege against extrajurisdictional civil arrest was a mere historical artifact referenced in cases only to provide historical context for the modern process-immunity privilege. Plaintiffs cite no Supreme Court case that even applies the alleged privilege against civil arrest. See Mot. 3-7, 9-10. Indeed, Page Co. and Lamb
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do not even contain the word “arrest.” The only reference to “arrest” in the Supreme Court’s decisions on the privilege comes in Stewart, a case from 1916. 242 U.S. at 130. The Court made that reference in discussing a case from 1809, more than 200 years ago and already ancient when Stewart was decided in 1916. Id. Thirty-six years after Stewart, when Congress first codified civil immigration arrests, the privilege had been completely superseded by the process-immunity privilege against transient jurisdiction. 8 U.S.C. § 1231 (enacted June 27, 1952). But a civil immigration arrest is not “service of process.” Id. The arrest statutes cannot have codified the purported privilege, given that such a privilege had never been formally recognized by the Supreme Court, evidently had only ever been applied in federal court to bar a finding of transient jurisdiction, apparently had never been applied to limit federal executive-branch law enforcement, and had long since been replaced with a privilege against service of process.
Plaintiffs do not argue—nor can they—that aliens are not subject to federal lawenforcement jurisdiction anywhere within the United States’ borders. 9 See 8 U.S.C. § 1226(a) (providing for arrests “[o]n a warrant” without jurisdictional limitation), § 1357 (providing for warrantless arrests without jurisdictional limitation). Neither can Plaintiffs argue that aliens have a right to evade immigration enforcement. See E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1239 (no legally protected right to violate immigration law); 8 U.S.C. § 1226 (dictating when detention is required or optional), § 1231 (mandating detention of aliens with final removal orders). And the principles of comity that undergird the service-of-process rules do not apply to the federal law enforcement. Cf. Morse, 267 U.S. at 82.
9 The Supreme Court has made clear that federal laws are the state’s: “When Congress, in the exertion of the power confided to it by the Constitution, adopted [an] act, it spoke for all the people and all the states, and thereby established a policy for all.” Testa v. Katt, 330 U.S. 386, 392 (1947).
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Because a broad privilege against immigration enforcement in courthouses did not exist when Congress codified the civil immigration arrest authority, this Court is foreclosed from creating that rule now. “Federal courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and apply their own rules of decision.” City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 312 (1981). “The enactment of a federal rule in an area of national concern ... is generally made not by the federal judiciary, purposefully insulated from democratic pressures, but by the people through their elected representatives in Congress.” Id. Courts must “start with the assumption that it is for Congress, not the federal courts, to articulate the appropriate standards to be applied as a matter of federal law.” Id. “Courts do not, of course, have free rein to impose rules ... , as a matter of policy, when the interpretation of a statute is at hand.” Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991). And, as the First Circuit has noted, “[a]ccompanying the courts’ repeated recognition of the validity of the party/witness immunity exception ... has been a persistent acknowledgement of the exception’s limitations.” N. Light Tech., 236 F.3d at 62. The First Circuit stressed that Lamb explicitly dictates that the “[process-immunity] privilege should not be enlarged beyond the reason upon which it is founded.” Id. It emphasized that the privilege’s reason is to “fill[] the gap only where it needs to be filled, that is, in cases where a district court wishes to shield an individual from service of process to encourage his or her travel to the forum state, but would be unable to do so absent the power to grant immunity.” Id.
Without any evidence of a privilege against immigration enforcement, Plaintiffs ask this Court to adopt a policy measure under the guise of federal common law. Plaintiffs dictate their own terms about who should be privileged from arrest and who should not. See Mot. 20 (requesting an injunctions for all persons “attending court on official business”); id. 3 (not challenging arrests
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of persons in state custody). Plaintiffs do not seek individualized determinations in individual cases, but rather a blanket injunction notwithstanding the judicial proscriptions against it, see infra, Section E. Plaintiffs recognize that ICE has made its own determination about when to pursue courthouse arrests, limiting them only as to aliens who are top enforcement priorities, absent exceptional circumstances. Mot. 8-9. Plaintiffs disagree with that policy determination and seek to enjoin a policy that largely has been in place for years. See Ex. B. In essence, Plaintiffs ask this Court to engage in lawmaking. This Court lacks the power to do so. See, e.g., Milwaukee, 451 U.S. at 312. Because there is no federal common law right to evade federal immigration enforcement, this Court should deny Plaintiffs’ motion.
2. Congress Established a Comprehensive Immigration Detention Scheme that Supplants any Prior Common Law on Civil Immigration Enforcement. Even if a federal-common-law privilege against civil arrest existed in the unprecedented,
broad form that Plaintiffs claim, the federal statutory immigration scheme comprehensively speaks to how Congress intended the federal government to enforce federal immigration law, thus supplanting any prior federal common law on the issue. In determining whether a statutory scheme displaces federal common law, courts do not examine a single statute in isolation, but rather consider the entire statutory scheme. See, e.g., Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 424 (2011). If federal common law applies on an issue, the “question” in determining whether Congress meant to displace the common law is “whether the legislative scheme spoke directly to a question.” Milwaukee, 451 U.S. at 315-17 (internal quotation marks omitted); see Texas, 507 U.S. at 534 (similar). “This interpretive presumption is not . . . one that entails a requirement of clear statement, to the effect that Congress must state precisely the intention to overcome the presumption’s application to a given statutory scheme.” Astoria, 501 U.S. at 108. That question is
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different from, and less strict than, that which applies when determining preemption because “the States are represented in Congress but not in the federal courts.” Milwaukee, 451 U.S. at 316. No “clear and manifest congressional purpose” to displace federal common law is required. Am. Elec. Power Co., 564 U.S. at 423.
The congressional scheme shows that Congress spoke to the issue of immigration arrests, thus displacing any federal common law. The federal immigration scheme is a “comprehensive and unified system” maintained by a “single sovereign.” Id. at 401. As the Supreme Court has stressed, “[t]he federal statutory structure instructs when it is appropriate to arrest an alien during the removal process.” Id. at 407. “‘The authority to control immigration—to admit or exclude aliens—is vested solely in the Federal Government.’” Id. at 409-10 (quoting Truax v. Raich, 239 U.S. 33, 42 (1915)); see infra 13. Any state attempt to alter Congress’ comprehensive removal scheme “creates an obstacle to the full purposes and objectives of Congress” and is thus “preempted by federal law.”10 Id. at 411.
Because the federal government has the sole authority over immigration, it has regulatory authority over all aliens within the United States. Cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347 (2001) (“[T]he relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law.”). Congress thus has the power to create a system that permits arrests of aliens notwithstanding the status of federal or state court proceedings. See Herrera-
10 Congress has occupied the field of federal immigration arrest authority, so Plaintiffs cannot rest on state common law in the absence of federal common law; nor could state courts prohibit the federal government from acting. In re Tarble, 80 U.S. 397 (1871); M'Culloch v. Maryland, 17 U.S. 316, 436 (1819).
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Inirio, 208 F.3d at 307-08 (“[I]n areas in which plenary federal power exists, ‘the Supremacy Clause permits no other result,’ notwithstanding that Congress may enact laws that ‘curtail or prohibit the States’ prerogatives to make legislative choices respecting subjects the States may consider important.’”) (quoting Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 290 (1981)); cf. Vasquez-Benitez, 919 F.3d at 548 (ICE may arrest alien even while criminal proceedings are pending and after a judge orders release on bond).
Congress has done just that: ICE may arrest all aliens except aliens who are in state criminal custody serving a criminal sentence. The INA provides a comprehensive scheme governing DHS arrests of aliens. Under 8 U.S.C. § 1226(a), “on a warrant issued” by DHS attesting to an alien’s removability, “an alien may be arrested and detained” during the pendency of removal proceedings, and the Secretary’s “discretionary judgment regarding the application of this section shall not be subject to review.” Id. § 1226(e). Under 8 U.S.C. § 1231(a)(2), DHS “shall detain the alien.” Certain aliens, including ones who are a “risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period.” 8 U.S.C. § 1231(a)(6). The relevant statutes set only one limitation on DHS’s broad detention authority: the INA, mindful of “cooperative federalism” concerns, limits DHS’s authority to take into custody an alien who is currently serving a criminal sentence, requiring DHS to await the completion of the alien’s criminal imprisonment. 8 U.S.C. § 1226(c); see 8 U.S.C. § 1231. A fortiori, there is not a nontextual, unwritten limit on arrest authority for aliens in the vicinity of state courthouses. Instead, Congress has authorized DHS to detain removable aliens whenever they are released from state imprisonment “without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the
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same offense.” 8 U.S.C. § 1226(c). When DHS arrests an alien on a warrant, the statute imposes no limitations on that authority. Id. § 1226(a).
So, too, Congress was explicit when it delineated limitations on DHS’s warrantless arrest authority. Under 8 U.S.C. § 1357(a)(2), Congress gave immigration officers broad authority “to arrest any alien in the United States” without a warrant if they “have reason to believe that the alien so arrested is in the United States in violation” of “any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens” and “is likely to escape before a warrant can be obtained for his arrest.” Congress provided even broader arrest authority within a “reasonable distance from any external boundary of the United States” to “board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance or vehicle.” Id. § 1357(a)(3). When Congress wanted to restrict immigration officers’ powers, it did so explicitly, authorizing “access to private lands” within “twenty-five miles” of the border, but limiting access to “dwellings” and restricting warrantless entry to “the premises of a farm or other outdoor agricultural operation.” Id. § 1357(a)(3), (e). These provisions show Congress knew how to limit DHS’s arrest authority and made conscious—but limited— choices about when to do so. Because Congress specifically delineated DHS’s immigration-arrest authority and authorized arrests by warrant without limitation, any federal-common-law privilege from arrest, even if it existed, would have been overridden by the congressional scheme. See, e.g., Am. Elec. Power Co., 564 U.S. at 424.
3. Courthouse Arrests Do Not Raise Constitutional Concerns. Plaintiffs argue that ICE’s statutory arrest authority should be interpreted in a way that
avoids constitutional concerns. But the canon of constitutional avoidance comes into play only when a statute is ambiguous. Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018). Sections 1226(a)
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and 1357(a)(2) unambiguously authorize ICE to arrest aliens without any limitation relevant here, so it does not apply. Even if § 1226(a) or 1357(a)(2) were ambiguous, courthouse arrests do not raise the concerns Plaintiffs allege under the Tenth Amendment or the right of access to the courts. Mot. 14-17.
Tenth Amendment. Plaintiffs vaguely assert that the ICE Directive cannot “commandeer the state criminal justice and judiciary systems,” Compl. ¶ 115; see Mot. 16. Under the Tenth Amendment, “the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.” Printz v. United States, 521 U.S. 898, 925 (1997). Put another way, the Tenth Amendment prohibits the federal government from “commandeering” state executive or legislative actors. Id. The ICE Directive does not implicate the Tenth Amendment because it does not command or compel state actors to take any action at all. Massachusetts “courthouses are public spaces that are open to all persons,” including “DHS employees.” Mass. Executive Office of the Trial Court, Policy and Procedures Regarding Courthouse Interactions with the Department of Homeland Security (Nov. 8, 2017). ICE officers can freely enter State courthouses without the consent or cooperation of State actors. ICE courthouse arrests do not require any action by state officers and nothing in the Directive compels employees of the state criminal justice or judiciary systems to take action or refrain from taking action at all. So the Directive raises no Tenth Amendment issues.11 See Murphy v. NCAA, 138 S.Ct. 1461, 1482 (May 14, 2018).
11 Even were that not so, “[w]hen the state judiciary enforces federal law … as the Supremacy Clause requires it to do … [t]here is no ‘commandeering’ of the State’s resources where the State is asked to do no more than enforce federal law.” Alden v. Maine, 527 U.S. 706, 801 n.34 (1999).
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Right of Access to the Courts. The right of access to the courts prohibits “systemic official action [that] frustrates a plaintiff or plaintiff class in preparing and filing suits.” Christopher v. Harbury, 536 U.S. 403, 413 (2002). Although the Constitution guarantees the right “to bring to court a grievance,” the Supreme Court has explicitly disclaimed the existence of a constitutional right “to litigate effectively once in court.” Lewis v. Casey, 518 U.S. 343, 354 (1996) (emphasis in original).
The Collaborative alleges that the Directive violates its members’ right of access because the Directive “forc[es] noncitizens potentially subject to removal to risk civil arrest to access the courts.” Compl. ¶ 121. But the possibility that an unlawful alien will be arrested in a state courthouse does not limit his ability to prepare or file a lawsuit. Notwithstanding the Directive, an unlawful alien is free “to bring to court a grievance,” which is the only process that the right of access guarantees. Lewis, 518 U.S. at 354. And to the extent that the Directive discourages aliens from attending court proceedings, that effect is irrelevant to the constitutional inquiry, given that litigants lack any right to litigate effectively once in court. Id. Indeed, the Collaborative seeks to extend the right of access beyond its limited scope. If Plaintiffs’ theory was correct, any federal law authorizing criminal or civil enforcement would be unconstitutional because each such law creates a disincentive for some subset of the populace to attend court proceedings. Because the Directive does not prevent unlawful aliens from preparing or filing grievances, it does not implicate the right of access to the courts. D. The Other Preliminary-Injunction Factors Weigh in Defendants’ Favor.
Plaintiffs also cannot show that they are “likely to suffer irreparable harm in the absence of preliminary relief,” that the “balance of equities” tips in their favor, or than an injunction is “in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Plaintiffs allege
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that they would suffer “financial harm” and “ha[ve] to divert significant resources responding to [the] Directive.” Mot. 17–18. But these alleged harms pale in comparison to the harms that the public and the federal government would suffer if ICE was unable to arrest fugitive aliens at the one place at which it can reliably find them in Massachusetts. See ICE, FAQ on Sensitive Locations and Courthouse Arrests, ECF No. 1-3 The federal government and the public have a strong interest in “law enforcement and public safety,” Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers); see Nken v. Holder, 556 U.S. 418, 435 (2009), and “it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative,” Landon v. Plasencia, 459 U.S. 21, 34 (1982). Whereas Plaintiffs’ alleged “money, time and energy” harms carry little weight, Sampson v. Murray, 415 U.S. 61, 90 (1974), the government and the public have a “pressing” interest in the enforcement of federal law. United States v. Ven-Fuel, Inc., 758 F.2d 741, 761 (1st Cir. 1985), especially when Plaintiffs themselves are not the subject of the immigration enforcement they seek to thwart. E. Plaintiffs Seek an Overbroad Injunction.
Even if Plaintiffs were likely to satisfy the preliminary injunctive factors, they would not be entitled to injunctive relief, given that they have only moved for an injunction on their APA claim. The normal remedy in an APA case is to “set aside” the agency action. But Plaintiffs ask for much more: an injunction preventing ICE from “arresting individuals attending court on official business.” That is far beyond any permissible relief where they only seek relief based on their APA claim. And even were Plaintiffs somehow entitled to declaratory and injunctive relief, they would not entitled to an order enjoining the Directive of ICE arrest authority in full. Under Article III, “[a] plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). Thus, even if Plaintiffs could seek relief on behalf of
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third parties or the tangential effects on Plaintiffs of ICE actions towards those parties, any relief

