Ryan v. U.S. Immigration & Customs Enforcement

• Decision Date: 20 June 2019
• Docket Number: Civil Action No. 19-11003-IT
• Citation: 382 F.Supp.3d 142
• Parties: Marian RYAN, in her official capacity as Middlesex County District Attorney ; Rachael Rollins, in her official capacity as Suffolk County District Attorney; Committee for Public Counsel Services; and the Chelsea Collaborative, Inc., Plaintiffs, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; Matthew T. Albence, in his official capacity as Acting Deputy Director of U.S. Immigration and Customs Enforcement and Senior Official Performing the Duties of the Director; Todd M. Lyons, in his official capacity as Immigration and Customs Enforcement, Enforcement and Removal Operations, Acting Field Office Director; U.S. Department of Homeland Security; and Kevin McAleenan, in his official capacity as Acting Secretary of United States Department of Homeland Security, Defendants.
• Court: U.S. District Court — District of Massachusetts

382 F.Supp.3d 142

Marian RYAN, in her official capacity as Middlesex County District Attorney ; Rachael Rollins, in her official capacity as Suffolk County District Attorney; Committee for Public Counsel Services; and the Chelsea Collaborative, Inc., Plaintiffs,

v.U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; Matthew T. Albence, in his official capacity as Acting Deputy Director of U.S. Immigration and Customs Enforcement and Senior Official Performing the Duties of the Director; Todd M. Lyons, in his official capacity as Immigration and Customs Enforcement, Enforcement and Removal Operations, Acting Field Office Director; U.S. Department of Homeland Security; and Kevin McAleenan, in his official capacity as Acting Secretary of United States Department of Homeland Security, Defendants.

Civil Action No. 19-11003-IT

United States District Court, D. Massachusetts.

Signed June 20, 2019

Alicia Rubio-Spring, Christopher J.C. Herbert, Daryl L. Wiesen, David Jacob Zimmer, Jordan Benson, Katherine M. Fahey, Goodwin Procter LLP, Boston, MA, Wendy S. Wayne, Committee for Public Counsel Services, Somerville, MA, Christopher J. Hajec, Pro Hac Vice, Immigration Reform Law Institute, Washington, DC, Bradly P. Bennion, Law Office of Brad P. Bennion, E. Weymouth, MA, for Plaintiffs.

Rayford A. Farquhar, Eve A. Piemonte, Michael P. Sady, United States Attorney's Office, Boston, MA, Francesca M. Genova, Julian Kurz, U.S. Department of Justice Office of Immigration Litigation, Erez Reuveni, United States Dept. of Justice, Civil Division, Washington, DC, for Defendants.

MEMORANDUM & ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

TALWANI, D.J.

Middlesex County District Attorney Marian Ryan, Suffolk County District Attorney Rachael Rollins, the Committee for Public Counsel Services ("CPCS"), and the Chelsea Collaborative, Inc. (collectively "Plaintiffs") bring this lawsuit against U.S. Immigration and Customs Enforcement ("ICE"), U.S. Department of Homeland Security ("DHS"), and several officials in their official capacity (collectively "Defendants"), challenging ICE's policy and practice of conducting civil immigration arrests inside of state courthouses in Massachusetts. In Count 1 of the Complaint [1], Plaintiffs challenge ICE Directive No. 11072.1, entitled "Civil Immigration Actions Inside Courthouses" (the "Courthouse Civil Arrest Directive"), dated January 10, 2018, under the Administrative Procedure Act, 5 U.S.C. § 706(2)(C). The APA commands a reviewing court to "hold unlawful and set aside agency action ... found to be ... in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." Plaintiffs contend that at the time the Immigration and Naturalization Act ("INA") was enacted, all those appearing in court on official court business enjoyed a common law privilege against civil arrest. They argue that the INA does not explicitly extinguish this common law privilege and therefore must be interpreted to be constrained by it. Therefore, Plaintiffs contend, any ICE policies which permit civil courthouse arrests are in excess of the power granted by the INA and must be set aside by the court.

