MARIAN RYAN, in her official capacity as Middlesex County District Attorney, ET AL., Plaintiffs, Appellees, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT ET AL., Defendants, Appellants.
No. 19-1838
United States Court of Appeals For the First Circuit
September 1, 2020
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Indira Talwani, U.S. District Judge]
Before Torruella, Selya, and Kayatta, Circuit Judges.
Michael M. Hethmon, Christopher J. Hajec, and Ralph L. Casale on brief for Immigration Reform Law Institute, amicus curiae.
David J. Zimmer, Special Assistant Attorney General of Massachusetts, with whom Daryl L. Wiesen, Alicia Rubio-Spring, and Goodwin Procter LLP were on brief, for appellees Ryan and Rollins.
Wendy S. Wayne on brief for appellee Committee for Public Counsel Services.
Oren N. Nimni, Lawyers for Civil Rights, David J. Zimmer, Daryl L. Wiesen, Alicia Rubio-Spring, and Goodwin Procter LLP on
Dayna J. Zolle, Elizabeth B. Wydra, Brianne J. Gorod, and Ashwin Phatak on brief for Constitutional Accountability Center, amicus curiae.
Nikolas Bowie, Sabrineh Ardalan, Philip L. Torrey, and Norah Rast on brief for Nikolas Bowie and Harvard Immigration and Refugee Clinical Program, amici curiae.
Ari J. Savitzky, Assistant Solicitor General of New York, Letitia James, Attorney General, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, William Tong, Attorney General of Connecticut, Karl A. Racine, Attorney General for the District of Columbia, Kwame Raoul, Attorney General of Illinois, Brian E. Frosh, Attorney General of Maryland, Keith Ellison, Attorney General of Minnesota, Gurbir S. Grewal, Attorney General of New Jersey, Hector Balderas, Attorney General of New Mexico, Ellen F. Rosenblum, Attorney General of Oregon, Josh Shapiro, Attorney General of Pennsylvania, Peter F. Neronha, Attorney General of Rhode Island, Robert W. Ferguson, Attorney General of Washington, Thomas J. Donovan, Jr., Attorney General of Vermont, and Mark R. Herring, Attorney General of Virginia, on brief for states of New York, Connecticut, Illinois, Maryland, Minnesota, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington and the District of Columbia, amici curiae.
Douglas E. Keith, Alicia L. Bannon, and Brennan Center for Justice on brief for 19 Former Massachusetts Judges, amici curiae.
Thomas J. Carey, Jr., Martin W. Healy, and Christopher N. Lasch on brief for Massachusetts Bar Association, Boston Bar Association, Massachusetts Academy of Trial Attorneys, Women‘s Bar Association of Massachusetts, and South Asian Bar Association of Greater Boston, amici curiae.
Maria T. Davis, Howard M. Cooper, and Todd & Weld, LLP on brief for Massachusetts Association of Criminal Defense Lawyers, amicus curiae.
Lauren Godles Milgroom, Joel A. Fleming, Amanda R. Crawford, and Block & Leviton LLP on brief for 27 Domestic and Sexual Violence Advocacy Organizations, amici curiae.
