New York v. U.S. Immigration & Customs Enforcement

• Decision Date: 10 June 2020
• Docket Number: 19-cv-8876(JSR)
• Citation: 466 F.Supp.3d 439
• Parties: The State of NEW YORK and Eric Gonzalez, Plaintiffs, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

466 F.Supp.3d 439

The State of NEW YORK and Eric Gonzalez, Plaintiffs,

v.U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.

19-cv-8876(JSR)

United States District Court, S.D. New York.

Signed June 10, 2020

Anjana Malhotra, Ari Joseph Savitzky, Daniela Nogueira, Fiona Jeannette Kaye, Morenike Fajana, NYS Office of the Attorney General, Scott Andrew Eisman, Freshfields Bruckhaus Deringer US LLP, Steven Chiajon Wu, Matthew Colangelo, Attorney General of the State of New York, New York, NY, for Plaintiff State of New York.

Jill Harris, Toni C. Lichstein, Kings County District Attorney, Brooklyn, NY, Scott Andrew Eisman, Freshfields Bruckhaus Deringer US LLP, Matthew Colangelo, Attorney General of the State of New York, New York, NY, for Plaintiff Eric Gonzalez.

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

OPINION AND ORDER

JED S. RAKOFF, U.S.D.J.

Recent events confirm the need for freely and fully functioning state courts, not least in the State of New York. But it is one thing for the state courts to try to deal with the impediments brought on by a pandemic, and quite another for them to have to grapple with disruptions and intimidations artificially imposed by an agency of the federal government in violation of long-standing privileges and fundamental principles of federalism and of separation of powers.

Here, plaintiffs the State of New York and the Kings County District Attorney seek to end what they allege are the disruptions of New York courts and the intimidation of parties and witnesses caused by the decision of the United States Immigration and Customs Enforcement agency ("ICE") to greatly increase civil immigration arrests in and around New York State courthouses. According to plaintiffs, not only do these immigration arrests make certain parties and witnesses fear coming to court, but the temporary chaos they create disrupts court proceedings and makes it impossible for judges to do their jobs effectively.

Accordingly, plaintiffs here seek injunctive and declaratory relief against ICE's current courthouse arrest policy as set forth in an ICE Directive issued in January 2018. In their first cause of action, plaintiffs argue that the policy exceeds ICE's authority under the Immigration and Nationality Act ("INA"), and is thus invalid under section 706(2)(C) of the Administrative Procedure Act ("APA"). In their second cause of action, plaintiffs argue that the agency adopted this policy in an arbitrary and capricious manner, thereby violating section 706(2)(A) of the APA.

Following discovery and motion practice, the contending parties now cross-move for summary judgment on both of these claims. For the following reasons, the Court rules in plaintiffs’ favor on both claims and grants the requested relief.

BACKGROUND

In their complaint filed on September 25, 2019, plaintiffs the State of New York and the Kings County District Attorney sought injunctive and declaratory relief from ICE's policy of conducting civil immigration arrests of aliens at New York state courthouses. Compl., Prayer for Relief ¶¶ 2-5, ECF No. 1 (Sept. 25, 2019).¹ Prior to 2017, ICE required its officers to avoid courthouse arrests except in very limited circumstances involving high-priority removal targets. In furtherance thereof, ICE, on March 19, 2014, issued its 2014 courthouse arrest guidance, declaring that "[e]nforcement actions at or near courthouses will only be undertaken against Priority 1 aliens," Ex. 46,² AR 76,³ a term narrowly defined in an earlier memorandum issued by ICE's parent, the Department of Homeland Security ("DHS"), as "[a]liens who pose a danger to national security or a risk to public safety," Ex. 48 at 1.⁴ Additionally, the 2014 courthouse arrest guidance did not permit courthouse arrests of "individuals who may be ‘collaterally’ present, such as family members or friends who may accompany the target alien to court appearances or functions." AR 76.⁵ In January 2015, ICE promulgated its 2015 courthouse arrest guidance, slightly revising but not materially expanding the categories of aliens subject to courthouse arrest. AR 171.⁶

All of this significantly changed after the new federal administration took office in 2017. To begin with, President Trump, only five days after taking office, issued Executive Order No. 13,768 (the "Executive Order"), Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 8799 (Jan. 25, 2017), AR 71-75. The Executive Order, though not specifically addressed to courthouse arrests, directed DHS to prioritize immigration enforcement against broader categories of aliens than those named in prior policies.⁷ Very shortly thereafter, in February 2017, then-DHS Secretary John Kelly issued a memorandum (the "2017 Implementing Memo"), AR 91-96, that, once again in general terms, sought to implement the Executive Order by rescinding the earlier guidance on immigration enforcement priorities and providing that "the Department no longer will exempt classes or categories of removable aliens from potential enforcement." AR 92.

