State v. U.S. Immigration & Customs Enforcement, 19-cv-8876(JSR)

• Decision Date: 19 December 2019
• Docket Number: 19-cv-8876(JSR)
• Citation: 431 F.Supp.3d 377
• 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

431 F.Supp.3d 377

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 December 19, 2019

Anjana Malhotra, Morenike Fajana, Scott Andrew Eisman, Matthew Colangelo, New York State Office of the Attorney General New York, NY, for Plaintiff State of New York.

Jill Harris, Kings County District Attorney, Brooklyn, NY, Matthew Colangelo, New York State Office of the Attorney General, New York, NY, for Plaintiff Eric Gonzalez.

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

OPINION AND ORDER

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

Courts cannot be expected to function properly if third parties (not least the executive branch of the government) feel free to disrupt the proceedings and intimidate the parties and witnesses by staging arrests for unrelated civil violations in the courthouse, on court property, or while the witnesses or parties are in transit to or from their court proceedings. Accordingly, more than 500 years ago, the English courts developed a common law privilege against civil arrests on courthouse premises and against arrests of parties and other persons necessarily traveling to or from court. This ancient privilege, incorporated into American law in the early years of our republic by virtually all state and federal courts, has remained largely intact over the centuries. But now, according to the State of New York, the federal Immigration and Customs Enforcement agency ("ICE"), in implementation of an Executive Order issued by the Trump Administration in January 2017 and a Directive to ICE agents promulgated in January 2018, has increased its civil arrests in or around New York state courthouses by a remarkable 1700 percent and more. By this lawsuit, plaintiff The State of New York, joined by co-plaintiff Eric Gonzalez (the District Attorney of Kings County), demand that these intrusions be halted.

In response, ICE now moves to dismiss the complaint, arguing, first, that it is none of this Court's business and second, that even if it is, the common law privilege against courthouse arrests doesn't apply to ICE. Finding these and ICE's other arguments without merit, the Court denies the motion to dismiss, for the reasons set forth below.

THE ALLEGATIONS

Plaintiffs The State of New York and the Kings County District Attorney commenced this suit on September 25, 2019, seeking both declaratory and injunctive relief. Specifically, the plaintiffs seek a declaration that ICE Directive No. 11072.1, Ex. A to Onozawa Decl. (Oct. 23, 2019), ECF No. 27 (the "Directive") is invalid, Compl., Prayer for Relief ¶¶ 2-4. They further ask that ICE be enjoined from "civilly arresting parties, witnesses, and any other individual coming to, attending, or returning from courthouses or court-related proceedings" in New York State. Id. ¶ 5.

According to the complaint, the Directive, which ICE promulgated on January 10, 2018, Compl. ¶ 42, served to formalize aspects of Executive Order No. 13,768, 82 Fed. Reg. 8799, promulgated on January 25, 2017 (immediately after President Trump took office), which directed ICE to vigorously enforce the immigration laws against so-called "sanctuary jurisdictions." According to the complaint, the impact of the Executive Order on arrests on or near the premises of New York state courthouses was immediate: They rose from 11 in 2016 to 172 in 2017. Compl. ¶ 58 n.9 (referencing Immigrant Defense Project, The Courthouse Trap 6 (Jan. 2019)). This shift was then formalized by ICE when it issued the Directive in early January 2018, after which such arrests rose still further, to 202 in 2018. Id.

The Directive provides that ICE agents may target for civil arrest on courthouse premises "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," Directive § 2. In addition, the Directive provides that ICE may similarly arrest aliens outside these specified categories, "such as family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding," in "special circumstances, such as where the individual poses a threat to public safety or interferes with ICE's enforcement actions." Id. ¹

In response to the Executive Order and the Directive, civil arrests by ICE officers in and around New York state courthouses have, as noted, dramatically increased. Although the Directive purports only to offer guidance on how ICE officers should exercise their enforcement discretion on a "case-by-case basis," Directive § 2 n.1, plaintiffs infer from the more than 1700 percent increase in such arrests that the Directive actually embodies a conscious decision to conduct widespread immigration arrests in or around state courthouses, a reversal of ICE's pre-2017 policy to largely abstain from such arrests. Compl. ¶¶ 30-37, 58.