ICE‘s growing presence in Massachusetts courthouses concerned a number of persons and organizations, including Marian Ryan and Rachael Rollins (the District Attorneys of Middlesex County and Suffolk County, respectively), the Committee for Public Counsel Services (the main public defender agency for the Commonwealth of Massachusetts), and Chelsea Collaborative, Inc. (a nonprofit that provides services to the immigrant community in Chelsea, Massachusetts). Fearing the effects of ICE‘s activities on the proper functioning of both the state judicial system and access to justice in immigrant communities, they sued ICE, the United States Department of Homeland Security (DHS), and three DHS officials (collectively, the defendants), specifically challenging
When the plaintiffs moved for a preliminary injunction, they argued primarily that ICE lacked statutory authority under the Immigration and Nationality Act (INA),
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the case. For some time, ICE has conducted civil enforcement actions designed to take removable noncitizens into custody in courthouses across the country. During the Obama administration, ICE imposed certain restrictions on the ability of its officers to conduct such actions in courthouses. In March of 2014, ICE issued guidance directing that “[e]nforcement actions at or near courthouses will only be undertaken against Priority 1 aliens.” An earlier ICE policy, which remained in effect, defined “Priority 1 aliens” as those posing a threat to national security or public safety. The
ICE‘s enforcement priorities changed when the political winds shifted. Shortly after taking office, President Trump issued an executive order (the EO) on January 25, 2017, declaring the federal government‘s intention to “[e]nsure the faithful execution of the immigration laws . . . against all removable aliens.” Exec. Order No. 13,768, 3 C.F.R., 2017 Comp., p. 268, reprinted in
Neither the EO nor the implementing memorandum directly addressed courthouse arrests. It nonetheless appears that ICE officers began to conduct more civil arrests in and around state courthouses, including those in Massachusetts. ICE attributes this change to a newfound unwillingness on the part of many state and local governments to honor civil immigration detainers, which ask law enforcement agencies to hold allegedly removable noncitizens beyond their scheduled release from criminal custody
The Chief Justice of the Massachusetts Trial Court, in response to Lunn and ICE‘s more pervasive presence in Massachusetts courthouses, promulgated a policy for state-court personnel regarding civil immigration enforcement actions in state courthouses. This policy took effect in November of 2017. Under it, ICE officers “may enter a courthouse and perform their official duties provided that their conduct in no way disrupts or delays court operations, or compromises court safety or decorum.” The policy directs state-court personnel to ask any armed ICE officer seeking entry into a courthouse to state his law-enforcement purpose and to describe the enforcement action that he proposes to undertake. If an ICE officer attempts to effect a civil arrest of a noncitizen who is not in the court‘s custody, the policy instructs state-court personnel neither to impede nor to assist
In January of 2018, ICE issued the Directive, codifying its policy anent civil enforcement actions in courthouses. The Directive enlarged the categories of noncitizens subject to civil arrest in courthouses beyond those specified in the agency‘s 2014 guidance. Specifically, ICE officers were authorized to target noncitizens “who have been ordered removed from the United States but have failed to depart” and those “who have re-entered the country illegally after being removed.” What is more, the Directive relaxed the restriction on arresting “collateral” noncitizens present during an enforcement action: it authorized ICE officers to arrest such an individual under “special circumstances, such as where [he or she] poses a threat to public safety or interferes with ICE‘s enforcement actions.” Although the Directive instructed ICE officers to “generally avoid enforcement actions in courthouses, or areas within courthouses that are dedicated to non-criminal . . . proceedings,” it allowed such actions when “operationally necessary.”3
Spurred by these concerns, the plaintiffs filed suit in the United States District Court for the District of Massachusetts. At the same time, they moved for preliminary injunctive relief with respect to the first count of their complaint, which alleged that the Directive exceeds ICE‘s statutory authority and, thus, violates the Administrative Procedure Act (APA). See
After a two-day hearing at which no witnesses were called, the district court granted the plaintiffs’ motion. See Ryan, 382 F. Supp. 3d at 161. To begin, the court found that the plaintiffs had both constitutional and prudential standing to bring their APA challenge to the legality of the Directive.4 See id. at 152-55. Next, the court found that the plaintiffs were likely to succeed in showing that the Directive exceeds ICE‘s statutory authority. See id. at 155-59. Finally, the court found that the remaining factors in the preliminary injunction calculus favored the plaintiffs. See id. at 159-61. Summing up, the court preliminarily enjoined the defendants “from implementing [the Directive] 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.” See id. at 161.
II. ANALYSIS
We have erected a four-part framework for district courts to use in determining whether to grant or deny a preliminary injunction. Under this framework, a district court is tasked with considering the movant‘s likelihood of success on the merits; whether and to what extent the movant will suffer irreparable harm in the absence of preliminary injunctive relief; the balance of relative hardships, that is, the hardship to the nonmovant if enjoined as opposed to the hardship to the movant if no injunction issues; and the effect, if any, that either a preliminary injunction or the absence of one will have on the public interest. See Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013); Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996).
