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U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:19-cv-08892-AJN-JLC

Doe et al v. U.S. Immigration and Customs Enforcement et al Assigned to: Judge Alison J. Nathan Referred to: Magistrate Judge James L. Cott Cause: 05:702 Administrative Procedure Act

Date Filed: 09/25/2019 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff John Doe

represented by Jeffrey A. Rosenthal Cleary Gottlieb One Liberty Plaza New York, NY 10006 212-225-2000 Fax: 212-225-3499 Email: jrosenthal@cgsh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan I. Blackman Cleary Gottlieb One Liberty Plaza New York, NY 10006 212-225-2000 Fax: 212-225-3499 Email: maofiling@cgsh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lilia Isobel Toson 199 Water Street 3rd Floor New York, NY 10038 212-577-7987 Email: Lilia.Toson@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Joseph Riff Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 212-225-2833 Email: ajriff@gmail.com TERMINATED: 01/21/2021
Hasan Shafiqullah Hasan Shafiqullah The Legal Aid Society 199 Water Street, 3rd Floor New York, NY 10002 212-577-3965 Fax: 646-616-9232 Email: hhshafiqullah@legal-aid.org ATTORNEY TO BE NOTICED
Jack Lee Hill Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 212-225-2334 Email: leehill@cgsh.com ATTORNEY TO BE NOTICED
Kylie Huff Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 212-225-2703 Email: kmhuff@cgsh.com ATTORNEY TO BE NOTICED
Rikki Shana Stern King and Spalding LLP 1180 Peachtree Street, NE Suite 1600 Atlanta, GA 30309 404-572-4600 Email: rikki.stern@gmail.com TERMINATED: 02/27/2020

Plaintiff The Door

Susan Joan Cameron The Legal Aid Society Law Reform Unit 199 Water Street New York, NY 10038 212-298-3253 Fax: 646-924-3563 Email: scameron@legal-aid.org ATTORNEY TO BE NOTICED
Susan Elizabeth Welber The Legal Aid Society 199 Water Street New York, NY 10038 212-577-3320 Fax: 646-616-4018 Email: sewelber@legal-aid.org ATTORNEY TO BE NOTICED
Vishakha Joshi Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 212-225-2352 Email: vjoshi@cgsh.com ATTORNEY TO BE NOTICED
represented by Jeffrey A. Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan I. Blackman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lilia Isobel Toson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Joseph Riff

Plaintiff Make the Road New York

(See above for address) TERMINATED: 01/21/2021
Hasan Shafiqullah (See above for address) ATTORNEY TO BE NOTICED
Jack Lee Hill (See above for address) ATTORNEY TO BE NOTICED
Kylie Huff (See above for address) ATTORNEY TO BE NOTICED
Rikki Shana Stern (See above for address) TERMINATED: 02/27/2020
Susan Joan Cameron (See above for address) ATTORNEY TO BE NOTICED
Susan Elizabeth Welber (See above for address) ATTORNEY TO BE NOTICED
Vishakha Joshi (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey A. Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan I. Blackman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lilia Isobel Toson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff New York Immigration Coalition

Adam Joseph Riff (See above for address) TERMINATED: 01/21/2021
Hasan Shafiqullah (See above for address) ATTORNEY TO BE NOTICED
Jack Lee Hill (See above for address) ATTORNEY TO BE NOTICED
Kylie Huff (See above for address) ATTORNEY TO BE NOTICED
Rikki Shana Stern (See above for address) TERMINATED: 02/27/2020
Susan Joan Cameron (See above for address) ATTORNEY TO BE NOTICED
Susan Elizabeth Welber (See above for address) ATTORNEY TO BE NOTICED
Vishakha Joshi (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey A. Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan I. Blackman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lilia Isobel Toson (See above for address)

Plaintiff Sanctuary For Families

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Joseph Riff (See above for address) TERMINATED: 01/21/2021
Hasan Shafiqullah (See above for address) ATTORNEY TO BE NOTICED
Jack Lee Hill (See above for address) ATTORNEY TO BE NOTICED
Kylie Huff (See above for address) ATTORNEY TO BE NOTICED
Rikki Shana Stern (See above for address) TERMINATED: 02/27/2020
Susan Joan Cameron (See above for address) ATTORNEY TO BE NOTICED
Susan Elizabeth Welber (See above for address) ATTORNEY TO BE NOTICED
Vishakha Joshi (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey A. Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan I. Blackman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Urban Justice Center

Lilia Isobel Toson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Joseph Riff (See above for address) TERMINATED: 01/21/2021
Hasan Shafiqullah (See above for address) ATTORNEY TO BE NOTICED
Jack Lee Hill (See above for address) ATTORNEY TO BE NOTICED
Kylie Huff (See above for address) ATTORNEY TO BE NOTICED
Rikki Shana Stern (See above for address) TERMINATED: 02/27/2020
Susan Joan Cameron (See above for address) ATTORNEY TO BE NOTICED
Susan Elizabeth Welber (See above for address) ATTORNEY TO BE NOTICED
Vishakha Joshi (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey A. Rosenthal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan I. Blackman (See above for address) LEAD ATTORNEY

V.
Defendant
U.S. Immigration and Customs Enforcement

ATTORNEY TO BE NOTICED
Lilia Isobel Toson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Joseph Riff (See above for address) TERMINATED: 01/21/2021
Hasan Shafiqullah (See above for address) ATTORNEY TO BE NOTICED
Jack Lee Hill (See above for address) ATTORNEY TO BE NOTICED
Kylie Huff (See above for address) ATTORNEY TO BE NOTICED
Rikki Shana Stern (See above for address) TERMINATED: 02/27/2020
Susan Joan Cameron (See above for address) ATTORNEY TO BE NOTICED
Susan Elizabeth Welber (See above for address) ATTORNEY TO BE NOTICED
Vishakha Joshi (See above for address) ATTORNEY TO BE NOTICED
represented by Tomoko Onozawa U.S. Attorney's Office, SDNY (Chambers Street)

Defendant U.S. Department of Homeland Security
Defendant Donald J. Trump in his official capacity as President of the United States
Defendant Kevin McAleenan in his official capacity as Acting Secretary of Homeland Security

86 Chambers Street New York, NY 10007 (212) 637-2721 Fax: (212) 637- 2686 Email: tomoko.onozawa@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Ruth Friedman DOJ-USAO 86 Chambers Street New York, NY 10007 212-637-2614 Email: rebecca.friedman@usdoj.gov ATTORNEY TO BE NOTICED
represented by Tomoko Onozawa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Ruth Friedman (See above for address) ATTORNEY TO BE NOTICED
represented by Tomoko Onozawa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Ruth Friedman (See above for address) ATTORNEY TO BE NOTICED
represented by Tomoko Onozawa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Ruth Friedman (See above for address) ATTORNEY TO BE NOTICED

Defendant Matthew T. Albence in his official capacity as U.S. Immigration and Customs Enforcement Deputy Director and Senior Official Performing the Duties of the Director
Defendant Susan Quintana in her official capacity as U.S. Immigration and Customs Enforcement New York Field Office Director
Amicus Immigrant Defense Project 40 W. 39th St 501 New York, NY 10018
Amicus Immigration Law Scholars

represented by Tomoko Onozawa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Ruth Friedman (See above for address) ATTORNEY TO BE NOTICED
represented by Tomoko Onozawa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Ruth Friedman (See above for address) ATTORNEY TO BE NOTICED
represented by Theresa Dawn Lawson UnLocal 45 West 29th Street Suite 203 New York, NY 10001 646-216-8210 Fax: 212-602-0071 Email: terry@unlocal.org ATTORNEY TO BE NOTICED
represented by Brian Adair Sutherland Reed Smith LLP 101 Second Street San Francisco, CA 94105 415-543-8700 Fax: 415-391-8269 Email: bsutherland@reedsmith.com ATTORNEY TO BE NOTICED

Date Filed # Docket Text

09/25/2019
09/25/2019 09/25/2019
09/25/2019 09/25/2019 09/25/2019 09/25/2019
09/26/2019
09/26/2019
09/26/2019

1 COMPLAINT against Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Filing Fee $ 400.00, Receipt Number 465401244843)Document filed by Urban Justice Center, The Door, New York Immigration Coalition, Sanctuary For Families, John Doe, Make the Road New York.(pc) (pc). (Entered: 09/25/2019)
2 CIVIL COVER SHEET filed. (pc) (pc). (Entered: 09/25/2019)
Magistrate Judge James L. Cott is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (pc) (Entered: 09/25/2019)
Case Designated ECF. (pc) (Entered: 09/25/2019)
3 DOCUMENTS TO BE SEALED (Signed by Judge Jesse M. Furman on 9/25/2019) (pc) (Entered: 09/25/2019)
4 SEALED DOCUMENT placed in vault.(rz) (Entered: 09/25/2019)
5 STATEMENT OF RELATEDNESS re: that this action be filed as related to 19-cv-8876. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center.(Blackman, Jonathan) (Entered: 09/25/2019)
6 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Immigration
and Customs Enforcement, re: 1 Complaint,. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) (Entered: 09/26/2019)
7 REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Department of
Homeland Security, re: 1 Complaint,. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) (Entered: 09/26/2019)
8 FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF
SUMMONS as to Donald J. Trump, re: 1 Complaint,. Document

09/26/2019 09/26/2019 09/26/2019
09/26/2019 09/26/2019 09/26/2019 09/26/2019

filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) Modified on 9/27/2019 (dnh). (Entered: 09/26/2019)
9 REQUEST FOR ISSUANCE OF SUMMONS as to Kevin McAleenan,
re: 1 Complaint,. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) (Entered: 09/26/2019)
10 REQUEST FOR ISSUANCE OF SUMMONS as to Matthew T.
Albence, re: 1 Complaint,. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) (Entered: 09/26/2019)
11 FILING ERROR - DEFICIENT PLEADING - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF
SUMMONS as to Susan Quintana, re: 1 Complaint,. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) Modified on 9/27/2019 (dnh). (Entered: 09/26/2019)
12 NOTICE OF APPEARANCE by Susan Joan Cameron on behalf of John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Cameron, Susan) (Entered: 09/26/2019)
13 NOTICE OF APPEARANCE by Rikki Shana Stern on behalf of John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Stern, Rikki) (Entered: 09/26/2019)
14 NOTICE OF APPEARANCE by Jack Lee Hill on behalf of John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Hill, Jack) (Entered: 09/26/2019)
15 NOTICE OF APPEARANCE by Vishakha Joshi on behalf of John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Joshi, Vishakha) (Entered: 09/26/2019)

09/26/2019 09/27/2019 09/27/2019 09/27/2019 09/27/2019 09/27/2019
09/27/2019
09/27/2019
09/27/2019

16 NOTICE OF APPEARANCE by Hasan Shafiqullah on behalf of John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Shafiqullah, Hasan) (Entered: 09/26/2019)
17 ELECTRONIC SUMMONS ISSUED as to U.S. Immigration and Customs Enforcement. (dnh) (Entered: 09/27/2019)
18 ELECTRONIC SUMMONS ISSUED as to U.S. Department of Homeland Security. (dnh) (Entered: 09/27/2019)
19 ELECTRONIC SUMMONS ISSUED as to Kevin McAleenan. (dnh) (Entered: 09/27/2019)
20 ELECTRONIC SUMMONS ISSUED as to Matthew T. Albence. (dnh) (Entered: 09/27/2019)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Jonathan I. Blackman to RE-FILE Document No. 11 Request for Issuance of Summons, 8 Request for Issuance of Summons,. The filing is deficient for the following reason(s): 'C/o' Error; include 'c/o' or 'via' before second party names (For example, Donald J. Trump via The White House). Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (dnh) (Entered: 09/27/2019)
21 REQUEST FOR ISSUANCE OF SUMMONS as to Donald J. Trump,
re: 1 Complaint,. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) (Entered: 09/27/2019)
22 REQUEST FOR ISSUANCE OF SUMMONS as to Susan Quintana,
re: 1 Complaint,. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) (Entered: 09/27/2019)
31 LETTER addressed to Judge Alison J. Nathan from Towaki Komatsu dated 9/27/2019 re: My name is Towaki Komatsu. I'm filing this letter pursuant to FRCP Rule 24 that concerns intervention both as of right and by permission in order to be granted the ability to intervene in this action as an interested party. In the event that this Court declines to

09/30/2019 09/30/2019 09/30/2019 10/01/2019 10/02/2019 10/02/2019
10/03/2019

grant me intervenor status in this action, I wish to instead be granted the ability to appear as an amicus curiae in this action. Document filed by Towaki Komatsu. (sac) (Entered: 10/07/2019)
23 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center.(Blackman, Jonathan) (Entered: 09/30/2019)
24 ELECTRONIC SUMMONS ISSUED as to Donald J. Trump. (dnh) (Entered: 09/30/2019)
25 ELECTRONIC SUMMONS ISSUED as to Susan Quintana. (dnh) (Entered: 09/30/2019)
26 LETTER addressed to Judge Alison J. Nathan from T. Komatsu, dated 10/1/19 re: Non-party Towaki Komatsu files this letter to provide an update in regard to the letter which he filed in this action on 9/27/19 to apply for this Court's authorization to intervene in it or, alternatively, to appear as an amicus curiae in it etc. (sc) (Entered: 10/02/2019)
***DELETED DOCUMENT. Deleted document number 27 NOTICE OF INITIAL PRETRIAL CONFERENCE. The document was incorrectly filed in this case. (kv) (Entered: 10/02/2019)
27 ORDER: On September 26, 2019, the Court received from Plaintiffs a letter motion for leave to proceed under pseudonym and for a protective order, as well as accompanying affidavits. On or before October 8, 2019, Plaintiffs shall file proposed redacted versions of the motion and accompanying affidavits, as well as a proposed order, on the public docket. The Court will maintain the unredacted versions of the motion and accompanying affidavits under seal. The Court will wait for a response from Defendants before deciding Plaintiffs' motion. (Signed by Judge Alison J. Nathan on 10/2/2019) (cf) (Entered: 10/02/2019)
28 NOTICE OF INITIAL PRETRIAL CONFERENCE: This case has been assigned to me for all purposes. It is hereby ORDERED that counsel for all parties appear for an initial pretrial conference with the Court on Friday, February 21, 2020 at 3:45 pm in Courtroom 906 of the United States District Court for the Southern District of New York, Thurgood Marshall U.S. Courthouse at 40 Foley Square, New York, New York. Counsel are directed to confer with each other prior to the conference regarding settlement and each of the other subjects to be considered at a Fed. R. Civ. P. 16 conference. Additionally, in accordance with the Court's Individual Rules, the parties are hereby ORDERED to ECF file a Proposed Civil Case Management Plan and Scheduling Order no later

10/03/2019 10/03/2019 10/07/2019 10/07/2019
10/07/2019 10/07/2019

than seven days prior to the Initial Pretrial Conference. All pretrial conferences must be attended by the attorney who will serve as principal trial counsel. Counsel who have noticed an appearance as of the issuance of this order are directed to notify all other parties' attorneys in this action by serving upon each of them a copy of this order and the Court's Individual Rules. If unaware of the identity of counsel for any of the parties, counsel receiving this order must forthwith send a copy of this order and Individual Rules to that party personally. And as set forth herein. Initial Conference set for 2/21/2020 at 03:45 PM in Courtroom 906, 40 Centre Street, New York, NY 10007 before Judge Alison J. Nathan. (Signed by Judge Alison J. Nathan on 10/03/2019) (ama) (Entered: 10/03/2019)
29 AFFIDAVIT OF SERVICE of Summons and Complaint,. Document filed by Urban Justice Center, The Door, New York Immigration Coalition, Sanctuary For Families, John Doe, Make the Road New York. (Blackman, Jonathan) (Entered: 10/03/2019)
30 AFFIDAVIT OF SERVICE of Summons and Complaint,. Document filed by Urban Justice Center, The Door, New York Immigration Coalition, Sanctuary For Families, John Doe, Make the Road New York. (Blackman, Jonathan) (Entered: 10/03/2019)
32 LETTER MOTION to Seal Document \ Letter Motion to Proceed Under Pseudonym and for a Protective Order addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated October 7, 2019. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center.(Blackman, Jonathan) (Entered: 10/07/2019)
33 AFFIDAVIT of John Doe [REDACTED] in Support re: 32 LETTER MOTION to Seal Document \ Letter Motion to Proceed Under Pseudonym and for a Protective Order addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated October 7, 2019.. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) (Entered: 10/07/2019)
34 PROPOSED ORDER. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. Related Document Number: 32 . (Blackman, Jonathan) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 10/07/2019)
***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 34 Proposed Order was reviewed and approved as to form. (km) (Entered: 10/07/2019)

10/08/2019
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10/11/2019 10/15/2019
10/17/2019
10/21/2019

35 LETTER addressed to Judge Alison J. Nathan from T. Komatsu, dated 10/8/19 re: Non-party Towaki Komatsu files this letter to inform the Court that the Pro Se Office for this Courthouse again lost a legal filing which he submitted to it; and that on 9/27/19, he submitted the first attached legal filing to submit an application to intervene in this action to the Pro Se Office in-person in the Thurgood Marshall federal courthouse etc. (sc) (Entered: 10/08/2019)
36 SEALED DOCUMENT placed in vault.(rz) (Entered: 10/09/2019)
37 NOTICE OF APPEARANCE by Tomoko Onozawa on behalf of Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Onozawa, Tomoko) (Entered: 10/10/2019)
38 LETTER MOTION for Conference addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated October 10, 2019. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Attachments: # 1 Attachment - Civil Case Management Plan in New York v. U.S. Immigration and Customs Enforcement, 19cv8876)(Blackman, Jonathan) (Entered: 10/10/2019)
39 NOTICE OF APPEARANCE by Rebecca Ruth Friedman on behalf of Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Friedman, Rebecca) (Entered: 10/11/2019)
40 LETTER RESPONSE to Motion addressed to Judge Alison J. Nathan from AUSA Tomoko Onozawa dated 10/15/2019 re: 38 LETTER MOTION for Conference addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated October 10, 2019. . Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Onozawa, Tomoko) (Entered: 10/15/2019)
41 ORDER granting 38 Letter Motion for Conference. The initial pretrial conference scheduled for February 21, 2020 is hereby rescheduled to November 1, 2019 at 3:45 p.m. The filings described in the Court's October 3, 2019 Order, see Dkt. No. 28, should be filed no later than seven days prior to the initial pretrial conference. SO ORDERED. Initial Conference set for 11/1/2019 at 03:45 PM before Judge Alison J. Nathan. (Signed by Judge Alison J. Nathan on 10/16/2019) (kv) (Entered: 10/17/2019)
42 LETTER RESPONSE to Motion addressed to Judge Alison J. Nathan from Rebecca R. Friedman dated October 21, 2019 re: 32 LETTER

10/22/2019 10/22/2019 10/24/2019

MOTION to Seal Document \ Letter Motion to Proceed Under Pseudonym and for a Protective Order addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated October 7, 2019. . Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Guidance, # 2 Exhibit Guidance)(Friedman, Rebecca) (Entered: 10/21/2019)
43 LETTER REPLY to Response to Motion addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated October 22, 2019 re: 32 LETTER MOTION to Seal Document \ Letter Motion to Proceed Under Pseudonym and for a Protective Order addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated October 7, 2019. . Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) (Entered: 10/22/2019)
45 LETTER addressed to Judge Alison J. Nathan from T. Komatsu, dated 10/22/19 re: Non-party Towaki Komatsu files this letter to request an upsdate about the request which he submitted on 9/27/19 to intervene in this action or otherwise appear as an amicus curiae; and to provide the Court with a significant update about a recent development which supports the request he submitted to intervene etc. (sc) (Entered: 10/24/2019)
44 ORDER granting 32 Motion to Seal Document. IT IS HEREBY ORDERED that: 1. Movant Plaintiff's motion for leave to proceed under pseudonym and for a protective order is GRANTED; 2. The unredacted complaint, motion to proceed anonymously and for a protective order, and accompanying affidavits filed under seal in this action shall remain filed under seal; 3. Movant Plaintiff shall be referred to by his designated pseudonym "John Doe" in all publicly filed documents; 4. All subsequent filings by either party that contain Movant Plaintiff's name or other identifying information must be filed under seal, and any publicly-filed documents shall be redacted to remove identifying information about Movant Plaintiff; 5. Movant Plaintiff will provide his name to Defendants; 6. Defendants may not reveal or disclose Movant Plaintiff's true identity (or any information which could reveal Movant Plaintiff's true identity) to any individual or entity other than their attorneys, and then only for purposes of litigating the above-referenced action; and 7. Because Movant Plaintiff could face significant harm if his identity become public, this Court shall, within its discretion, impose the maximum sanction permitted by law for any violation of this Order. SO ORDERED. (Signed by Judge Alison J.