must be tailored to remedying the Plaintiffs’ putative harms in cases before the state courts in

Middlesex and Suffolk Counties, and must be limited to specific aliens who seek to avail

themselves of the privilege. See, e.g., Langlois v. Abington Housing Authority, 207 F.3d 43, 49

(1st Cir. 2000); see City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1244–45 (9th Cir.

2018) (reversing nationwide injunction where plaintiffs’ “tendered evidence [was] limited to the

effect of the” challenged conduct on them alone). Anything more violates the principle that an

injunction should “be no more burdensome to the defendant than necessary to provide complete

relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994).

CONCLUSION

For these reasons, this Court should deny Plaintiffs’ motion for preliminary injunction.

//

//

Dated: May 20, 2019

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director, Office of Immigration Litigation District Court Section
EREZ REUVENI Assistant Director
FRANCESCA GENOVA JULIAN KURZ Trial Attorneys

ANDREW E. LELLING United States Attorney
/s/ Rayford A. Farquhar RAYFORD A. FARQUHAR BBO No. 560350 Assistant U.S. Attorney U.S. Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3100 rayford.farquhar@usdoj.gov

27

Case 1:19-cv-11003-IT Document 34 Filed 05/15/19 Page 29 of 29 CERTIFICATE OF SERVICE
I hereby certify that on May 15, 2019, I electronically transmitted the foregoing document to the Clerk’s Office using the U.S. District Court for the District of Massachusetts’ Electronic Document Filing System (ECF), which will serve a copy of this document upon all counsel of record.
By: /s/ Rayford A. Farquhar RAYFORD A. FARQUHAR
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 </s> Case 1:19-cv-11003-IT Document 46 Filed 05/28/19 Page 1 of 4

U.S. IMmGRATIOiN AND CUSTOMS

Directive Number 11072.1:

Civil Immigration Enforcement Actions Inside Courthouses

Issue Date:

January 10,2018

Effective Date:

January 10,2018

Superseded:

None

Federal Enterprise Architecture Number: 306-112-002b

1. Purpose/Background. This Directive sets forth U.S. Immigration and Customs Enforcement (ICE) policy regarding civil immigration enforcement actions inside federal, state, and local courthouses. Individuals entering courthouses are typically screened by law enforcement personnel to search for weapons and other contraband. Accordingly, civil immigration enforcement actions taken inside courthouses can reduce safety risks to the public, targeted alien(s), and ICE officers and agents. When practicable, ICE officers and agents will conduct enforcement actions discreetly to minimize their impact on court proceedings.

Federal, state, and local law enforcement officials routinely engage in enforcement activity in courthouses throughout the country because many individuals appearing in
courthouses for one matter are wanted for unrelated criminal or civil violations. ICE's
enforcement activities in these same courthouses are wholly consistent with longstanding law enforcement practices, nationwide. And, courthouse arrests are often necessitated by the unwillingness ofjurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails.

2. Policy. ICE civil immigration enforcement actions inside courthouses include actions against specific, targeted aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed, when ICE officers or agents have information that leads them to believe the targeted aliens are present at that specific location.

Aliens encountered during a civil immigration enforcement action inside a courthouse, such as family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding, will not be subject to civil immigration enforcement action, absent special circumstances, such as where the individual poses a threat to public
safety orinterferes with ICE's enforcement actions.^

' ICEofficers andagents will make enforcement determinations ona case-by-case basis inaccordance with federal
law and consistent with U.S. Department ofHomeland Security (DHS) policy. See Memorandum from John Kelly, Secretary of Homeland Security, Enforcement ofthe Immigration Laws to Serve the National Interest (Feb. 20, 2017); Memorandum from John Kelly, Secretary ofHomeland Security, Implementing the President's Border Security and Immigration Enforcement Improvements Policies (Feb. 20,2017).
Civil Immigration Enforcement Actions Inside Courthouses

Case 1:19-cv-11003-IT Document 46 Filed 05/28/19 Page 2 of 4

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 </s> Case 1:19-cv-11003-IT Document 51 Filed 06/20/19 Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIAN RYAN, in her official capacity as

*

Middlesex County District Attorney;

*

RACHAEL ROLLINS, in her official capacity *

as Suffolk County District Attorney;

*

COMMITTEE FOR PUBLIC COUNSEL

*

SERVICES; and the CHELSEA

*

COLLABORATIVE, INC.,

*

*

Plaintiffs,

*

*

*

v.

*

*

*

U.S. IMMIGRATION AND CUSTOMS

*

ENFORCEMENT; MATTHEW T.

*

ALBENCE, in his official capacity as Acting

*

Deputy Director of U.S. Immigration and

*

Customs Enforcement and Senior Official

*

Performing the Duties of the Director; TODD

*

M. LYONS, in his official capacity as

*

Immigration and Customs Enforcement,

*

Enforcement and Removal Operations, Acting *

Field Office Director; U.S. DEPARTMENT

*

OF HOMELAND SECURITY; and KEVIN

*

McALEENAN, in his official capacity as

*

Acting Secretary of United States Department

*

of Homeland Security,

*

*

Defendants.

*

Civil Action No. 19-11003-IT

MEMORANDUM & ORDER GRANTING PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION

June 20, 2019

TALWANI, D.J.

Middlesex County District Attorney Marian Ryan, Suffolk County District Attorney

Rachael Rollins, the Committee for Public Counsel Services (“CPCS”), and the Chelsea

Case 1:19-cv-11003-IT Document 51 Filed 06/20/19 Page 2 of 29
Collaborative, Inc. (collectively “Plaintiffs”) bring this lawsuit against U.S. Immigration and Customs Enforcement (“ICE”), U.S. Department of Homeland Security (“DHS”), and several officials in their official capacity (collectively “Defendants”), challenging ICE’s policy and practice of conducting civil immigration arrests inside of state courthouses in Massachusetts. In Count 1 of the Complaint [1], Plaintiffs challenge ICE Directive No. 11072.1, entitled “Civil Immigration Actions Inside Courthouses” (the “Courthouse Civil Arrest Directive”), dated January 10, 2018, under the Administrative Procedure Act, 5 U.S.C. § 706(2)(C). The APA commands a reviewing court to “hold unlawful and set aside agency action . . . found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Plaintiffs contend that at the time the Immigration and Naturalization Act (“INA”) was enacted, all those appearing in court on official court business enjoyed a common law privilege against civil arrest. They argue that the INA does not explicitly extinguish this common law privilege and therefore must be interpreted to be constrained by it. Therefore, Plaintiffs contend, any ICE policies which permit civil courthouse arrests are in excess of the power granted by the INA and must be set aside by the court.
Defendants dispute the existence of a common law privilege against civil arrest in courthouses, and, alternatively, argue that any such privilege was superseded long before the codification of the current immigration scheme. Further, Defendants argue, if such a privilege existed in the past, Plaintiffs nonetheless lack both constitutional and prudential standing to bring this claim. Finally, the government contends that if Plaintiffs do have standing and the common law privilege exists, Congress nonetheless extinguished the privilege when it passed the INA.
Pending before the court is Plaintiffs’ Motion for a Preliminary Injunction [5], which seeks to preliminarily enjoin Defendants from implementing the Courthouse Civil Arrest
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Directive and from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they are going to, attending, or leaving the courthouse. Finding that Plaintiffs have standing to bring this suit, are likely to succeed on the merits of their APA claim as to those not in federal or state custody when they arrive, and are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in Plaintiffs’ favor, and that an injunction is in the public interest, Plaintiffs’ Motion for a Preliminary Injunction [5] is ALLOWED. Defendants are enjoined from implementing the Courthouse Civil Arrest Directive and from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they are going to, attending, or leaving the courthouse. The court’s order does not limit ICE’s criminal arrests of such individuals or its civil arrests of individuals who are brought to Massachusetts courthouses while in state or federal custody.
I. Statutory and Regulatory Background In 1952, Congress enacted the INA, governing, among other things, the presence of non-
citizens (deemed “aliens” in the INA, 8 U.S.C. § 1101(a)(3)) in the United States and the associated procedures for removing those present in the United States without federal authorization. See INA, Pub. L. No. 82-414, 66 Stat. 163 (1952). “Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Arizona v. United States, 567 U.S. 387, 396 (2012) (citing 8 U.S.C. § 1227); 8 U.S.C. § 1227 (a)(1)(B) (an alien present in the United States whose nonimmigrant visa has been revoked is deportable). “As a general rule, it is not a crime for a removable alien to remain present in the United States[,]” Arizona v. United States, 567 U.S. at 407, and removal proceedings are civil, not criminal, even where criminal activity underlies the reason for
3