The movant‘s likelihood of success on the merits weighs most heavily in the preliminary injunction calculus. See Ross-Simons, 102 F.3d at 16. Indeed, we have described likelihood of success as the “sine qua non” of preliminary injunctive relief. New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). If the movant “cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.” Id.
We assay a district court‘s decision to grant or deny a preliminary injunction for abuse of discretion. See Corp. Techs., 731 F.3d at 10. Within this rubric, we examine answers to abstract legal questions de novo, findings of fact for clear error, and any judgment calls concerning the balancing of the four factors with significant deference to the district court. See id.; Ross-Simons, 102 F.3d at 16. A district court may be held to have abused its discretion by, say, making a material error of law, “ignor[ing] pertinent elements deserving significant weight, consider[ing] improper criteria, or, though assessing all appropriate and no inappropriate factors, plainly err[ing] in balancing them.” Ross-Simons, 102 F.3d at 16; see Corp. Techs., 731 F.3d at 10.
The parties’ briefs leave no doubt that they hold diametrically opposite positions on whether it is good public policy for ICE to arrest noncitizens in courthouses. In the plaintiffs’ view, these arrests undermine access to justice in
It is not for us to say whether ICE‘s strategy is sound public policy or, conversely, whether that strategy is antithetic to sound public policy. That question lies within the domain of the politically accountable branches of the federal and state governments. Our task is simply to decide the pertinent legal issues and determine whether the district court abused its discretion in granting the preliminary injunction.
A.
Our starting point is the plaintiffs’ likelihood of success on the merits. In support of their assertion that they are likely to succeed on their APA claim, the plaintiffs renew the principal argument that they advanced below: that the Directive and ICE‘s policy of civilly arresting individuals attending court on official business exceed ICE‘s statutory authority under the INA. Importantly, they do not challenge the power of ICE officers to conduct criminal arrests in and around courthouses. See
The plaintiffs’ argument presents a pure question of law, which we review de novo. See Corp. Techs., 731 F.3d at 10. It is a bedrock principle that the power of an executive agency administering a federal statute “is ‘authoritatively prescribed by Congress.‘” City of Providence, 954 F.3d at 31 (quoting City of Arlington v. FCC, 569 U.S. 290, 297 (2013)). When an agency acts in a manner not authorized by statute, its action is ultra vires and a violation of the APA. See id.; see also
So viewed, the plaintiffs’ argument concerning the scope of ICE‘s civil arrest authority under the INA reduces to a question of statutory construction. As with any effort to decipher the meaning of a federal statute, the touchstone of this inquiry is congressional intent. See City of Providence, 954 F.3d at 31. And it is nose-on-the-face plain that “the quest to determine this intent must start with the text of the statute itself.” Id.
The text of the INA confers broad authority upon ICE to conduct civil arrests. Under
Recognizing that the INA does not prohibit courthouse arrests in haec verba, the plaintiffs’ primary theory invokes what has been called the “nonderogation canon” of statutory construction. Pasquantino v. United States, 544 U.S. 349, 359 (2005). They contend that there is a long-standing common law privilege against civil courthouse arrests. Given this privilege, they add, we must presume that Congress intended not to permit courthouse arrests when it authorized civil arrests in the INA. To cap the matter, they submit that nothing in the text of the INA rebuts the presumption that Congress intended to incorporate this common law privilege, albeit sub silentio, into the statute.
The nonderogation canon instructs that “[s]tatutes 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
Although we do not question the continuing vitality of the nonderogation canon, we are less sanguine about its applicability in the circumstances of this case. After all, the nonderogation canon does not give courts carte blanche to read a grab bag of common law rules into federal statutes simply to effectuate what those courts may perceive as good policy. See
Against this backdrop, we train the lens of our inquiry on the INA. Congress enacted the provisions that authorize civil immigration arrests —
The plaintiffs purport to locate such a rule in the common law privilege against courthouse arrests for parties and witnesses to a civil suit. For the most part, the origins of this privilege are uncontroversial. At common law, a plaintiff in a civil action obtained personal jurisdiction over a defendant by means of a writ of capias ad respondendum. See Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). This writ “directed the sheriff to secure the defendant‘s appearance by taking him into custody.” Id. The common law also recognized other types of arrests in civil suits. The writ of capias ad satisfaciendum, for example, was a method of executing on a civil judgment that directed the arrest of the judgment debtor. See Magniac v. Thomson, 56 U.S. (15 How.) 281, 300 (1853).