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Nathan on 10/24/2019) (kv) Transmission to Sealed Records Clerk for processing. (Entered: 10/24/2019)
46 LETTER addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated October 25, 2019 re: initial pretrial conference. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Attachments: # 1 Ex. A - Plaintiffs' Letter Opposing Stay of Discovery and Plaintiffs' Proposed CMP, # 2 Ex. B Defendants' Proposed CMP)(Blackman, Jonathan) (Entered: 10/25/2019)
47 ORDER: Due to the Court's unavailability, the initial pretrial conference previously scheduled for Friday, November 1, 2019 at 3:45 p.m. is hereby rescheduled to November 1, 2019 at 10 a.m. The conference will be held in Courtroom 318 of the United States District Court for the Southern District of New York, Thurgood Marshall U.S. Courthouse at 40 Foley Square, New York, New York. (Initial Conference set for 11/1/2019 at 10:00 AM in Courtroom 318, 40 Centre Street, New York, NY 10007 before Judge Alison J. Nathan.) (Signed by Judge Alison J. Nathan on 10/25/2019) (rro) (Entered: 10/28/2019)
48 NOTICE OF APPEARANCE by Susan Elizabeth Welber on behalf of John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Welber, Susan) (Entered: 10/28/2019)
49 LETTER MOTION for Conference on the Government's motion to stay discovery until the Court decides the Government's anticipated motion to dismiss addressed to Judge Alison J. Nathan from Rebecca R. Friedman dated October 29, 2019. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Case Management Plan, # 2 Exhibit Transcript Excerpt, # 3 Exhibit Docket)(Friedman, Rebecca) (Entered: 10/29/2019)
51 LETTER addressed to Judge Alison J. Nathan from T. Komatsu, re: Non-party Tomaki Komatsu files this letter to yet again request a status update about the request that he submitted on 9/27/19 to intervene in this action or otherwise appear as an amicus curiae primarily, because it clearly appears that this Court is acting in defiance of his constitutional due process right to receive such notice in a timely manner etc. (sc) (Entered: 10/31/2019)
50 ORDER re: 31 Letter. For the reasons stated above, the Court DENIES Mr. Komatsu's motion to intervene or, in the alternative, to appear as an

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amicus curiae. The Court ce1iifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purposes of an appeal. Coppedge v. United States, 269 U.S. 438, 444-45 (1962). A copy of this Order will be mailed to Mr. Komatsu, and that mailing will be noted on the public docket. SO ORDERED. (Signed by Judge Alison J. Nathan on 10/31/2019) Copies Mailed By Chambers. (kv) (Entered: 10/31/2019)
Minute Entry for proceedings held before Judge Alison J. Nathan. Initial pre-trial conference held. A scheduling plan will be entered by separate order. See transcript for complete details. (Court Reporter Steven Greenblum) (qs) Modified on 11/1/2019 (qs). (Entered: 11/01/2019)
52 ORDER: Accordingly, Defendants' motion to dismiss is due December 2, 2019; Plaintiffs' opposition is due December 23, 2019; and Defendants' reply is due January 13, 2020. Oral argument on the motion to dismiss is hereby scheduled for February 12, 2020 at 2 p.m. The Court also adopts Plaintiffs' proposed case management plan, which will be entered separately. If the motion to dismiss pending in State of New York, et al. v. US. Immigration and Customs Enforcement, et al., l 9-cv-8876, is granted, Defendants may renew their motion to stay discovery in this case within three days of that grant. SO ORDERED. (Motions due by 12/2/2019, Responses due by 12/23/2019, Replies due by 1/13/2020, Oral Argument set for 2/12/2020 at 02:00 PM before Judge Alison J. Nathan.) (Signed by Judge Alison J. Nathan on 11/1/2019) (jca) (Entered: 11/01/2019)
53 CIVIL CASE MANAGEMENT PLAN AND SCHEDULING ORDER: All parties do not consent to conducting all further proceedings before a United States Magistrate Judge, including motions and trial pursuant to 28 U.S.C. § 636(c). This case to not to be tried to a jury. Deposition due by 2/14/2020. Expert Deposition due by 2/28/2020. Fact Discovery due by 3/1/2020. Expert Discovery due by 2/28/2020. Case Management Conference set for 3/20/2020 at 03:00 PM before Judge Alison J. Nathan. SO ORDERED. (Signed by Judge Alison J. Nathan on 11/1/2019) (ks) (Entered: 11/01/2019)
54 LETTER addressed to Judge Alison J. Nathan from T. Komatsu, dated 11/5/19 re: Non-Party T. Komatsu writes that he is legally entitled to intervene as of right in this action due to how FRCP Rule 24 is written; and he invokes that right to order the Court pursuant to FRCP Rule 60 to enable him to promptly do so etc. (sc) Modified on 11/6/2019 (sc). (Entered: 11/06/2019)

11/13/2019 11/13/2019 11/22/2019 11/22/2019 11/25/2019 11/25/2019

55 TRANSCRIPT of Proceedings re: CONFERENCE held on 11/1/2019 before Judge Alison J. Nathan. Court Reporter/Transcriber: Steven Greenblum, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/4/2019. Redacted Transcript Deadline set for 12/16/2019. Release of Transcript Restriction set for 2/11/2020.(McGuirk, Kelly) (Entered: 11/13/2019)
56 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 11/1/19 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/13/2019)
57 LETTER MOTION for Extension of Time addressed to Judge Alison J. Nathan from Rebecca R. Friedman dated November 22, 2019. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Transcript Excerpt, # 2 Exhibit Case Management Plan)(Friedman, Rebecca) (Entered: 11/22/2019)
60 LETTER addressed to Judge Jed S. Rakoff from T. Komatsu, dated 11/22/19 re: Plaintiff writes that it is simply impossible to reconcile and justify a continuation of the practice that has him stalked every time in which he visits federal courthouses by CSOs with a determination that this Court may issue that prohibits ICE personnel and/or agents from following others inside courthouses in New York State. (sc) (Entered: 11/26/2019)
58 TRANSCRIPT of Proceedings re: CONFERENCE held on 11/1/2019 before Judge Alison J. Nathan. Court Reporter/Transcriber: Steven Greenblum, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/16/2019. Redacted Transcript Deadline set for 12/26/2019. Release of Transcript Restriction set for 2/24/2020.(McGuirk, Kelly) (Entered: 11/25/2019)
59 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on

11/26/2019 11/26/2019 11/26/2019
12/04/2019 12/04/2019 12/04/2019

11/1/19 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/25/2019)
61 ORDER granting 57 Letter Motion for Extension of Time. SO ORDERED. (Signed by Judge Alison J. Nathan on 11/26/2019) (ks) (Entered: 11/26/2019)
Set/Reset Deadlines: Motions due by 12/4/2019. Responses due by 12/27/2019 Replies due by 1/16/2020. (ks) (Entered: 11/26/2019)
62 CIVIL CASE MANAGEMENT PLAN AND SCHEDULING ORDER: All parties do not consent to conducting all further proceedings before a United States Magistrate Judge, including motions and trial pursuant to 28 U.S.C. § 636(c). This case is not to be tried to jury. Deposition due by 3/27/2020. Fact Discovery due by 4/1/2020. Expert Discovery due by 3/27/2020. Case Management Conference set for 4/17/2020 at 02:00 PM before Judge Alison J. Nathan. SO ORDERED. (Signed by Judge Alison J. Nathan on 11/26/2019) (ks) (Entered: 11/26/2019)
63 MOTION to Dismiss Complaint. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. Responses due by 1/16/2020 Return Date set for 2/12/2020 at 02:00 PM.(Onozawa, Tomoko) (Entered: 12/04/2019)
64 MEMORANDUM OF LAW in Support re: 63 MOTION to Dismiss Complaint. . Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Onozawa, Tomoko) (Entered: 12/04/2019)
65 DECLARATION of AUSA Tomoko Onozawa in Support re: 63
MOTION to Dismiss Complaint.. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Onozawa, Tomoko) (Entered: 12/04/2019)

12/10/2019 12/12/2019 12/20/2019

66 LETTER MOTION to File Amicus Brief addressed to Judge Alison J. Nathan from Immigrant Defense Project dated December 10, 2019. Document filed by Immigrant Defense Project.(Lawson, Theresa) (Entered: 12/10/2019)
67 ORDER granting 66 Letter Motion to File Amicus Brief. SO ORDERED. (Signed by Judge Alison J. Nathan on 12/11/2019) (rro) (Entered: 12/12/2019)
68 LETTER MOTION to File Amicus Brief addressed to Judge Alison J. Nathan from Brian A. Sutherland dated 12/20/2019. Document filed by Immigration Law Scholars.(Sutherland, Brian) (Entered: 12/20/2019)

12/20/2019 12/20/2019 12/20/2019 12/23/2019
12/27/2019

69 Amicus Curiae APPEARANCE entered by Theresa Dawn Lawson on behalf of Immigrant Defense Project.(Lawson, Theresa) (Entered: 12/20/2019)
70 BRIEF of Amici Curiae Immigrant Defense Project and 39 Legal Services Organizations, Public Defender Organizations, and Non-Profit Organizations In Support Of Plaintiffs. Document filed by Immigrant Defense Project.(Lawson, Theresa) (Entered: 12/20/2019)
71 ORDER granting 68 Letter Motion to File Amicus Brief. SO ORDERED. (Signed by Judge Alison J. Nathan on 12/20/2019) (cf) (Entered: 12/20/2019)
72 LETTER MOTION for Discovery - Agreement On Administrative Record Filing Date addressed to Judge Alison J. Nathan from Rebecca R. Friedman dated December 23, 2019. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement.(Friedman, Rebecca) (Entered: 12/23/2019)
73 BRIEF of Amici Curiae Immigration Law Scholars. Document filed by Immigration Law Scholars.(Sutherland, Brian) (Entered: 12/27/2019)

12/27/2019

74 MEMORANDUM OF LAW in Opposition re: 63 MOTION to Dismiss Complaint. . Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) (Entered: 12/27/2019)

01/03/2020 01/06/2020 01/10/2020 01/13/2020 01/14/2020 01/15/2020 01/16/2020 02/03/2020

75 NOTICE of Filing of Administrative Record. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 AR 1-110, # 2 AR 111170)(Onozawa, Tomoko) (Entered: 01/03/2020)
76 ORDER granting 72 Letter Motion for Discovery. The parties shall submit a proposed amended case management plan by January 10, 2020. SO ORDERED. (Signed by Judge Alison J. Nathan on 1/6/2020) (rro) (Entered: 01/06/2020)
77 LETTER addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated January 10, 2020 re: Case Management Plan. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center.(Blackman, Jonathan) (Entered: 01/10/2020)
78 MEMO ENDORSEMENT on re: 77 Letter, filed by New York Immigration Coalition, The Door, Sanctuary For Families, John Doe, Make the Road New York, Urban Justice Center. ENDORSEMENT: SO ORDERED. (Signed by Judge Alison J. Nathan on 1/13/2020) (kv) (Entered: 01/13/2020)
79 CONSENT LETTER MOTION for Leave to File Excess Pages addressed to Judge Alison J. Nathan from Rebecca R. Friedman dated January 14, 2020. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement.(Friedman, Rebecca) (Entered: 01/14/2020)
80 ORDER granting 79 Letter Motion for Leave to File Excess Pages. SO ORDERED. (Signed by Judge Alison J. Nathan on 1/14/2020) (kv) (Entered: 01/15/2020)
81 REPLY MEMORANDUM OF LAW in Support re: 63 MOTION to Dismiss Complaint. . Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Onozawa, Tomoko) (Entered: 01/16/2020)
82 NOTICE OF APPEARANCE by Lilia Isobel Toson on behalf of John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Toson, Lilia) (Entered: 02/03/2020)

02/04/2020 02/04/2020 02/07/2020
02/10/2020 02/10/2020 02/12/2020
02/12/2020 02/18/2020

83 LETTER addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated February 4, 2020 re: Proposed Protective Order. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Attachments: # 1 Text of Proposed Order).(Blackman, Jonathan) (Entered: 02/04/2020)
84 PROPOSED PROTECTIVE ORDER. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) (Entered: 02/04/2020)
85 MEMO ENDORSEMENT on re: 83 Letter, filed by New York Immigration Coalition, The Door, Sanctuary For Families, John Doe, Make the Road New York, Urban Justice Center. ENDORSEMENT: The Court is prepared to issue the parties' proposed protective order, but they have not signed it. By February 12, 2020, the parties shall submit a signed proposed order. SO ORDERED. (Signed by Judge Alison J. Nathan on 2/7/2020) (ks) (Entered: 02/07/2020)
86 LETTER addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated February 10, 2020 re: proposed Protective Order. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Attachments: # 1 Text of Proposed Order).(Blackman, Jonathan) (Entered: 02/10/2020)
87 PROPOSED PROTECTIVE ORDER. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Blackman, Jonathan) (Entered: 02/10/2020)
88 PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...Nothing in this Order affects the parties' obligation to comply with Rule 4 of the Court's Individual Practices in Civil Cases governing redactions and filing under seal, or with any of the Court's other Individual Practices as relevant. (Signed by Judge Alison J. Nathan on 2/12/2020) (mro) (Entered: 02/12/2020)
Minute Entry for proceedings held before Judge Alison J. Nathan. Oral Argument held on Defendants' motion to dismiss. Decision reserved. See transcript for complete details. (Court Reporter Martha Martin) (qs) (Entered: 02/12/2020)
89 NOTICE of Filing of Supplemental Administrative Record. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana,

02/21/2020 02/26/2020 02/26/2020 02/26/2020 02/27/2020
02/27/2020

Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Supplement AR 171-191).(Onozawa, Tomoko) (Entered: 02/18/2020)
90 ORDER, Due to the Court's unavailability, the post discovery conference previously scheduled for Friday, April 17, 2020 at 2 p.m. is hereby adjourned to Thursday, April 23, 2020 at 2 p.m. SO ORDERED. (Case Management Conference set for 4/23/2020 at 02:00 PM before Judge Alison J. Nathan.) (Signed by Judge Alison J. Nathan on 2/21/20) (yv) (Entered: 02/21/2020)
91 MOTION for Rikki S. Stern to Withdraw as Attorney . Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Stern, Rikki) (Entered: 02/26/2020)
92 DECLARATION of Rikki S. Stern, dated February 26, 2020 in Support re: 91 MOTION for Rikki S. Stern to Withdraw as Attorney .. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Stern, Rikki) (Entered: 02/26/2020)
93 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. Related Document Number: 91 ..(Stern, Rikki) (Entered: 02/26/2020)
94 TRANSCRIPT of Proceedings re: CONFERENCE held on 2/12/2020 before Judge Alison J. Nathan. Court Reporter/Transcriber: Martha Martin, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/19/2020. Redacted Transcript Deadline set for 3/30/2020. Release of Transcript Restriction set for 5/27/2020..(McGuirk, Kelly) (Entered: 02/27/2020)
95 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 2/12/2020 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 02/27/2020)

02/27/2020

96 ORDER granting 91 MOTION for Rikki S. Stern to Withdraw as Attorney. Upon the motion for Rikki S. Stern for leave to withdraw from this action as counsel for Plaintiffs, IT IS HEREBY ORDERED: 1. The motion is granted. SO ORDERED. Attorney Rikki Shana Stern terminated. (Signed by Judge Alison J. Nathan on 2/27/2020) (jca) (Entered: 02/27/2020)

03/05/2020

97 NOTICE OF APPEARANCE by Adam Joseph Riff on behalf of John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Riff, Adam) (Entered: 03/05/2020)

03/20/2020

98 LETTER MOTION for Conference to compel Defendant Immigration and Customs Enforcement to respond to an outstanding discovery request addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated March 20, 2020. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Attachments: # 1 Exhibit A - Bates ICE 0002470-2471, # 2 Exhibit B - Excerpt of Deposition of Darren Williams).(Blackman, Jonathan) (Entered: 03/20/2020)

03/23/2020

99 ORDER OF REFERENCE TO A MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non-Dispositive Motion/Dispute Dkt. No. 98 . Referred to Magistrate Judge James L. Cott. SO ORDERED. Motions referred to James L. Cott. (Signed by Judge Alison J. Nathan on 3/23/2020) (ks) (Entered: 03/23/2020)

03/24/2020

100 LETTER addressed to Magistrate Judge James L. Cott from AUSA Tomoko Onozawa dated 3/24/2020 re: Plaintiffs' Letter Motion to Compel [Dkt. No. 98]. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement..(Onozawa, Tomoko) (Entered: 03/24/2020)

03/25/2020

101 ORDER denying as moot 98 Letter Motion for Conference. In light of the defendants production of the requested executive summary (as reported at Dkt. No. 100), the motion is denied as moot. (HEREBY ORDERED by Magistrate Judge James L. Cott)(Text Only Order) (Cott, James) (Entered: 03/25/2020)

04/17/2020

102 LETTER MOTION for Extension of Time addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated April 17, 2020. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Blackman, Jonathan) (Entered: 04/17/2020)

04/17/2020

103 ORDER granting 102 Letter Motion for Extension of Time. The Court hereby grants the parties' request. SO ORDERED. (Signed by Judge Alison J. Nathan on 4/17/2020) (ks) (Entered: 04/17/2020)

05/14/2020

104 LETTER MOTION for Conference addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated May 14, 2020. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Attachments: # 1 Exhibit A - Privilege Log, # 2 Exhibit B - Email Chain).(Blackman, Jonathan) (Entered: 05/14/2020)

05/18/2020

105 LETTER MOTION for Extension of Time to File Response/Reply as to 104 LETTER MOTION for Conference addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated May 14, 2020. addressed to Judge Alison J. Nathan from AUSA Tomoko Onozawa dated 5/18/2020. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement..(Onozawa, Tomoko) (Entered: 05/18/2020)

05/18/2020

106 ORDER granting 105 Letter Motion for Extension of Time to File Response/Reply re 104 LETTER MOTION for Conference: SO ORDERED. (Responses due by 5/22/2020.) (Signed by Judge Alison J. Nathan on 5/18/2020) (jwh) (Entered: 05/18/2020)

05/18/2020

107 AMENDED ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non-dispositive pretrial motions, and settlement) and Specific Non-Dispositive Motion/Dispute: Dkt No. 98. Referred to Magistrate Judge James L. Cott. Motions referred to James L. Cott. (Signed by Judge Alison J. Nathan on 5/18/2020) (jwh) (Entered: 05/18/2020)

05/18/2020

MOTIONS REFERRED: 104 LETTER MOTION for Conference: Motions referred to James L. Cott. (jwh) (Entered: 05/18/2020)

05/22/2020

108 LETTER addressed to Magistrate Judge James L. Cott from AUSA Tomoko Onozawa dated 5/22/2020 re: Plaintiffs' letter motion dated May 14, 2020 [Dkt. No. 104]. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E).(Onozawa, Tomoko) (Entered: 05/22/2020)

05/26/2020

109 LETTER addressed to Magistrate Judge James L. Cott from Jonathan I. Blackman dated May 26, 2020 re: Defendants May 22, 2020 letter opposing Plaintiffs May 14, 2020 letter-motion requesting an informal telephonic conference. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Blackman, Jonathan) (Entered: 05/26/2020)

05/29/2020

110 ORDER taking under advisement 104 Motion for Conference. The Court has reviewed the parties' submissions and will hold a telephonic conference on June 8 at 2:30 p.m. The parties should call the Court's conference line at (877) 873-8017, Access Code 5277586, at that time. In advance of the conference, and mindful that the parties have previously engaged in discussions to resolve the pending dispute, the Court hereby directs the parties to make one final attempt to meet and confer to see if they can resolve the issues regarding the so-called Challenged Attachments. As guidance for those discussions, the Court share its preliminary views as follows: it appears to the Court that the spirit of Rule 26 as well as the fact that defendants have already identified and reviewed the documents at issue mitigate against their responsiveness argument and weigh in favor of disclosure (although the Court will certainly give counsel for defendants an opportunity at the conference to argue otherwise). The Court also does not think it likely that the Challenged Attachments would be subject to the work product doctrine because it does not appear that they were prepared in anticipation of litigation, but instead part of a FOIA compilation process. The Court would need to be persuaded that "counsel's thought processes in relation to pending or anticipated litigation will be exposed through disclosure" of the Challenged Attachments. In re Grand Jury Subpoena, 318 F.3d 379, 386 (2d Cir. 2003). (Again, the Court will give counsel for defendants an opportunity to contend otherwise at the conference.). However, the attorney-client privilege invocation appears to be a close question and the Court will otherwise plan to focus primarily on this issue at the conference (assuming the parties have not resolved the dispute). Whether the Challenged Attachments could reasonably be characterized as part of confidential communications regarding legal advice on how to respond to certain FOIA requests presents what defendants themselves call a "unique situation." (HEREBY ORDERED by Magistrate Judge James L. Cott)(Text Only Order) (Cott, James) (Entered: 05/29/2020)

06/08/2020

Minute Entry for proceedings held before Magistrate Judge James L. Cott: Interim Pretrial Conference held on 6/8/2020. (Court Reporter Elena Rich) (ml) (Entered: 06/08/2020)

06/08/2020

111 ORDER taking under advisement 104 Motion for Conference. As discussed at the conference held today, the Court will hold a further conference to address the parties' discovery disputes with respect to the challenged attachments on June 25 at 2:30 p.m. The parties should use the same call-in number as previously provided. In advance of the conference, defendants are to produce a revised privileged log no later than June 15, and advise plaintiffs of their position with respect to the third party attachments, in light of the protective order and the proposed stipulation discussed at today's conference. The parties are then directed to further meet and confer during the week of June 15 to see if they can resolve some or all of the issues with respect to the challenged attachments. If the parties have been unable to resolve their differences, plaintiffs may submit a supplemental letter to the Court by June 19, and defendants may respond by June 23. (HEREBY ORDERED by Magistrate Judge James L. Cott)(Text Only Order) (Cott, James) (Entered: 06/08/2020)

06/11/2020

112 LETTER addressed to Judge Alison J. Nathan from Jonathan I.Blackman dated June 11, 2020 re: pending Motion to Dismiss to inform the Court of a pertinent development in State of New York et al. v. United States Immigration and Customs Enforcement et al.. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Attachments: # 1 Judge Rakoff's Opinion and Order).(Blackman, Jonathan) (Entered: 06/11/2020)

06/18/2020

113 LETTER addressed to Magistrate Judge James L. Cott from Jonathan I. Blackman and Lilia Isobel Toson dated June 18, 2020 re: pending discovery dispute. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Blackman, Jonathan) (Entered: 06/18/2020)

06/18/2020

114 PROPOSED STIPULATION AND ORDER. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Blackman, Jonathan) (Entered: 06/18/2020)

06/19/2020

115 LETTER addressed to Magistrate Judge James L. Cott from Jonathan I. Blackman dated June 19, 2020 re: response to the Court's order at Dkt. No. 111. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Blackman, Jonathan) (Entered: 06/19/2020)

06/23/2020 116 LETTER addressed to Magistrate Judge James L. Cott from AUSA Tomoko Onozawa dated 6/23/2020 re: Plaintiffs' Letter dated June 19,

2020 [ECF No. 115]. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement..(Onozawa, Tomoko) (Entered: 06/23/2020)

