Doe v. U.S. Immigration & Customs Enforcement

Decision Date28 September 2020
Docket Number19-cv-8892 (AJN)
Citation490 F.Supp.3d 672
Parties John DOE, et al., Plaintiffs, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.
CourtU.S. District Court — Southern District of New York

Jonathan I. Blackman, Adam Joseph Riff, Jack Lee Hill, Kylie Huff, Vishakha Joshi, Cleary Gottlieb Steen & Hamilton LLP, Hasan Shafiqullah, Susan Joan Cameron, Susan Elizabeth Welber, The Legal Aid Society, Lilia Isobel Toson, New York, NY, Rikki Shana Stern, Eversheds Sutherland (US) LLP, Atlanta, GA, for Plaintiffs.

Tomoko Onozawa, Rebecca Ruth Friedman, U.S. Attorney's Office, New York, NY, for Defendants.


ALISON J. NATHAN, District Judge:

Plaintiff John Doe and Organizational Plaintiffs The Door, Make the Road New York, New York Immigration Coalition, Sanctuary for Families, and the Urban Justice Center bring this suit against Defendants U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, and several federal officials acting in their official capacities.1 They allege that ICE's policy of carrying out federal immigration arrests of noncitizens in and around New York state courthouses without judicial warrants violates the common law privilege against civil arrests while coming to, attending, and returning from court; the Administrative Procedure Act; and the First, Fifth, and Sixth Amendments to the United States Constitution. Now before the Court is Defendantsmotion to dismiss Plaintiffs’ Complaint on jurisdictional and substantive grounds. For the reasons that follow, Defendants’ motion is DENIED with respect to all but PlaintiffsSixth Amendment claim and GRANTED with respect to PlaintiffsSixth Amendment claim.


The Immigration and Nationality Act, enacted by Congress in 1952, authorizes civil immigration arrests and governs removal proceedings. Two Sections of this statute, Sections 1226(a) and 1357(a)(2), authorize civil immigration arrests with and without a warrant respectively. See 8 U.S.C. §§ 1226(a) and 1357(a)(2).

According to the Complaint, in January 2017, ICE began dramatically increasing arrests of noncitizens appearing in state courts. Compl. ¶¶ 3, 60. This courthouse arrest policy was allegedly memorialized in a directive issued by the Department of Homeland Security on January 10, 2018. Id. The Directive provides that courthouse enforcement actions should 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.

Dkt. No. 65-2 at 1. It further provides that under "special circumstances," including "where the individual poses a threat to public safety or interferes with ICE's enforcement actions," ICE officers and agents may take civil immigration enforcement action against "[a]liens 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." Id. ICE officers and agents are instructed to make such enforcement determinations on a "case-by-case" basis. Id. at 1 & n.1.

This Directive followed prior guidance, since supplanted, concerning enforcement actions at courthouses, which advised ICE officers and agents that enforcement actions at or near courthouses should only be undertaken against a narrower category of "Priority 1 aliens," including

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.

Dkt. No. 65-1 at 1. Unlike subsequent guidance, this prior guidance further provided that enforcement actions at or near courthouses would take place only against these "specific, targeted aliens," and not against "individuals who may be ‘collaterally’ present, such as family members or friends who may accompany the target alien to court appearances or functions." Id.

As a result of ICE's change in policy and the subsequent memorialization of that change in the Directive, ICE courthouse enforcement in and around courts in New York allegedly increased 1736% from late 2016 to April 10, 2019. Compl. ¶ 3 (citing Immigrant Defense Project, Safeguarding the Integrity of Our Courts: The Impact of ICE Courthouse Operations in New York State 46–47 (Apr. 10, 2019), The Complaint alleges that, pursuant to the Directive, ICE regularly arrests vulnerable groups, including survivors of violence and sexual violence, young people, trafficking victims, and pregnant women in criminal, family, and civil courts. Compl. ¶ 77. The Complaint further alleges that these arrests, as well as the "atmosphere of fear" they have engendered, have kept numerous noncitizens—including Plaintiff Doe—from pursuing legal claims or defending themselves in New York state courts. See, e.g. , id. ¶¶ 6; 81–84, 88–98. For their part, Organizational Plaintiffs—organizations that provide services, including legal services, to the immigrant community, see Compl. ¶¶ 17–31—allege that the Directive has frustrated the direct representation of their clients in numerous ways and that they have been forced to expend significant resources to mitigate the institutional and individual harms it has engendered. Id. ¶¶ 31; 99–130.

Plaintiffs filed this action on September 25, 2019, seeking a declaration that Defendants’ policy of making civil immigration arrests of people without a judicial warrant while coming to, attending or returning from court is illegal and unconstitutional, as well as a permanent injunction ordering Defendants not to make a civil immigration arrest without a judicial warrant of any individual coming to, attending or returning from court. At the same time, the State of New York and the District Attorney of Kings County filed suit against ICE and others asserting APA and Tenth Amendment violations arising from the same courthouse arrest policy at issue here. In that action, Judge Rakoff denied Defendantsmotion to dismiss, see State v. U.S. Immigration & Customs Enf't , 431 F. Supp. 3d 377 (S.D.N.Y. 2019), and subsequently granted summary judgment in Plaintiffs’ favor, see New York v. U.S. Immigration & Customs Enf't , 466 F.Supp.3d 439 (S.D.N.Y. 2020).

Defendants have now moved to dismiss the Complaint in this action, which Plaintiffs have opposed. This motion was fully briefed on January 16, 2020. See Dkt. Nos. 64, 74, 81. The Court held oral argument on the motion on February 12, 2020 and reserved judgment at that time. See Dkt. No. 94.


Defendants have moved to dismiss Plaintiffs’ Complaint on both jurisdictional and substantive grounds. For the reasons that follow, Defendants’ motion is denied as to all but PlaintiffsSixth Amendment claim.

A. DefendantsMotion to Dismiss on Jurisdictional Grounds is Denied

The Court first considers Defendants’ arguments to dismiss the Complaint pursuant to Rule 12(b)(1). A motion brought under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the Court's subject matter jurisdiction to hear the case. See Fed. R. Civ. P. 12(b)(1). Pursuant to Rule 12(b)(1), dismissal for lack of subject matter jurisdiction is appropriate if the Court determines that it lacks the constitutional or statutory power to adjudicate the case. See id. ; Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule 12(b)(1) motion to dismiss, "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) (citations and internal quotation marks omitted). In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court "may refer to evidence outside the pleadings." Makarova , 201 F.3d at 113.

Defendants argue that all of Plaintiffs’ claims should be dismissed because they have failed to allege constitutional standing. They further argue that Plaintiffs’ APA claim, in particular, should be dismissed for several additional reasons—namely, that Plaintiffs do not have a cause of action under the APA because they do not fall within the zone of interests of the relevant statutory provisions; that the location of civil enforcement actions by ICE is committed to agency discretion by law; and that the Directive does not constitute final agency action. The Court concludes, for the reasons set forth below, that each of these arguments is without merit.

1. Constitutional Standing

Defendants argue that Doe and Organizational Plaintiffs fail to adequately allege facts establishing constitutional standing. To sufficiently allege Article III standing, a plaintiff must allege "(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likel[ihood] that the injury ‘will be redressed by a favorable decision.’ " Knife Rights, Inc. v. Vance , 802 F.3d 377, 383 (2d Cir. 2015) (quoting Susan B. Anthony List v. Driehaus , 573 U.S. 149, 157–58, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) ). A plaintiff need only "clearly allege facts demonstrating each element" in order to survive a motion to dismiss on jurisdictional grounds. Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citation omitted).

a) John Doe


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