English courts in the eighteenth and early nineteenth centuries protected parties and witnesses attending court from at least some of these forms of civil arrest. See, e.g., Ex parte Byne, (1813) 35 Eng. Rep. 123, 123, 126 (Ch.); Walpole v. Alexander, (1782) 99 Eng. Rep. 530, 531 (K.B.). This protection — which the plaintiffs refer to as a “privilege” — was designed both to remove a disincentive for inhibiting parties and witnesses
The protective carapace sheltered such individuals while they were physically present in the courthouse and while traveling to and from court. See Spence v. Stuart, (1802) 102 Eng. Rep. 530, 531 (K.B.); Meekins v. Smith, (1791) 126 Eng. Rep. 363, 363 (C.P.); Walpole, 99 Eng. Rep. at 531. And it applied regardless of whether the individual attended court voluntarily or under subpoena. See Meekins, 126 Eng. Rep. at 363. As William Blackstone — “whose works constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U.S. 706, 715 (1999) — summarized in his Commentaries on the Laws of England,
Suitors, 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. And no arrest can be made in the king‘s presence, nor within the verge of his royal palace, nor in any place where the king‘s justices are actually sitting.
This privilege survived an ocean crossing. “[A]rrests in civil suits were still common in America” at the time of the founding, Long v. Ansell, 293 U.S. 76, 83 (1934), and there is no legitimate doubt that courts in the newly independent United States engrafted this privilege against courthouse arrests onto American common law. In 1804, for instance, Justice Washington, riding circuit in Pennsylvania, invoked the privilege to authorize the release of a New York resident arrested on a writ of capias ad satisfaciendum while in the state to testify at trial. See Hurst‘s Case, 4 U.S. (4 Dall.) 387, 387-89, 12 F. Cas. 1019, 1019-20 (C.C.D. Pa. 1804). State courts in the early nineteenth century widely agreed that parties and witnesses attending court were not subject to arrest in civil suits. See, e.g., Norris v. Beach, 2 Johns. 294, 294 (N.Y. Sup. Ct. 1807) (per curiam); Fletcher v. Baxter, 2 Aik. 224, 228-29 (Vt. 1827); Richards v. Goodson, 4 Va. (2 Va. Cas.) 381, 381-82 (Gen. Ct. 1823); cf. In re M‘Neil, 3 Mass. (2 Tyng) 288, 288 (1807) (recognizing privilege but not specifying nature of arrest). Questions concerning the privilege often arose in cases involving parties and witnesses crossing state lines to attend court, but the scope of the privilege was not expressly limited to nonresidents. See, e.g., Hurst‘s Case, 4 U.S. (4 Dall.) at 387-89, 12 F. Cas. at 1019-20; Norris, 2 Johns. at 294; cf.
The practice of arresting parties as a means of securing personal jurisdiction in civil suits appears to have persisted to some degree into the late nineteenth and early twentieth centuries, and courts in such cases continued to recognize the vitality of the common law privilege against courthouse arrests. See, e.g., Larned v. Griffin, 12 F. 590, 590 (C.C.D. Mass. 1882); Dickinson v. Farwell, 51 A. 624, 625 (N.H. 1902); Ellis v. De Garmo, 24 A. 579, 579-80 (R.I. 1892); see also Monroe v. St. Clair Cir. Judge, 84 N.W. 305, 306 (Mich. 1900) (confirming existence of privilege but declining to discharge arrestee based on circumstances of arrest). Over time, though, personal service of a summons generally supplanted the writ of capias ad respondendum as the method for securing personal jurisdiction over a defendant in a civil action, see Murphy Bros., 526 U.S. at 350, and arrests in civil suits fell largely out of fashion.