06/24/2020

117 STIPULATION AND ORDER: IT IS HEREBY STIPULATED AND AGREED, by and between the parties as follows: 1. Within seven (7) days after the Court has endorsed this Stipulation and Order, and notwithstanding the claimed applicability of the attorney-client and the attorney work-product privileges to those records, ICE will release to Plaintiffs the Challenged Attachments listed in Appendix A (the "Disclosed Documents") and designate them as "Protected Subject to Protective Order." 2. The parties agree that ICE's voluntary release of the Disclosed Documents shall not constitute a waiver of the attorneyclient and the attorney work-product privileges, nor is the voluntary release an admission or concession by ICE that those records are not subject to those privileges in this or any other litigation. 3. Nothing in this Stipulation and Order shall preclude Plaintiffs from offering the Disclosed Documents as evidence in support of a motion or at a trial in this litigation, or from taking the position, advanced in their motion to compel, that the Disclosed Documents are not subject to a valid claim of attorney-client or attorney work-product privilege. (as further set forth herein). SO ORDERED. (Signed by Magistrate Judge James L. Cott on 6/24/2020) (kv) (Entered: 06/24/2020)

06/24/2020

118 ORDER terminating 104 Letter Motion for Conference. By Amended Order of Reference dated May 18, 2020 (Dkt. No. 107), Judge Nathan referred this case to me to resolve the plaintiffs' letter motion regarding a discovery dispute (Dkt. No. 104). In light of the parties stipulation and order, which was so ordered by me today (Dkt. No. 117), and the Government's representation in its June 23 letter (Dkt. No. 116), the dispute has been resolved. Accordingly, the conference scheduled for June 25, 2020 is hereby cancelled and the Clerk of Court is directed to close docket entry 104. SO ORDERED. (Signed by Magistrate Judge James L. Cott on 6/24/2020) (kv) (Entered: 06/24/2020)

09/02/2020

119 LETTER addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated September 2, 2020 re: recent decision in Ryan v. U.S. I.C.E., 19-1838. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Attachments: # 1 Enclosure - September 1, 2020 Decision in Ryan v. U.S. I.C.E., 19-1838).(Blackman, Jonathan) (Entered: 09/02/2020)

09/21/2020 120 NOTICE OF APPEARANCE by Kylie Huff on behalf of John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary

For Families, The Door, Urban Justice Center..(Huff, Kylie) (Entered: 09/21/2020)

09/28/2020

121 OPINION AND ORDER. For the foregoing reasons, Defendants' motion is DENIED as to all but Plaintiffs' Sixth Amendment claim and GRANTED as to Plaintiffs' Sixth Amendment claim. Within seven days of the date of this Opinion and Order, the parties shall meet and confer and submit a joint letter in which they provide a status update and a proposal for next steps in the litigation. This resolves Dkt. No. 63. SO

ORDERED. re: 63 MOTION to Dismiss Complaint filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump. (Signed by Judge Alison J. Nathan on 9/28/2020) (rjm) (Entered: 09/28/2020)

10/05/2020

122 JOINT LETTER addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated October 5, 2020 re: a status update and a proposal for next steps in the litigation. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Blackman, Jonathan) (Entered: 10/05/2020)

10/06/2020

123 MEMO ENDORSEMENT on re: 122 JOINT LETTER addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated October 5, 2020 re: a status update and a proposal for next steps in the litigation. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. ENDORSEMENT: The parties' request to extend the Defendants' time to file the Answer to the Complaint is hereby GRANTED. Defendants shall file their Answer by November 2, 2020. In addition, the Court hereby adopts the parties' proposed schedule on Plaintiffs' Motion to Redact and the parties' Cross-Motions for Summary Judgment. By October 12, 2020, the parties shall indicate whether they believe a post-discovery conference is necessary at this time; if they indicate that they would like to proceed with one, the Court will schedule a conference. SO ORDERED. Matthew T. Albence answer due 11/2/2020; Kevin McAleenan answer due 11/2/2020; Susan Quintana answer due 11/2/2020; Donald J. Trump answer due 11/2/2020; U.S. Department of Homeland Security answer due 11/2/2020; U.S. Immigration and Customs Enforcement answer due 11/2/2020. (Motions due by 10/9/2020. Responses due by 10/14/2020. Replies due by 10/19/2020.) (Signed by Judge Alison J. Nathan on 10/6/2020) (rjm) (Entered: 10/06/2020)

10/08/2020

124 LETTER addressed to Judge Alison J. Nathan from Jonathan I. Blackman dated October 8, 2020 re: post-discovery conference. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Blackman, Jonathan) (Entered: 10/08/2020)

10/09/2020

125 MOTION to Seal /Plaintiffs' Motion to Redact Plaintiff Doe's and NonParty Noncitizens' Personal Identifying Information. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Blackman, Jonathan) (Entered: 10/09/2020)

10/09/2020

126 MEMORANDUM OF LAW in Support re: 125 MOTION to Seal /Plaintiffs' Motion to Redact Plaintiff Doe's and Non-Party Noncitizens' Personal Identifying Information. . Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Blackman, Jonathan) (Entered: 10/09/2020)

10/09/2020

127 DECLARATION of Jonathan I. Blackman, dated October 9, 2020 [REDACTED] in Support re: 125 MOTION to Seal /Plaintiffs' Motion to Redact Plaintiff Doe's and Non-Party Noncitizens' Personal Identifying Information.. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Attachments: # 1 Exhibit 1 PL_DOE_000027, # 2 Exhibit 2 - PL_DOE_000111, # 3 Exhibit 3 PL_DOE_000130, # 4 Exhibit 4 - PL_MRNY_000148, # 5 Exhibit 5 PL_MNRY_000191, # 6 Exhibit 6 - PL_MRNY_000209, # 7 Exhibit 7 - PL_MRNY_000210-11, # 8 Exhibit 8 - PL_MRNY_000239- 41, # 9 Exhibit 9 - PL_MRNY_000336-39, # 10 Exhibit 10 PL_MRNY_000349, # 11 Exhibit 11 - PL_SFF_000144-46, # 12 Exhibit 12 - PL_SFF_000162-63, # 13 Exhibit 13 PL_SFF_000166-70, # 14 Exhibit 14 - PL_SFF_000171-72, # 15 Exhibit 15 - PL_SFF_000184-86, # 16 Exhibit 16 PL_THEDOOR_000150, # 17 Exhibit 17 - PL_THEDOOR_000154, # 18 Exhibit 18 - PL_THEDOOR_000157).(Blackman, Jonathan) (Entered: 10/09/2020)

10/09/2020

128 ***EX-PARTE***DECLARATION of Jonathan I. Blackman, dated October 9, 2020 in Support re: 125 MOTION to Seal /Plaintiffs' Motion to Redact Plaintiff Doe's and Non-Party Noncitizens' Personal Identifying Information.. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. (Attachments: # 1 Exhibit 1 PL_DOE_000027, # 2 Exhibit 2 - PL_DOE_000111, # 3 Exhibit 3 PL_DOE_000130, # 4 Exhibit 4 - PL_MRNY_000148, # 5 Exhibit 5 -

PL_MNRY_000191, # 6 Exhibit 6 - PL_MRNY_000209, # 7 Exhibit 7 - PL_MRNY_000210-11, # 8 Exhibit 8 - PL_MRNY_000239- 41, # 9 Exhibit 9 - PL_MRNY_000336-39, # 10 Exhibit 10 PL_MRNY_000349, # 11 Exhibit 11 - PL_SFF_000144-46, # 12 Exhibit 12 - PL_SFF_000162-63, # 13 Exhibit 13 PL_SFF_000166-70, # 14 Exhibit 14 - PL_SFF_000171-72, # 15 Exhibit 15 - PL_SFF_000184-86, # 16 Exhibit 16 PL_THEDOOR_000150, # 17 Exhibit 17 - PL_THEDOOR_000154, # 18 Exhibit 18 - PL_THEDOOR_000157)Motion or Order to File Under Seal: 125 .(Blackman, Jonathan) (Entered: 10/09/2020)

10/14/2020

129 MEMORANDUM OF LAW in Opposition re: 125 MOTION to Seal /Plaintiffs' Motion to Redact Plaintiff Doe's and Non-Party Noncitizens' Personal Identifying Information. . Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit Letter).(Friedman, Rebecca) (Entered: 10/14/2020)

10/19/2020

130 REPLY MEMORANDUM OF LAW in Support re: 125 MOTION to Seal /Plaintiffs' Motion to Redact Plaintiff Doe's and Non-Party Noncitizens' Personal Identifying Information. . Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Blackman, Jonathan) (Entered: 10/19/2020)

11/02/2020

131 ANSWER to 1 Complaint,. Document filed by Matthew T. Albence, Kevin McAleenan, Susan Quintana, Donald J. Trump, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement..(Friedman, Rebecca) (Entered: 11/02/2020)

12/30/2020 132 INTERNET CITATION NOTE: Material from decision with Internet

citation re: 121 12/30/2020)

Memorandum & Opinion. (sjo) (Entered:

01/19/2021

133 MOTION for Adam J. Riff to Withdraw as Attorney . Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Riff, Adam) (Entered: 01/19/2021)

01/19/2021

134 DECLARATION of Adam J. Riff in Support re: 133 MOTION for Adam J. Riff to Withdraw as Attorney .. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Riff, Adam) (Entered: 01/19/2021)

01/19/2021

135 PROPOSED ORDER FOR WITHDRAWAL OF ATTORNEY. Document filed by John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center. Related Document Number: 133 ..(Riff, Adam) (Entered: 01/19/2021)

01/21/2021

136 ORDER granting 133 Motion to Withdraw as Attorney: Upon the motion for Adam J. Riff for leave to withdraw from this action as counsel for Plaintiffs, IT IS HEREBY ORDERED: The motion is granted. (Attorney Adam Joseph Riff terminated) (Signed by Judge Alison J. Nathan on 1/21/2021) (jwh) (Entered: 01/21/2021)

03/04/2021

137 NOTICE OF APPEARANCE by Jeffrey A. Rosenthal on behalf of John Doe, Make the Road New York, New York Immigration Coalition, Sanctuary For Families, The Door, Urban Justice Center..(Rosenthal, Jeffrey) (Entered: 03/04/2021)

PACER Service Center Transaction Receipt

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04/11/2021 10:05:34

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 Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 1 of 56

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

John Doe; The Door; Make the Road New York; New York Immigration Coalition; Sanctuary for Families; Urban Justice Center,
Plaintiffs,
V.
U.S. Immigration and Customs Enforcement; U.S. Department of Homeland Security; Donald J. Trump, in his official capacity as President of the United States; Kevin McAleenan, in his official capacity as Acting Secretary of Homeland Security; Matthew T. Albence, in his official capacity as U.S. Immigration and Customs Enforcement Deputy Director and Senior Official Performing the Duties of the Director; Susan Quintana, in her official capacity as U.S. Immigration and Customs Enforcement New York Field Office Director,
Defendants.

1 9 C V 8 8 9 2 --:...,,,
Civil Action No. -19"-- " - ~ - - - - - -
JUDGE NATHAN

COMPLAINT FOR DECLARATORY AND INJUNCTIVE !RELIEF Plaintiffs, who need unfettered access to the courts ofNew York State to obtain
relief critical to the safety, economic security and liberty of themselves and their clients, by and through their undersigned counsel, bring this action against Defendants, upon knowledge with respect to themselves and their own acts and upon information and belief with respect to all other
j
matters, and allege as follows: NATURE OF THE ACTION
1. This action challenges, under statutory, constitutional and New York common law, the legality of U.S. Immigration and Customs Enforcement's ("ICE") policy of carrying out
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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 2 of 56
federal immigration arrests ofnoncitizens in and around New York state courthouses without judicial warrants. Instead of abiding by the long-standing history of respecting the sanctity of courthouses as a place where victims of crime, criminal defendants, witnesses and participants in civil court proceedings alike can safely seek justice, Defendants exploit the open access and safety provided in New York State courts for their enforcement activities.
2. ICE abuses the safety and security afforded by state courts for federal immigration enforcement purposes. Despite calls to end this practice from state and local judges, attorneys general and district attorneys, bar associations, legal services providers, public defenders, civil rights groups, anti-violence advocates and legislators, ICE defends this policy, indicating that courthouses are an ideal venue for efficiently and safely arresting noncitizens. ICE has also expressed a retaliatory motive for conducting courthouse arrests in jurisdictions that decline to cooperate with ICE detainer requests.
3. In January 2017, agents ofICE, a sub-agency of the U.S. Department of Homeland Security ("DHS"), began dramatically increasing arrests and surveillance of noncitizens appearing in state courts, departing from a long tradition of recognizing the sanctity of courthouses. In early 2018, ICE issued Directive No. 11072.1, Civil Immigration Enforcement Actions Inside Courthouses (ICE 2007) (the "Courthouse Arrests Directive"), memorializing its courthouse arrest policy and expressly rejecting limitations on its enforcement powers in courthouses. As has been the expected and intended result of this directive, ICE's courthouse arrests have continued. Indeed, the Immigrant Defense Project has documented an
)
increase of 1736% in ICE courthouse enforcement in and around courts in New York from late
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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 3 of 56
2016 to April 10, 2019. 1 Arrests have even continued despite New York State Office of Court Administration's ("OCA") April 18, 2019 issuance of a rule prohibiting ICE courthouse arrests without a judicial warrant in New York State courts.
4. Known victims ofICE's courthouse arrests have included: criminal defendants; parents appearing in child support matters; parents appearing in delinquency matters; survivors of gender-based violence, sexual assault, human trafficking and other crimes. Groups of plainclothes ICE agents use state courts to surveil, identify and even stalk people inside New York State courthouses and their immediate vicinity, and, once apprehended, place them in civil immigration detention and removal proceedings. Since April 2019, for example, ICE officers have made arrests in the immediate vicinity of the criminal courts in Richmond, Queens and New York Counties. Other times, ICE officers have arrested people waiting to appear before a judge, or, after identifying specific immigrants inside the courthouse, have followed them and immediately arrested them outside of the courthouse. In none of these cases was a judicial warrant tendered.2 Other immigrants have been forcibly removed from the state court process while in court. At times, removals by plain-clothes ICE agents are so aggressive that bystanders believe they have witnessed a kidnapping.3
5. Forcibly prevented from continuing to participate in the court process and denied access to their lawyers, arrested individuals are unable to return to New York state and other courts, which is highly prejudicial to their ability to participate in court proceedings to vindicate their legal rights.
1 Immigrant Defense Project, Safeguarding the Integrity ofOur Courts: The Impact ofJee Courthouse Operations in New York State 46-47 (Apr. JO, 2019), https:/lwww.immigrantdefenseproject.org/wp-content/uploads/Safeguardingthe-lntegrity-of-Our-Courts-Final-Report.pdf 2 Id. at 46-47. 3 Id. at 46.
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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 4 of 56

6.

In addition to individuals forcibly taken from court, others never make it to court.

ICE's courthouse arrests have been widely publicized and are well-known across New York

State, including within immigrant communities, creating an atmosphere of fear that has had the

effect of keeping countless noncitizens from accessing New York State courts both affirmatively

and defensively. Some decline to continue to participate in an ongoing case, and others are

afraid to seek relief altogether. For example, in many cases, the only way for a noncitizen to

obtain lawful status or for a victim of abuse to obtain protection is through participation in state

court proceedings. ICE's courthouse arrest policy dissuades individuals, including the individual

plaintiff in this action, from doing just that.

7. Access to justice has a central importance in our legal system, as reflected in the

protections guaranteed under the First, Fifth, and Sixth Amendments of the U.S. Constitution.

New York courts have designated courthouses as protective spaces through the application of the

common law privilege from civil arrest, and New York court officials expend resources to ensure

that all of its residents-including noncitizens-are safe coming to court. Access to courts is not

only an important legal value but also a practical right, as our criminal and civil legal systems are

structured around the assumption that individuals will be able to access the courts without

fear. These systems include our immigration system: the Immigration and Nationality Act

("INA") sets forth immigration benefits and grounds for deportation that depend on access to

state criminal and civil courts to function effectively. And historically, immigration authorities

recognized that courts are sensitive places for purposes of conducting immigration enforcement;

until the last two years, DHS's predecessor agency the Immigration and Naturalization Service

("INS"), later followed by ICE, generally stayed out of courts and issued policies specifically

recognizing their special function in American life.

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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 5 of 56
8. In the Courthouse Arrests Directive, ICE claims that its policy to engage in enforcement actions in and around state courts is a response to the decision of states like New York not to honor ICE detainer requests, a "rationale" belied by the fact that ICE arrests noncitizens from courthouses in counties that do honor ICE detainers. This is not a wellreasoned rationale for adopting this policy, and there is no evidence that Defendants gave any meaningful thought to the impact that courthouse arrests have on the ability of litigants-citizen and noncitizen-to exercise their Constitutional and statutory rights in New York State courts. In particular, Defendants ignore how ICE courthouse arrests undermine Congress's clear intent to afford non-citizens the ability to appear in state courts, unfettered by fear of arrest, to pursue forms of immigration relief that require participation in state court proceedings. Such forms of relief include, but are not limited to, U and T nonimmigrant visas, relief under the Violence Against Women Act ("VAWA"), and Special Immigration Juvenile Status ("SUS"). Defendants also did not consider how ICE courthouse arrests delay immigration court proceedings for noncitizens facing criminal charges who need access to state courts to defend themselves and resolve outstanding matters.
9. ICE's conduct-including its adoption of a policy that deliberately makes civil immigration arrests of state court participants - violates the many constitutional protections that relate to access to courts and justice, as well as the New York common law immunity for civil arrest afforded to court participants. Furthermore, by disregarding these legal protections, and by ignoring the ways in which obstructing court access undermines other important policy objectives, ICE is acting contrary to the INA and in a manner that is arbitrary and capricious.
10. As a result of Defendants' policy of arresting noncitizens in and around New York State courts, Defendants have violated and continue to violate Plaintiffs' federal statutory
5

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 6 of 56
and constitutional, and New York common law, rights. Plaintiffs seek injunctive and declaratory relief against ICE's unlawful and unconstitutional policy of surveilling and arresting noncitizens while they are corning to, attending and returning from court. The policy should also be set aside under the Administrative Procedure Act becau~e it is arbitrary and capricious and violates federal law.
11. In addition, Plaintiffs seek an award of attorneys' fees and costs and such other relief as this Court deems equitable and just.
JURISDICTION AND VENUE 12. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 over the Plaintiffs' claims under the U.S. Constitution and federal law, and has supplemental jurisdiction over claims arising under New York state law. The United States has waived sovereign immunity for purposes of this case pursuant to 5 U.S.C. § 702. 13. The declaratory and injunctive relief that Plaintiffs seek is authorized under 28 U.S.C. §§ 2201 and 2202. 14. Venue is proper in the district under 28 U.S.C. §§ 1391(b)(2) and (e)(l) because Defendants are officers or employees of the United States acting in their official capacities and agencies of the United States, a substantial part of the acts or omissions giving rise to this Complaint arose from events occurring within this judicial district, and Plaintiffs Make the Road New York, Urban Justice Center, Sanctuary for Families, The Door and New York Immigration Coalition have their principal places of business in this district. 15. The Court has the authority to provide the reliefrequested under 28 U.S.C. §§ 1651, 2201 and 2202, and its inherent equitable powers.
6
)

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 7 of 56
PARTIES Individual Plaintiff
16. Plaintiff John Doe is a citizen of both Venezuela and Spain. Mr. Doe came to the United States approximately four years ago and has resided in New York City ever since. He does not currently have lawful immigration status in the United States. Although he is in need of an order of protection against his abusive former partner, he has not commenced an action in New York State family court for an ex parte order of protection because he fears being arrested by ICE when appearing in court. Organizational Plaintiffs
17. Plaintiff Make the Road New York ("MRNY") is an association of approximately 23,000 immigrant members residing in New York City, Long Island and Westchester County and is dedicated to building the power of immigrant, Latinx and working-class communities in New York to achieve dignity and justice. MRNY has offices in Brooklyn, Queens, Staten Island, Suffolk County and Westchester County. MRNY brings this action on behalf of itself, a nonprofit, membership-based§ 501(c)(3) organization.
18. MRNY' s staff includes lawyers, community organizers, health advocates and adult literacy professionals, among others. MRNY integrates adult and youth education, legal and survival services and community and civic engagement in order to support low-income New Yorkers in improving their own lives and neighborhoods.
19. MRNY has a legal department staffed by approximately twenty-eight attorneys and nineteen advocates and paralegals who provide a broad range of civil legal services to immigrant New Yorkers. MRNY' s immigration legal team represents immigrants facing deportation as well as immigrants filing affirmative applications for immigration benefits, such as T and U Visas, Violence Against Women Act ("VAWA") self-petitions, asylum, Deferred
7

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 8 of 56
Action for Childhood Arrivals ("DACA") renewals, hardship waivers, adjustment of status, SIJS applications and naturalization. MRNY' s organizers counsel and advocate for families affected by ICE enforcement activities including enforcement activities in and in close proximity to courthouses.
20. Plaintiff Urban Justice Center ("UJC") is a social justice advocacy organization that represents clients in family, civil and immigration proceedings in New York State and before the federal agencies and courts. Its principal place of business is in Manhattan, but it also provides on-site services to victims of family-based violence and trafficking in the City-run Family Justice Center in Queens, which is located a block from the Queens county criminal court. UJC brings this action on behalf of itself, a nonprofit,§ 501(c)(3) organization, and on behalf of its clients.
21. UJC also engages in systematic advocacy, community education and political organizing. Approximately 35-40% ofUJC's clients are noncitizens.
22. UJC is composed of thirteen distinct Projects, which support clients in the areas of tenants' rights and housing justice, immigrants' rights and workers' rights, among others. UJC also provides extensive civil legal representation and clinical services to victims of domestic violence and human trafficking. UJC's staff includes attorneys, community organizers, social workers, researchers and policy analysts.
23. Plaintiff Sanctuary for Families ("SFF") is New York's largest dedicated service provider and advocate for adult and child survivors of domestic violence, sex trafficking and related forms of gender violence. Its principal place of business is in Manhattan. SFF brings this action on behalf of itself, a nonprofit, § 501 (c)(3) organization, and on behalf of its clients.
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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 9 of 56
24. Seventy-five percent of SFF clients are immigrants, and of those, many are either undocumented or partially documented. SFF staff communicate with clients in over thirty languages in eleven locations throughout New York City, including New York City-run Family Justice Centers located in proximity to various state courts.
25. Each year, SFF provides legal, clinical, shelter and economic empowerment services to approximately 15,000 survivors and their children. SFF employs 50 attorneys and an additional 30 staff members who work exclusively with survivors of domestic violence, sex trafficking and other forms of gender violence. SFF provides direct representation to survivors in connection with a number of legal needs, including immigration, family court and housing court matters.
26. SFF provides training and engages in outreach and advocacy on issues related to domestic violence and sex trafficking to community advocates, pro bono attorneys, law students, service providers and the judiciary. SFF also advocates for policies and legislation around issues affecting survivors of domestic violence and sex trafficking.
27. Plaintiff The Door is an organization that provides comprehensive youth development services in the New York City area. Among other services, including family law, public benefits and landlord-tenant law, The Door represents young people in immigration matters, including direct representation of clients applying for special immigrant juvenile status ("SIJS"), asylum, U and T visas and other forms of humanitarian relief, and one of its core missions is to obtain lawful immigration status and a pathway to permanent residency and
)
citizenship for young immigrants in New York City and the surrounding areas. Its principal place of business is in Manhattan. The Door brings this action on behalf of itself, a nonprofit, § 501(c)(3) organization, and on behalf of its clients.
9

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 10 of 56

28. The Door's Legal Services Center provided services for 1,173 clients in 2017, 915

of whom were immigrants. In 2018, 793 of Legal Services Center's 1,067 clients were

immigrants. Most of the Door's clients are low-income and do not speak English, making it

extremely difficult for them to sue on their own behalf. The Door has represented children in

SUS applications for more than 20 years.