These arrests, according to the Complaint, have seriously prejudiced New York's sovereign interest in maintaining a functioning court system. And this is not just because the arrests are, by their very nature, disruptive. In addition, aliens who are parties to lawsuits have declined to attend scheduled hearings, fearing arrest. This not only forces courts to adjourn proceedings, thereby wasting judicial resources, see, e.g., Compl. ¶¶ 68, 70, 75; see also Br. of Former Judges as Amici Curiae in Supp. of Pls.' Oppo. to Defs.' Mot. to Dismiss (Nov. 5, 2019), ECF No. 34, at 10-14 (hereinafter "Br. of Former Judges"), but also undermines New York's interest in allowing plaintiffs to pursue meritorious civil claims, Compl. ¶¶ 83-84; see generally Br. of Amici Curiae Immigrant Defense Project and 40 Legal Services Organizations, Public Defender Organizations, and Non-Profit Organizations in Supp. of Pls. (Nov. 5, 2019), ECF No. 30 (hereinafter "Br. of Immigrant Defense Project et al."); Br. of Former Judges 10-11. Further still, these arrests have interfered with New York's ability to prosecute crimes, both because witnesses who are undocumented aliens are afraid to come forward and also because even those defendants who are guilty of New York crimes are sometimes taken into ICE custody before they can be tried and convicted. Compl. ¶¶ 88-105. Finally, the Directive has also chilled crime reporting, with calls to the Brooklyn DA's Immigrant Affairs Unit declining by 67 percent from 2016 to 2018. Compl. ¶ 101; see also Br. of Former Judges 7-10.

Citing these harms, plaintiffs challenge the Directive on three separate grounds. Count One, Compl. ¶¶ 135-42, argues that ICE's courthouse arrest policy violates the ancient common law privilege against civil arrest when one is present at a courthouse or necessarily traveling to or from court proceedings. This privilege, plaintiffs further argue, is presumptively incorporated into the Immigration and Nationality Act ("INA"), rendering the Directive "in excess of statutory jurisdiction, authority, or limitations" and therefore invalid under section 706(2)(C) of the Administrative Procedure Act ("APA"). 5 U.S.C. § 706(2)(C) ; Compl. ¶¶ 121-29. Count Two argues that ICE's adoption of the Directive was arbitrary and capricious, in violation of section 706(2)(A) of the APA, because ICE did not adequately consider the harms that this policy would impose.² 5 U.S.C. § 706(2)(A) ; Compl. ¶¶ 130-34; see also Compl. ¶¶ 62-105; Br. of Former Judges 7-14; Br. of Immigrant Defense Project et al. Finally, citing these same harms, Count Three argues that the Directive violates the Tenth Amendment to the U.S. Constitution because it impermissibly burdens the State of New York's operation of its judicial system. Compl. ¶¶ 135-42.

THE MOTION TO DISMISS

Defendants present six grounds for dismissal, the first three of which are jurisdictional in nature and are therefore brought under Fed. R. Civ. P. 12(b)(1), and the latter three of which are substantive in nature and therefore brought under Fed. R. Civ. P. 12(b)(6).

The first jurisdictional ground is that the interests plaintiffs ask this Court to protect are not within the "zone of interests" protected by the INA, 8 U.S.C. §§ 1101 et seq. The second is that ICE's immigration enforcement authority is "committed to agency discretion by law" under 5 U.S.C. § 701(a)(2) and therefore unreviewable. The third is that the Directive is not a final agency action and therefore unreviewable under 5 U.S.C. § 704.

The first substantive ground is defendants' contention that there is no applicable common law privilege against courthouse civil arrests still extant. The second is that, even if there is such a privilege, it is preempted by the INA. The third is that plaintiffs do not, in any case, state a Tenth Amendment claim.

STANDARDS OF REVIEW

The Court considers each of these arguments in turn. As to the three grounds for dismissal under Rule 12(b)(1), the plaintiff bears the burden of demonstrating the existence of subject matter jurisdiction. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). But where, as here, the Court "relies solely on the pleadings and supporting affidavits, the plaintiff need only make a prima facie showing of jurisdiction." Id. "In determining whether a plaintiff has met this burden," the Court must "construe jurisdictional allegations liberally and take as true uncontroverted factual allegations." Id.

As to the three arguments under Rule 12(b)(6), the "complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). After discarding allegations that amount to...