As this shift took place, some courts determined, early on, that the privilege against arrest pursuant to a writ of capias ad respondendum should not extend to service of a summons. See Christian v. Williams, 35 Mo. App. 297, 303 (Ct. App. 1889) (collecting cases); see also Blight v. Fisher, 3 F. Cas. 704, 704-05 (C.C.D.N.J. 1809) (holding that privilege of parties and
Relying on this history, the defendants argue that the common law privilege against courthouse arrests in civil suits evolved well before 1952 into a privilege against personal service
The short of it is that the parties draw radically different conclusions from essentially the same nucleus of historical facts. Although the defendants’ argument about the evolution of the common law privilege seems plausible, we need not make a definitive ruling in this regard because there is a clearer path leading to the conclusion that the plaintiffs have failed to demonstrate a likelihood of success with respect to their nonderogation theory.5 Even if (as the plaintiffs posit) the privilege against courthouse arrests retained some vitality in 1952, the plaintiffs’ reliance on the nonderogation canon is
To recapitulate, the nonderogation canon only informs the construction of a federal statute when a relevant common law rule was long-established and familiar at the time of the statute‘s enactment. See Pasquantino, 544 U.S. at 359-60; Texas, 507 U.S. at 534. The contours of the relevant common law rule are of decretory significance. See Pasquantino, 544 U.S. at 362. Those contours must be delineated clearly and precisely. See id. at 360, 362.
Pasquantino illustrates the point. There, the Supreme Court addressed whether a scheme to defraud a foreign nation of tax revenue came within the ambit of the federal wire fraud statute. See id. at 352-53. The petitioners contended that the Court should refrain from construing the statute in this manner in order to avoid derogating from the common law revenue rule, which prohibited the collection of a foreign tax liability. See id. at 359, 361. The Court rejected this contention, holding that “[t]he wire fraud statute derogates from no well-established revenue rule
Pasquantino teaches that the party seeking to read a common law rule into the statute can only do so if the factual circumstances are closely analogous to a case of which Congress would have been aware. See id. at 364-65 (explaining that absence of such a case prevented Court from “say[ing] with any reasonable certainty whether Congress in 1952 would have considered this prosecution within the revenue rule“). In other words, the proponent of the rule cannot rely exclusively on attenuated analogies and speculative inferences to show that the rule was long-established and familiar at the time of the statute‘s enactment. See id. While the nonderogation canon allows certain commonsense and obvious comparisons, see Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1305 (2017) (reading proximate cause requirement into cause of action for damages under Fair Housing
In the case at hand, the plaintiffs have failed to demonstrate that they are likely to succeed in showing that the common law privilege against courthouse arrests clearly applied to civil immigration arrests. First and foremost, the plaintiffs have not offered any pre-1952 case law from an American court that directly addresses the applicability of the privilege either to civil immigration arrests or to fairly comparable forms of civil arrest, that is, civil arrests on behalf of a sovereign. Nor (to the extent that they might be probative of how Congress would have viewed the common law in 1952) do we find direct guidance on this score in the English sources proffered by the parties. None expressly states whether the privilege protected against arrests in some or all crown-initiated civil suits. The same lack of clarity is characteristic of the literature: the plaintiffs do not identify a single treatise or article directly stating that the common law privilege extended to civil arrests on behalf of the sovereign.
What skimpy authority there is tends to suggest that crown-initiated suits may well have been exempted from the operation of the privileges against arrest in court under English
For their part, the plaintiffs — like Rumpelstiltskin — try to convert dross into gold. They strive to persuade us to treat the fact that various English treatises did not mention an exception for crown-initiated civil suits to the privilege for parties and witnesses, see, e.g., Tidd, supra, at 174-75, as conclusive evidence that no such exception existed. We are not convinced: the absence of any mention of arrests on behalf of the sovereign, when coupled with the utter dearth of any case law
Where does this leave us? The absence of clear precedent involving fairly comparable forms of civil arrest throws considerable shade on the plaintiffs’ effort to show that, in 1952, there was a long-established and familiar common law rule privileging individuals attending court on official business from civil immigration arrests, but it does not drive a final nail into the coffin of their nonderogation theory. It remains a possibility that we might be able to presume that Congress meant to incorporate such a common law privilege into the INA if the case law as of 1952 “clearly implied” that the privilege would extend to such arrests. Pasquantino, 544 U.S. at 360. On further perscrutation, though, this possibility dissipates: our canvass of the case law discloses nothing resembling a clear implication to this effect.