29. PlaintiffNew York Immigration Coalition (''NYIC") is an umbrella policy and

advocacy organization that represents more than 200 immigrant and refugee rights groups in

New York State. NYIC's mission is to unite immigrants, members and allies so all New Yorkers

can thrive. NYIC's principal place of business is 131 West 33rd St., New York, NY 10001.

30. NYIC serves as an advocate for laws, policies and programs that support all

immigrant groups and give them access to justice and opportunity. NYIC consists of more than

200 dues-paying 501(c)(3) nonprofit organizations committed to immigrants' rights work.

NYIC's members are located both in and out of New York State. The organizations include

grassroots community groups, social services providers, large-scale labor and academic

institutions and organizations working toward economic, social and racial justice. Many NYIC

member organizations receive funding from the local, state and federal government in order to

provide social service, health and education programs.

'_/

31. Organizational Plaintiffs MRNY, UJC, SFF, The Door and NYIC have each

expended significant resources to mitigate the institutional and individual harms caused by ICE's

courthouse arrests. As set forth below, they have spent considerable time and resources training
_)
and preparing their staff to advise clients and members about, and how to manage, the

consequences ofICE's courthouse arrests. Organizational Plaintiffs have also been involved in

_J

developing and providing community trainings for vulnerable noncitizen groups that fear and/or

10

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 11 of 56
"'1

are at risk of arrest by ICE. ICE's courthouse arrest policy has also rendered Organizational

Plaintiffs' direct representation of their clients much more difficult by requiring them to spend

time advising and counseling about the risks of courthouse apprehensions, time that would

otherwise be spent on addressing substantive legal issues; making it difficult to meet with clients

due to their fear of appearing at or near courthouses; and limiting the options of clients for

certain types ofjudicial and immigration relief that require appearances in court. This policy

thus harms the missions and operations of Organizational Plaintiffs in myriad ways, as well as

the interests oftheir clients and members.

Defendants 32. Defendant Donald J. Trump is the President of the United States. He is sued in

his official capacity.

33. Defendant Kevin McAleenan is the Acting Secretary of Homeland Security. He

is sued in his official capacity.

34. Matthew T. Albence is the Acting Director of U.S. Immigration and Customs

Enforcement. He is sued in his official capacity.

35. Susan Quintana is the New York Field Office Director of U.S. Immigration and

Customs Enforcement. She is sued in her official capacity.

36. Defendant U.S. Department of Homeland Security ("DHS") is a cabinet

department of the United States federal government. Its mandate includes the administration of

the interior enforcement provisions of the Nation's immigration laws. DHS developed the
)
Administration's policy on courthouse arrests and publicly released a memorandum describing

the policy. Agents ofDHS execute courthouse arrests in the courts ofNew York.

_.)

37. Defendant U.S. Immigration and Customs Enforcement is a sub-agency ofDHS.

Its mandate is the administration of the interior enforcement provisions of the Nation's 11

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 12 of 56
immigration laws. Agents of ICE execute courthouse arrests in New York courts and in close proximity thereto.
LEGAL FRAMEWORK I. Fundamental Constitutional and Common Law Rights to Access State Courts.
38. Numerous provisions of the U.S. Constitution safeguard access to the courts for U.S. citizens and non-citizens alike:
a. The Due Process Clause of the Fifth Amendment of the U.S. Constitution forbids the federal government from depriving an individual of life, liberty or property without due process of law. Due process includes the right to access state courts and to participate in state court proceedings as a witness, party or complainant;
b. The Petition Clause of the First Amendment to the U.S. Constitution guarantees the right of petition, which includes the right to petition the Government for a redress of grievances. This right to petition includes right to access state courts and to participate in state court proceedings as a witness, party or complainant;
c. The Sixth Amendment to the U.S. Constitution guarantees defendants in criminal prosecutions the right to a speedy and public trial, compulsory process, assistance of counsel and to be confronted with witnesses against them.
39. Aside from these constitutional protections, New York courts have recognized a common law privilege of immunity from civil arrest in and around courthouses for over 100 years as an essential element of access to justice. See, e.g., Parker v. Marco, 136 N.Y. 585, 589 (1893) (the common law immunity is not "simply a personal privilege, but it is also a privilege of the court, and is deemed necessary for the maintenance of its authority and dignity and in order to promote the due and efficient administration ofjustice."); Person v. Grier, 66 N.Y. 124, 125 (N.Y. 1876) ("It is the policy of the law to protect suitors and witnesses from arrests upon civil process while coming to and attending the court and while returning home."). See also Stewart v. Ramsay, 242 U.S. 128, 130 (1916) ("Courts ofjustice ought everywhere to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them") (internal citation and quotations omitted).
12

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 13 of 56

II. Authority for Federal Immigration Enforcement. 40. The Immigration and Naturalization Act, 8 U.S.C. §§ 1101 et seq., as amended

("INA") authorizes civil immigration arrests and governs removal proceedings. Pursuant to 8

U.S.C. § 1357(a)(2), ICE may detain an alien without a warrant ifICE has "reason to believe that

the alien ... is in the United States in violation of any [immigration] law or regulation and is

likely to escape before a warrant can be obtained for his arrest." DHS has promulgated

regulations that govern its enforcement activities. See, e.g., 8 C.F.R. §§ 287.1-12.

41. The statute thus gives the government the same type of civil-arrest authority that

had historically been used to institute civil proceedings. See INS v. Lopez-Mendoza, 468 U.S.

1032, 1038 (1984) ("A deportation proceeding is a purely civil action to determine eligibility to

remain in this country"). The statute today, as in 1952, when it was enacted, gives no indication

that the authority Congress granted differs in any way from the civil-arrest authority that existed
.)
at common law-including the limitation privileging those attending court on official business

from civil courthouse arrest.

)

42. Soon after his inauguration as President, Donald Trump issued Executive Order

13,768, entitled "Enhancing Public Safety in the Interior of the United States" ("EO 13,768").

EO 13,768 abandoned deportation prioritization programs employed by both the George W.

Bush and Obama administrations, and called instead for the deportation of any and all deportable

people from the United States (over12 million human beings), and a near-tripling ofICE's

deportation force. EO 13,768 encouraged ICE and U.S. Customs and Border Protection ("CBP")
\ j
agents to engage in immigration enforcement against noncitizens who "[in] the judgment of an

immigration officer, otherwise pose a risk to public safety or national security." EO 13,768 is

.J

silent as to process, supervisor review or judicial review for these enforcement decisions. EO

13,768 was implemented on February 20, 2017 in a DHS memorandum. 13

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 14 of 56

III. Congressional Limits on Federal linmigration Enforcement Activities.

~I

43. In the INA, Congress grants authority to Defendants to pursue immigration

enforcement. But equally important, the INA's statutory scheme limits Defendants' enforcem~nt

authority. The immigration system established under the INA- both the affirmative benefits

available to obtain lawful status and the removal process - depends in large part on unfettered

noncitizen access to state courts.

44. Congress has designated state courts to play a critical role in establishing

eligibility for various affirmative immigration benefits through several provisions ofthe INA

added by both VAWA and the William Wilberforce Trafficking Victims Protection

)

Reauthorization Act ("TVPRA").

45. VAWA was originally enacted in 1994 to address congressional concerns about

violent crime, and violence against women in particular. VAWA affords benefits to abused
)
foreign nationals and allow them to obtain lawful status independently of the U.S. citizen or legal

permanent resident ("LPR") relatives who originally sponsored them. In enacting VAWA,

)

Congress recognized that cooperation between noncitizen survivors of violence and law

enforcement is critical in prosecuting violent crime. See, e.g., Violence Against Women:

Fighting the Fear Before the Comm. on the Judiciary, 103r<lcong. 4 (1993) (statement of Sen.

)

William S. Cohen) ("The Violence Against Women Act, is designed to both increase public

awareness of the magnitude of the problem and also to enhance law enforcement and prevention

efforts").
)
46. 8 U.S.C. § 1101(a)(51) affords victims and survivors of intimate partner violence

committed by a U.S. citizen or LPR spouse or parent the ability to petition for their own

J

immigration status relief under VAWA (known as a "VAWA self-petition"). 8 U.S.C.

§ 1186a(c) enables noncitizens with conditional LPR status to apply to remove the conditions on 14

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 15 of 56
their immigration status without the assistance of their spouse through a battered spouse waiver, evidence in support of which may include court documents demonstrating battery or extreme cruelty by an applicant's spouse. However, this form of relief relies upon safe passage through the state courts: obtaining a family court or criminal court order of protection against an abuser is often a prerequisite to making a VAWA self-petition. Now, due to fears of an immigration arrest in state court, survivors eligible for relief under 8 U.S.C. § 1101(a)(51) or 8 U.S.C. § 1186a(c) cannot safely separate from their abusive partners and seek family law and immigration legal assistance.
47. ICE's actions are directly at odds with VAWA, created to enable survivors to pursue legal remedies outside of an abusive relationship without fear ofjeopardizing their legal status. Congress passed VAWA, in part, to "increase the availability of legal assistance necessary to provide effective aid to victims of domestic violence, stalking or sexual assault who are seeking relief in legal matters arising as a consequence of that abuse or violence, at minimal or no cost to the victims." H.R. Conf. Rep. 106-939. Legal assistance includes assistance in immigration matters, protection or stay away order proceedings and other similar matters. H.R. Conf. Rep. 106-939. By arresting survivors at courthouses, ICE violates the basic purpose of VAWA, both by scaring immigrants away from courthouses and by inhibiting the delivery of legal assistance to survivors.
48. Moreover, pursuant to 8 U.S.C. § 1186a(c), noncitizens with conditional LPR status who are victims of gender-based violence perpetrated by a U.S. citizen or LPR spouse can apply to remove the conditions on their immigration status without the assistance of their spouse through a battered spouse waiver, evidence in support of which may include court documents demonstrating battery or extreme cruelty by an applicant's spouse.
15

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49. ICE's courthouse arrest policy also conflicts with the implementation, and undermines the effectiveness, of other provisions of VAWA. The Victims of Trafficking and Violence Protection Act of 2000 ("TVPA"), attached as an amendment to VAWA in 2013, created distinct paths to lawful immigration status for victims of crime and human trafficking who assist law enforcement.
50. In particular, 8 U.S.C. § l 101(a)(15) (U) establishes U Visas as a category of immigration benefit for victims of crime who cooperate with law enforcement. Cooperating with law enforcement typically requires appearances in state criminal or family court. In passing this provision, Congress intended to incentivize immigrants to participate in criminal investigations and prosecutions. Without unfettered access to state courts, many U visa applicants cannot establish their eligibility for statutory relief.
51. In addition, 8 U.S.C. § 1101(a)(15)(T) establishes T Visa status for victims of human trafficking. Victims of trafficking are often arrested and face criminal charges for activities they are forced to do by their traffickers. In those cases, arrest represents the beginning of a path to escape from traffickers and connection with social and legal services, including immigration counsel. If people eligible for T Visas are unable to appear in criminal court, they will struggle to obtain T Visas and the criminal operations of traffickers cannot be exposed.
)
52. 8 U.S.C. § 1101(a)(27)(J), added through the TVPRA of2008 and amended in 2013, establishes SUS, a form of humanitarian immigration relief for which certain vulnerable young people are eligible. Obtaining SUS is conditioned upon having a state family court order
)
that makes certain findings about a juvenile's family and custodial situation and his or her inability to return to his or her country of origin. Young people unable to appear in state court cannot obtain SUS. 8 U.S.C. § 1101(a)(27)(J)(i)-(ii).
16

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53. ICE has directly acknowledged the limitations proscribed by Congress on its

removal authority. ICE Directive No. 10036.1, issued on January 22, 2007, describes the

background of VAWA and status and recognizes courthouses as "sensitive locations" similar to

domestic violence shelters, rape crisis centers and other similar settings, and requires

"certificates of compliance" with certain procedures from ICE officers who seek to conduct

enforcement activities in such locations. Specifically, the directive states:

The certificate of compliance requirements reflects congressional intent that ICE proceed cautiously when making an arrest or otherwise physically encountering an alien at one of the sensitive locations without objective evidence that the alien is in the United States in violation of the immigration laws and that victims of battery, abuse, trafficking, and extreme cruelty be protected.

(emphasis added).4

54. Before the Trump Administration took office in January 2017, Congressional

protections of victims and survivors limited ICE enforcement against them. Since January 2017,

as set forth in this Complaint, ICE enforcement has taken place in family courts, human

trafficking courts and criminal courts.

)

IV. New York State and Local Laws Protect Noncitizens' Access to Public Services and

Limit Federal Immigration Enforcement Activities.

55. Immigrants have long been an essential part of the social fabric ofNew York

State. As of 2014, New York State was home to nearly 4.4 million immigrants, composing

4

See also Memorandum from John Morton to Field Office Directors et al. (Oct. 24, 2011) (on file with ICE),

http://www.ice.gov/doclib/ero-outreach/pdf/10029.2-policy.pdf(directing ICE to continue to preserve potential

)

VAWA applicants' access to the courts specifically and defining "sensitive locations" using a non-exhaustive list

that should be read to encompass state courts and notes specifically that ''particular care should be exercised with

any organization assisting children, pregnant women, victims of crime or abuse, or individuals with significant

mental or physical disabilities."); Memorandum from David Aguilar to Assistance Commissioner, Office ofAir and

Marine et al. (Jan. 18, 2013) (on file with FOIA Library), https://foiarr.cbp.gov/streamingWord.asp?i=1251

(describing and providing a non-exhaustive list of certain "community locations" as locations where ICE supervisors

should "consider alternative measures that could achieve the enforcement objective without causing significant

disruption to the normal activities or operations at the identified location" and instructing ICE agents to seek

guidance if an enforcement action is planned near a location "not specifically listed above but that may be similar in

nature, description, or function" to those locations listed therein).

17

)

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 18 of 56
approximately 22% ofthe State's total population, second only to California. In New York City alone, over 35% ofthe population consisted of immigrants in 2014 and almost a third of American-born children have at least one parent who is foreign-born.
56. New York has long recognized that, given the size and economic contribution of the noncitizen population, including undocumented immigrants, noncitizens must be able to safely report crimes and rely on law enforcement. In New York City, the last five mayoral administrations have implemented and/or upheld policies that limit civil immigration enforcement in connection with municipal functions and services, and in particular public safety functions and services. These policies were adopted in recognition ofthe fact that such policies preserve the health, education and safety of all New Yorkers. For instance, Executive Orders 34 and 41, adopted in 2003 and still in effect today, promote access to City services for all immigrants, including undocumented immigrants, by requiring City employees to protect the confidentiality of a person's immigration status and other kinds of personal information. There are also several City policies and laws that require City agencies providing direct public services to provide meaningful translation services and language access to accommodate immigrant populations.
57. New York State has likewise adopted policies designed to protect the ability of all immigrants to participate in public life, including participation in state courts. In April 2018, Governor Andrew Cuomo expanded Executive Order No. 170 through Executive Order 170.1 to increase protections against civil immigration arrests in state facilities and to prohibit state agencies from inquiring about individuals' immigration status. In taking this action, Governor
_)
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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 19 of 56
Cuomo stated, "The reckless and unconstitutional practices ICE is deploying in our communities violate everything we believe in New York and are an assault on our democracy."5
58. On April 17, 2019, the OCA promulgated Directive No. 1-2019, which requires ICE agents to provide federally issued warrants or judicial orders in order to execute arrests inside New York State courthouses. Despite affirmative actions taken by New York State to protect unfettered access to its courts, ICE agents have arrested noncitizen litigants in the immediate vicinity ofNew York State courthouses without judicial warrants since the OCA Directive was issued.
SUBSTANTIVE ALLEGATIONS I. ICE's Courthouse Arrests Are Blunt, Dangerous and Illegal Tools in its Unbridled
Immigration Enforcement Efforts. 59. President Trump has publicly and frequently spoken about his administration's goal of conducting mass deportations of immigrants who are removable from the United States, including through an expansion ofICE and CBP, the agencies primarily responsible for immigration enforcement and deportation. EO 13,768 and the February 20, 2017 DHS memorandum implemented this goal by simply prioritizing the removal of any and all noncitizens who may be removable for any reason. At the time EO 13,768 was issued, the federal government recognized that in order to carry out this substantial increase in immigration enforcement activities, it would be required to also increase federal resources devoted to immigration enforcement, including a near-tripling ofICE's capacity. 60. In early 2017, as part of its efforts to execute the Trump administration's broad deportation agenda, ICE greatly expanded its surveillance and arrests of noncitizens in and

5

Governor's Press Office, "Governor Cuomo Issues Cease and Desist Letter to ICE" (Apr. 25, 2018),

https://www.governor.ny.gov/news/governor-cuomo-issues-cease-and-desist-letter-ice.

19

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 20 of 56
around state courthouses through a civil arrest process largely devoid ofjudicial warrants, officers who identify themselves, and other law enforcement norms. The frequency of these arrests has escalated since President Trump's inauguration and has now become a regular occurrence in New York State, creating widespread fear among noncitizens in New York and beyond. This federal policy abuses state courts and commandeers state court resources to carry out federal immigration enforcement activities.
61. After legal practitioners, judges and communities around the country began speaking out against the increase in ICE's courthouse arrests, the Trump Administration made several public statements in defense ofICE's surveillance and arrest of immigrants in and around state courthouses. For instance, on March 29, 2017, then Homeland Security Secretary John Kelly and Attorney General Jefferson Sessions sent an open to letter to Hon. Tani G. CantilSakauye, Chief Judge of the California Supreme Court, defending ICE's policy of conducting courthouse arrests and stating adamantly that ICE would continue these operations. In this letter, they admitted that conducting immigration enforcement activities in state courthouses used the state's resources for the benefit of the federal government and was therefore an efficient and effective way to make civil immigration arrests: "[b]ecause courthouse visitors are typically screened upon entry to search for weapons and other contraband, the safety risks for the arresting [ICE] officers and persons being arrested are substantially decreased."6
62. On April 4, 2017, a DHS spokesperson announced publicly that ICE agents would continue to arrest individuals attending court, including witnesses and victims: "Just because they're a victim in a certain case does not mean there's not something in their background that
6 Letter from John Kelly, Homeland Security Secretary, and Jefferson Sessions, Att'y Gen., to Hon. Tani G. Cantil-Sakauye, Chief Judge, Cal. Supreme Court (March 29, 2017), https://www.politico.com/£'?id=OOOOO l 5b-23c8-d874-addf-33e83a8c0001.
20

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 21 of 56
could cause them to be a removable alien[.] Just because they're a witness doesn't mean they might not pose a security threat for other reasons."7 Notably, this statement was made after a survivor of gender-based violence in Texas, who had just received an order of protection from the court, was arrested by ICE in a state courthouse. DHS and other Trump Administration officials have continued to make similar public remarks, culminating in the release of the written memorialization of their policy on courthouse raids on January 10, 2018. II. ICE Memorialized its Illegal Courthouse Arrest Policy in the January 10, 2018
Directive. 63. On January 10, 2018, DHS released the Courthouse Arrests Directive, an internal operating memorandum issued to its agents regarding its policy on courthouse arrests and raids. The Courthouse Arrests Directive instructs ICE agents to continue to conduct surveillance and arrest operations against those coming to, attending, and leaving state courts. 64. While this Directive ostensibly sets parameters for ICE's courthouse arrests, it merely cross-references back to the wide-ranging, undefined and unsupervised discretion set forth in EO 13,768 and other immigration-related Executive Orders issued by the Trump Administration. The Directive ultimately places no restrictions on the courts ICE agents may enter or the types of court proceedings the agents may disrupt for purposes of making civil immigration arrests. 65. In particular, the Directive states that ICE civil immigration enforcement actions "inside courthouses include actions against specific, targeted aliens with criminal convictions, gang members, national security or public safety threats, [etc.] when ICE officers or agents have
7 Devlin Barrett, DHS:Immigration Agents may Arrest Crime Victims, Witnesses at Courthouses, Wash. Post (April 4, 2017), https://www.washingtonpost.com/world/national-security/dhsimmigration-agents-mayarrest-crime-victims-witnesses-at-courthouses/2017/04/04/3956e6d8-196d-l le79887Ia5314b56a08_story.html?utm_term=.d3cbacf93414.
21