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removal. See id. at 396; see also 6 C. Gordon, S. Mailman, S. Yale-Loehr, & R.Y. Wada,
Immigration Law and Procedure § 71.01[4][a] (Matthew Bender, rev. ed. 2016) (acknowledging
“the uniform judicial view, reiterated in numerous Supreme Court and lower court holdings, ...
that [removal] is a civil consequence and is not regarded as criminal punishment”).
Since first enacted, the INA has granted authority for arrests with and without warrants.
INA § 242(a), codified at 8 U.S.C. § 1226(a), provided that “[p]ending a determination of
deportability in the case of any alien . . . such alien may, upon warrant of the Attorney General,
be arrested and taken into custody.” INA § 242(a).1 INA § 287(a)(2), codified as 8 U.S.C. §
1357(a)(2), authorized an immigration officer without a warrant, “to arrest any alien who in his
presence or view is entering or attempting to enter the United States” unlawfully, or “to arrest
any alien in the United States if [the officer] has reason to believe that the alien so arrested is in
the United States in violation of any such law or regulation and is likely to escape before a
warrant can be obtained for his arrest.” Id. § 287(a)(2).2 “Although 8 U.S.C. § 1357(a)(2) does
1 In 1996, the provision for an arrest with a warrant was replaced by a substantively similar provision. Omnibus Consolidated Appropriations Act, 1997, PL 104–208, September 30, 1996, 110 Stat 3009. As amended in 1996, 8 U.S.C. § 1226(a) provides:
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. Except as provided in subsection (c) and pending such decision, the Attorney General--
(1) may continue to detain the arrested alien; and (2) may release the alien on--
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole; but (3) may not provide the alien with work authorization (including an “employment authorized” endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization. 8 U.S.C. § 1226(a). 2 Congress also amended this section in 1996 to add laws regulating the “removal of aliens” to the list of applicable laws one could be violating upon “entering or attempting to enter the United
4

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not, by its terms, reveal its ‘civil’ or ‘criminal” character,’” the First Circuit has determined that
such arrests are civil. U.S. v. Encarnacion, 239 F.3d 395, 398 (1st Cir. 2001).
“A principal feature of the removal system is the broad discretion exercised by
immigration officials.” Arizona v. United States, 567 U.S. at 396. ICE instructs its agents and
employees on its discretionary enforcement priorities through publicly released memoranda from
its director. On March 2, 2011, the then-director of ICE distributed a memorandum about civil
immigration enforcement priorities (hereinafter the “2011 Civil Enforcement Priorities
Memorandum”) as they relate to the apprehension, detention, and removal of aliens. ICE Policy
Number 10072.1, 2011 Civil Enforcement Priorities Memorandum (Mar. 2, 2011). That
memorandum explained that ICE had resources to remove each year less than four percent of the
estimated removable population, and thus would prioritize its resources. Id. According to ICE, its
top civil enforcement priority was the removal of “Priority 1” aliens: “[a]liens who pose a danger
to national security or a risk to public safety.” Id. at 1.
These aliens include, but are not limited to: aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security; aliens
States[.]” Omnibus Consolidated Appropriations Act, 1997, PL 104–208, September 30, 1996, 110 Stat 3009. Other than that change, 8 U.S.C. § 1357(a)(2), is the same as when the INA was first enacted in 1952, and provides:
(a) Powers without warrant Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant— … (2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States[.]
8 U.S.C. § 1357(a)(2). 5

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convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders; aliens not younger than 16 years of age who participated in organized criminal gangs; aliens subject to outstanding criminal warrants; and aliens who otherwise pose a serious risk to public safety. Id. at 1-2. The memorandum notes that the provision concerning those who otherwise pose a serious risk to public safety “is not intended to be read broadly, and officers, agents, and attorneys should rely on this provision only when serious and articulable public safety issues exist.” Id. at 2, n. 1. After those “Priority 1” aliens, ICE prioritizes the apprehension and removal of “[r]ecent illegal entrants” and “[a]liens who are fugitives or otherwise obstruct immigration controls.” Id. at 2. On June 17, 2011, the then-director of ICE distributed a memorandum entitled “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs” (hereinafter “Prosecutorial Discretion Memo”), Ex. C [28-3], directing ICE officers and attorneys to “exercise all appropriate prosecutorial discretion” in removal cases “to minimize any effect that immigration enforcement may have on the willingness and ability of victims, witnesses, and plaintiffs to call police and pursue justice.” Id. at 2. According to this memorandum, “it is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.” Id. “Absent special circumstances, it is similarly against ICE policy to remove individuals in the midst of a legitimate effort to protect their civil rights or civil liberties.” Id. at 3. The memorandum continued that “[t]o avoid deterring individuals from reporting crimes and from pursuing actions to protect their civil rights, ICE officers, special agents, and attorneys are reminded to exercise all appropriate discretion on a case-by-case basis when making detention and enforcement decisions in the cases of victims of crime, witnesses to crime, and individuals pursuing legitimate civil rights complaints.” Id.
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In 2014, ICE addressed the application of these 2011 policies to “[e]nforcement actions at or near courthouses.” Enforcement Actions at or Near Courthouses Memorandum (hereinafter the “2014 Courthouse Memorandum”) Ex. B [28-2]. In that memorandum, ICE specified that “[e]nforcement actions at or near courthouses will only be undertaken against Priority 1 aliens, as described in [the 2011 Enforcement Priorities Memorandum].” Id. Further, courthouse enforcement actions, would “only take place against specific, targeted aliens, rather than individuals who may be ‘collaterally’ present, such as family members or friends who may accompany the target alien to court appearances or functions.” Id. at 2. The memorandum directed further that “whenever practicable,” such actions will be taken outside of public areas of the courthouse. Id.
On January 25, 2017, the President issued an executive order, entitled “Enhancing Public Safety in the Interior of the United States.” Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017). Of particular relevance to this case, section five of the Executive Order orders the Secretary of Homeland Security to prioritize the removal of removable aliens who “[h]ave been charged with any criminal offense, where such charge has not been resolved” and “[a]re subject to a final order of removal, but who have not complied with their legal obligation to depart the United States.” 3 Id. On February 20, 2017, the then-Secretary of Homeland Security
3 The Executive Order also instructs the Secretary to prioritize the removal of aliens described in 8 U.S.C. §§ 1182 (a)(2), (a)(3), and (a)(6)(C), 1225, and 1227 (a)(2) and (4). These individuals are inadmissible or deportable due to criminal convictions, are in or attempting to enter the United States to commit espionage, attempted to obtain admission through fraud, or are subject to expedited removal. See 8 U.S.C. §§ 1182 (a)(2), (a)(3), and (a)(6)(C), 1225, and 1227 (a)(2) and (4). The Executive Order further instructs the Secretary to prioritize the removal of removable aliens who:
“(a) [h]ave been convicted of any criminal offense; . . . (c) [h]ave committed acts that constitute a chargeable criminal offense; (d) [h]ave engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e) [h]ave abused any program related to receipt of public
7

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implemented that Executive Order and issued a memorandum entitled “Enforcement of the Immigration Laws to Serve the National Interest” (hereinafter the “2017 Memorandum”). 2017 Memorandum Ex. 9 [7-9]. The 2017 Memorandum directed ICE to prioritize the removal of aliens in accordance with the Executive Order, including aliens who “have been charged with any criminal offense that has not been resolved” and “are subject to a final order of removal but have not complied with their legal obligation to depart the United States.” Id. at 3. The 2017 Memorandum rescinded, with exceptions not relevant here, “all existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal . . . to the extent of the conflict [with the 2017 Memorandum].” Id.
On January 10, 2018, ICE issued Directive No. 11072.1, the Courthouse Civil Arrest Directive. Compl. Ex. D [1-4]. The Courthouse Civil Arrest Directive refers to the 2017 Memorandum and explains that ICE civil immigration enforcement actions inside courthouses include actions “against specific, targeted aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed, when ICE officers or agents have information that leads them to believe the targeted aliens are present at that specific location.” Id. at 2. According to the policy, ICE will not arrest aliens other than the “target alien . . . absent special circumstances, such as where the individual poses a threat to public safety or interferes with ICE’s enforcement actions.” Id. The Courthouse Civil Arrest Directive explains that the purpose of this policy, in part, is to “reduce safety risks”
benefits; . . . or (g) [i]n the judgment of an immigration officer, otherwise pose a risk to public safety or national security.” Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017).
8