The centerpiece of the plaintiffs’ forecast that the common law privilege would have applied to civil immigration
Because the entirety of the pre-1952 case law pertaining to the common law privilege appears to have involved private civil suits, we think that any language in the case law suggesting a broader rule that the privilege applied to all forms of civil arrest can best be read as shorthand for a statement that the privilege applied to a wide swath of arrests in private civil
Of course, the fact that it was well-established and widely understood in 1952 only that the privilege applied to arrests in private civil suits does not necessarily doom the plaintiffs’ proposed application of the nonderogation theory. After all, Congress might have had no reason to believe that the common law would have treated arrests on behalf of the sovereign as a breed apart. Cf. Pasquantino, 544 U.S. at 364 (rejecting nonderogation argument when factual differences between common law cases and application of statute were “significant“). Here, however, this possibility is more theoretical than real: it is luminously clear to us (and it would have been luminously clear to Congress in 1952) that civil immigration arrests differ from arrests in private civil suits in a key respect. Civil immigration arrests are initiated by the sovereign in order to vindicate uniquely sovereign interests rather than private or proprietary interests. Controlling immigration and the presence of
The fact that civil immigration arrests are initiated by the sovereign to vindicate uniquely sovereign interests is crucial to our analysis. This fact affords a powerful reason to believe that courts would have treated such arrests more like criminal arrests than like the types of civil arrest at issue in the cases to which plaintiffs advert. And the plaintiffs — whose skillful lawyers vigorously contest every arguable point — do not dispute that the privilege has never been thought to protect against criminal arrests or other forms of criminal process. See, e.g., Ex parte Levi, 28 F. 651, 652-53 (W.D.S.C. 1886); Cooper v. United States, 48 A.2d 771, 773 (D.C. 1946); State v. Gillmore, 129 P. 1123, 1125 (Kan. 1913); Schwartz v. Dutro, 298 S.W. 769, 771 (Mo. 1927); see also 2 Joseph Story, Commentaries on the Constitution of the United States 325 (Hilliard, Gray, and Co. 1833) (explaining that constitutional privilege of members of Congress against arrest, which excludes arrests for crimes, mirrors common law privilege against courthouse arrests for parties and witnesses). This is no mere happenstance: although criminal arrests in courthouses risk deterring parties and witnesses from coming forward and also risk disrupting ongoing proceedings, courts have refrained from extending the privilege to criminal arrests due to the overriding sovereign interests in enforcing the penal laws and protecting the public. See United States v. Conley, 80 F. Supp. 700, 702-03 (D. Mass. 1948); cf. Bacon, supra, at 532-33 (explaining that related English common law privilege for attorneys did not apply to “indictments, informations, or suits, in which the king alone is concerned” because courts should not protect “those who offend against the public peace of the community and the king‘s interest“).
We add, moreover, that the analogy between criminal arrests and civil immigration arrests is close enough to preclude us from saying with sufficient confidence that immigration arrests would have fit within the privilege from civil arrest. Just as criminal arrests implicate the uniquely sovereign interests in enforcing the penal laws and protecting the public, so too do civil immigration arrests seek to vindicate similar kinds of interests
The plaintiffs’ remaining arguments regarding the privilege are unavailing. They emphasize, for example, that the dual purposes undergirding the privilege in the context of arrests in private civil suits apply in much the same way to civil immigration arrests. This argument has a patina of plausibility: ICE‘s policy of conducting civil courthouse arrests may inhibit parties and witnesses from attending court proceedings and, in the bargain, it may in certain circumstances disrupt orderly court operations. But even though such considerations may have held dispositive weight when courts determined whether to privilege parties and witnesses from arrests in private civil suits, that reasoning carries much less weight with respect to civil immigration arrests. As we already have made pellucid, civil immigration arrests implicate uniquely sovereign interests.