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 22 of 56
information that leads them to believe the targeted aliens are present at that specific location."8 However, it is not limited to those categories of person. The Directive further provides that "[a]liens encountered during a civil immigration enforcement action inside a courthouse" who are not "target alien[s] ...will not be subject to ... enforcement action, absent special circumstances,'' (emphasis added), but does not define or give any parameters whatsoever to what constitute "special circumstances."9
66. The Directive further states that "ICE officers and agents should generally avoid enforcement actions in courthouses, or areas within courthouses that are dedicated to noncriminal (e.g., family court, small claims court) proceedings" and that "[w]hen practicable" ICE agents will seek to "minimize their impact on court proceedings," but contains no specific procedures or guidance for doing so. 10 Indeed, in ICE's Frequently Asked Questions on courthouse arrests-which is structured as questions followed by ICE's responses-one of the eight questions asked is: "Is there any place in a courthouse where enforcement will not occur?" ICE replies neither "yes" nor "no."11 Instead, the memorandum specifically instructs agents to use "the court building's non-public entrances and exits[,]" and to work in "collaboration with [State] court security staff."12
67. The Courthouse Arrests Directive formalizes the Trump Administration's policy that ICE use state courthouses to arrest anyone suspected of a civil immigration violationincluding criminal defendants, victims, witnesses and parties to civil proceedings. However, because Congress never abrogated the longstanding and well-settled common-law privilege
8 Directive No. 11072.1, Civil Immigration Enforcement Actions Inside Courthouses at 1 (ICE 2007), https://www.ice.gov/sites/default/files/documents/Document/2018/ciEnforcementActionsCourthouses.pdf 9 Id. at 1. 10 Id. at 1-2 11 U.S. Immigration and Customs Enf't, FAQ on Sensitive Locations and Courthouse Arrests, https://www.ice.gov/ero/enforcement/sensitive-loc (last updated Sept. 25, 2018). 12 Id.
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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 23 of 56
against such arrests. Congress never authorized ICE to conduct civil courthouse arrests. The INA does not grant the federal government the authority to conduct civil courthouse arrests in violation of the common-law privilege, and so ICE's policy of conducting such arrests exceeds ICE's statutory authority.
68. Moreover, ICE's policy is fundamentally inconsistent with the statutory scheme for ICE's enforcement activities and ICE's own prior policies, which intended that ICE exercise caution when carrying out enforcement activities at sensitive locations and that ICE be constrained in carrying out enforcement activities of vulnerable persons, including victims and survivors of abuse and trafficking. These policy objectives are not reflected or adhered to in the text of the Courthouse Arrests Directive or the manner in which ICE has carried out courthouse arrests since the beginning of 2017. Instead, victims of abuse and trafficking, including Mr. Doe and clients and members of Organizational Plaintiffs, are effectively kept out ofNew York state courts and chilled from seeking protections as a result ofICE's courthouse arrest policy and its failure to abide by the clear congressional mandate. III. State and Federal Legal and Law Enforcement Officers Publicly Criticize ICE's
Courthouse Arrest Policy 69. On December 12, 2018, a group of 68 former state and federal judges from 23 states issued a letter to ICE's acting director, urging ICE to explicitly add courthouses to its list of "sensitive locations" where immigration enforcement efforts by the agency are generally barred. This letter cited myriad ways in which ICE's courthouse arrests impede the effective administration ofjustice and make noncitizens fearful of appearing in court, thereby rendering them vulnerable to exploitation and making communities less safe overall. 13 The letter stated
13 Letter from Wallace B. Jefferson, Chief Justice of the Supreme Court of Texas, et al., to Ronald D. Vitiello, Acting Director ofU.S. Immigration and Customs Enforcement (Dec. 12, 2018), https://www.scribd.com/document/3 95488473/Letter-From-Former-Judges-Courthouse-Immigration-Arrests.
23

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 24 of 56
"Li]udges simply cannot do their jobs-and our justice system cannot function effectively-if
victims, defendants, witnesses, and family members do not feel secure in accessing the
courthouse... ICE's reliance on immigration arrests in courthouses instills fear in clients and
deters them from seeking justice in a court building."14
70. Two members of this group--Judge Jonathan Lippman, former Chief Judge of the
New York Court of Appeals, and Wallace B. Jefferson, former Chief Justice of the Supreme
Court of Texas-reiterated their objections to ICE's courthouse arrest practices in a December
19, 2018 article in The Hill newspaper, stating:
When fear limits access to courts, public safety is imperiled. Our legal system must guarantee that people seeking or aiding justice will not be discouraged from petitioning the courts. Courthouse arrests also make justice more difficult to administer. .. Safe admittance to courthouse[s] preserves justice. As chiefjudges for our states, we worked hard to achieve that goal. For many, access to our justice system is now in doubt because ofICE's courthouse arrests. Without a shared understanding that everyone may access courts without fear, public safety is compromised, and our democracy's guarantees are unfulfilled. 15 71. State district attorneys and attorneys general have likewise publicly rebuked ICE
for preying on immigrants in and around state courts, and have pointed to the threat to the
administration ofjustice and to public safety, and the broad disruption to the functioning of the
courts. In February 2018, the Manhattan, Brooklyn and Bronx District Attorneys jointly
appeared at a press conference to implore ICE to stop arresting noncitizens in New York State
courthouses. Brooklyn District Attorney Eric Gonzalez said that ICE courthouse arrests do "not
keep us safe."16 They "jeopardize[] public safety."17 This group also cited the chilling effect of
14 Id 15 Jonathan Lippman & Wallace B. Jefferson, ICE Director Should Make Courthouses Safe for All, The Hill (Dec. 19, 2018), https://thehill.com/opinion/immigration/421899-ice-director-should-make-courthouses-safe-for-all. 16 Erin Durkin, City DAs Plead with ICE to Stop Arresting Immigrants at NYC Courthouses: 'It Jeopardizes Public Safety', New York Daily News (Feb. 14, 2018), http://www.nydailynews.com/new-york/city-das-press-ice-stoparresting-immigrants-courthouses-article-1.3 820798. 11 Id
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ICE courthouse arrests on witnesses' willingness to come forward, with Manhattan District Attorney Cy Vance explaining that because noncitizens cannot appear in New York state courts "without fear of getting arrested... critical witnesses and victims in cases don't proceed with important prosecutions, and New Yorkers are less safe because ofit." In April 2019, the District Attorneys of Middlesex and Suffolk Counties in Massachusetts, Marian Ryan and Rachael Rollins, respectively, among other plaintiffs, recognized that "entire communities now view the Massachusetts courts as places where they cannot go, for any reason," which has "greatly imped[ed] access to justice and undermin[es] the administration ofjustice in these communities."18 District Attorneys Ryan and Rollins commenced proceedings in federal court for injunctive relief barring ICE from making civil arrests in and around courthouses, which the Massachusetts district court granted on June 2019. 19
72. ICE's courthouse arrest policy and practice undermines the stated policies of New York State, New York City and localities throughout the State to ensure noncitizen residents have safe and complete access to the justice system, including state courthouses themselves. Indeed, by ICE's own admission, this policy is a reaction to and reprisal for policies protective of immigrant communities like those that have long been in place in New York. ICE's "Frequently Asked Questions" on Sensitive Locations and Courthouse Arrests states that its systematic use of courthouse arrests, and the formalization of that policy in the Courthouse Arrests Directive, are necessary due to "the increasing unwillingness of some jurisdictions to cooperate with ICE in the safe and orderly transfer of targeted aliens inside their prisons and jails."20
18 Complaint, Ryan v. U.S. Immigration & Customs Enft, No. 19-11003-IT (D. Mass. Apr. 29, 2019), ECF No. 1. 19 Ryan v. US. Immigration & Customs Enft, _F. Supp. 3d_, No. 19-11003-IT, 2019 WL 2553664 (D. Mass. June 20, 2019). 20 U.S. Immigration and Customs Enft, FAQ on Sensitive Locations and Courthouse Arrests, https://www.ice.gov/ero/enforcement/sensitive-loc (last updated Sept. 25, 2018).
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IV. ICE's Courthouse Arrest Policy Disrupts the Functioning of New York's Courts and Imperils Public Safety.

73. ICE does not disclose the frequency of, or details concerning, its civil courthouse

arrests in New York. Nevertheless, Plaintiffs have attempted, through their own and others'

observations oflCE in New York courts, to understand the extent and nature oflCE's presence

in New York courts. ICE officers are regularly present in New York State courts such that

appearing in a New York State court requires exposing oneselfto the possibility of civil ICE

arrest.

74. On information and belief, on the day of a courthouse raid, squads of anywhere

from two to twelve ICE agents wearing plain clothes and displaying no law enforcement
J
identification approach a courthouse. Some of them stay outside, some of them enter. They

typically have some information about the person they intend to arrest, though there have been

reports of collateral arrests. Agents arrive with the name of their intended arrestee, which they

use to check court date and courtroom information. They will wait in or around that courtroom

and listen for the name to be called. By watching an individual appear before the court, ICE

agents are able to identify their arrest target. Once identified, agents arrest the individual either

in the courthouse or as he or she is leaving the building. Some people are arrested on their way

into court. ICE has information about these.individuals in advance, including their home
_)
addresses, vehicle numbers and photographs.

75. ICE agents almost never have a judicial warrant or court order when making a

)

civil immigration arrest in or around a courthouse. They sometimes possess an administrative

warrant, though rarely show the warrant unless asked, or refuse to show the administrative

warrant, even to those they arrest or their counsel. At the time of an arrest, plain clothes agents

often do not identify themselves until well after they have made a seizure, and even after they

26
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have taken the person into custody, handcuffed them and placed them inside an ICE vehicle,

which is often unmarked. It is common for ICE personnel to identify themselves as federal

immigration agents for the first time only at this point in the arrest process.

76. ICE agents use force and excessive force during courthouse raids. For example,
)
in an incident outside ofthe courthouse complex near Borough Hall in Brooklyn, New York,

plain-clothes ICE agents shouted after a young man leaving the criminal court. When the young

man ran, ICE agents tackled him to the ground. Up to this point, they had never identified

themselves as law enforcement officers or as ICE agents. The young man's pregnant companion

resisted the agents. They threw her to the ground and put him into a car. Only at this point did

)

they notify the young man that they were ICE agents.

77. ICE agents regularly arrest vulnerable groups in and around courthouses. Agents

arrest survivors ofviolence and sexual violence, young people, trafficking victims and even

pregnant women. The arrests take place in criminal, family and civil courts. They take place

inside courtrooms, in vestibules, in hallways, in private areas, in elevators, in entranceways and

on sidewalks. They take place by agents stopping people's cars when they are on their way to or

from court.

78. ICE carries out courthouse arrests at all stages oflegal proceedings-at

arraignments and other initial appearances, as well as at subsequent appearances. They take

place often outside the presence of counsel. In many cases, individuals were arrested as they

were on their way to meetings with their lawyers. In almost every case, ICE does not notify
)
counsel that their clients are going to be arrested. Even where counsel asks to speak with their

clients, ICE often refuses to grant them access.

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79. In response to the severe disruption caused by ICE's courthouse arrest policy in

New York State courts, thoroughly documented by the statements and experiences a range of

stakeholders set forth in the April 10, 2019 Safeguarding the Integrity ofOur Courts: The Impact

ofIce Courthouse Operations in New York State report, the New York OCA issued Directive No.

1-2019 on April 17, 2019, requiring ICE agents to provide a federally issued warrant or judicial

order in order to execute arrests inside a New York State courthouse.21 Yet notwithstanding that

directive, ICE continues to arrest noncitizens coming to or leaving the courthouse.

A. ICE's Courthouse Arrests Impede Individuals' Access to Justice.

80. Individuals affected by ICE's courthouse arrests come from a variety of

-)

backgrounds, both in terms oftheir immigration statuses and the business that brings them before

the courts of New York State.

81. Criminal Defendants. Many noncitizens affected by ICE for courthouse arrests,

including clients and members of Organizational Plaintiffs, are criminal defendants, who like all

such defendants enjoy the presumption of innocence and the right to participate with their

)

counsel in their defense.

82. The outcomes of removal proceedings for those who face criminal charges are

dependent on court access. By arresting noncitizen criminal defendants, DRS causes criminal

charges to remain unresolved, which can lead to arrest warrants for failure to appear in criminal

court (for example, ifthey are in ICE detention). An open and unresolved criminal matter will

be a strong adverse factor in an immigration bond redetermination hearing and when seeking a

discretionary form of relief in removal proceedings, making it harder for noncitizens to obtain

21 Immigrant Def. Project, Safeguarding the Integrity ofOur Courts: The Impact of/CE Courthouse Operations in New York State (Apr. 10, 2019), https://www.immigrantdefenseproject.org/wp-content/uploads/Safeguarding-theIntegrity-of-Our-Courts-Final-Report. pdf.
28
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release, return to their homes and families and resolve the pending criminal case. In determining whether to release individuals from immigration custody or grant relief from removal, immigration judges consider pending criminal charges as significant adverse factors. Additionally, when determining whether to strip a permanent resident of his or her lawful status based on past criminal conduct, immigration courts rely upon convictions found by criminal courts.
83. ICE's presence in New York's courts has created a chilling effect on the willingness of these individuals to attend their own court appearances and pursue robust defenses of their cases, contrary to their own legal interests and the efficiency interests of the courts. Many noncitizen defendants are so fearful of risking potential exposure to ICE when appearing in court that they prioritize their own liberty over pursuing a vigorous defense of their criminal charges. As a result, and even after being advised of the potential immigration consequences, many noncitizen defendants choose to take a plea at arraignments or agree to pleas on less favorable terms, rather than negotiating a better plea, carrying out a full investigation of their case or taking their case to trial. Others forego participating in criminal proceedings altogether, which can be particularly harmful for nonimmigrants with minor criminal issues that could otherwise be easily resolved with a court appearance and that, as a result, escalate into open arrest warrants that can have much more detrimental effects, including on immigration status.
84. ICE's courthouse arrests also greatly impede the ability of criminal defendants to participate in problem-solving courts, such as the Queens Human Trafficking Intervention Court ("HTIC"), where Plaintiff SFF represents survivors of sex trafficking. Defendants are less willing to enter such programs in the first place because they typically require additional court appearances, which create more opportunities for these individuals to be arrested by ICE. These
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are not hypothetical fears - ICE has conducted enforcement operations against those having their

cases adjudicated before the HTIC. Plaintiff SFF has observed a significant chilling effect

among its noncitizen clients who have appearances in HTIC, which often results in the clients

refusing to appear in court and subsequently not being connected the services and programs the

HTIC offers.

85. Crime Victims and Witnesses. Noncitizen victims and witnesses of crimes are

also targets ofICE's courthouse arrests and, as a result, are fearful of coming forward to report

criminal activity or to continue with existing cases. For example, Plaintiff SFF represents a

minor client who was raped and wanted to cooperate with law enforcement to testify against her

)

rapist in court. The client, whose mother is undocumented, knew her mother would accompany

her to court. The client refused to testify because she feared her mother would be arrested by

ICE.

86. The district attorneys of the Bronx, Manhattan and Brooklyn have all publicly

spoken out about the chilling effect ofICE's courthouse arrests on the willingness ofvictims and

witnesses to come forward and participate in criminal cases. Brooklyn District Attorney Eric

Gonzalez has identified several cases his office could not prosecute due to the unwillingness of

witnesses or victims to appear in court out of a fear of being arrested by ICE. In one example,

_)

District Attorney Gonzalez surmised that ICE's courthouse arrests have chilled the ability and

willingness of undocumented workers to come forward with evidence and participate in his

office's current large-scale investigation of construction violations in New York City, thereby
)
hindering the overall investigation and prosecution of this case.

87. Data collected by prosecutors' offices and defender organizations lay bare the

reality of the chilling effect ofICE's conduct in New York's courts. The Immigration Units of

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the Kings County and Nassau County District Attorney's Offices have experienced precipitous declines in caller volumes to their immigration hotlines since ICE intensified its courthouse arrest efforts in 2017. Calls to the Kings County Immigration Affairs Unit ("IAU") hotline declined from 431 calls in 2016 to only 132 calls in 2017 and 142 calls in 2018. In Nassau County, calls to the IAU hotline decreased 96% in 2017. In 2018, calls to the Nassau IAU hotline were only 16% of pre-2017 levels. In Queens County, IAU calls declined from 358 calls in 2017 to 277 calls in 2018. Moreover, the Mayor's Office to Combat Domestic Violence, now known as the Mayor's Office to End Domestic and Gender-Based Violence ("ENDGBV") reported a 10% decline between 2016 and 2017 in the number of new foreign-born clients visiting New York City's Family Justice Centers.
88. Participants in Civil Court Proceedings. ICE's courthouse arrests are not limited to New York's criminal courts. ICE has also targeted individuals appearing in family court, including: victims of gender-based violence seeking orders of protection; parents trying to secure child support payments, custody, visitation and guardianship rights; Persons in Need of Supervision findings, or abuse or neglect findings; and young people applying for SIJS, seeking findings of abuse or neglect against their parents or with appearances in juvenile delinquency proceedings.
89. Plaintiff John Doe is one such individual who has been effectively kept out of family court and unable to pursue robust protection from his abuser due to his fear ofICE's courthouse arrests.
90. Mr. Doe was in a relationship with his former partner, a legal permanent resident of the United States, for approximately three years. Mr. Doe's ex-partner was physically and verbally abusive, which led Mr. Doe to end the relationship in or around August 2018. Prior to
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leaving his former partner, Mr. Doe and his partner had been living together. After a particularly aggressive outburst by his former partner, Mr. Doe fled their shared home, leaving behind many of his belongings, including his passports, which had expired.
91. After Mr. Doe fled, his former partner harassed him through email, text message and voicemail for several months, and threatened to report to ICE that Mr. Doe was undocumented, claiming that he had a direct connection through a family member who worked for ICE. These threats became so severe and traumatizing that Mr. Doe quit his job and moved apartments to avoid being located by his former partner.
92. In approximately September 2018, Mr. Doe's former partner sued Mr. Doe in small claims court for alleged expenses incurred during the course oftheir relationship. In addition to the harassing and threatening messages he had been sending Mr. Doe for many months, Mr. Doe's former partner also began sending intimate photos of Mr. Doe to his sister in Venezuela and threatened to distribute the photos more broadly if Mr. Doe did not pay him the amount claimed in the small claims court action.
93. Terrified of appearing in court and being arrested by ICE, Mr. Doe sought counsel from the New York City Anti-Violence Project ("NYCAVP"). Mr. Doe and his lawyer at NYCAVP considered seeking an ex parte order of protection against Mr. Doe's former partner, which is the typical course of action to protect a victim of domestic violence against an abuser. However, such an order requires the petitioner to appear in family court. Mr. Doe was so afraid of being arrested by ICE when appearing in court that he decided against seeking an order of protection.
94. In approximately December 2018, Mr. Doe's attorney from NYCAVP appeared in small claims court on Mr. Doe's behalf, as Mr. Doe was too afraid of being arrested by ICE to
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appear himself. At this court appearance, opposing counsel presented photocopies of Mr. Doe's expired passports and announced that ICE officers were present in the courtroom and "ready to go." The small claims action against Mr. Doe was dismissed with prejudice that day.
95. Though the threats and harassment against Mr. Doe by his former partner have
-\
'
subsided, he still does not feel safe and cannot be sure whether his former partner will try to find, harass, threaten and/or abuse him again. Were it not for his fear of being arrested by ICE when appearing in court, Mr. Doe would seek an order of protection in family court against his former partner, which he cannot obtain without appearing in court.
96. The specter ofICE's presence in New York's courts also extends to housing courts. To avoid having to appear in court and risk being apprehended and arrested by ICE, many noncitizen tenants, including clients and members of Organizational Plaintiffs, decline to sue their landlords for repairs and instead continue to live in deplorable and unsafe conditions. Similar to the pressures faced by noncitizen criminal defendants, in an effort to avoid ICE in housing court during a court appearance, noncitizen tenants feel pressured to resolve housing court cases as quickly as possible and not ask for a new court date to seek advice of counsel. This, in turn, often results in tenants unknowingly waiving defenses and counterclaims, signing judgment agreements with unjust terms (e.g., inaccurate amounts of rent arrears, overly harsh probationary periods, unnecessary move-out agreements from rent-stabilized or rent-controlled apartments) or being unnecessarily evicted from their homes, among other adverse consequences.
97. Ultimately, as a result of the widespread fear ofICE's courthouse arrests, a broad range of noncitizen residents of New York, including clients of Organizational Plaintiffs, have been much more reluctant to pursue relief for which they are eligible, seek protection against
33
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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 34 of 56

their abusers, continue cooperating with law enforcement in the prosecution oftheir abusers

' I

and/or vindicate their rights before the court. This fear often takes a severe emotional and

psychological toll on these individuals, many of whom, believing they may be deported ifthey

seek relief in the courts, decide to remain in abusive relationships and are subjected to continued
' I
psychological and physical violence. This dynamic, in turn, can lead to individuals needing to

seek medical treatment and/or take time off work, which takes an economic toll on these

·individuals and their children.

98. Because of the fear of having their immigration status used against them if they

seek recourse from their abusers through the legal system, these individuals, many of whom have

often already suffered personal crises and trauma, are put in the untenable position of choosing

between staying in an abusive relationship or dangerous living situation or appearing _in courj:,

which they fear may lead to being arrested by ICE, deported and/or losing custody oftheir

children. Others who are no longer in abusive relationships often still suffer economically as

they are too afraid to appear in court to seek child support, spousal support and equitable

distribution in a divorce. Still others are unable to see their children because of fear of seeking

visitation, custody or guardianship. ICE's courthouse arrest policy deprives noncitizen residents

ofNew York of a safe judicial forum in which to assert their rights, often thereby forcing them to
)
endure abuse that violates New York law.