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because “[i]ndividuals entering courthouses are typically screened by law enforcement personnel to search for weapons and other contraband.” Id.
All of the foregoing relates to civil arrests for removal purposes, not criminal arrests. In 1990, the INA was amended to allow immigration officers to make warrantless criminal arrests. Pub.L. 101-649, Title V, § 503(a), (b)(1), Nov. 29, 1990, 104 Stat. 5048, 5049, codified at 8 U.S.C. 1357(a)(4). Those arrests, unlike arrests under § 1357(a)(2), require that the alien be brought before a magistrate judge, rather than an immigration officer. See U.S. v. Encarnacion, 239 F.3d at 398; see also Morales v. Chadbourne, 793 F.3d 208, 214-16 (1st Cir. 2015) (noting that “criminal custody” and ICE enforcement are different contexts). Plaintiffs’ APA claim does not challenge ICE’s authority to conduct criminal arrests.
II. The Record Before the Court Concerning Courthouse Arrests in Massachusetts State Courts
In July 2017, the Massachusetts Supreme Judicial Court released a decision about civil immigration detainers, holding that “Massachusetts law provides no authority for Massachusetts court officers to arrest and hold an individual solely on the basis of a Federal civil immigration detainer, beyond the time that the individual would otherwise be entitled to be released from State custody.” Lunn v. Commonwealth, 477 Mass. 517, 537 (2017).
The Massachusetts Trial Court subsequently promulgated a policy entitled “Policy and Procedures Regarding Interactions with the Department of Homeland Security [“DHS"].” Mass. Trial Ct. Policy at 16-18 [46-1], effective November 13, 2017. The Policy is directed to civil, not criminal, enforcement action, specifically noting that nothing in the policy abrogates a court officer’s authority to detain an individual pursuant to a criminal detainer or a warrant authorizing the arrest of an individual for a criminal offense. Id. at 16. According to the policy, Massachusetts Trial Court employees are required to respond to DHS requests for information
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about an individual's case or probation in the same manner as a request by any other member of the public. Id. DHS officials “may enter a courthouse and perform their official duties provided that their conduct in no way disrupts or delays court operations, or compromises safety or decorum.” Id. As applicable to all law enforcement officers, when an armed DHS official enters a courthouse, courthouse security personnel are directed to ask him or her the official law enforcement purpose for entering the courthouse and the proposed enforcement action to be taken, and that information is to be transmitted to a judicial officer if DHS officials state an intent to take into custody a party or other participant in a case before a judge or magistrate, or a person attending to business in the courthouse. Id.
The Policy includes separate procedures for individuals in custody, and those not in custody. Under the policy, individuals who are brought into court in custody, and are subject to release after a court proceeding, should be processed in the normal course, even if there is an immigration detainer. Id. Court employees do not have the authority to comply with or serve civil immigration warrants, but DHS officials are permitted to enter the holding cell area to take custody if the DHS official presents a civil arrest warrant or detainer and the court officer supervisor determines that the DHS official would otherwise take custody of the individual inside or immediately outside of the courthouse. Id.
As to individuals coming to court who are not in custody, under the Policy, trial court employees may not impede or assist DHS in the physical act of taking such individuals into DHS custody. Id. DHS officials shall not be permitted to take an individual into custody pursuant to a civil immigration detainer or warrant in a courtroom, absent advance permission by a judicial officer. Id. The policy also requires court security personnel to draft an incident report for every instance in which DHS takes an individual into custody in the courthouse. Id.
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In support of their motion, Plaintiffs submitted affidavits from the executive director of the Chelsea Collaborative, Vega Decl. Ex. 10 [7-10], an immigration law specialist from the Immigration Impact Unit at CPCS, Klein Decl. Ex. 11 [7-11], the Chief of Victim Witness Services for the Middlesex County DA’s office, Foley Decl. Ex. 12 [7-12], the executive director of Lawyers for Civil Rights, an organization providing pro bono legal representation to immigrants, Espinoza-Madrigal Decl. Ex 13 [7-13], and a legal advocacy specialist with HarberCOV, an organization that provides services to people affected by abuse, Moshier Decl. Ex. 14 [7-14]. These affidavits aver that ICE is civilly arresting people at courthouses throughout Massachusetts. Espinoza-Madrigal Decl. ¶ 7, Ex. 13 [7-13]; Klein Decl. ¶ 6, Ex. 11 [7-11]. CPCS “regularly receives calls from defense counsel detailing incidents in which ICE arrests an individual outside the courthouse prior to entering the courthouse for their trial or pre-trial hearing.” Klein Decl. ¶ 7, Ex. 11 [7-11]. Plaintiffs allege that these arrests are disruptive of civil and criminal proceedings. For example, Plaintiffs describe an arrest by two ICE officers at Somerville District Court as “look[ing] like a fistfight had broken out” and noting that court officers had to get involved to end the confrontation. Foley Decl. ¶ 7, Ex. 12 [7-12]. Plaintiffs report that prior to ICE targeting courthouses for enforcement actions, “noncitizen[s]…who were potentially removable” “did not express concern about appearing in court as plaintiffs, victims, or witnesses[,]” but now, noncitizens are reluctant to attend court in any capacity, “explicitly pointing to the presence of ICE in the courts.” Vega Decl. ¶¶ 6-10, Ex. 10 [7-10]. The Middlesex Victim Witness Services office reports that “noncitizen victims and witnesses frequently express concerns about ICE’s presence and deportation.” Foley Decl. ¶ 6, Ex. 12 [7-12]. Individuals identified by the declarant as “permanent residents” have reported fear seeking the court’s assistance for help with domestic violence concerns. Moshier Decl. ¶ 6, Ex. 14 [7-14].
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“[Chelsea] Collaborative members who have been victims of employer abuse and wage theft have also refused to seek court intervention because of their fears of ICE presence in the courthouses.” Vega Decl. ¶ 14, Ex. 10 [7-10].
Defendants represented at the hearings on this motion that “generally” ICE is not arresting people prior to their participation in hearings and is not targeting witnesses or victims. Defendants did not submit any countervailing affidavits, but submitted a copy of responses posted on a DHS website to frequently asked questions on sensitive locations policy and courthouse arrests. ICE Frequently Asked Questions on Sensitive Locations and Courthouse Arrests, as printed on May 6, 2019 (hereinafter “FAQ Responses”) [46-1]. According to the FAQ Responses, “ICE does not view courthouses as a sensitive location,” ICE has “for some time had established practices in place related to civil immigration enforcement inside courthouses,” and “the increasing unwillingness of some jurisdictions to cooperate with ICE in the safe and orderly transfer of targeted aliens inside their prisons and jails has necessitated additional at large arrests.” FAQ Responses at 8-9 [46-1]. The FAQ Responses note further that “[f]ederal, state, and local law enforcement officials routinely engage in enforcement activity in courthouses throughout the country,” that the actions “are consistent with longstanding law enforcement practices nationwide,” and that because individuals entering courthouses are typically screened for weapons, “civil immigration enforcement actions taken inside courthouses can reduce safety risks to the public, targeted alien(s), and ICE officers and agents.” Id. at 9. The FAQ Responses state further that these arrests “are the result of targeted enforcement actions against specific aliens.” Id. at 10. The FAQ Responses also state that “ICE makes every effort to ensure that the arrest occurs after the matter for which the alien was appearing in court has concluded.” Id.
III. Plaintiffs’ Standing
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“Article III of the Constitution confines the judicial power of federal courts to deciding actual ‘Cases’ or ‘Controversies.’” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). Accordingly, the court turns first to Defendants’ challenge to Plaintiffs’ constitutional and prudential standing to bring their APA claim. Defs.’ Br. at 6-11 [28].
A. Plaintiffs’ Constitutional Standing In order to satisfy the “irreducible constitutional minimum” of Article III standing, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548. “The injury need not be ‘significant’; a ‘small’ stake in the outcome will suffice, if it is ‘direct.’” Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1281 (1st Cir. 1996) (quoting U.S. v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14 (1973)). “[A] federal court [may] act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 41–42 (1976). The government argues that Plaintiffs lack an “injury in fact” and that the Plaintiffs’ injuries are not traceable to the Courthouse Civil Arrest Directive. Defs.’ Br. at 8-11 [34]. The court considers Plaintiffs’ injury-in-fact first. Defendants argue that Plaintiffs do not face a threat that the Courthouse Civil Arrest Directive will be applied against them, and moreover, that they have no right to assert a claim against removal on behalf of others who may
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be subject to such removal. Id. at 8. But this is not the injury that Plaintiffs are claiming. Plaintiffs “are not asserting incidental injury from Defendants’ general enforcement of the immigration laws, but direct injury from Defendants’ actions targeting courts for federal immigration enforcement.” Pls.’ Rep. Br. at 9 [41]. Defendants aptly summarize the DAs’ complaints that “the ICE Directive increases their costs, diverts their resources, and makes their prosecutions more ‘time consuming and difficult.’” Defs.’ Br. at 9 [34] (citing Compl. ¶¶ 80, 82 [1]). The DAs claim that ICE civil arrests in state courthouses, the sole forum in which they can prosecute cases, are hindering the DAs’ ability to carry out their primary functions as District Attorneys, and Chelsea Collaborative claims that these civil arrests impair their members’ ability to protect themselves through the state courts from unlawful actions of other individuals. For example, Plaintiffs allege that survivors of domestic abuse are “reluctant to file for civil protective orders against abusive partners or appear [in] court as witnesses in criminal cases against their abusers.” Moshier Decl. ¶ 4, Ex. 14 [7-14]. Fears concerning ICE’s presence from victims and witnesses “have been more prevalent since the ICE policy was announced.” Foley Decl. ¶ 6, Ex. 12 [7-12]. Victim Witness Advocates can no longer advise victims that their fear of arrest during the court process is unfounded. Foley Decl. ¶¶ 4-5, Ex. 12 [7-12].
Defendants argue that a state prosecutor does not suffer an injury in fact merely because a federal law-enforcement action (or threat of it) increases the time or costs associated with state prosecutions, and assert that they know of no case in which a court has found standing to challenge a federal law on this basis. Defendant conflates two issues, however. Federal prosecutions may well routinely burden state prosecutions (or vice versa), without there being a legal claim that may be asserted. But the inquiry here is whether there is a cognizable injury for purposes of Article III standing. The court agrees with Plaintiffs that being unable to reliably
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secure the attendance of defendants, victims, and witnesses hinders the ability of the DAs to prosecute crimes and Chelsea Collaborative’s members to secure their rights under state law and amounts to a particularized injury sufficient to constitute injury-in-fact. See Matter of C. Doe, No. SJ-2018-119 at 10-11 (Mass. Sept. 18, 2018), Ex. 7 [7-7] (“[T]he administration of justice in the Commonwealth suffers when litigants, witnesses, and others with business before the courts are afraid to come near a Massachusetts courthouse because they fear being arrested by immigration authorities.”).
CPCS alleges that ICE’s implementation of the Courthouse Civil Arrest Directive and the fear generated by courthouse arrests is impeding CPCS’ representation of its clients and its ability to manage its expenses. CPCS’s core function of representing criminal defendants is impeded when its clients are apprehended by ICE prior to appearing in court and proceedings are interrupted or altogether cannot continue. That alone is enough to constitute injury-in-fact. Further, CPCS declares that “time and resources have been consumed by…assisting defense attorneys whose clients have been impacted by this ICE enforcement policy.” Klein Decl. ¶ 4, Ex. 11 [7-11]. CPCS has alleged a concrete and particularized injury sufficient to constitute injury-in-fact.
Though Defendants cite to several cases in support of their challenge to Plaintiffs’ standing, none are applicable here.4 The court finds that the injuries alleged by the Plaintiffs satisfy the Article III injury-in-fact requirements.
4 New York v. United States, 505 U.S. 144 (1992), does not address the requirements for standing. In Massachusetts v. Mellon, 262 U.S. 447 (1923), the Court held that the state did not have standing to sue because the provisions in the challenged statute were voluntary. Plaintiffs here are not suing under similar circumstances. Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011), is also inapplicable, because, in that case, Virginia passed a “non-binding declaration,” id. at 270, declaring its opposition to a federal statute and then sued based on the conflict between its declaration and the federal law.
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As to traceability, the government argues that each Plaintiff’s injury is not traceable to the Courthouse Civil Arrest Directive because it results from “third-party aliens’ decisions not to attend Massachusetts courts in an effort to evade arrest and removal proceedings.” Defs.’ Br. at 10 [34]. “This wrongly equates injury ‘fairly traceable’ to the defendant with injury as to which the defendant's actions are the very last step in the chain of causation.” Bennett v. Spear, 520 U.S. 154, 168–69 (1997). The unwillingness of those at risk of ICE civil arrest to visit courthouses injures the DAs and Chelsea Collaborative members and is alleged be a direct result of the Courthouse Civil Arrest Directive. The DAs report that concerns from witnesses and victims about ICE’s presence “have been more prevalent since the ICE policy was announced.” Foley Decl. ¶ 6, Ex. 12 [7-12]. Before ICE began civilly arresting people at courthouses, Chelsea Collaborative helped members file suit, and helped members in litigation by filling courtrooms with supporters. Vega Decl. ¶ 6, Ex. 10 [7-10]. Now, Chelsea Collaborative struggles to persuade noncitizen members to go to court as victims, witnesses, or supporters. Vega Decl. ¶ 9, Ex. 10 [710]. According to Chelsea Collaborative, the “reluctance to attend court began soon after ICE’s increase in targeted enforcement actions in courthouses.” Id. The Courthouse Civil Arrest Directive “has caused a strain both on [Chelsea Collaborative’s] personnel and [their] budget such that [they] are unable to effectively carry out many of [their] other goals and missions.” Vega Decl. ¶ 22, Ex. 10 [7-10]. The injuries alleged by the DAs and Chelsea Collaborative are traceable to the Courthouse Civil Arrest Directive. Accordingly, the DAs and Chelsea Collaborative each have standing to bring this case.
The government argues that CPCS’s “alleged injuries are caused by third-party aliens’ decisions not to attend Massachusetts courts in an effort to evade arrest and removal proceedings.” Defs.’ Br. at 11 [34]. However, CPCS is not complaining that its clients are
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voluntarily choosing not to attend court, but that ICE is civilly arrested their clients when these individuals come to state court to attend state proceedings against them. These arrests cause CPCS to expend resources to respond to civil courthouse immigration enforcement. CPCS contends that defense attorneys inside courthouses regularly discover that clients are arrested prior to entering the courthouse to appear at criminal proceedings, causing a default judgment to enter. Klein Decl. ¶ 7, Ex. 11 [7-11]. CPCS’s cognizable injuries are traceable to ICE’s courthouse arrest policy, and not to a third party. Therefore, CPCS also has standing to bring this case.
B. Plaintiffs’ Prudential Standing “The doctrine of standing also includes prudential concerns relating to the proper exercise of federal jurisdiction.” Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1281 (1st Cir. 1996). “The interest [Plaintiffs] assert[] must be ‘arguably within the zone of interests to be protected or regulated by the statute’ that [Plaintiffs allege] was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224-25 (2012) (noting that the prudential standing test “is not meant to be especially demanding”) (internal citation omitted). “In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 399 (1987). Plaintiffs, therefore, need not be the target of ICE civil arrests or enforcement, but merely have interests that are more than “marginally related” to ICE enforcement in courthouses. The Plaintiffs here, as participants in the state civil and criminal justice systems, represent stakeholders affected by civil immigration arrests in state courthouses. Though no specified Congressional intent to include Plaintiffs in the
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zone of interest of the INA is needed, Clarke, 479 U.S. at 399-400, Congress nonetheless indicated its preference that federal immigration enforcement not impede state criminal law enforcement. The INA specifies that the federal government “may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment.” 8 U.S.C. § 1231 (a)(4)(A). Considering this provision as an example, the low threshold necessary to satisfy the zone of interest test, and the plain interests of prosecutors, criminal defense attorneys, and an organization serving immigrants in the proper enforcement of immigration laws within courthouses, the court finds that Plaintiffs are within the statute’s zone of interest and therefore have standing to pursue this case.
IV. Plaintiffs’ Motion for a Preliminary Injunction Having found that Plaintiffs have standing to bring their APA claim, the court turns to
Plaintiffs’ motion. “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
A. Likelihood of Success on the Merits 1. Common Law Privilege Against Civil Courthouse Arrests
In England, for many centuries prior to the founding of the United States, civil litigants commenced their suits by having a civil defendant arrested. See Clinton W. Francis, Practice, Strategy, and Institution: Debt Collection in the English Common-Law Courts, 1740-1840, 80 Nw. U. L. Rev. 807, 810 (1986); see also Nathan Levy, Jr., Mesne Process in Personal Actions at Common Law and the Power Doctrine, 78 Yale L. J. 52, 61 (1968) (In England, “arrest [was] the usual mode of beginning suit”). “[P]ersons so charged [in civil litigation] could be arrested