Although neither the Executive Order nor the Implementing Memo expressly addressed courthouse arrests, the parties here agree that ICE officers understood the Executive Order in particular, and the 2017 Implementing Memo as well, to effectively remove the earlier limitations on courthouse arrests and mandate broader enforcement in and around state courthouses. See, e.g., Ex. 29 at Tr. 127:15-129:14; Ex. 38 at Tr. 217:6-14; Ex. 41 Tr. at 108:3-15. The result was a great increase in courthouse arrests, including (as detailed below) in New York State.

About a year later, on January 10, 2018, ICE promulgated Directive No. 11072.1 (the "Directive"). Ex. 53. The Directive largely codified and regularized the change in courthouse arrest policy that was already being implemented by ICE agents. Specifically, the Directive expressly allowed ICE officers to arrest in and around courthouses a much broader sweep of aliens, including, inter alia, "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. ¶ 2. While the Directive further provided that "family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding" should not be arrested absent "special circumstances," it left the determination of whether such circumstances exist to the case-by-case judgment of individual ICE officers. Id. ⁸

Even before the Directive was issued, however, the number of civil immigration arrests undertaken in and around New York State courthouses greatly increased as a result of ICE's interpretation of the 2017 Executive Order. Based on extensive arrest records produced by defendants,⁹ plaintiffs calculate that, while ICE conducted 20 enforcement actions at or near New York state courthouses in 2015 and 28 in 2016, this increased to 161 in 2017, 107 in 2018, and 173 in 2019.¹⁰ Ex. 42 ¶ 13. The striking increase from 2016 to 2017 further confirms that ICE effectively expanded its courthouse arrest policy in early 2017 in response to the Executive Order (and the 2017 Implementing Memo), and that the Directive, promulgated in 2018, simply memorialized the policy and practices that had already been put in place the preceding year.

Plaintiffs here have offered substantial evidence that ICE's decision to expand its courthouse arrest authority impacted litigants and courts in the State of New York even beyond what the numbers themselves might suggest. Evidence proffered by the plaintiffs indicates that substantial numbers of non-citizen litigants, even those who were not themselves subject to these actions, now feared any kind of participation in the legal system, including reporting domestic violence, e.g., Ex. 1 ¶¶ 6-8; Ex. 15 ¶¶ 4-11, litigating family court actions, Ex. 1 ¶ 9; Ex. 3 ¶¶ 5-7, and pursuing meritorious defenses to criminal charges, Ex. 7 ¶ 7. And in criminal cases, alien victims and witnesses expressed concern about coming forward for fear of arrest. E.g., Ex. 2 ¶ 13; Ex. 32 at Tr. 72:7-24; Ex. 43 at Tr. 48:6-25; see also, e.g., Amicus Br. of Immigrant Defense Project et al., ECF No. 82 (Mar. 13, 2020) at 6-7 (providing examples of ICE agents using force against aliens in and around courthouses).

Plaintiffs have also submitted substantial evidence indicating that these arrests, in addition to their impact on litigants, undermined the orderly functioning of New York courts themselves. Because ICE arrested aliens as they were entering court for scheduled proceedings, e.g., Ex. 28 at Tr. 55:9-15; Ex. 39 at Tr. 41:17-42:9; Ex. 59 at 84, the agency forced courts to adjourn proceedings at the last minute, wasting scarce judicial time and resources, see e.g., Ex. 32 at Tr. 38:10-14. Similar results occurred when ICE failed to produce a criminal defendant for a scheduled conference. Ex. 43 at Tr. 77:22-80:9. Even worse were those occasions when ICE conducted an arrest in the courthouse itself, resulting in "complete chaos," id. Tr. at 73:17 (testimony of a Brooklyn assistant district attorney), as well as physical damage, Ex. 59 at 14. Finally, ICE further undermined the interests of justice by arresting and deporting criminal defendants who were appearing in court in connection with their own cases, thereby ensuring that these defendants never faced justice for their crimes. E.g., Ex. 32 at Tr. 18:16-21:25, 32:7-16, 36:3-39:25; Ex. 104. See generally Amicus Br. of States, ECF No. 86 (Mar. 13, 2020); Amicus Br. of N.Y.C. Bar Ass'n, ECF No. 87 (Mar. 13, 2020).¹¹

Defendants, however, dispute many of the foregoing characterizations. See, e.g., Defs.’ Counter Statement to Pls.’ Rule 56.1 Statement ¶¶ 139, 146, 185, 216-79, ECF No. 99 (Apr. 20 2020). Although the Court is persuaded, upon careful review of the record, that ICE's courthouse arrest policy has...