N.S. v. Dixon
| Docket Number | 1:20-cv-101-RCL |
| Decision Date | 07 October 2021 |
| Parties | N.S., individually and on behalf of all others similarly situated, Plaintiff, v. ROBERT A. DIXON, in his official capacity as U.S. Marshal for the District of Columbia Superior Court, Defendant. |
| Court | U.S. District Court — District of Columbia |
On May 7, 2020, this Court enjoined the defendant, in his official capacity as United States Marshal for the District of Columbia Superior Court, and defendant's agents subordinates, and employees from seizing individuals for suspected immigration violations. N.S. v. Hughes, 335 F.R.D. 337 (D.D.C. 2020). Plaintiff N.S., on behalf of both himself and the certified class, seeks to make that preliminary injunction permanent and moves for summary judgment. ECF No. 75. Defendant cross-moves for summary judgment. ECF No. 84. Upon consideration of these motions their respective oppositions and replies, ECF Nos. 90 & 97, and the record herein, the Court will GRANT IN PART and DENY IN PART plaintiffs motion for summary judgment and GRANT IN PART and DENY IN PART defendant's cross-motion for summary judgment. The Court will also permanently ENJOIN defendant and defendant's agents, subordinates, and employees from arresting and detaining criminal defendants in the Superior Court for the District of Columbia for suspected civil immigration violations.
The Court assumes familiarity with the material facts of the case, which are undisputed. N.S., a resident of the District of Columbia proceeding under a pseudonym, was arrested on January 13, 2020, for robbery and destruction of property and arraigned before Magistrate Judge Heide L. Herrmann the following day. ECF No. 75-211. Magistrate Judge Herrmann ordered N.S. released on his own recognizance. Admin. Record ("AR"), ECF No. 69 at 58-59. But instead of releasing him from custody, the United States Marshals Services ("USMS") detained N.S. until officers from Immigration and Customs Enforcement ("ICE") took him into custody. Id.
The USMS's failure to release N.S. was based on an ICE detainer. N.S., 335 F.R.D. at 343. An ICE detainer is an "Immigration Detainer-Notice of Action[] to any other Federal, state, or local law enforcement agency" that "advise[s] another law enforcement agency that the Department [of Homeland Security] seeks custody of an alien presently in the custody of that agency." Id. (quoting 8 C.F.R. § 287.7(a)). An ICE detainer "requests] that such agency advise the Department, prior to the release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible." Id. This "ICE hold" forms the basis of N.S.'s complaint-N.S. maintains that the USMS lacks the authority to make civil immigration arrests.
The USMS is a federal law enforcement agency housed within the Department of Justice and under the authority of the Attorney General of the United States. 28 U.S.C. § 564. Though the USMS was solely an arm of the federal courts when initially created by the Judiciary Act of 1789, USMS officers have served both the judiciary and the Attorney General since 1861. N.S., 335 F.R.D. at 342. The USMS's mission, codified in 28 U.S.C. § 566(a), is to "provide for the security and to obey, execute, and enforce all orders of the United States District Courts, the United States Courts of Appeals, the Court of International Trade, and the United States Tax Court, as provided by law." The USMS also may "execute all lawful writs, process, and orders issued under the authority of the United States," 28 U.S.C. § 566(c); may exercise the same powers "which a sheriff of the State may exercise in executing the laws thereof," 28 U.S.C. § 564; and "shall. . . exercise such other functions as may be delegated by the Attorney General." 28 U.S.C. § 561(b). But like any other executive agency, the USMS does not have free rein-it is "not permitted to act without authorization from a statute or regulation." N.S., 355 F.R.D. at 343.
N.S. brought this complaint as a putative class action, alleging that the USMS's "ICE hold" practice was in excess of statutory jurisdiction and must be set aside under the Administrative Procedure Act. ECF No. 3 at 9 (citing 5 U.S.C. § 706(2)(c)). He also alleged that the USMS acted ultra vires.[1] ECF No. 3 at 10. N.S. moved for a preliminary injunction. ECF No. 4.