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anywhere in England and brought within the custody of the [court].” Nathan Levy, Jr., Mesne Process in Personal Actions at Common Law and the Power Doctrine, 78 Yale L. J. 52, 62 (1968). “At common law, the writ of capias ad respondendum directed the sheriff to secure the defendant’s appearance by taking him into custody.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). The courts recognized that permitting arrests at courthouses of those attending court on other matters could chill attendance at those other proceedings. See The King v. Holy Trinity in Wareham, 99 Eng. Rep. 531 (1782) (“for the purposes of justice” those attending court proceedings were privileged from being arrested on civil process); Meekins v. Smith, 126 Eng. Rep. 363 (1791) (same).
The United States imported that procedure of civil arrest and that common law privilege against civil arrest at courthouses into its judicial system. See Stewart v. Ramsay, 242 U.S. 128, 130 (1916) (“[The privilege] is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify.”) (quoting Parker v. Hotchkiss, 18 F. Cas. 1137, 1138 (C.C.E.D. Pa. 1849)). “It has long been settled that parties and witnesses attending in good faith any legal tribunal, with or without a writ of protection, are privileged from arrest on civil process during their attendance, and for a reasonable time in going and returning.” Larned v. Griffin, 12 F. 590, 590 (C.C.D. Mass 1882). The United States Constitution recognizes a similar privilege from civil arrest during legislative proceedings, stating that members of Congress are “privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same.” U.S. CONST. art. I, § 6, cl. 1. In explaining this clause in his treatise on the Constitution, Justice Storey underscored the fundamental nature of the privilege against
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courthouse arrests, noting that “[t]his privilege is conceded by law to the humblest suitor and witness in a court of justice.” Williamson v. United States, 207 U.S. 425, 443 (1908) (quoting JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, (1883)). Indeed, courts in the United States have recognized that “justice requires the attendance of witnesses cognizant of material facts, and hence that no unreasonable obstacles ought to be thrown in the way of their freely coming into court to give oral testimony.” Diamond v. Earle, 217 Mass. 499, 501 (1914).
The writ of capias ad respondendum eventually gave way to personal service of summons or other form of notice. International Shoe Co. v. Wash., 326 U.S. 310, 316 (1945). As the preferred means for obtaining a civil defendant’s presence in a lawsuit changed from a civil arrest to a summons and civil process, state and federal courts recognized the need for that privilege’s continued applicability, though this procedure was even less intrusive than a civil arrest. See Page Co. v. MacDonald, 261 U.S. 446, 448 (1923) (recognizing the importance of this privilege and the “necessity of its inflexibility”); Stewart v. Ramsay, 242 U.S. 128, 130 (1916) (citing with approval Parker v. Hotchkiss, 18 F. Cas. at 1138 and applying the privilege against arrest in a courthouse to being served with a summons while attending a court proceeding); Diamond v. Earle, 217 Mass. 499, 501 (1914) (exempting courthouse attendees from service of civil process). Such an “absolutely indispensable” privilege, Williamson, 207 U.S. at 443 (quoting JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (1883)), so fundamental to the functioning of both federal and state judiciary, cannot be assumed to have disappeared simply with the passage of time. The court therefore concludes that a privilege
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against civil arrest remained present at common law when Congress enacted the provisions at issue here.5
2. Merits of the Administrative Procedures Act Claim Plaintiffs argue that this common law privilege against civil arrests of court attendees was not abrogated by Congress and that the Courthouse Civil Arrest Directive therefore exceeds ICE’s authority and must be invalidated under the Administrative Procedure Act, 5 U.S.C. § 706 (2)(C). The APA instructs a reviewing court to “hold unlawful and set aside agency action…found to be…in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706 (2)(C). “Statutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” United States v. Texas, 507 U.S. 529, 534 (1993) (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952)) (quotation marks and alterations omitted). “In such cases, Congress does not write upon a clean slate.” Id. (citing Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108, 111 (1991)). “This presumption is, however, no bar to a construction that conflicts with a common-law rule if the statute speaks directly to the question addressed by the common law.” Pasquantino v. United States, 544 U.S. 349, 359 (2005) (internal quotation marks, citations, and alterations omitted). Compare In re Gitto Glob. Corp., 422 F.3d 1, 8 (1st Cir. 2005) (“Because [statute at issue] speaks directly to the question of public access, however, it supplants the common law for purposes of determining public access to papers filed
5 The court notes, however, that the privilege is tied to the voluntary attendance of parties, witnesses and others in the courthouse and to the necessities of judicial administration. Plaintiffs offer no authority for the proposition that this privilege extends to individuals who are brought to the courthouse in federal or state custody.
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in a bankruptcy case.”) with Beck v. Prupis, 529 U.S. 494, 504 (2000) (Holding that Congress intended to “adopt…well-established common-law…principles” where the statute offered no indication to the contrary).
The INA, as passed in 1952, did not “speak[] directly” to the common law privilege against civil arrest at the courthouse, nor did any subsequent amendments to the statute. The civil arrest provisions, detailed above, provide for two types of civil arrest: with and without a warrant. When the ICE has secured a warrant, the civil arrest provision permits that “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). Nothing in this provision or section of the statute speaks to courthouse arrests in any way. See United States v. Texas, 507 U.S. at 534-35 (holding that the Debt Collection Act does not speak directly to the government’s common law right to collect prejudgment interest where the statute at issue uses the term “person” and does not specify that “person” includes states).
The provision for warrantless civil arrests includes a specified list of when such arrests are appropriate. An ICE officer or employee may civilly arrest, without a warrant, “any alien…if he has reason to believe that the alien so arrested is in the United States in violation of [an immigration law or regulation] and is likely to escape before a warrant can be obtained for his arrest.” 8 U.S.C. § 1357 (a)(2). Like § 1226(a), this section does not address courthouse arrests or provide any basis for finding that Congress abrogated the common law privilege against civil arrests in courthouses.
The government argues that the INA supersedes all common law, that immigration law preempts state law, and that the federal government has the sole authority to control immigration. Defs.’ Br. at 20-22 [34]. The government’s arguments presume that Plaintiffs are seeking to alter
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the removal process, but that is not the relief Plaintiffs seek. Plaintiffs are not arguing for any
change in removal proceedings, but are simply contending that civil arrests at state courthouses
are outside of the statutory authority granted to the government. Even with the comprehensive
immigration law system devised by Congress, there are some limits to how and where the
government can arrest those it seeks to remove, including the limits written into the statute itself.6
At the second day of hearing, the government argued that 8 U.S.C. § 1229(e) demonstrates Congress’s intent that the INA abrogate the privilege against courthouse arrests.7
Section 1229(e)(1) requires that, “[i]n cases where an enforcement action leading to a removal
proceeding was taken against an alien at any of the locations specified in paragraph (2), the
Notice to Appear shall include a statement that the provisions of section 1367 of this title have been complied with.” 8 U.S.C. § 1229(e)(1).8 One of those specified locations is “a
courthouse…if the alien is appearing in connection with a protection order case, child custody
case, or other civil or criminal case relating to domestic violence, sexual assault, trafficking, or
stalking in which the alien has been battered or subject to extreme cruelty or if the alien is
6 The DHS website answers the question “is it legal to arrest suspected immigration violators at a courthouse,” with the assertion that “ICE officers and agents are expressly authorized by statute to make arrests of aliens where probable cause exists to believe that such aliens are removable.” [46-1]. In fact, warrantless civil arrests further require that the arresting officer believe the person “is likely to escape before a warrant can be obtained for his arrest.” 8 U.S.C. § 1357 (a)(2). 7 The cited paragraph is found in a section of the code entitled “Initiation of Removal Proceedings,” and not in either section 8 U.S.C. § 1226, entitled “Apprehension and detention of aliens,” where the provision concerning arrests with a warrant is found, or 8 U.S.C. § 1357, entitled “Powers of immigration officers and employees,” where provisions concerning warrantless arrests are found. 8 Section 1367, entitled “Penalties for disclosure of information,” prohibits ICE and other enforcement agencies from “mak[ing] an adverse determination of admissibility or deportability…using information solely furnished by…a spouse or parent who has battered the alien or subjected the alien to extreme cruelty or others potentially complicit in the abuse of the alien or their family.”
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described in subparagraph (T) or (U) of section 1101(a)(15) of this title.” 8 U.S.C. § 1229(e)(2)(B).
These provisions were added in 2006. See Violence Against Women and Department of Justice Reauthorization Act, PL 109–162, January 5, 2006, 119 Stat 2960. “The views of a subsequent Congress, however, form a hazardous basis for inferring the intent of an earlier one.” Bilski v. Kappos, 561 U.S. 593, 645 (2010) (quoting United States v. Price, 361 U.S. 304, 313 (1960)) (internal quotation marks omitted). “When a later statute is offered as an expression of how the Congress interpreted a statute passed by another Congress a half century before, such interpretation has very little, if any, significance.” Bilski, 561 U.S. at 645 (citing Rainwater v. United States, 356 U.S. 590, 593 (1958)) (internal quotation marks and alterations omitted). The 2006 enactment of the Violence Against Women and Department of Justice Reauthorization Act has little bearing on the court’s interpretation of Congressional intent regarding courthouse arrests in 1952, and certainly does not amount to a clearly stated intent to abrogate the common law privilege. See, e.g., Pasquantino, 544 U.S. at 359 (requiring Congress to clearly state its intent to abrogate the common law).
The government also argues that “ICE has long exercised its arrest authority at and around courthouses….” Defs.’ Br. at 4 [34]; see also 2014 Courthouse Memorandum [28-2]. And the provisions of the Violence Against Women and Department of Justice Reauthorization Act do signal that immigration courthouse arrests were occurring by 2006, that Congress was aware that those arrests were occurring, and that Congress did not legislate to cease those arrests. “But the significance of subsequent congressional action or inaction necessarily varies with the circumstances, and finding any interpretive help in congressional behavior here is impossible.” United States v. Wells, 519 U.S. 482, 495 (1997). See also Star Athletica, L.L.C. v. Varsity
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Brands, Inc., 137 S. Ct. 1002, 1015 (2017) (quoting Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633, 650 (1990)) (“‘Congressional inaction lacks persuasive significance’ in most circumstances.”). That this practice has been ongoing and that Congress has not halted courthouse civil arrests does not alter the court’s understanding of the common law privilege against civil courthouse arrests at the time the INA civil arrest provisions were enacted, and the absence of any clearly stated intent to abrogate that privilege at that time. Accordingly, the court finds that Plaintiffs have a strong likelihood of success on the merits of their claim that Courthouse Civil Arrest Directive exceeds the authority granted to ICE by the Congress in the civil arrest provisions of the INA and should be invalidated pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2)(C).
B. Irreparable Harm “Irreparable injury in the preliminary injunction context means an injury that cannot adequately be compensated for either by a later-issued permanent injunction, after a full adjudication on the merits, or by a later-issued damages remedy.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005) (internal quotation marks omitted). “If the plaintiff suffers a substantial injury that is not accurately measurable or adequately compensable by money damages, irreparable harm is a natural sequel.” Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 19 (1st Cir. 1996). “‘District courts have broad discretion to evaluate the irreparability of alleged harm and to make determinations regarding the propriety of injunctive relief.’” K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915 (1st Cir. 1989) (quoting Wagner v. Taylor, 836 F.2d 566, 575–76 (D.C.Cir.1987)). Plaintiffs argue they are suffering ongoing and irreparable harm. Pls.’ Mem at 17 [6]. Specifically, Chelsea Collaborative argues the Courthouse Civil Arrest Directive forces the
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diversion of resources from their normal activities to “an extra-judicial mediation and disputeresolution system.” Id. at 18. Chelsea Collaborative’s members are afraid to use the courts to vindicate their rights when they are victimized by employers, landlords, family members, and others. Vega Decl. ¶ 9-10, Ex. 10 [7-10]. Chelsea Collaborative’s mediation program redirects efforts from other causes and, as a result, Chelsea Collaborative is “unable to effectively carry out many of [its] other goals and missions.” Id. at ¶ 22.
Plaintiffs claim the Courthouse Civil Arrest Directive interferes with the District Attorney’s ability to prosecute specific cases because victims and witnesses are scared to participate in the proceedings, Pls.’ Mem at 18-19 [6], and because ICE civilly arrests many nontargeted individuals at courthouses. Klein Decl. ¶ 6, Ex. 11 [7-11]. For example, survivors of domestic violence fear utilizing the court system in responding to abuse because of a fear of immigration authorities at courthouses. Moshier Decl. ¶ 3, Ex. 14 [7-14]. Domestic violence perpetrators reinforce this fear when talking to survivors. Foley Decl. ¶ 5, Ex. 12 [7-12]. As a result, survivors are “reluctant to file for civil protective orders against abusive partners.” Moshier Decl. ¶ 4, Ex. 14 [7-14]. Even complaints successfully filed may not be pursued if survivors fear returning to court to testify in their own cases. Id. at ¶ 6.
CPCS argues the Courthouse Civil Arrest Directive shifts their staff focus to assist criminal defense attorneys in the process of navigating the potential immigration consequences of their client’s circumstances, often including helping counsel locate their client in ICE civil detention. Pls.’ Mem at 19 [6]. CPCS expends resources “responding to the effects of courthouse arrests, and… assisting defense attorneys whose clients have been impacted by this ICE enforcement policy.” Klein Decl. ¶ 4, Ex. 11 [7-11]. Further, when defendants with pending charges are arrested in the courthouse before they can appear before a judge, a default is entered
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against them. Id. at ¶ 9. A default can, among other things, cause “the denial of release on immigration bond and denial of relief from removal.” Id. at ¶ 10.
None of the financial costs alleged by Plaintiffs could be recovered from the government in the event Plaintiffs succeed at trial. Further, Plaintiffs have made an unrebutted showing that each day that the threat of ICE civil arrests looms over Massachusetts courthouses impairs the DAs and CPCS ability to successfully perform their functions within the judicial system, and Chelsea Collaborative’s members’ ability to enforce legal rights, and that absent an injunction, some state criminal and civil cases may well go unprosecuted for lack of victim or witness participation. CPCS will continue to incur costs as defendants are civilly arrested when attempting to respond to criminal complaints. Criminal defendants will be unable to vindicate their rights if they are taken into ICE custody prior to appearing in court or if witnesses in their defense are too fearful to visit a courthouse. None of these harms can be remedied after the conclusion of this litigation. Therefore, the court finds that the Plaintiffs have alleged irreparable harm sufficient to warrant and injunction.
C. Balance of Harms and Weighing of the Public Interest Plaintiffs accurately argue that when the government is the defendant in a case for which a preliminary injunction is sought, the court may aggregate its consideration of the balance of harms and weighing of the public interest. Pls.’ Br. at 19 [6] (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). Plaintiffs contend that without an injunction, victims and witnesses will continue to avoid using the state courts, leading to a failure of state civil and criminal proceedings, ultimately harming the rule of law. Over two days of hearing on this preliminary injunction, counsel for the government repeatedly argued that ICE was not conducting courthouse arrests in the manners
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described by Plaintiffs. Specifically, counsel represented that “generally” ICE does not arrest civil litigants, witnesses, or victims at courthouses. If this is the case, then to enjoin the applicability of the Courthouse Civil Arrest Directive as to civil arrests of courthouse attendees other than criminal defendants will cause no significant harm to the government. Plaintiffs, in comparison, and the public in general will suffer harm each day that witnesses and victims refuse to participate in proceedings, as detailed above.
Plaintiffs also contend that without an injunction, state criminal defendants who are arrested by ICE coming or leaving the courthouse will be prevented from attending proceedings against them, impairing the DAs ability to prosecute cases and increasing CPCS’s costs in representing criminal defendants. According to Defendants’ counsel, ICE’s general policy is not to arrest criminal defendants until the conclusion of the hearing that they are attending in state court. Counsel acknowledged, however, that ICE would make courthouse arrests before the targeted individuals leave the courthouse. They contend that ICE’s inability “to arrest fugitive aliens at the one place at which it can reliably find them in Massachusetts” would harm both the public and the federal government, and that arrestees, officers and the public would be safer if arrests are conducted in courthouses where individuals are screened for weapons. Defs.’ Opp. at 26 [34].
The court credits Defendants’ safety concerns, as well as the public’s need to be protected from dangerous criminal aliens. But Defendants’ attempt to justify civil courthouse arrests on these grounds, and on the fact that Massachusetts courts do not recognize civil detainers, and that Federal, state and local law enforcement activity concerning criminal matters “routinely” occurs in courthouses, ignores a critical distinction regarding the challenged arrests. Plaintiffs here seek only to enjoin civil, not criminal, arrests. Where ICE has an alternative route
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regarding targeted and dangerous aliens, namely, to pursue a criminal, rather than a civil arrest,