B. ICE's Courthouse Arrests Harm Organizational Plaintiffs and Interfere with Organizational Plaintiffs' Representation of their Clients and Counseling of their Members.
)
99. As a result ofICE's courthouse arrests, Organizational Plaintiffs MRNY, SFF,

UJC, The Door and NYIC have been harmed in myriad, concrete ways and have had to divert

)

time and resources from other core organizational activities to a range of activities that they

would not otherwise undertake, including: counseling clients and members regarding their fears 34
)

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 35 of 56

of ICE courthouse arrests and those who have been personally affected by courthouse arrests;

advising clients and members regarding alternative forms of relief that do not require

participation in court processes; and developing internal and external trainings and protocols to

manage risks around ICE's courthouse arrest policy.

100. Additional Time Spent Advising and Counseling Clients. Members and

Community Members. Organizational Plaintiffs' direct assistance to and legal representation of

)

their clients, members and community members has been severely impacted by ICE's courthouse

arrests. Organizational Plaintiffs are now required to spend time dealing directly with the

aftermath of courthouse arrests in the communities they serve, as well as counseling clients about

~\

their fears ofICE's courthouse arrests, which time would otherwise be spent addressing

substantive legal issues for their clients. Moreover, in the current environment where ICE's

courthouse enforcement tactics are widespread and carried out without warning, Organizational
_)
Plaintiffs encounter challenges in building strong cases due to the unwillingness of noncitizen

witnesses and their clients' family members to appear in court out of fear of being arrested by

)

ICE. Additionally, the ability of Organizational Plaintiffs to pursue zealous claims and defenses

on behalf of their clients is severely impaired in the current environment, as Organizational

Plaintiffs must weigh the benefits of court appearances with the serious risk of arrest by ICE in
r
or around courthouses.

101. PlaintiffMRNY staff have observed the widespread fear ICE's courthouse arrest

policy creates among its clients, members and the broader communities that MRNY serves.
_)
MRNY has tallied and provided support in over 25 instances of courthouse arrests over the past

two years.

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102. This fear requires MRNY to expend additional time and resources counseling clients, members and the community on ICE's courthouse arrests. MRNY organizers spend considerable time counseling families who have had members violently apprehended from outside state courthouses by ICE. In addition, when MRNY attorneys and advocates advise or
-)
answer questions from clients and members subject to removal about their legal options in a range of contexts, the risk ofICE enforcement enters the calculus of which options to pursue. The complicated nature of these consultations and the high stakes involved pose considerable challenges for MRNY, especially when a given client or member is required to appear in court (for example in response to a criminal court summons) but doing so could put her at risk of being arrested by ICE.
103. On the organizing and community response side, to coordinate and manage its response to enforcement actions impacting clients and members, a significant proportion of which are ICE courthouse arrests, MRNY has dedicated the resources of several attorneys; community organizers, including one organizer dedicated full-time to raids response work since 2017, and several paralegals and immigration "navigators" who would otherwise devote this time and resources to other projects related to MRNY's core mission. From approximately the fall of 2017 to the fall of 2018, MRNY employed a rotating assignment system for members of its legal team to act as "on call" immigration experts, on top of their normal workloads, to help address questions and concerns related to ICE courthouse arrests and other enforcement actions impacting clients and members. In the fall of 2018, MRNY replaced this system with a legal fellow dedicated to providing raids response support and, a year later, hired a full-time raids response attorney.
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104. Attorneys at Plaintiff SFF who represent clients in family court, housing court,

HITC, the Supreme Court ofNew York and New York State criminal court must now spend

considerable additional time advising their noncitizen clients ofthe risks of attending court

proceedings given the possibility of being arrested by ICE. This has created an atmosphere of

heightened anxiety and lowered morale for SFF staff and its clients alike and has significantly

increased the workload of SFF attorneys in connection with these cases. For example, SFF

represented a noncitizen client from China whose son was taken back to China by her abusive
)
husband who refused to return the child. After several years of separation, in 2018 the client

learned that her son was back in the United States. Her counsel at SFF advised her of potential

legal remedies, including seeking custody of her son through a petition in family court and filing

for relief through a writ of habeas corpus. However, the client was extremely fearful of being

apprehended by ICE when appearing in court and she was initially reluctant to pursue these

remedies for many months. Only after SFF expended additional resources counseling the client

and engaging in safety planning to prepare for the possibility of the client being arrested by ICE

did the client ultimately seek, and was awarded, temporary custody of her son after nearly 4

years of separation. This fear of being arrested by ICE when appearing in court intensified and

compounded the severe trauma this client had already suffered.

_j

105. SFF advises clients who are the victims of violence in numerous locations around

New York City, including in the City-run Family Justice Centers, and has had to spend time and

resources counseling and even accompanying clients to court, including in matters where clients
j
appear prose. Simply getting clients to leave the Family Justice Center to walk a block or two to

the courthouse nearby can be a terrifying experience for a client fearing ICE enforcement. Often

the client asks the SFF advocate to accompany them to court for fear of arrest. ICE's policy of

37
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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 38 of 56
arresting non-citizens in and around courthouses has therefore impeded SFF's clients' willingness to appear before a judge and has required SFF to provide additional support to their clients so they can vindicate their rights in court.
106. Because of the heightened fear and suspicion created by ICE's courthouse arrests, attorneys at PlaintiffUJC have been required to become involved in a much wider range of cases, diverting time and resources away from their core mandates. UJC's immigration attorneys are now frequently brought in to consult with UJC clients involved in family court and housing court matters regarding the potential immigration consequences of being arrested when appearing in court. In addition, since early 2017, UJC's family law attorneys have regularly conducted family preparedness workshops and consultations for clients represented by UJC attorneys in other practice areas, as these clients are afraid of being arrested by ICE when appearing in court. In response to ICE's courthouse arrests and the widespread fear it has generated among UJC's noncitizen clients, UJC attorneys have prepared advocacy letters for clients, attended court proceedings with clients and spent significant additional time advising clients and their family members about the risks of appearing in New York State courts, all of which they would not have done absent the risks posed by ICE's courthouse arrests.
107. ICE's courthouse arrests have required Plaintiff The Door to devote more resources on matters involving clients in family court than previously was necessary. In SIJS guardianship cases, for example, The Door's attorneys now spend time counseling potential guardians about the risk presented by ICE's courthouse arrest policy, and in some instances have even been required to change their case strategy, necessitating more attorney resources. For example, in an effort to spare prospective guardians who are fearful oflCE's courthouse arrest
38

Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 39 of 56

policy from the need to go to court for fingerprinting, as often required in a SUS application, The

Door now routinely writes lengthy motions to waive the New York state requirement.

108. In addition, obvious candidates for guardianship of The Door's clients, such as the

clients' parents, are so afraid of the risk of deportation posed by ICE's courthouse arrests that

they have refused to act as guardians, which is not only highly disruptive to families but also

requires The Door to spend significant amounts oftime finding new guardians. For example,

The Door represented two children seeking SUS status whose mother refused to act as a

guardian, requiring the children to move twice before a suitable guardian could be found.

Addressing these issues can substantially prolong the time it takes to resolve a case and therefore

slows the entire guardianship process. Because The Door receives its funding in part based on

how many cases the organization resolves in a given year, these time delays threaten The Door's

funding.

109. PlaintiffNYIC rely on NYIC to provide advocacy for their communities and

needs, which has been made more difficult by ICE's courthouse arrest policy. NYIC's mission

_)

is to bolster immigrant community members' capacity to deal with a wide range of issues that

arise for immigrants in everyday life. However, NYIC has had to increasingly direct its time and

resources towards addressing the frequent crises that arise as a result ofICE's presence in and

around New York state courthouses. Time that could be spent providing counseling and

advocacy for other issues must instead be spent fighting against ICE's courthouse arrest policy,

including organizing rallies, discussion forums, bar association events and other methods to raise

awareness. ICE courthouse arrests thus limit NYIC's ability to provide legal services in other

areas. Instead of being able to move its agenda forward, NYIC is forced to act on the defensive,

straining its resources and causing additional burdens on its staff.

39
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110. NYIC has also devoted dozens of hours to pass legislation that would prevent ICE from making arrests in courthouses. In addition, when a particularly aggressive ICE arrest or incident has occurred, NYIC has had to spend considerable resources participating in press conferences, fielding press calls and reaching out to elected officials in order to publicize the event and raise awareness of the effect ofICE's courthouse arrest policy. NYIC has diverted resources away from its other work as a service coordinator in order to rapidly respond to these issues.
111. Organizational Plaintiffs have also suffered consequences as a result of ICE's courthouse arrests when representing noncitizen clients in connection with other civil matters. Housing lawyers at Organizational Plaintiffs have been required to spend additional time counseling endangered tenants who are considering initiating cases or responding to cases brought against them by landlords. Organizational PlaintiffUJC, for example, has begun attending tenant association meetings around New York City to address concerns among noncitizens about ICE's courthouse arrests, which is not something it did prior to the onset of ICE's courthouse arrest policy in 2017.
112. Limits on and Impediments to Certain Types o(Relief. The work of Organizational Plaintiffs in representing survivors of domestic violence and human trafficking has been severely impacted and impaired by ICE's courthouse arrest policy. In the current climate, advocates are unable to assure clients that they can safely seek protection from the courts without risking arrest by ICE, exacerbating their clients' trauma and anxiety. Some Organizational Plaintiffs have observed that due to the presence ofICE in New York State courthouses, their clients have less trust in New York's courts and law enforcement institutions,
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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 41 of 56
a trend that undermines hard-won advances for the rights of victims and survivors over the last several years, which Organizational Plaintiffs have been instrumental in achieving.
113. Moreover, abusers are increasingly emboldened to threaten their victims and survivors with arrest by ICE if they appear in court, and, whereas Organizational Plaintiffs used to be able to dismiss these threats as highly unlikely to result in ICE arrest, they can no longer do so. The obstacles that Organizational Plaintiffs now face in being unable to reassure their clients that they should be safe from ICE if they seek protection from New York State courts undermine their core missions of ensuring that their vulnerable clients can safely seek access to justice. These clients, in turn, often suffer from heightened physical, emotional and financial
-, abuse, as they believe their abuser's threats are legitimized and that they will be deported if they seek protection through the legal system. 114. As a result of ICE courthouse arrests, SFF attorneys have had to balance their clients' often urgent needs for legal protection from abuse against the risk ofICE arrest that may befall them when pursuing those remedies. SFF has observed a noticeable chilling effect on the willingness ofnoncitizen survivors to access the New York State justice system as a result of ICE's courthouse arrests. Since early 2017, SFF clients have been significantly more reluctant to take any course of action that would require participating in court proceedings. 115. For example, many of Plaintiff SFF's clients who are survivors of domestic violence are potential witnesses in criminal cases against their abusers. But since early 2017, SFF has observed that these clients have increasingly refused to appear in court and make police reports due to ICE's courthouse arrests. These clients are also fearful of meeting with state prosecutors in New York City because their offices are close to courthouses, where they fear ICE is lurking. SFF attorneys are frequently asked by clients to accompany them to court
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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 42 of 56
appearances and meetings with law enforcement, which SFF attorneys cannot always do given the many competing strains on their time and resources.
116. Many ofUJC's noncitizen clients are eligible for forms of immigration and humanitarian relief, including VAWA self-petitions, U visas, T visas and asylum. However, this relief hinges upon the client's participation in court processes, which may be stymied by a client's fear of an ICE courthouse arrest. One UJC client eligible for VAWA relief decided not to seek help due to her fears of encountering ICE. She became so overwhelmed by her fears of sudden deportation that she fled New York without contacting UJC. When an ICE officer, who had been sitting in the back ofthe courtroom, followed and arrested another UJC client outside the courthouse it sent a wave of panic through the court and the community. Such episodes confirm the worst fears and paranoias ofUJC clients and those clients' communities, making it more difficult for UJC to provide its clients with the services they need to obtain relief through the justice system. UJC clients need assistance with civil legal matters, such as filing for custody of children, obtaining orders of protection or filing for divorce, but now they are much more reluctant to pursue relief that requires appearances in New York State courts. They are much less willing to act as complaining witnesses in ongoing criminal cases against their abusers. ICE courthouse arrests scare UJC clients and their family members out of filing for guardianship proceedings, which destabilizes families and forestalls viable immigration remedies.
117. UJC's representation of clients who are survivors of human trafficking has been harmed and complicated in a number of ways by ICE's courthouse arrests. UJC frequently represents such clients in seeking vacatur of prostitution-related convictions under New York law, a critical step for these individuals to rebuild their lives. However, as a result of the widespread fear ofICE's courthouse arrests, UJC has observed that its clients are generally much
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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 43 of 56

less willing to seek this relief, which requires appearing in criminal court. UJC must expend

additional resources in order to address clients' fears of encountering ICE for those eligible for

vacatur relief. For example, UJC attorneys must now frequently accompany clients to District

Attorney meetings that do not require the presence of an attorney. Survivors eligible for T visas,

many of whom have open warrants and criminal cases stemming from their trafficking, are often

too fearful ofreturning to court to resolve those matters because of the prospect oflCE being at

the courthouse. This creates a barrier to relief as USCIS will not adjudicate immigration

applications without a final disposition of these criminal matters. The profound fear oflCE in

the courts often continues even after clients are granted T visas. For example, UJC recently

expended substantial additional time and resources counseling two different clients with T visas

regarding their receipt ofjuror subpoenas, which required an appearance in New York County

criminal court, of which these clients were terrified.

118. ICE's courthouse arrest policy has also interfered with the ability of The Door to

pursue family court proceedings providing for the placement of vulnerable children with trusted

guardians. ICE's courthouse arrest policy has deterred trusted, capable and otherwise willing

adults to serve as guardians for The Door's clients, out of fears oflCE arrest while appearing in

family court to complete the guardianship application process. ICE's courthouse arrest policy

~i

has had real and severe impacts on the well-being of The Door's clients and has also had ripple

effects for their clients' immigration status. Without guardians, The Door cannot assist its clients

to pursue citizenship through SIJS. When delays identifying a guardian put clients at risk of

aging out of SIJS (which is available until the age of 21 ), The Door has been forced to initiate

applications for other forms of relief, such as asylum, which require additional resources,

compound delays and expose The Door's clients to additional risks and hardship.

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119. Attorneys at each of Organizational Plaintiffs have faced and continue to face difficulties where clients arrested by ICE have open family court cases. Organizational Plaintiffs are unable to offer their clients or witnesses on behalf of their clients in family court proceedings, jeopardizing their chances of success in family court.
120. In addition, Organizational Plaintiffs face obstacles in zealously pursuing affirmative family court cases because they cannot assure clients that they can safely participate in these proceedings without being at risk of arrest by ICE. Attorneys at each of the Organizational Plaintiffs represent clients in family court in connection with SIJS proceedings. These cases require all members of the SIJS applicant's household to be fingerprinted and for the applicant's proposed guardian to appear in family court. Organizational Plaintiffs now face obstacles in meeting these requirements where their SIJS clients' household members and proposed guardians are noncitizens and afraid ofICE's presence in courthouses. Organizational Plaintiffs' SIJS-eligible clients themselves are also less willing to file for SIJS out of fear that they or their loved ones will be arrested by ICE when appearing in family court.
121. Before initiating SIJS cases, Organizational Plaintiffs must now allocate more attorney time and resources to assessing its clients' household members who may be at higher risk for removal. Where household members are at risk, attorneys from the Organizational Plaintiffs must work with other attorneys and organizations to secure independent counsel for these individuals. Before ICE's courthouse arrest policy was instituted, household members generally would appear pro se; many are now too fearful to appear in court without an attorney. Because the participation of these individuals is necessary for their clients to obtain SIJS, the fear of ICE's courthouse arrests among their clients and families has often resulted in considerable case delays, taxing the time and resources of their attorneys.
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122. Ultimately, the crippling fear ofICE courthouse arrests among noncitizens residents of New York has required Organizational Plaintiffs to consider and pursue alternative forms of relief and remedies for their clients outside of court processes, which often results in clients foregoing the most robust protections and relief for which they would be eligible.
123. Additional Resources Spent on Developing New Trainings and Protocols. Due to widespread fear and concern among their clients and members about ICE's presence and enforcement actions in New York State courts, Organizational Plaintiffs have expended significant resources on developing new internal and external practices and materials regarding preparation for and responses to ICE's courthouse arrests.
124. In 2017, in response to ICE's increasingly aggressive enforcement tactics in courthouses and elsewhere, PlaintiffMRNY began to create a set of rapid response resources and protocols to work with and support its clients and members impacted by ICE arrests. Through these initiatives, when a MRNY community member impacted by an ICE courthouse arrest contacts MRNY, MRNY works with impacted family members to provide orientation and
~
information about detention and deportation proceedings. MRNY also advises families about potential eligibility for assigned counsel programs and/or assists in making legal referrals to alternative counsel. Often MRNY provides additional emergency legal support. Since late 2017, MRNY has provided this type of assistance in dozens of cases involving courthouse arrests.
125. In connection with these initiatives, MRNY has also dedicated additional resources to creating new trainings and guidance to educate and prepare its staff to manage the consequences ofICE arrests, including courthouse arrests. Because of widespread fear of courthouse arrests, MRNY organizers and attorneys also devote time to counseling impacted community members and their families who fear detention should they attend court and
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educating MRNY clients and members and other members ofthe public about ICE arrests and detentions in Know Your Rights presentations. MRNY has also dedicated resources to broader-based advocacy against courthouse arrests, including participating in coalitions, speaking at press conferences and preparing and working with impacted members of the public to testify about their fears and experiences. The resources MRNY has devoted to these initiatives are diverted from its other organizational activities.
126. Plaintiff SFF has likewise diverted and continues to divert valuable resources from its normal-course activities to dedicate additional time to discussing with its attorneys the challenges caused by ICE courthouse arrests, specifically how to advise SFF's clients about their rights and remedies now that ICE is routinely present in and around New York State courts. SFF staff have also been involved in conducting external trainings for pro bona counsel and community groups regarding ICE's courthouse arrest policy.
127. PlaintiffUJC has likewise dedicated and continues to dedicate considerable attorney time to providing "Know Your Rights" trainings to community groups and individual counseling regarding the risks of ICE's courthouse arrests. Given the diverse profiles and needs ofUJC's clients, and the fact that UJC clients are often involved in multiple legal proceedings at the same time, the impact ofICE's courthouse arrests has been felt across all ofUJC's 13 projects. As a practical matter, ICE policies hampered UJC's ability to provide its services at its own offices, some of which are located in Family Justice Centers and in the same buildings as District Attorneys' offices, and have required UJC to relocate its trainings and consultations. Furthermore, the legal teams in each ofUJC's projects have been required to coordinate and consult with one another in other ways that were previously unnecessary, since ICE's courthouse
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arrests threaten clients' ability to safely participate in all manner of New York State court legal proceedings.
128. Plaintiff The Door has had to develop new internal trainings that show its attorneys how to counsel guardians about the new risks that ICE's arrest policy creates. These trainings focus on the guardians' immigration status and were generally unnecessary prior to ICE's policy of conducting arrests in and around courthouses.
129. NYIC conducts a 40-hour training program in order to help members become· accredited members of the Board oflmmigration Appeals. NYIC has now had to divert two to three hours of this training on ICE courthouse arrests, specifically how to counsel clients who are afraid of ICE arrest in and around courthouses and what steps to take if service providers encounter ICE while in or around a courthouse.
130. In addition to these challenges and the institutional diversion of resources caused by ICE' s courthouse arrests, one of Organizational Plaintiffs' core missions - to provide zealous legal representation to their clients, regardless of their immigration status - is fundamentally frustrated by this policy. ICE courthouse arrests have led to a breakdown in communication and trust between attorneys and court staff, including judges. This communication breakdown has severely interfered with clients' representation and exercise ofrights and hampered Organizational Plaintiffs' operations and their ability to help ensure their vulnerable and marginalized clients can safely seek access to justice.
C. ICE Commandeers State Resources to Carry Out Courthouse Arrests. 131. ICE relies on and coopts the resources of New York State by using state court facilities as a locus of its federal immigration enforcement and arrest operations. New York expends resources to create a courtroom environment that adjudicates important rights in a safe
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and secure setting. ICE then exploits the vulnerability of individuals in this environment. ICE explicitly notes on its website that it conducts enforcement efforts inside state courthouses in order to take advantage of the safety measures undertaken by state law enforcement officers: "Individuals entering courthouses are typically screened by law enforcement personnel to search for weapons and other contraband."22 New York State is providing security personnel at courthouses to ensure that employees and visitors to the courts feel safe. ICE improperly leverages these security services to more easily effectuate arrests, without regard to how their actions undermine broader public safety goals. Moreover, ICE agents exploit the vulnerability of individuals in state courthouses by using non-public areas of New York courthouses to make arrests, as has been documented in Unusual Occurrence Reports prepared by Office of Court Administration personnel23 and witnessed by defendants and bystanders. Indeed, the Courthouse Arrests Directive specifically directs ICE agents to make arrests in non-public areas of courthouses and to use other non-public facilities of the courts, such as private elevators.
132. In addition to their use of the physical facilities of state courthouses, ICE commandeers New York court officers to facilitate their enforcement activities. ICE's courthouse arrests have required New York courts to implement protocols and train staff to accommodate and address this practice. Moreover, because courthouse arrests are frequently carried out in a disruptive manner in which ICE agents exert physical force, court staff are required to monitor the disruption, cordon off space and restrain bystanders, ICE' s arrest targets, and attorneys. ICE also routinely asks court officers and clerks for information about arrest
22 U.S. Immigration and Customs Enft, FAQ on Sensitive Locations and Courthouse Arrests, https://www.ice.gov/ero/enforcement/sensitive-loc (last updated Sept. 25, 2018). 23 Pursuant to the April 2019 OCA directive, "UCS court security personnel shall file an Unusual Occurrence Report for each law enforcement action taken in a New York State courthouse by a law enforcement agency covered by this protocol. For purposes of this protocol, 'law enforcement action' shall include observation of court proceedings by law enforcement agents acting in their official capacity." New York OCA, Directive No. 1-2019, para. 2, April 17, 2019.
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targets from state court files. There have been reported instances of ICE asking New York court officers to change the timing of an arrest target's court appearance in order to facilitate an arrest. ICE has also relied on the time and resources of court interpreters to assist its agents in communicating with its arrest targets and other individuals whom ICE arrests collaterally.
133. ICE's courthouse arrests also tax the resources ofNew York's state court judges who are required to manage the consequences of courthouse arrests as part of their adjudications of cases involving arrested noncitizens. This includes making decisions about whether to notify defense attorneys if their clients have been or will be arrested, dealing with the impact of noncitizen defendants being arrested by ICE on speedy trial time, adjudicating petitions for writs of production once an individual has been arrested mid-case and entertaining unconventional bail applications. V. ICE's Courthouse Arrests Erode Trust In New York's Judiciary and Among
Stakeholders. 134. The impact oflCE's courthouse arrests on the aforementioned stakeholders has led to a fundamental breakdown of trust in New York's courts, which were heretofore recognized as places where people could safely seek justice. Trust has eroded between the community and the justice system as a whole, as well as between court staff, judges and the defense bar. ICE's practice of running roughshod over New York's courts interferes with the
_)
mission of these institutions and the daily functions of court-appointed counsel, who are integral to that mission and a significant fixture in the court system. It has also precipitated a loss of faith in and legitimacy of the courts of New York in the eyes of the public at large.
135. The administration ofjustice in New York's courts is impeded in myriad ways as a result ofICE's courthouse arrests, including waste of finite court resources, as well as the resources of district attorneys' offices and the defense bar.
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136. The functioning of the court system is also hampered by the reluctance of noncitizen victims of crime and other forms of violence and exploitation to participate in the justice system due to their fear of being arrested by ICE if they come forward and appear in court. In addition, ICE's courthouse arrests have necessitated a significant expenditure of resources by the nonprofit advocacy community, including advisory councils and other bodies that are convened to support the functioning of state courts.
CAUSES OF ACTION Count One
Violation of the Fifth Amendment to the U.S. Constitution - Due Process 137. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 138. U.S. citizens and noncitizens are guaranteed the right to due process under the Fifth Amendment to the U.S. Constitution, which includes the rights to access state courts and to participate in state court proceedings as a witness, party or complainant. 139. Defendants' unlawful surveillance and arrests of noncitizens in and around New York state courts violate the constitutionally-protected liberty interests of Plaintiff Doe and the clients and members of Organizational Plaintiffs to adequately, effectively, and meaningfully access the courts of the state ofNew York. 140. As a proximate result of Defendants' conduct, Plaintiff Doe and the clients and members of Organizational Plaintiffs have suffered prejudice, actual and substantial hardship and irreparable injury. 141. Plaintiffs have no adequate remedy at law.
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Count Two Violation of the First Amendment to the U.S. Constitution 142. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 143. U.S. citizens and noncitizens are guaranteed the right of petition under the First Amendment to the U.S. Constitution, which includes the right to petition the Government for a redress of grievances. This right to petition includes right to access state courts and to participate in state court proceedings as a witness, party or complainant. 144. Defendants' unlawful surveillance and arrests of noncitizens in and around New York state courts violate the rights of Plaintiff Doe and the clients and members of
')
Organizational Plaintiffs to engage in constitutionally-protected conduct under the First Amendment, including accessing the courts of the state ofNew York and petitioning such courts for redress of their grievances.
145. Defendants' conduct also unlawfully interferes with the constitutional rights of Organizational Plaintiffs to effectively and fully carry out their duties as officers of the court, by impeding the ability of Organizational Plaintiffs to provide legal services to and representation of their clients before the courts ofNew York to the fullest extent of their organizational missions, and professional and ethical obligations, in violation of the First Amendment.
146. As a proximate result of Defendants' conduct, all Plaintiffs and the clients and members of Organizational Plaintiffs have suffered prejudice, actual and substantial hardship and irreparable injury.
147. Plaintiffs have no adequate remedy at law.
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Count Three Violation of the Sixth Amendment to the U.S. Constitution 148. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 149. Under the Sixth Amendment to the U.S. Constitution, U.S. citizen and noncitizen defendants in criminal prosecutions are guaranteed the right to a speedy and public trial, compulsory process, assistance of counsel and to be confronted with witnesses against them. 150. Defendants' unlawful surveillance and arrests of noncitizens in and around New York state courts prevent criminal defendant clients and members of Organizational Plaintiffs from fully and freely participating in state court proceedings in which they are defendants in violation of their rights under the Sixth Amendment. 151. As a proximate result of Defendants' conduct, Organizational Plaintiffs have suffered prejudice, actual and substantial hardship and irreparable injury. 152. Plaintiffs have no adequate remedy at law.
Count Four Violation of the Common Law Immunity Against Civil Arrest While
Coming to, Attending, and Returning from Court 153. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 154. New York law recognizes a longstanding common-law privilege from civil arrest for witnesses, parties and other individuals attending courts. This privilege is also recognized by federal courts, including the Supreme Court, and federal and state courts enforce the privilege on behalf of each other. 155. Defendants' unlawful surveillance and arrests of noncitizens in and around New York state courts violate the New York common law privilege that protects witnesses and parties
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from civil arrest while they are voluntarily attending unrelated court proceedings and when traveling to and from those proceedings.
156. As a proximate result of Defendants' conduct, Plaintiff Doe and the clients and members of Organizational Plaintiffs have suffered prejudice, actual and substantial hardship and irreparable injury.
157. Plaintiffs have no adequate remedy at law. Count Five
Violation of the Administrative Procedure Act 158. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 159. The Administrative Procedure Act ("APA") prohibits federal action that is "in excess of statutory jurisdiction, authority or limitations, or short of statutory right," 5 U.S.C. § 706(2)(C), that is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law," id § 706(2)(A), and that is taken "without observance of procedure required by law," id § 706(2)(D). 160. Defendants' policy of surveilling and arresting noncitizens in and around New York State courthouses is a final agency action subject to review under the APA. This policy violates the longstanding common law privilege against civil arrest in and around courthouses without a judicial warrant and is therefore "not in accordance with law." It also misinterprets and/or violates the First, Fifth and Sixth Amendments, and therefore violates the APA as an unconstitutional agency action. 161. Moreover, this policy is inconsistent with the federal statutory scheme as set forth in 8 U.S.C. §§ l lOl(a), 1182(a)(2), 1186a(c) and 1227(a)(2), and with the implementation of the benefits and protections conferred by these provisions. These provisions necessarily limit ICE's
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enforcement activities in state courts, in particular making clear that such activities generally