The Court issued a preliminary injunction on May 7, 2020. N.S., 335 F.R.D. at 337. The preliminary injunction also forced the Court to consider N.S.'s class certification motion, ECF No. 5, which the Court granted. The Court certified the following class pursuant to Fed.R.Civ.P. 23(b)(2):
All indigent criminal defendants in the Superior Court for the District of Columbia: (1) who were, are, or will be detained by officers of the United States Marshals Service for suspected immigration violations, and (2) as to whom Immigration and Customs Enforcement has not effectuated a warrant of removal/deportation (a form 1-205) and/or has not obtained an order of deportation or removal.
When considering the motion for preliminary injunction, this Court noted that the "underlying facts of this case appear to be relatively undisputed, meaning that plaintiffs claim is a pure question of law for the Court to resolve." Id. at 345. Resolving the claim, the Court concluded that "N.S. has proven that the [USMS] lacked the necessary authority to detain him." Id. Defendant pointed to a number of sources of authority that it claimed provided USMS with the necessary authority to make civil immigration arrests, but the Court rejected each one. The Court found that "ICE detainers do not confer upon the recipient agency the legal authority to make an arrest," nor do the USMS's enabling statutes (28 U.S.C. §§ 564, 561, & 566). Id. at 347-51. Moving on to the final three preliminary injunction factors, the Court found that the unlawful seizures at issue in this case constitute irreparable harm and class members were likely to suffer this irreparable harm in the future Id. at 351-52. Finally, the Court found that the USMS would not be injured by an injunction that ends an unlawful practice and that the injunction would further the public interest. Id. at 355. Accordingly, the Court entered the following injunction:
Defendant and defendant's agents, subordinates, and employees are hereby preliminarily ENJOINED from seizing individuals for suspected civil immigration violations.
A month after the preliminary injunction was entered, defendant moved for reconsideration and for the dissolution of the preliminary injunction. ECF No. 41. Defendant's motion focused on two key arguments. First, defendant pointed to a newly produced 2002 Order of Attorney General John Ashcroft. See Order No. 2622-2002, Delegation of Authority to the United States Marshals Service to Exercise the Powers and Duties of Immigration Officers (Oct. 17, 2002), AR at 48. "By virtue of the authority vested in [the] Attorney General, including 28 U.S.C. §§ 509 and 510," the 2002 Order authorized the USMS to "exercise the functions of immigration officers for the purposes of. . . determining the location of[] and apprehending[] any alien who is in the United States in violation of the Immigration and Nationality Act of 1952." Id. Second, defendant reargued the same theory that an ICE detainer confers the USMS with the authority to detain persons based on suspected civil immigration violations. ECF No. 41 at 5.
The Court denied the motion for reconsideration. It found that the 2002 Order was facially invalid under the APA because the government's stated rational for promulgating the 2002 Order "fails to support such a delegation of authority." N.S. v. Hughes, No. 1:20-cv-101 (RCL), 2020 WL 4260739, at *5 (D.D.C. July 24, 2020). The 2002 Order invoked only 28 U.S.C. §§ 509 and 510 as the basis for its authority. AR at 48. But those statutory provisions are not part of the Immigration and Nationality Act ("INA"), and broad delegation authority "does not apply where Congress has specifically and separately allocated enforcement authority over a certain action or set of actions." Id. (citing United States v. Giordano, 416 U.S. 505, 513 (1974)). Accordingly, the Court held that the 2002 Order was facially invalid because it violated the "fundamental principles of administrative law set forth in [SEC v. Chenery Corp. (Cheneryl), 318 U.S. 80, 95 (1943)]" by failing to invoke the proper delegation authority under the INA. N.S., 2020 WL 4260739, at *6. The Court also found that even if the 2002 Order were facially valid, USMS officers "do not meet the requirements of 8 C.F.R. § 287.5," which requires immigration officers to have "successfully completed basic immigration law enforcement training" before making any arrests. Id. at *7.
Finally, the Court reiterated that ICE detainers "on their own are not sufficient to give the USMS authority to make civil immigration arrests." Id.
Plaintiff next moved the court to "clarify" the language of the preliminary injunction. ECF No. 57. On November 13, 2020, the Court slightly modified the injunction to read:
Defendant and defendant's agents, subordinates, and employees are hereby preliminarily ENJOINED from arresting and detaining individuals for suspected civil immigration violations. It is ORDERED that this preliminary injunction shall take effect immediately and shall remain in effect pending final resolution of this matter.
Both parties subsequently moved for summary judgment. Plaintiff relies on the same theories as in his motion for a preliminary...
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