see 8 U.S.C. § 1357(a)(4), the balance of harm and public interest support issuance of the

injunction against civil arrests.

V. Conclusion

Having found that Plaintiffs have standing to bring this suit, and that they have

demonstrated a likelihood of success on the merits of Count 1 of their Complaint [1], that they

are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

equities tips in Plaintiffs’ favor, and that an injunction is in the public interest, the court

GRANTS Plaintiffs’ Motion for a Preliminary Injunction [5]. The court will issue a preliminary

injunction enjoining Defendants from implementing ICE Directive No. 11072.1, “Civil

Immigration Actions Inside Courthouses,” dated January 10, 2018, in Massachusetts and from

civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official

business while they are going to, attending, or leaving the courthouse.

IT IS SO ORDERED.

June 20, 2019

/s/ Indira Talwani United States District Judge

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 </s> Case 1:19-cv-11003-IT Document 52 Filed 06/20/19 Page 1 of 2

UNITED STATES DISTIUCT COURT FOR THE DISTRICT OF MASSACHUSETTS

MARIAN RYAN, in her official capacity as

*

Middlesex County District Attorney;

*

RACHAEL ROLLINS, in her official capacity *

as Suffolk County District Attorney;

*

COMMITTEE FOR PUBLIC COUNSEL

*

SERVICES; and the CHELSEA

*

COLLABORATIVE, INC.,

*

*

Plaintiffs,

*

*

V.

*

*

U.S. IMMIGRATION AND CUSTOMS

*

ENFORCEMENT; MATTHEW T.

*

ALBENCE, in his official capacity as Acting

*

Deputy Director of U.S. Immigration and

*

Customs Enforcement and Senior Official

*

Performing the Duties of the Director; TODD

*

M. LYONS, in his official capacity as

*

Immigration and Customs Enforcement,

*

Enforcement and Removal Operations, Acting *

Field Office Director; U.S. DEPARTMENT

*

OF HOMELAND SECURITY; and KEVIN

*

McALEENAN, in his official capacity as

*

Acting Secretary of United States Department *

of Homeland Security,

*

*

Defendants.

*

Civil Action No. 19-11003-IT

PRELIMINARY INJUNCTION

TALWANI, D.J.

June 20,2019

Upon considerationof Plaintiffs' Motion for a Preliminarv Injunction [5], supporting

memoranda, filings, and reply brief. Defendants' opposition and related filings, and amicus

curiae Immigration Reform Law Institute's brief in support of Defendants, and after hearing oral

argument from counsel for the parties, the court finds that Plaintiffs have demonstrated a
likelihood of success on the merits of Count 1 of their Complaint [1], that they are likely to

Case 1:19-cv-11003-IT Document 52 Filed 06/20/19 Page 2 of 2

 </s> Case: 1:19-cv-11003-IT As of: 09/27/2019 12:36 PM EDT 1 of 10
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:19−cv−11003−IT

APPEAL

Ryan et al v. U.S. Immigration and Customs Enforcement et al Assigned to: Judge Indira Talwani Case in other court: USCA − First Circuit, 19−01838 Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 04/29/2019 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Marian Ryan in her official capacity as Middlesex County District Attorney

represented by Alicia Rubio−Spring Goodwin Procter LLP 100 Northern Avenue Boston, MA 02210 617−570−1000 Email: arubio−spring@goodwinlaw.com ATTORNEY TO BE NOTICED

Christopher J.C. Herbert Goodwin Procter LLP 100 Northern Avenue Boston, MA 02210 617−570−1000 Email: cherbert@goodwinlaw.com ATTORNEY TO BE NOTICED

Daryl L. Wiesen Goodwin Procter, LLP 100 Northern Avenue Boston, MA 02210 617−570−1000 Fax: 617−523−1231 Email: dwiesen@goodwinprocter.com ATTORNEY TO BE NOTICED

David Jacob Zimmer Goodwin Procter LLP 100 Northern Avenue Boston, MA 02210 617−570−1000 Email: dzimmer@goodwinlaw.com ATTORNEY TO BE NOTICED

Jordan Benson Goodwin Procter LLP 100 Northern Avenue Boston, MA 02210 617−570−1000 Email: jbenson@goodwinlaw.com TERMINATED: 08/26/2019 ATTORNEY TO BE NOTICED

Katherine M. Fahey Goodwin Procter LLP 100 Northern Avenue Boston, MA 02210 617−570−1000 Email: kfahey@goodwinlaw.com ATTORNEY TO BE NOTICED

Case: 1:19-cv-11003-IT As of: 09/27/2019 12:36 PM EDT 2 of 10

Plaintiff
Rachael Rollins in her official capacity as Suffolk County District Attorney

represented by Alicia Rubio−Spring (See above for address) ATTORNEY TO BE NOTICED

Christopher J.C. Herbert (See above for address) ATTORNEY TO BE NOTICED

Daryl L. Wiesen (See above for address) ATTORNEY TO BE NOTICED

David Jacob Zimmer (See above for address) ATTORNEY TO BE NOTICED

Jordan Benson (See above for address) TERMINATED: 08/26/2019 ATTORNEY TO BE NOTICED

Katherine M. Fahey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Committee for Public Counsel Services

represented by Wendy S. Wayne Committee for Public Counsel Services 21 McGrath Highway Somerville, MA 02143 617−623−0591 Email: wwayne@publiccounsel.net ATTORNEY TO BE NOTICED