should not occur at sensitive locations and should not interfere with the rights of vulnerable

individuals to seek relief from the courts.

162. ICE's courthouse arrest policy is arbitrary and capricious for multiple additional

reasons, including that:

•

Defendants have not provided adequate reasoning and legal support for this shift

in policy;

•

Defendants' stated purpose for this policy is to retaliate against jurisdictions that

are unwilling to cooperate with ICE's requests to detain noncitizens and transfer

them to ICE custody and to take advantage of security systems put in place by

state courts; and

•

Defendants failed to adequately consider the impact and consequences of this

policy on the ability of noncitizens and their family members to safely access

state courts, in contravention of Defendants' policies, historical practices and

legal obligations.

163. As a proximate result of Defendants' conduct, Plaintiff Doe and the noncitizen

clients and members of Organizational Plaintiffs have suffered prejudice, actual and substantial

hardship and irreparable injury.

164. Plaintiffs have no adequate remedy at law.

PRAYER FOR RELIEF

WHEREFORE Plaintiffs pray that this Court grant the following relief:

(1) Declare that Defendants' policy and practice of surveilling and making civil immigration

arrests of people without a judicial warrant while coming to, attending or returning from court is

illegal and unconstitutional;

(2) Issue a permanent injunction ordering Defendants not to make a civil immigration arrest

without a judicial warrant or surveil any individual coming to, attending or returning from court;

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Case 1:19-cv-08892-AJN Document 1 Filed 09/25/19 Page 55 of 56 (3) Set aside ICE's unlawful policy of surveilling and making civil immigration arrests of individuals without a judicial warrant at courthouses; (4) Award Plaintiffs' reasonable costs and attorney's fees; and (5) Grant any other and further relief that this Court may deem fit and proper.
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Dated: September 25, 2019 New York, New York

Respectfully submitted,
CLEARY GOTTLIEB STEEN & HAMILTON LLP

Jonathan I. Blackman ;blackman@cgsh.com Jessica Thompson ;ethompson@cgsh.com Rikki S. Stem rstern@cgsh.com Lee Hill leehill@cgsh.com Vishakha S. Joshi v;oshi@cgsh.com
One Liberty Plaza New York, NY 10006 Tel: (212) 225 2000 Fax: (212) 225 3999
Attorneysfor Plaintiffs
THE LEGAL AID SOCIETY
Hasan Shafiqullah hhshafiqullah@legal-aid org Janet Sabel ;sabel@legal-aid org Adriene Holder aholder@legal-aid org Judith Goldiner ;goldiner@legal aid org Susan Cameron scameron@legal-aid org Susan E. Welber sewelber@legal-aid org
199 Water Street, 3rd Fl. New York, NY 10038 Tel: (212) 577 3300

56
)

 
 Case 1:19-cv-08892-AJN-JLC Document 121 Filed 09/28/20 Page 1 of 32

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

9/28/20

John Doe, et al., Plaintiffs,
–v– U.S. Immigration and Customs Enforcement, et al.,
Defendants.

19-cv-8892 (AJN) OPINION & ORDER

ALISON J. NATHAN, District Judge: Plaintiff John Doe and Organizational Plaintiffs The Door, Make the Road New York,
New York Immigration Coalition, Sanctuary for Families, and the Urban Justice Center bring this suit against Defendants U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, and several federal officials acting in their official capacities.1 They allege that ICE’s policy of carrying out federal immigration arrests of noncitizens in and around New York state courthouses without judicial warrants violates the common law privilege against civil arrests while coming to, attending, and returning from court; the Administrative Procedure Act; and the First, Fifth, and Sixth Amendments to the United States Constitution. Now before the Court is Defendants’ motion to dismiss Plaintiffs’ Complaint on jurisdictional and substantive grounds. For the reasons that follow, Defendants’ motion is DENIED with respect to all but Plaintiffs’ Sixth Amendment claim and GRANTED with respect to Plaintiffs’ Sixth Amendment claim.

