Ryan v. U.S. Immigration & Customs Enforcement

• Citation: 974 F.3d 9
• Decision Date: 01 September 2020
• Docket Number: No. 19-1838,19-1838
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

974 F.3d 9

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, First Circuit.

September 1, 2020

Francesca M. Genova, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, William C. Peachey, Director, Office of Immigration Litigation, and Erez R. Reuveni, Assistant Director, were on brief, for appellants.

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 brief for appellee Chelsea Collaborative, Inc.

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.

Before Torruella, Selya, and Kayatta, Circuit Judges.

SELYA, Circuit Judge.

United States Immigration and Customs Enforcement (ICE) is the arm of the federal government charged with the apprehension and detention of noncitizens who are subject to removal. Believing state courthouses to be appropriate locations in which to conduct civil enforcement actions, ICE increased its efforts to arrest allegedly removable noncitizens in and around state courthouses when they appeared for judicial proceedings. In January of 2018, ICE issued Directive 11072.1 (the Directive), formalizing its policy regarding civil enforcement actions in such courthouses.

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 the Directive and generally challenging ICE's policy of civilly arresting individuals attending court on official business.¹

When the plaintiffs moved for a preliminary injunction, they argued primarily that ICE lacked statutory authority under the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 - 1537, to conduct such arrests because the INA implicitly incorporates a hoary common law privilege against civil arrests for parties and witnesses attending court proceedings. The district court determined that the plaintiffs were likely to succeed on the merits of this argument and preliminarily enjoined ICE from implementing the Directive or otherwise civilly arresting individuals attending court on official business anywhere in Massachusetts. See Ryan v. U.S. Immigr. & Customs Enf't, 382 F. Supp. 3d 142, 159, 161 (D. Mass. 2019).² On this interlocutory appeal, we have carefully considered the district court's rescript and the compendious briefing furnished by both the parties and an array of helpful amici. We conclude that the district court abused its discretion in finding that the plaintiffs were likely to succeed on the merits of their argument that the INA implicitly incorporates a common law privilege against civil arrests for individuals attending court on official business. Turning to the plaintiffs' backup argument, we likewise conclude that, on the underdeveloped record before us, the plaintiffs have so far failed to show that they are likely to succeed in arguing that ICE lacks statutory authority to conduct such arrests in Massachusetts because Congress has not clearly stated its intent to permit arrests that violate state law. Consequently, we vacate the preliminary injunction and remand for further proceedings consistent with this opinion.

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 2014 guidance also forbade ICE officers from arresting "collateral" noncitizens whom they encounter during an enforcement action against a Priority 1 target, such as family members or friends accompanying the target to a court appearance.

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 8 U.S.C. § 1103 app. at 647-49 (2018). To this end, the EO expanded the classes of noncitizens prioritized for removal. See id. at 269. A month later, the Secretary of DHS handed down a memorandum implementing the EO and rescinding any conflicting directives or guidance. This memorandum reiterated the broader enforcement priorities delineated in the EO.

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 so that federal immigration officers may detain them. See City of Providence v. Barr, 954 F.3d 23, 29 (1st Cir. 2020). Such an unwillingness was antithetic to ICE's claim that courthouses were the safest place to arrest such noncitizens because courthouse visitors are customarily screened for weapons upon their arrival. In Massachusetts, the situation took on a new dimension when the Massachusetts Supreme Judicial Court (SJC) held that state-court functionaries could not detain noncitizens based solely on civil immigration detainers. See Lunn v. Commonwealth, 477 Mass. 517, 78 N.E.3d 1143, 1146 (2017) (per curiam).

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...