Plaintiff Chelsea Collaborative, Inc.

represented by Alicia Rubio−Spring (See above for address) ATTORNEY TO BE NOTICED

Christopher J.C. Herbert (See above for address) ATTORNEY TO BE NOTICED

Daryl L. Wiesen (See above for address) ATTORNEY TO BE NOTICED

David Jacob Zimmer (See above for address) ATTORNEY TO BE NOTICED

Jordan Benson (See above for address) TERMINATED: 08/26/2019 ATTORNEY TO BE NOTICED

Katherine M. Fahey (See above for address) ATTORNEY TO BE NOTICED

Oren N. Nimni 61 Batterymarch Street 5th Floor

Case: 1:19-cv-11003-IT As of: 09/27/2019 12:36 PM EDT 3 of 10

Boston, MA 02110 206−200−9088 Email: onimni@lawyerscom.org ATTORNEY TO BE NOTICED

Plaintiff Immigration Reform Law Institute

represented by Christopher J. Hajec Immigration Reform Law Institute 25 Massachusetts Avenue NW, Suite 335 Washington, DC 20001 202−232−5590 Email: chajec@irli.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bradly P. Bennion Law Office of Brad P. Bennion PO Box 890118 E. Weymouth, MA 02189 617−943−6164 Email: bradpbennion@gmail.com ATTORNEY TO BE NOTICED

V.
Defendant
U.S. Immigration and Customs Enforcement

represented by Erez Reuveni United States Dept. of Justice, Civil Division 450 5th St NE Washington, DC 20530 (202) 307−4293 Email: erez.r.reuveni@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rayford A. Farquhar United States Attorney's Office John Joseph Moakley Federal Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3100 Fax: 617−748−3971 Email: rayford.farquhar@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eve A. Piemonte U.S. Attorney's Office 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3100 Fax: 617−748−3969 Email: eve.piemonte@usdoj.gov ATTORNEY TO BE NOTICED
Francesca M. Genova U.S. Department of Justice, Civil Division Office of Immigration Litigation, District Court Section

Case: 1:19-cv-11003-IT As of: 09/27/2019 12:36 PM EDT 4 of 10

P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 305−1062 Email: francesca.m.genova@usdoj.gov ATTORNEY TO BE NOTICED

Julian Kurz U.S. Department of Justice Office of Immigration Litigation P.O. Box 868 Washington, DC 20044 (202) 616−4962 Email: julian.m.kurz@usdoj.gov ATTORNEY TO BE NOTICED

Michael P. Sady United States Attorney's Office John Joseph Moakley Federal Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3362 Fax: 617−748−3971 Email: michael.sady@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Matthew T. Albence in his official capacity as Acting Deputy Director of U.S. Immigration and Customs Enforcement and Senior Official Performing the Duties of the Director

represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rayford A. Farquhar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eve A. Piemonte (See above for address) ATTORNEY TO BE NOTICED

Francesca M. Genova (See above for address) ATTORNEY TO BE NOTICED

Julian Kurz (See above for address) ATTORNEY TO BE NOTICED

Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED

Defendant
Todd M. Lyons in his official capacity as Immigration and Customs Enforcement, Enforcement and Removal Operations, Acting Field Office Director

represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rayford A. Farquhar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:19-cv-11003-IT As of: 09/27/2019 12:36 PM EDT 5 of 10

Eve A. Piemonte (See above for address) ATTORNEY TO BE NOTICED

Francesca M. Genova (See above for address) ATTORNEY TO BE NOTICED

Julian Kurz (See above for address) ATTORNEY TO BE NOTICED

Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED

Defendant U.S. Department of Homeland Security

represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rayford A. Farquhar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eve A. Piemonte (See above for address) ATTORNEY TO BE NOTICED

Francesca M. Genova (See above for address) ATTORNEY TO BE NOTICED

Julian Kurz (See above for address) ATTORNEY TO BE NOTICED

Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kevin McAleenan in his official capacity as Acting Secretary of United States Department of Homeland Security

represented by Erez Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rayford A. Farquhar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eve A. Piemonte (See above for address) ATTORNEY TO BE NOTICED

Francesca M. Genova (See above for address) ATTORNEY TO BE NOTICED

Julian Kurz (See above for address)

Case: 1:19-cv-11003-IT As of: 09/27/2019 12:36 PM EDT 6 of 10
ATTORNEY TO BE NOTICED
Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/29/2019
04/29/2019 04/29/2019 04/29/2019 04/29/2019 04/29/2019 04/29/2019
04/29/2019
04/29/2019 04/29/2019 04/29/2019 04/29/2019 04/29/2019 04/29/2019

# Docket Text
1 COMPLAINT for Declaratory Judgment and Injunctive Relief against Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement Filing fee: $ 400, receipt number 0101−7658975 (Fee Status: Filing Fee paid), filed by Chelsea Collaborative, Inc., Committee for Public Counsel Services, Rachael Rollins, Marian Ryan. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Civil Cover Sheet, # 11 Civil Category Sheet)(Zimmer, David) (Entered: 04/29/2019)
2 NOTICE of Appearance by David Jacob Zimmer on behalf of Chelsea Collaborative, Inc., Rachael Rollins, Marian Ryan (Zimmer, David) (Entered: 04/29/2019)
3 General Order 09−1, dated January 6, 2009 regarding the E−Government Act and Personal Identifiers entered. (Lara, Miguel) (Entered: 04/29/2019)
4 CORPORATE DISCLOSURE STATEMENT by Chelsea Collaborative, Inc.. (Zimmer, David) (Entered: 04/29/2019)
5 MOTION for Preliminary Injunction by Chelsea Collaborative, Inc., Committee for Public Counsel Services, Rachael Rollins, Marian Ryan. (Attachments: # 1 Text of Proposed Order)(Zimmer, David) (Entered: 04/29/2019)
6 MEMORANDUM in Support re 5 MOTION for Preliminary Injunction filed by Chelsea Collaborative, Inc., Committee for Public Counsel Services, Rachael Rollins, Marian Ryan. (Zimmer, David) (Entered: 04/29/2019)
7 DECLARATION re 5 MOTION for Preliminary Injunction by Chelsea Collaborative, Inc., Committee for Public Counsel Services, Rachael Rollins, Marian Ryan. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Zimmer, David) (Entered: 04/29/2019)
8 ELECTRONIC NOTICE of Case Assignment. Chief Judge Patti B. Saris assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Donald L. Cabell. (Danieli, Chris) (Entered: 04/29/2019)
9 NOTICE of Appearance by Daryl L. Wiesen on behalf of Chelsea Collaborative, Inc., Rachael Rollins, Marian Ryan (Wiesen, Daryl) (Entered: 04/29/2019)
10 NOTICE of Appearance by Alicia Rubio−Spring on behalf of Chelsea Collaborative, Inc., Rachael Rollins, Marian Ryan (Rubio−Spring, Alicia) (Entered: 04/29/2019)
11 NOTICE of Appearance by Jordan Benson on behalf of Chelsea Collaborative, Inc., Rachael Rollins, Marian Ryan (Benson, Jordan) (Entered: 04/29/2019)
12 NOTICE of Appearance by Christopher J.C. Herbert on behalf of Chelsea Collaborative, Inc., Rachael Rollins, Marian Ryan (Herbert, Christopher) (Entered: 04/29/2019)
13 NOTICE of Appearance by Oren N. Nimni on behalf of Chelsea Collaborative, Inc. (Nimni, Oren) (Entered: 04/29/2019)
14 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Lara, Miguel) (Entered: 04/29/2019)

Case: 1:19-cv-11003-IT As of: 09/27/2019 12:36 PM EDT 7 of 10

04/29/2019 04/29/2019 05/01/2019
05/03/2019

15 NOTICE of Appearance by Katherine M. Fahey on behalf of Chelsea Collaborative, Inc., Rachael Rollins, Marian Ryan (Fahey, Katherine) (Entered: 04/29/2019)
16 NOTICE of Appearance by Wendy S. Wayne on behalf of Committee for Public Counsel Services (Wayne, Wendy) (Entered: 04/29/2019)
17 SUMMONS Returned Executed as to US Attorney by Committee for Public Counsel Services, Rachael Rollins, Chelsea Collaborative, Inc., Marian Ryan. Matthew T. Albence served on 4/29/2019, answer due 6/28/2019; Todd M. Lyons served on 4/29/2019, answer due 6/28/2019; Kevin McAleenan served on 4/29/2019, answer due 6/28/2019; U.S. Department of Homeland Security served on 4/29/2019, answer due 6/28/2019; U.S. Immigration and Customs Enforcement served on 4/29/2019, answer due 6/28/2019. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Zimmer, David) (Entered: 05/01/2019)
18 Chief Judge Patti B. Saris: ORDER entered.

Pursuant to L.R. 40.1(g)(1) and (4), I find that this case is not related to 18−cv−12452−PBS or 18−cv−10475−PBS and therefore was erroneously assigned to me. The case is returned to the Clerk for random reassignment.

05/03/2019 05/03/2019 05/08/2019 05/08/2019 05/08/2019
05/08/2019 05/10/2019 05/13/2019 05/13/2019 05/13/2019

(Lara, Miguel) (Entered: 05/03/2019)
19 ELECTRONIC NOTICE of Reassignment. Judge Indira Talwani added. Chief Judge Patti B. Saris no longer assigned to case. (Finn, Mary) (Entered: 05/03/2019)
20 ELECTRONIC NOTICE of Case Re−Assignment of the Magistrate Judge. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Judith G. Dein. Case no longer referred to Magistrate Donald L. Cabell. (Finn, Mary) (Entered: 05/03/2019)
21 ELECTRONIC NOTICE Setting Hearing on Motion 5 MOTION for Preliminary Injunction : Motion Hearing set for 5/23/2019 09:00 AM in Courtroom 9 before Judge Indira Talwani. Plaintiffs' counsel shall promptly serve a copy of this order on Defendants. (MacDonald, Gail) (Entered: 05/08/2019)
22 NOTICE of Appearance by Erez Reuveni on behalf of Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement (Reuveni, Erez) (Entered: 05/08/2019)
23 NOTICE by Chelsea Collaborative, Inc., Committee for Public Counsel Services, Rachael Rollins, Marian Ryan re 21 Notice of Hearing on Motion, Plaintiffs' Notice of Service of the Court's Electronic Notice Setting the Hearing on Plaintiffs' Motion for Preliminary Injunction (Attachments: # 1 Exhibit A)(Zimmer, David) (Entered: 05/08/2019)
24 NOTICE of Appearance by Rayford A. Farquhar on behalf of Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement (Farquhar, Rayford) (Entered: 05/08/2019)
25 NOTICE of Appearance by Eve A. Piemonte on behalf of Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement (Piemonte, Eve) (Entered: 05/10/2019)
26 NOTICE of Appearance by Julian Kurz on behalf of Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement (Kurz, Julian) (Entered: 05/13/2019)
27 NOTICE of Appearance by Francesca M. Genova on behalf of Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement (Genova, Francesca) (Entered: 05/13/2019)
28 MEMORANDUM in Opposition re 5 MOTION for Preliminary Injunction filed by Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit ICE Directive 11072.1: Civil Immigration Enforcement Inside Courthouses (Jan. 10, 2018), # 2 Exhibit Enforcement Actions at or Near Courthouses (Mar. 19, 2014), # 3 Exhibit Mem. on Prosecutorial Discretion: Certain Victims, Witnesses, and

Case: 1:19-cv-11003-IT As of: 09/27/2019 12:36 PM EDT 8 of 10

05/14/2019 05/14/2019 05/15/2019 05/15/2019
05/15/2019 05/15/2019
05/16/2019 05/16/2019 05/17/2019
05/17/2019 05/17/2019
05/20/2019 05/20/2019 05/21/2019
05/22/2019

