"A principal feature of the removal system is the broad discretion exercised by immigration officials." Arizona v. United States,
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 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
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,
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
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,
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,
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 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.
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.
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]. "[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
III. Plaintiffs' Standing
"Article III of the Constitution confines the judicial power of federal courts to deciding actual 'Cases' or 'Controversies.' " Hollingsworth v. Perry,
A. Plaintiffs' Constitutional Standing
In order to satisfy the "irreducible constitutional minimum" of Article III standing, Lujan v. Defenders of Wildlife,
The court considers Plaintiffs' injury-in-fact first. Defendants argue that
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 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.
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,
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 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
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.,
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,
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,
The writ of capias ad respondendum eventually gave way to personal service of summons or other form of notice. International Shoe Co. v. Wash.,
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,
"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,
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."
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
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 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.
At the second day of hearing, the government argued that
These provisions were added in 2006. See Violence Against Women and Department of Justice Reauthorization Act, PL 109-162, January 5, 2006,
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,
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,
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 diversion of resources from their normal activities to "an extra-judicial mediation and dispute-resolution 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
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 non-targeted 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 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,
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,
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 regarding targeted and dangerous aliens, namely, to pursue a criminal, rather than a civil arrest, see
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.
Notes
The Executive Order also instructs the Secretary to prioritize the removal of aliens described in
"(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 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,
New York v. United States,
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.
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."
The cited paragraph is found in a section of the code entitled "Initiation of Removal Proceedings," and not in either section
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."