We find equally unconvincing the plaintiffs’ attempt to analogize civil immigration arrests and arrests on a writ of capias ad respondendum. It is true that, viewed from ten thousand feet, these types of arrest bear a faint resemblance: each involves a government officer taking someone into custody to ensure his appearance at a civil proceeding. Apart from the “civil” label, though, removal proceedings have little in common with a typical private lawsuit. No less an authority than the Supreme Court has referred to removal as a “unique” civil penalty in light of its particularly harsh consequences and its close connection to the criminal process. Padilla, 559 U.S. at 365-66. To assume that a privilege that protected against civil arrests pursuant to a writ of capias ad respondendum would translate to immigration arrests because of a few superficial similarities would be to accept exactly the type of attenuated analogy that the Pasquantino Court deemed insufficient to warrant the application of the nonderogation canon. Simply put, the two types of arrest are not fair congeners.
We summarize succinctly. The case law is wholly devoid of any clear precedent on whether the common law in 1952 would have applied the privilege against courthouse arrests to civil
B.
This conclusion does not end our odyssey. The plaintiffs have a fallback position: they offer a different reason why, in Massachusetts, ICE‘s implementation of the Directive and its policy of conducting civil courthouse arrests exceed its statutory authority. Their rationale is that even if Congress has not
Before tackling this argument, we pause to examine the framework that guides our inquiry. The plaintiffs dress their argument in the raiment of preemption, maintaining that the text of the INA fails to rebut the presumption that Congress would not have intended to preempt the Massachusetts common law privilege against courthouse arrests. Federal preemption, though, is typically a defense to an alleged violation of state law, see Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 17 (1st Cir. 2018), and the plaintiffs have sought preliminary injunctive relief only on their APA claim, not on the ground that ICE‘s implementation of the Directive and its policy of conducting civil courthouse arrests violate Massachusetts law. Refined to bare essence, their argument suggests that we should construe the INA
The federalism canon of statutory construction flows from the elementary principle that “the States retain substantial sovereign powers under our [federal] constitutional scheme.” Id. at 461. When Congress acts within the bounds of its enumerated powers, the Supremacy Clause permits it to “impose its will on the States” and to “legislate in areas traditionally regulated by the States.” Id. at 460. Given the “extraordinary” nature of this power, we assume that “Congress does not exercise [it] lightly.” Id. It follows that before construing a federal statute in a way that “would upset the usual constitutional balance of federal and
The Supreme Court first described this canon of statutory construction in Gregory, which addressed whether Missouri‘s constitutional mandate that state judges must retire at age seventy violated the federal
To be sure, the plaintiffs’ argument rests on an uncontroversial premise: the operation of a functioning judiciary is unmistakably a fundamental exercise of state sovereignty. See Atl. Coast Line R.R. Co. v. Brotherhood of Locomotive Eng‘rs, 398 U.S. 281, 285, 287 (1970) (explaining that states reserved power to maintain “judicial systems for the decision of legal controversies” and referring to “the fundamental constitutional independence of the States and their courts“). Inasmuch as congressional interference with a state‘s ability to manage the core functions of its judiciary would tilt the constitutional balance between state and federal power, courts must be certain of Congress‘s intent before interpreting a federal statute to authorize such interference. Against this backdrop, we assume — solely for purposes of this appeal — that a decision by Massachusetts to prohibit at least some courthouse arrests would represent an exercise of the Commonwealth‘s sovereign power to operate its judiciary, one with which Congress would not readily interfere.