Plaintiffs (June 17, 2011), # 4 Text of Proposed Order)(Farquhar, Rayford) (Entered: 05/13/2019)
29 Assented to MOTION for Leave to File Reply In Support of Motion for Preliminary Injunction by Chelsea Collaborative, Inc., Committee for Public Counsel Services, Rachael Rollins, Marian Ryan.(Zimmer, David) (Entered: 05/14/2019)
30 Assented to MOTION for Leave to File Out of Time by Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement.(Farquhar, Rayford) (Entered: 05/14/2019)
31 Judge Indira Talwani: ELECTRONIC ORDER entered granting nunc pro tunc 30 Motion for Leave to File Document. (MacDonald, Gail) (Entered: 05/15/2019)
32 Judge Indira Talwani: ELECTRONIC ORDER entered granting 29 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (MacDonald, Gail) (Entered: 05/15/2019)
33 NOTICE of Appearance by Michael P. Sady on behalf of Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement (Sady, Michael) (Entered: 05/15/2019)
34 MEMORANDUM in Opposition re 5 MOTION for Preliminary Injunction (Leave to File Granted − May 15, 2019) filed by Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Farquhar, Rayford) (Main Document 34 replaced on 5/20/2019) (MacDonald, Gail). (Entered: 05/15/2019)
35 MOTION for Leave to Appear Pro Hac Vice for admission of Christopher J. Hajec Filing fee: $ 100, receipt number 0101−7689166 by Immigration Reform Law Institute.(Bennion, Bradly) (Entered: 05/16/2019)
36 MOTION for Leave to File Amicus Brief by Immigration Reform Law Institute. (Attachments: # 1 Supplement)(Bennion, Bradly) (Entered: 05/16/2019)
37 Judge Indira Talwani: ELECTRONIC ORDER GRANTING Motion for Leave to File Amicus Brief 36 . Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Kinsella, Devan) (Entered: 05/17/2019)
38 AMICUS BRIEF filed by Immigration Reform Law Institute . (Bennion, Bradly) (Entered: 05/17/2019)
39 Judge Indira Talwani: ELECTRONIC ORDER: The Motion for Admission to Appear Pro Hac Vice for Christopher J. Hajec 35 is DENIED without prejudice. Pursuant to Local Rule 83.5.3(e)(2), the motion should be brought by an attorney who is a member of the bar of this court, who shall also file an appearance. (Kinsella, Devan) (Entered: 05/17/2019)
40 Amicus Curiae APPEARANCE entered by Bradly P. Bennion on behalf of Immigration Reform Law Institute. (Bennion, Bradly) (Entered: 05/20/2019)
41 REPLY to Response to 5 MOTION for Preliminary Injunction filed by Chelsea Collaborative, Inc., Committee for Public Counsel Services, Rachael Rollins, Marian Ryan. (Zimmer, David) (Entered: 05/20/2019)
42 First MOTION for Leave to Appear Pro Hac Vice for admission of CHRISTOPHER J. HAJEC Filing fee: $ 100, receipt number 0101−7695459 by Immigration Reform Law Institute.(Bennion, Bradly) (Main Document 42 replaced on 5/22/2019) (MacDonald, Gail). (Additional attachment(s) added on 5/22/2019: # 1 Declaration) (MacDonald, Gail). (Entered: 05/21/2019)
43 Judge Indira Talwani: ELECTRONIC ORDER entered granting 42 Motion for Leave to Appear Pro Hac Vice Added CHRISTOPHER J. HAJEC. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have

Case: 1:19-cv-11003-IT As of: 09/27/2019 12:36 PM EDT 9 of 10

05/23/2019
05/28/2019
05/28/2019 05/30/2019
05/30/2019 06/19/2019
06/19/2019 06/20/2019 06/20/2019 06/27/2019 06/28/2019

an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (MacDonald, Gail) (Entered: 05/22/2019)
44 Electronic Clerk's Notes for proceedings held before Judge Indira Talwani: Motion Hearing held on 5/23/2019 re 5 MOTION for Preliminary Injunction filed by Marian Ryan, Committee for Public Counsel Services, Chelsea Collaborative, Inc., Rachael Rollins. Case called. Court hears argument from counsel. Hearing continued to 5/28/2019 09:30 AM in Courtroom 9 before Judge Indira Talwani. (Court Reporter: Cheryl Dahlstrom at cheryldahlstrom@yahoo.com.)(Attorneys present: Rubio−Spring, Wiesen, Zimmer, Wayne, Nimni, Reuveni, Farquhar) (MacDonald, Gail) (Entered: 05/23/2019)
45 Electronic Clerk's Notes for proceedings held before Judge Indira Talwani: Motion Hearing held on 5/28/2019 re 5 MOTION for Preliminary Injunction filed by Marian Ryan, Committee for Public Counsel Services, Chelsea Collaborative, Inc., Rachael Rollins. Hearing continued from 5/23/19. Case called. Court hears argument from counsel. Motion taken under advisement. (Court Reporter: Cheryl Dahlstrom at cheryldahlstrom@yahoo.com.)(Attorneys present: Rubio−Spring, Wiesen, Zimmer, Wayne, Nimni, Reuveni, Farquhar) (MacDonald, Gail) (Entered: 05/29/2019)
46 DIRECTIVE. Filed in open court on May 28, 2019 by U.S. Immigration and Customs Enforcement (Attachments: # 1 Attachments). (Kinsella, Devan) (Entered: 05/29/2019)
47 Transcript of Hearing on Motion for Preliminary Injunction held on May 23, 2019, before Judge Indira Talwani. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Cheryl Dahlstrom at cheryldahlstrom@yahoo.com Redaction Request due 6/20/2019. Redacted Transcript Deadline set for 7/1/2019. Release of Transcript Restriction set for 8/28/2019. (Scalfani, Deborah) (Entered: 05/30/2019)
48 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/30/2019)
49 Transcript of Hearing on Motion for Preliminary Injunction − Day Two held on May 28, 2019, before Judge Indira Talwani. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Cheryl Dahlstrom at cheryldahlstrom@yahoo.com Redaction Request due 7/10/2019. Redacted Transcript Deadline set for 7/22/2019. Release of Transcript Restriction set for 9/17/2019. (Scalfani, Deborah) (Entered: 06/19/2019)
50 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 06/19/2019)
51 Judge Indira Talwani: MEMORANDUM AND ORDER. (Kinsella, Devan) (Entered: 06/20/2019)
52 Judge Indira Talwani: ORDER OF PRELIMINARY INJUNCTION. (Kinsella, Devan) (Entered: 06/20/2019)
53 Assented to MOTION for Extension of Time to August 27, 2019 to File Answer re 1 Complaint,, by Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement.(Kurz, Julian) (Entered: 06/27/2019)
54 Judge Indira Talwani: ELECTRONIC ORDER granting Assented−to Motion for Extension of Time to Respond to Complaint 53 . The assented−to motion is allowed in

Case: 1:19-cv-11003-IT As of: 09/27/2019 12:36 PM EDT 10 of 10

08/16/2019
08/19/2019 08/21/2019 08/21/2019 08/23/2019 08/28/2019

order to permit Defendants' counsel to focus on whether to appeal the court's Order Granting Preliminary Injunction before being required to prepare a response to the complaint. The court does not adopt Defendants' assumption that an appeal of the motion for a preliminary injunction necessarily precludes simultaneous district court litigation. See 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3921.2 at 58 (3d ed. 2012) ("Ordinarily an interlocutory injunction appeal under [28 U.S.C.] § 1292(a)(1) does not defeat the power of the trial court to proceed further with the case."). (Kinsella, Devan) (Entered: 06/28/2019)
55 NOTICE OF APPEAL as to 52 Preliminary Injunction, 51 Memorandum & ORDER, Terminate Motions by Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 9/5/2019. (Kurz, Julian) (Entered: 08/16/2019)
56 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 55 Notice of Appeal. (Paine, Matthew) (Entered: 08/19/2019)
57 USCA Case Number 19−1838 for 55 Notice of Appeal filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Matthew T. Albence, Kevin McAleenan, Todd M. Lyons. (Paine, Matthew) (Entered: 08/21/2019)
58 Assented to MOTION for Extension of Time to October 28, 2019 to File Answer re 1 Complaint,, by Matthew T. Albence, Todd M. Lyons, Kevin McAleenan, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement.(Genova, Francesca) (Entered: 08/21/2019)
59 NOTICE of Withdrawal of Appearance by Jordan Benson (Benson, Jordan) (Entered: 08/23/2019)
60 Judge Indira Talwani: ELECTRONIC ORDER entered granting 58 Motion for Extension of Time to Answer re 1 Complaint. Answer/Response to Complaint due 10/29/19 from all Defendants. (MacDonald, Gail) (Entered: 08/28/2019)


[CONTENT] April 29, 2019 | the Middlesex County District | Suffolk County | Committee for Public Counsel Services | CPCS | the Chelsea Collaborative, Inc. | the U.S. District Court | Massachusetts ||| U.S. Immigration and Customs Enforcement | U.S. Department of Homeland Security | the Administrative Procedure Act | 5 | U.S.C. | the Immigration and Nationality Act | 8 | U.S.C. | § ||| the Tenth Amendment ||| 2017 | ICE ||| Massachusetts ||| April 29, 2019 | Motion for Preliminary Injunction | Massachusetts |||  ||| the Administrative Procedure Act |||  ||| May 15, 2019 | the Motion for Preliminary Injunction ||| Opposition ||| Congress ||| June 20, 2019 | Indira Talwani ||| 382 ||| 3d 142 | 2019 ||| Talwani ||| the Courthouse Civil Arrest Directive | Massachusetts ||| the U.S. Court of Appeals | the First Circuit [SUMMARY] On April 29, 2019, the Middlesex County District Attorney, Suffolk County District Attorney, Committee for Public Counsel Services (“CPCS”), and the Chelsea Collaborative, Inc., filed this lawsuit in the U.S. District Court for the District of Massachusetts. The plaintiffs sued U.S. Immigration and Customs Enforcement (“ICE”), U.S. Department of Homeland Security, and several officials under the Administrative Procedure Act, 5 U.S.C. § 706(2)(C), and the Immigration and Nationality Act, 8 U.S.C. §§ 1226(a), 1357(a). The plaintiffs sought declaratory, injunctive, and monetary relief, claiming violations of common-law privilege against civil arrests in courthouses and the Tenth Amendment. The plaintiffs alleged that in 2017, ICE authorized a nationwide campaign to target state courthouses as sites for civil-immigration enforcement. The plaintiffs further alleged that this policy undermined the administration of justice in Massachusetts, as many permanent residents refused to appear in court out of fear of ICE interference.  

On April 29, 2019, the plaintiffs filed a Motion for Preliminary Injunction that sought to enjoin ICE from authorizing and conducting civil arrests on parties, witnesses, and others attending Massachusetts courthouses on official business. The plaintiffs alleged that by authorizing civil arrests in courthouses, ICE ignored the well-settled common-law privilege against such civil arrests and exceeded its statutory jurisdiction under the Immigrant and Nationality Act. Thus, the practice is unlawful and should be set aside under the Administrative Procedure Act. While the motion included other claims, the plaintiffs sought preliminary injunctive relief only on this claim.

On May 15, 2019, the defendants filed an Opposition to the Motion for Preliminary Injunction. In the Opposition, the defendants disputed the existence of a common-law privilege against civil arrest in courthouses. Furthermore, the defendants argued that even if the common-law privilege existed, Congress erased the privilege when it passed the INA. 

On June 20, 2019, Judge Indira Talwani granted the plaintiff’s motion for preliminary injunction and issued a memorandum. See 382 F. Supp. 3d 142 (2019). Judge Talwani found that plaintiffs had standing to bring the suit, were likely to succeed on the merits of their Administrative Procedure Act claim, and the injunction was of public interest. Thus, the defendants were enjoined from implementing the Courthouse Civil Arrest Directive and from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they are going to, attending, or leaving the courthouse.

Defendants appealed; the appeal is pending before the U.S. Court of Appeals for the First Circuit.