Defendants dispute the existence of a common law privilege against civil arrest in courthouses, and, alternatively, argue that any such privilege was superseded long before the codification of the current immigration scheme. Further, Defendants argue, if such a privilege existed in the past, Plaintiffs nonetheless lack both constitutional and prudential standing to bring this claim. Finally, the government contends that if Plaintiffs do have standing and the common law privilege exists, Congress nonetheless extinguished the privilege when it passed the INA.

Pending before the court is Plaintiffs' Motion for a Preliminary Injunction [5], which seeks to preliminarily enjoin Defendants from implementing the Courthouse Civil Arrest Directive and from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they are going to, attending, or leaving the courthouse. Finding that Plaintiffs have standing to bring this suit, are likely to succeed on the merits of their APA claim as to those not in federal or state custody when they arrive, and 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, Plaintiffs' Motion for a Preliminary Injunction [5] is ALLOWED. Defendants are enjoined from implementing the Courthouse Civil Arrest Directive and from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they are going to, attending, or leaving the courthouse. The court's order does not limit ICE's criminal arrests of such individuals or its civil arrests of individuals who are brought to Massachusetts courthouses while in state or federal custody.

I. Statutory and Regulatory Background

In 1952, Congress enacted the INA, governing, among other things, the presence of non-citizens (deemed "aliens" in the INA, 8 U.S.C. § 1101(a)(3) ) in the United States and the associated procedures for removing those present in the United States without federal authorization. See INA, Pub. L. No. 82-414, 66 Stat. 163 (1952). "Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law." Arizona v. United States, 567 U.S. 387, 396, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) (citing 8 U.S.C. § 1227 ); 8 U.S.C. § 1227 (a)(1)(B) (an alien present in the United States whose nonimmigrant visa has been revoked is deportable). "As a general rule, it is not a crime for a removable alien to remain present in the United States[,]" Arizona v. United States, 567 U.S. at 407, 132 S.Ct. 2492, and removal proceedings are civil, not criminal, even where criminal activity underlies the reason for removal. See id. at 396, 132 S.Ct. 2492 ; see also 6 C. Gordon, S. Mailman, S. Yale-Loehr, & R.Y. Wada, Immigration Law and Procedure § 71.01[4][a] (Matthew Bender, rev. ed. 2016) (acknowledging "the uniform judicial view, reiterated in numerous Supreme Court and lower court holdings, ... that [removal] is a civil consequence and is not regarded as criminal punishment").

Since first enacted, the INA has granted authority for arrests with and without warrants. INA § 242(a), codified at 8 U.S.C. § 1226(a), provided that "[p]ending a determination of deportability in the case of any alien ... such alien may, upon warrant of the Attorney General, be arrested and taken into custody." INA § 242(a).¹ INA § 287(a)(2), codified as 8 U.S.C. § 1357(a)(2), authorized an immigration officer without a warrant, "to arrest any alien who in his presence or view is entering or attempting to enter the United States" unlawfully, or "to arrest any alien in the United States if [the officer] has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest." Id. § 287(a)(2).² "Although 8 U.S.C. § 1357(a)(2) does not, by its terms, reveal its ‘civil’ or ‘criminal" character,’ " the First Circuit has determined that such arrests are civil. U.S. v. Encarnacion, 239 F.3d 395, 398 (1st Cir. 2001).

"A principal feature of the removal system is the broad discretion exercised by immigration officials." Arizona v. United States, 567 U.S. at 396, 132 S.Ct. 2492. ICE instructs its agents and employees on its discretionary enforcement priorities through publicly released memoranda from its director. On March 2, 2011, the then-director of ICE distributed a memorandum about civil immigration enforcement priorities (hereinafter the "2011 Civil Enforcement Priorities Memorandum") as they relate to the apprehension, detention, and removal of aliens. ICE Policy Number 10072.1, 2011 Civil Enforcement Priorities Memorandum (Mar. 2, 2011). That memorandum explained that ICE had resources to remove each year less than four percent of the estimated removable population, and thus would prioritize its resources. Id. According to ICE, its top civil enforcement priority was the removal of "Priority 1" aliens: "[a]liens who pose a danger to national security or a risk to public safety." Id. at 1.

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...