The plaintiffs demur, contending that the Commonwealth‘s policy is embodied exclusively in the relevant Massachusetts case law on the common law privilege against courthouse arrests. To buttress this contention, they point out that throughout the nineteenth century, the SJC recognized that parties and witnesses were privileged from civil arrests while attending court proceedings. See Thompson‘s Case, 122 Mass. at 429; May v. Shumway, 82 Mass. (16 Gray) 86, 86-87 (1860) (per curiam); Wood v. Neale, 71 Mass. (5 Gray) 538, 538 (1855); In re M‘Neil, 3 Mass. (2 Tyng) at 288. They note, as well, that the SJC referred to this rule again in both 1914 and 1968 (albeit in cases involving the related privilege protecting against service of a summons). See Valley Bank & Tr. Co. v. Marrewa, 237 N.E.2d 677, 680 (Mass. 1968); Diamond, 105 N.E. at 363. Although the SJC has never addressed whether the privilege protects against civil immigration arrests, Justice Cypher, in a single justice opinion, recently described her view “that there exists a common law privilege against civil arrest in Massachusetts and that the privilege, as a matter of State law, is broad enough to include arrests by Federal officers.” Matter of C. Doe, No. SJ-2018-119, slip op. at 12 (Mass. Sept. 18, 2018). The plaintiffs urge us to take Justice Cypher‘s analysis to mean that all civil immigration arrests of noncitizens attending court on official business violate Massachusetts law and policy.
But this case law on the common law privilege is far from the only data point in the record regarding Massachusetts‘s policy on courthouse arrests. In November of 2017, the Chief Justice of the Massachusetts Trial Court promulgated a set of rules governing how “staff shall respond when [ICE officers] enter a Massachusetts courthouse with the intent of taking custody of an individual.” These rules specify that ICE officers may not civilly arrest noncitizens in nonpublic areas of state courthouses or
The bottom line is that we are confronted with an unsettled record concerning Massachusetts‘s policy on courthouse arrests. Since the district court grounded the preliminary injunction solely on its determination that the plaintiffs were likely to succeed on their nonderogation theory — a determination that turned on its mistaken assessment of long-established common law throughout the country rather than the particulars of Massachusetts law or policy, see Ryan, 382 F. Supp. 3d at 155-59 — it did not perform any factfinding that would assist in clarifying this unsettled area of the record. Nor did the court attempt to reconcile the plaintiffs’ interpretation of the Massachusetts common law privilege against courthouse arrests with the Trial Court‘s rules, thus appearing to accept as a given ICE‘s authority to arrest certain noncitizens purportedly protected by the privilege.
An example serves to illustrate this point. The plaintiffs attempt to diminish the significance of the Trial Court‘s rules as evidence of Massachusetts‘s policy on courthouse arrests by arguing that a broader ban on civil immigration arrests in courthouses would be futile because ICE has made clear that it would not comply with such a ban. Relatedly, the plaintiffs argue that the Trial Court enacted these rules in order to restrict the involvement of court staff in ICE‘s enforcement actions rather than to cooperate with ICE. But without more information about both ICE‘s intent and the nature and purpose of the Trial Court‘s rules, we are left with a predicate that is manifestly inadequate for answering the factual questions that must be answered to resolve these arguments.
Here, moreover, a myriad of other factors beyond the underdeveloped record must be factored into the equation. For one thing, the parties have not fully explored the ramifications of the Gregory-based argument in their briefing.9 For another thing, the argument raises complex and novel legal issues, and we do not have the benefit of the district court‘s insights on those issues. To add yet another complication, it is unclear whether a policy
Let us be perfectly clear. We take no view on the role, if any, that Gregory and the federalism canon may play in construing the scope of the INA‘s civil arrest authority. Nor do we make any determination about the law or policy of Massachusetts vis-à-vis courthouse arrests. With respect to this issue, we conclude only that, without additional factfinding, the lack of
III. CONCLUSION
We need go no further. For the reasons elucidated above, we conclude that the plaintiffs thus far have failed to show a likelihood of success on the merits of their nonderogation theory, that is, that the Directive and its authorization of civil courthouse arrests by the federal government to enforce the
We vacate the preliminary injunction and remand to the district court for further proceedings consistent with this opinion. All parties shall bear their own costs.
Vacated and remanded.