1 These officials include Donald J. Trump, President of the United States; Kevin McAleenan, then-Acting Secretary of Homeland Security; Matthew T. Albence, ICE Deputy Director and Senior Official Performing the Duties of the Director; and Susan Quintana, then-ICE New York Field Office Director.
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I. BACKGROUND The Immigration and Nationality Act, enacted by Congress in 1952, authorizes civil
immigration arrests and governs removal proceedings. Two Sections of this statute, Sections 1226(a) and 1357(a)(2), authorize civil immigration arrests with and without a warrant respectively. See 8 U.S.C. §§ 1226(a) and 1357(a)(2).
According to the Complaint, in January 2017, ICE began dramatically increasing arrests of noncitizens appearing in state courts. Compl. ¶¶ 3, 60. This courthouse arrest policy was allegedly memorialized in a directive issued by the Department of Homeland Security on January 10, 2018. Id. The Directive provides that courthouse enforcement actions should include
actions against specific, targeted 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, when ICE officers or agents have information that leads them to believe the targeted aliens are present at that specific location. Dkt. No. 65-2 at 1. It further provides that under “special circumstances,” including “where the individual poses a threat to public safety or interferes with ICE’s enforcement actions,” ICE officers and agents may take civil immigration enforcement action against “[a]liens encountered during a civil immigration enforcement action inside a courthouse, such as family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding.” Id. ICE officers and agents are instructed to make such enforcement determinations on a “case-by-case” basis. Id. at 1 & n.1. This Directive followed prior guidance, since supplanted, concerning enforcement actions at courthouses, which advised ICE officers and agents that enforcement actions at or near courthouses should only be undertaken against a narrower category of “Priority 1 aliens,” including
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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. Dkt. No. 65-1 at 1. Unlike subsequent guidance, this prior guidance further provided that enforcement actions at or near courthouses would take place only against these “specific, targeted aliens,” and not against “individuals who may be ‘collaterally’ present, such as family members or friends who may accompany the target alien to court appearances or functions.” Id. As a result of ICE’s change in policy and the subsequent memorialization of that change in the Directive, ICE courthouse enforcement in and around courts in New York allegedly increased 1736% from late 2016 to April 10, 2019. Compl. ¶ 3 (citing Immigrant Defense Project, Safeguarding the Integrity of Our Courts: The Impact of ICE Courthouse Operations in New York State 46–47 (Apr. 10, 2019), https://www.immigrantdefenseproject.org/wpcontent/uploads/Safeguardingthe-lntegrity-of-Our-Courts-Final-Report.pdf). The Complaint alleges that, pursuant to the Directive, ICE regularly arrests vulnerable groups, including survivors of violence and sexual violence, young people, trafficking victims, and pregnant women in criminal, family, and civil courts. Compl. ¶ 77. The Complaint further alleges that these arrests, as well as the “atmosphere of fear” they have engendered, have kept numerous noncitizens—including Plaintiff Doe—from pursuing legal claims or defending themselves in New York state courts. See, e.g., id. ¶¶ 6; 81–84, 88–98. For their part, Organizational Plaintiffs—organizations that provide services, including legal services, to the immigrant community, see Compl. ¶¶ 17–31—allege that the Directive has frustrated the direct representation of their clients in numerous ways and that they have been forced to expend significant resources to mitigate the institutional and individual harms it has engendered. Id. ¶¶ 31; 99–130.
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Plaintiffs filed this action on September 25, 2019, seeking a declaration that Defendants’ policy of making civil immigration arrests of people without a judicial warrant while coming to, attending or returning from court is illegal and unconstitutional, as well as a permanent injunction ordering Defendants not to make a civil immigration arrest without a judicial warrant of any individual coming to, attending or returning from court. At the same time, the State of New York and the District Attorney of Kings County filed suit against ICE and others asserting APA and Tenth Amendment violations arising from the same courthouse arrest policy at issue here. In that action, Judge Rakoff denied Defendants’ motion to dismiss, see State v. U.S. Immigration & Customs Enf’t, 431 F. Supp. 3d 377 (S.D.N.Y. 2019), and subsequently granted summary judgment in Plaintiffs’ favor, see New York v. U.S. Immigration & Customs Enf’t, No. 19-cv-8876(JSR), 2020 WL 3067715 (S.D.N.Y. June 10, 2020).
Defendants have now moved to dismiss the Complaint in this action, which Plaintiffs have opposed. This motion was fully briefed on January 16, 2020. See Dkt. Nos. 64, 74, 81. The Court held oral argument on the motion on February 12, 2020 and reserved judgment at that time. See Dkt. No. 94. II. DISCUSSION
Defendants have moved to dismiss Plaintiffs’ Complaint on both jurisdictional and substantive grounds. For the reasons that follow, Defendants’ motion is denied as to all but Plaintiffs’ Sixth Amendment claim.
A. Defendants’ Motion to Dismiss on Jurisdictional Grounds is Denied The Court first considers Defendants’ arguments to dismiss the Complaint pursuant to Rule 12(b)(1). A motion brought under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the Court’s subject matter jurisdiction to hear the case. See Fed. R. Civ. P. 12(b)(1). Pursuant to Rule 12(b)(1), dismissal for lack of subject matter jurisdiction is appropriate if the
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Court determines that it lacks the constitutional or statutory power to adjudicate the case. See id.; Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule 12(b)(1) motion to dismiss, “jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citations and internal quotation marks omitted). In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court “may refer to evidence outside the pleadings.” Makarova, 201 F.3d at 113.
Defendants argue that all of Plaintiffs’ claims should be dismissed because they have failed to allege constitutional standing. They further argue that Plaintiffs’ APA claim, in particular, should be dismissed for several additional reasons—namely, that Plaintiffs do not have a cause of action under the APA because they do not fall within the zone of interests of the relevant statutory provisions; that the location of civil enforcement actions by ICE is committed to agency discretion by law; and that the Directive does not constitute final agency action. The Court concludes, for the reasons set forth below, that each of these arguments is without merit.
1. Constitutional Standing Defendants argue that Doe and Organizational Plaintiffs fail to adequately allege facts establishing constitutional standing. To sufficiently allege Article III standing, a plaintiff must allege “(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’” Knife Rights, Inc. v. Vance, 802 F.3d 377, 383 (2d Cir. 2015) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157–58 (2014)). A plaintiff need only “clearly allege facts demonstrating each element” in order to survive a motion to dismiss on jurisdictional grounds. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (citation omitted).
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a) John Doe Defendants argue that Doe’s allegations are insufficient to support his standing to bring suit because “the injuries alleged are conjectural and hypothetical.” Dkt. No. 64 at 8. Because Defendants restrict their standing argument with respect to Doe to the element of injury in fact, see Dkt. No. 64 at 8–9, the Court need not address the causality and redressability prongs of the standing inquiry. See N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 295 (2d Cir. 2012) (addressing only the challenged “injury-in-fact” prong, and then concluding there was standing). “For an alleged injury to support constitutional standing, it must be ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Knife Rights, 802 F.3d at 383 (quoting Susan B. Anthony List, 573 U.S. at 158). As a general matter, “[p]reenforcement challenges . . . are cognizable under Article III.” Cayuga Nation v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016). When a Plaintiff “assert[s] injury from threatened prosecution,” or, in this case, enforcement action, “the Supreme Court has instructed that imminence does ‘not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat.’” Knife Rights, 802 F.3d at 384 (quoting Medlmmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128– 29 (2007)). Instead, “in the context of pre-enforcement challenges . . . , imminent injury can be established by plausible allegations that a plaintiff ‘inten[ds] to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by . . . statute, and there exists a credible threat of prosecution thereunder.’” Id. (quoting Susan B. Anthony List, 573 U.S. at 159). The credible fear of prosecution—or enforcement—standard “sets a low threshold and is quite forgiving to plaintiffs seeking such preenforcement review.” Cayuga Nation, 824 F.3d at 331 (quoting Hedges v. Obama, 724 F.3d 170, 197 (2d Cir. 2013)). However, “[t]he identification of
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a credible threat sufficient to satisfy the imminence requirement of injury in fact necessarily depends on the particular circumstances at issue.” Cayuga Nation, 824 F.3d at 331 (quoting Knife Rights, 802 F.3d at 384). A credible threat will not be found “where plaintiffs do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible.” Id.
Here, Doe has alleged both a concrete intention to seek an order of protection against his former partner and a credible threat of being arrested by ICE while pursuing such an order of protection in family court. With respect to Doe’s concrete intention to seek an order of protection, the Complaint alleges the following: Doe’s former partner physically and verbally abused him. Compl. ¶ 90. After Doe fled their shared home, his former partner harassed him through email, text messages, and voicemail and threatened to report Doe to ICE. Id. ¶ 91. His former partner also sued him in small claims court for alleged expenses incurred during their relationship and threatened Doe that he would broadly distribute intimate photos of him if Doe did not pay the amount claimed in the small claims court action. Id. ¶ 92. Doe and his lawyer considered seeking an ex parte order of protection against his former partner, but obtaining such an order requires appearing in family court. Id. ¶ 93. Because Doe was so afraid of being arrested by ICE when appearing in court, he ultimately decided not to seek an order of protection. Id. But were it not for his fear of being arrested by ICE when appearing in court, Mr. Doe would seek an order of protection in family court against his former partner. Id. ¶ 95. Doe has thus sufficiently alleged a concrete intention to seek an order of protection against his former partner.
Doe has also adequately alleged a credible threat of being arrested by ICE while pursuing an order of protection in family court. In evaluating preenforcement standing, courts look to,
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among other things, “the history of past prosecution or enforcement.” Oklevueha, 676 F.3d at 835. Doe alleges that from late 2016 to April 2019, pursuant to ICE policy ultimately memorialized in the Directive, ICE courthouse enforcement in and around courts in New York has increased by 1736%. Compl. ¶ 3. This dramatic increase in enforcement activity indicates that, were he to pursue an order of protection in family court, enforcement against Doe would be at least remotely possible, if not likely. Cayuga Nation, 824 F.3d at 331. The “low threshold” for alleging a credible threat of arrest is thus met by these allegations. Id.
Defendants argue, to the contrary, that Doe has failed to allege a credible threat of enforcement, but these arguments are without merit. Defendants argue first that Doe has not alleged any of the “personal factors” specified in the Directive and articulated above that would render him the potential subject of a civil immigration enforcement action inside a courthouse. See Dkt. No. 64 at 8–9; see also Dkt. No. 65-2 at 1 (listing the so-called personal factors). But the Directive’s list of “personal factors” is not exhaustive—indeed, the Directive allows arrest of those who do not meet any of its “personal factors” under special circumstances, on a case-bycase basis. See Dkt. No. 65-2 at 1 & n.1. In light of the enforcement discretion accorded ICE and the dramatic increase in enforcement activity noted above, the fact that Doe has not alleged any of the personal factors specified in the Directive does not diminish the credibility of the threat of enforcement alleged.
Defendants also point to statutes that provide that a domestic violence victim is not in danger of being arrested by ICE in court based solely on derogatory information provided by their abuser. Dkt. No. 64 at 9; see also 8 U.S.C. §§ 1229(e), 1367. However, these provisions, too, do not undermine Doe’s allegations of a credible threat of enforcement because, as Plaintiffs
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point out, these provisions do not protect Doe against arrest so long as ICE obtains information regarding his immigration status from a source other than his abusive ex-partner.
In light of the foregoing, and Defendants’ arguments to the contrary notwithstanding, the Court concludes that the injury alleged in the Complaint is anything but conjectural or hypothetical; rather, it is actual and imminent and thus sufficient to support Doe’s constitutional standing to bring suit.
b) Organizational Plaintiffs Even were the Court to find the Complaint’s allegations insufficient to support Doe’s constitutional standing, it would nonetheless find the Complaint’s allegations sufficient to support Organizational Plaintiffs’ constitutional standing. In determining whether Organizational Plaintiffs have adequately alleged standing, the Court “conducts the same inquiry as in the case of the individual.” 2 Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982). Because Defendants again restrict their argument with respect to the standing of Organizational Plaintiffs to the element of injury in fact, see Dkt. No. 64 at 8–9, the Court need not address the causality and redressability prongs of the standing inquiry with respect to these Plaintiffs either. See N.Y. Civil Liberties Union, 684 F.3d at 295. The Second Circuit has “repeatedly held that only a perceptible impairment of an organization’s activities is necessary for there to be an injury in fact.” Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 110 (2d Cir. 2017) (emphasis added) (internal quotation marks and citations omitted). A diversion of resources may constitute an injury in fact for purposes of organizational standing, see Havens, 455 U.S. at 379; Nnebe v.
2 Though organizations may also assert association standing, which requires the Court to engage in a distinct standing inquiry, Organizational Plaintiffs do not rely on a theory of associational standing here. See Dkt. No. 74 at 5–6.
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Daus, 644 F.3d 147, 157 (2d Cir. 2011); Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993), and the diversion of resources need not be monetary, see Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 174–75 (2d Cir. 2005) (an organization expending resources to locate, recruit, manage, train, and supply volunteers conferred standing). Additionally, when a defendant’s actions impede an organization’s ability to carry out its responsibilities, the plaintiff has suffered an injury in fact. See Centro de la Comunidad Hispana de Locust Valley, 868 F.3d at 110.
Under this standard, the Complaint adequately alleges injuries in fact with respect to the Organizational Plaintiffs sufficient to confer standing. Indeed, the Complaint alleges that Organizational Plaintiffs have had to divert resources away from other purposes in order to address the effects of the Directive. See Compl. ¶¶ 99–130. The Complaint also alleges that the Directive impedes Organizational Plaintiffs, which are legal services providers, from providing legal services to their clients, see id. ¶¶ 112–122, and thereby impedes their abilities to carry out their responsibilities. These alleged injuries are sufficient to satisfy the low threshold for pleading injury in fact. Cf. Make the Rd. New York v. Pompeo, No. 19-cv-11633 (GBD), 2020 WL 4350731, at *8 (S.D.N.Y. July 29, 2020) (finding organizational plaintiffs alleged standing where complaint demonstrated that “they will have to expend—and have already expended— significant time and resources to provide new services as a direct result of” the challenged agency action); Ryan v. U.S. Immigration & Customs Enf’t, 382 F. Supp. 3d 142, 153 (D. Mass. 2019), vacated on other grounds, ---- F. 3d. ----, 2020 WL 5201945 (1st Cir. Sept. 1, 2020) (finding allegations that the Directive impedes a legal services organization’s representation of its clients sufficient to constitute an injury in fact).
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Defendants argue, to the contrary, that Organizational Plaintiffs assert organizational standing to sue in their own right only with respect to the Complaint’s First Amendment claim. See Dkt. No. 64 at 9–10; Dkt. No. 81 at 2. In support of this argument, they cite to Count Two of the Complaint, which they argue is the only Count that explicitly alleges organizational injuries. See Dkt. No. 64 at 10; Dkt. No. 81 at 2. This argument fails for the simple reason that Plaintiffs’ Complaint is rife with allegations of organizational injury sufficient to establish standing, see infra; see also Compl. ¶¶ 99–130, and each Count of the Complaint incorporates by reference “each and every allegation contained in the preceding paragraphs,” see Compl. ¶¶ 137, 142, 148, 153, 158.
2. Zone of Interests Defendants next argue that Plaintiffs cannot state an actionable claim under the APA because the interests they assert do not fall “within the zone of interests to be protected or regulated by” the INA. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). “[A] statutory cause of action extends only to plaintiffs whose interests ‘fall within the zone of interests protected by the law invoked.’” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 (2014) (citation omitted). In the context of the APA and its “generous review provisions,” this test is not “especially demanding.” Id. at 130. Under this “lenient approach,” the test only forecloses suit “when a plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff to sue.” Id. (internal quotation marks and citation omitted). In considering whether a plaintiff’s interests are related to or consistent with
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the purposes of the relevant statute, the Court is “not limited to considering the statute under which [plaintiffs] sued, but may consider any provision that helps [it] to understand Congress’ overall purposes” in the act at issue. Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 401 (1987). The Supreme Court has instructed that in the context of APA claims, any doubt as to whether a plaintiff’s interests fall within the zone of interests protected by the law invoked should be resolved in the plaintiff’s favor. See Lexmark, 572 U.S. at 129.
As an initial matter, Defendants do not contest that Doe falls within the INA’s zone of interests. See Dkt. No. 14:7–10. Accordingly, the Court considers only whether Organizational Plaintiffs fall within the INA’s zone of interests and concludes that they do. Organizational Plaintiffs argue that their interests fall within the zone of interests protected by the INA because they are “stakeholders affected by civil immigration arrest in and around New York state courthouses.” In particular, they allege that they are legal services organizations that serve clients who have been arrested by ICE in or around New York courts or are afraid of coming to, attending, or leaving New York courts out of fear that they may be arrested by ICE pursuant to the Directive. Dkt. No. 74 at 11; Compl. ¶¶ 99–130. In light of the generousness of the APA review provisions—and resolving all doubts in Plaintiffs’ favor, as the Court must—these allegations satisfy the “lenient” zone of interests test with respect to Organizational Plaintiffs. Cf. State v. U.S. Immigration & Customs Enf’t, No. 19-cv-8876 (JSR), 2019 WL 6906274, at *4 (S.D.N.Y. Dec. 19, 2019). Indeed, Organizational Plaintiffs—“organization[s] serving immigrants” whose “clients include individuals who are directly impacted by the particular governmental actions at issue,” Ryan v. U.S. Immigration & Customs Enf’t, 382 F. Supp. 3d 142, 155 (D. Mass. 2019), vacated on other grounds, ---- F. 3d. ----, 2020 WL 5201945 (1st Cir. Sept. 1, 2020); Make the Rd. New York v. Pompeo, No. 19-cv-11633 (GBD), 2020 WL 4350731, at
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*10 (S.D.N.Y. July 29, 2020)—have a “plain interest” in “the proper enforcement of immigration laws within courthouses,” Ryan, 382 F. Supp. 3d at 155. This interest alone is sufficient to render the Organizational Plaintiffs at least “arguably within the zone of interests to be protected or regulated by” the INA. Id. (quoting Patchak, 567 U.S. at 224–25); see Make the Rd. New York, 2020 WL 4350731, at *10 (finding organizational plaintiffs whose “very mission is to aid immigrants” fell within zone of interests of INA); see also E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 768–69 (9th Cir. 2018) (finding that nonprofit organizations that provide legal assistance to asylum seekers fall within the zone of interests protected by the INA).
Moreover, this conclusion is bolstered by numerous provisions of the INA, which the Court must consider as a whole in order to understand its overall purposes. See Clarke, 479 U.S. at 401; Make the Rd. New York, 2020 WL 4350731, at *10 (“In considering whether Plaintiffs satisfy the zone-of-interests test, this Court is not limited to the specific provision at issue, but rather should consider Congress’s overall purpose in enacting the INA.”). Even a cursory review of the INA makes clear that numerous provisions of that Act “give institutions like [Organizational Plaintiffs] a role in helping immigrants navigate the immigration process.” E. Bay Sanctuary Covenant, 932 F.3d at 769 (citing several provisions of the INA). And these provisions, “which directly rely on institutions like the [Organizational Plainitffs] to aid immigrants, are a sufficient ‘indicator that the plaintiffs are peculiarly suitable challengers of administrative [action] . . . support[ing] an inference that Congress would have intended eligibility” to bring suit. Id. (alterations omitted) (quoting Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 283 (D.C. Cir. 1988)).
Defendants’ arguments to the contrary misapprehend the case law that defines the contours of the zone of interests test. In support of their argument that Organizational Plaintiffs
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do not fall within the INA’s zone of interests, Defendants point to the fact that the INA does not provide Organizational Plaintiffs with any right of action and that the relevant provisions— Sections 1226 and 1357—do not target Organizational Plaintiffs, govern their conduct, or create any entitlement they may invoke. See Dkt. No. 64 at 14–15. However, it is immaterial whether or not the INA itself provides any right of action because Plaintiffs do not assert any cause of action under the INA. Rather, Plaintiffs allege violations of the APA, and the “APA’s omnibus judicial-review provision . . . permits suit for violations of numerous statutes of varying character that do not themselves include causes of action for judicial review.” Lexmark, 572 U.S. at 130. And Organizational Plaintiffs need not be a “subject of the contested regulatory action” or an intended beneficiary of the relevant statute to challenge it. Clarke, 479 U.S. at 399–400. Moreover, Defendants’ focus on only Sections 1226 and 1357 of the INA reflects a crabbed conception of the zone of interests test, which explicitly exhorts this Court to consider “any provision” in the INA “that helps [it] to understand Congress’ overall purposes.” Id. at 401.
For the reasons articulated above, proper application of the zone of interests test compels the Court to conclude that Organizational Plaintiffs fall within the zone of interests of the INA.
3. Reviewability of APA Claim Defendants further argue that even if Plaintiffs have stated an actionable APA claim, that claim is not reviewable in this Court because the location of ICE enforcement actions is committed to agency discretion by law, and the Directive is not a final agency action. The Court disagrees on both counts. “There is a strong presumption favoring judicial review of administrative action.” Salazar v. King, 822 F.3d 61, 75 (2d Cir. 2016). “In the absence of an express statutory prohibition, the agency ‘bears the heavy burden of overcoming the strong presumption that
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Congress did not mean to prohibit all judicial review of [its] decision.’” Id. (quoting Dunlop v. Bachowski, 421 U.S. 560, 567 (1975)).
But this presumption is subject to some qualification. First, Section 701(a)(2) provides that the APA’s judicial review provisions do not apply where an “agency action is committed to agency discretion by law.” 5 U.S.C. § 701. Whether an agency action is committed to agency discretion by law hinges on “whether the statutes and regulations at issue . . . ‘are drawn in such broad terms that . . . there is no law to apply.’” Salazar, 822 F.3d at 76 (emphasis added) (quoting Westchester v. U.S. Dep’t of Hous. & Urban Dev., 778 F.3d 412, 419 (2d Cir.2015)). The Supreme Court has recognized that this is a “very narrow exception” that applies only in “rare instances.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). Second, Section 704 provides that an agency action must be final in order to be reviewable. 5 U.S.C. § 704. An agency’s action is considered final if it “mark[s] the consummation of the agency’s decisionmaking process” and is “one by which rights or obligations have been determined, or from which legal consequences will flow.” Salazar, 822 F.3d at 82 (quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997)). With respect to the second prong of this test— which is the only prong Defendants contest—the “core question” is “whether the result of [the agency’s decisionmaking] process is one that will directly affect the parties.” Sharkey v. Quarantillo, 541 F.3d 75, 88 (2d Cir. 2008).
At bottom, the finality inquiry is a “pragmatic” one. See FTC v. Standard Oil of Cal., 449 U.S. 232, 239 (1980). Agency action that has a “substantial practical impact” is of “sufficient legal force” to constitute final agency action and thus warrant judicial review. Paskar v. U.S. Dep’t of Transp., 714 F.3d 90, 98 (2d Cir. 2013); see also Salazar, 822 F.3d at 82–84.
a) Committed to Agency Discretion by Law
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Defendants cite Sections 1226 and 1357 of the INA—which authorize the arrest of noncitizens pursuant to and without a warrant respectively—in support of their argument that the INA provides no law by which the Court can evaluate the appropriateness of ICE’s exercise of discretion under the Directive. See 8 U.S.C. § 1226(a) (“On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.”); id. § 1357(a)(2) (“Any officer or employee . . . authorized under regulations prescribed by the Attorney General shall have power without warrant . . . (2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he 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.”). In particular, they argue that the “broad language” of these provisions grants ICE complete and unfettered discretion to “determine the location of a civil enforcement action against an alien present in the United States.” Dkt. No. 64 at 16.
“To determine the extent of [ICE]’s discretion and whether there is ‘law to apply’ in this case,” the Court “look[s] to the [relevant] statutory provisions.” Westchester v. U.S. Dep’t of Hous. & Urban Dev., 778 F.3d 412, 419 (2d Cir. 2015); see also Salazar, 822 F.3d 61, 76–82 (2d Cir. 2016) (reviewing the statute’s text and legislative history to determine whether or not the statute constituted a “grant of unbridled discretion”). This inquiry, then, overlaps in sum and substance with Plaintiffs’ contention, on the merits, that the INA incorporates a common law privilege against civil courthouse arrests. Indeed, if, as Plaintiffs argue, the INA can be read to incorporate this common law privilege, such a privilege would provide clear law “against which
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to evaluate the agency’s exercise of discretion.” State v. U.S. Immigration & Customs Enf’t, No. 19-cv-8876 (JSR), 2019 WL 6906274, at *5 (S.D.N.Y. Dec. 19, 2019) (“[P]laintiffs allege that the INA incorporates a pre-existing common law privilege against civil arrest of those present at a courthouse and those necessarily coming and going. If true, this would provide an obvious standard against which to evaluate the agency’s exercise of discretion.”). For the reasons stated below, the Court concludes, on the merits, that the INA does incorporate a common law privilege against civil courthouse arrests. See infra Section II.B.1. But irrespective of that conclusion, in light of the “very narrow” nature of this exception, which applies only in “rare instances,” Overton Park, 401 U.S. at 410, this Court agrees with Judge Rakoff that “[e]ven assuming arguendo that plaintiffs were wrong on the merits of this argument, their contention satisfies their burden at this stage of the litigation to present a prima facie case for reviewability.” State v. U.S. Immigration & Customs Enf’t, 431 F. Supp. 3d 377, 385 (S.D.N.Y. 2019); see also Washington v. U.S. Dep’t of Homeland Sec., ---- F. Supp. 3d ----, 2020 WL 1819837, at *6 (W.D. Wash. Apr. 10, 2020) (“[I]f the State prevails on its argument that those two provisions of the INA incorporate a pre-existing state and/or federal common-law privilege against civil arrest while at or in transit to or from a courthouse, then ‘an obvious standard against which to evaluate the agency’s exercise of discretion’ would exist. This possibility belies defendants’ assertion that the validity of their ‘courthouse arrest’ policy is unreviewable.” (citation omitted)).
Defendants’ arguments to the contrary confuse the nature of Plaintiffs’ APA claim. They rely on Heckler v. Chaney, 470 U.S. 821 (1985), to make the uncontroversial argument that an agency’s decisions regarding whether to undertake an enforcement action or prosecute an individual are committed to that agency’s discretion. See Dkt. No. 64 at 15–16; Heckler, 470
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U.S. at 831 (“[A]n agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”). But, as was the case in the action before Judge Rakoff, “Plaintiffs do not challenge ICE’s decision to arrest particular aliens as opposed to others; they challenge instead what they allege to be a categorical policy to conduct immigration arrests in particular places where the statute (implicitly) and the common law (explicitly) do not permit such arrests.” State v. U.S. Immigration & Customs Enf’t, 431 F. Supp. 3d 377, 385–86 (S.D.N.Y. 2019).
Defendants also rely on Webster v. Doe, 486 U.S. 592 (1988), to argue for the first time on reply that Plaintiffs’ arguments regarding reviewability and the common law privilege improperly conflate Section 701(a)(2) of the APA—which prohibits review of “agency action . . . committed to agency discretion by law”—and Section 706(2) of the APA—which requires courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Compare 5 U.S.C. § 701(a)(2) with id. § 706(2)(A); see Dkt. No. 81 at 6–7. Not so. With respect to the reviewability of their APA claim, Plaintiffs do not use the common law privilege to argue that ICE has abused its discretion or acted contrary to the law; rather, they argue that the privilege simply provides a meaningful standard against which ICE’s exercise of its discretion may be measured. As articulated above, at this juncture, the Court agrees.
b) Final Agency Action Defendants finally argue that Plaintiffs’ APA claim is unreviewable for the additional reason that the Directive does not constitute “final agency action.” As an initial matter, Defendants concede that the first prong of the test—that the Directive marks the “consummation of the agency’s decisionmaking process”—is satisfied. Accordingly, the Court confines its
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analysis to the second prong of the test—that the Directive constitutes an agency action “by which rights or obligations have been determined, or from which legal consequences will flow.”
Under a “pragmatic” view of finality, the Complaint adequately alleges that the Directive constitutes final agency action subject to judicial review. Indeed, legal consequences flow from the Directive for noncitizens who were not previously subject to potential enforcement actions at New York state courthouses but now are. Compare Dkt. No 65-1 (former policy provided that courthouse enforcement actions would only take place against “specific, targeted aliens”) with Dkt. No. 65-2 (Directive expands the category of targeted aliens and provides that non-targeted aliens may be arrested under special circumstances, “such as where the individual poses a threat to public safety or interferes with ICE’s enforcement actions”); see also State v. U.S. Immigration & Customs Enf’t, No. 19-cv-8876 (JSR), 2019 WL 6906274, at *6 (S.D.N.Y. Dec. 19, 2019).
Moreover, the facts of the Complaint allege a “substantial practical impact” following issuance of the Directive. The Complaint alleges that from late 2016 to April 2019, the Immigrant Defense Project documented an increase in enforcement in and around New York courthouses of over 1700%. Compl. ¶ 3; see also Dkt. No. 70 (documenting an increase in courthouse enforcement from 11 reported operations in 2016 to 219 reported operations in 2018). This substantial practical impact demonstrates that “the Directive actually embodies a legallyconsequential change to the agency’s interpretation of the INA,” see State v. U.S. Immigration & Customs Enf’t, No. 19-cv-8876 (JSR), 2019 WL 6906274, at *6 (S.D.N.Y. Dec. 19, 2019), and is not simply, as Defendants argue, a general statement of policy intended to guide ICE officers in the exercise of their discretion, see Dkt. No. 64 at 17–18. Accordingly, it is of sufficient legal force to constitute final agency action and thus warrant judicial review.
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B. Defendants’ Motion to Dismiss on Substantive Grounds is Denied Having concluded that Plaintiffs’ Complaint should not be dismissed on jurisdictional grounds, the Court next considers Defendants’ substantive arguments for dismissal for failure to state a claim pursuant to Rule 12(b)(6). In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts the allegations in the complaint as true and draws all reasonable inferences in favor of the nonmoving party. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). To survive a motion to dismiss, the complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In other words, “the complaint’s factual allegations must be enough to raise a right to relief above the speculative level, i.e., enough to make the claim plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (internal citations and alterations omitted) (quoting Twombly, 550 U.S. at 555, 570). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Generally, “the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint” may be considered in assessing whether a claim is sufficient to survive a Rule 12(b)(6) motion. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). Defendants argue that Plaintiffs’ common law immunity and APA claims fail to state a claim. They further argue that Plaintiffs’ constitutional claims, brought under the First, Fifth, and Sixth Amendments, fail to state a claim.
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For the reasons that follow, the Court disagrees with Defendants with respect to all but Plaintiffs’ Sixth Amendment claim, which it dismisses for failure to state a claim.
1. Common Law Immunity and APA Claims Defendants argue that Plaintiffs’ common law immunity and APA claims—which turn on the existence of a common law privilege against civil courthouse arrests—fail to state a claim and should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. First, they argue that there is no common law privilege against civil courthouse arrests and that the absence of such a privilege is fatal to both Plaintiffs’ common law and APA claims. Second, they argue that even assuming such a privilege exists, the INA has displaced it. The Court addresses—and rejects—each contention in turn. With respect to Defendants’ first contention, the Court concludes, in accord with Judge Rakoff’s decision in State v. U.S. Immigration & Customs Enf’t, 431 F. Supp. 3d 377 (S.D.N.Y. 2019), that a common law privilege against civil courthouse arrests exists. Case law and contemporary commentaries indicate that such a privilege derives from English common law. This privilege emerged at a time when civil arrest was commonplace, because a civil action was commenced by way of civil arrest of the defendant. In Blackstone’s Commentaries on the Laws of England, “on which early U.S. courts heavily relied in incorporating English common law into the laws of the several states and the United States,” State v. U.S. Immigration & Customs Enf’t, 431 F. Supp. 3d 377 (S.D.N.Y. 2019), Blackstone describes the privilege as follows: Suitors, witnesses, and other persons, necessarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their necessary coming and returning. And no arrest can be made in the king’s presence, nor within the verge of his royal palace, nor in any place where the king’s justices are actually sitting. 3 William Blackstone, Commentaries on the Laws of England 289 (1768); see also, e.g., Meekins v. Smith, 126 Eng. Rep. 363, 363 (1791) (“[A]ll persons who had relation to a suit
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which called for their attendance, whether they were compelled to attend by process or not, (in which number bail were included) were intitled to privilege from arrest eundo et redeundo [going and returning], provided they came bona fide.”). The rationales underpinning the existence of the privilege illustrate that it existed as much for the benefit of the courts as it did for the benefit of the individual: To permit arrest to be made in court or while persons were coming or returning “would give occasion to perpetual tumults,” Orchard’s Case, 38 Eng. Rep. 987, 987 (1828), discourage witnesses from coming forward voluntarily, see Walpole v. Alexander, 99 Eng. Rep. 530, 530 (1782), and “was altogether inconsistent with the decorum which ought to prevail in a high tribunal,” Orchard’s Case, 38 Eng. Rep. at 978.
Case law and contemporary commentaries further illustrate that by at least the midnineteenth century, the privilege was firmly established in New York common law. Indeed, David Graham’s Treatise on the Practice of the Supreme Court of the State of New York noted in 1836 that “[a]s a general rule, every person who has any relation to a suit, whether his presence be compulsory or not, is exempt from arrest, eundo, morando, et redeundo [going, staying, and returning].” David Graham, Treatise on the Practice of the Supreme Court of the State of New York 129 (2d ed. 1836); see also, e.g., Hopkins v. Coburn, 1828 WL 2235 (N.Y. Sup. Ct. 1828) (“The defendant, as a suitor, was undoubtedly privileged from arrest . . . .”). Even after service of process had largely replaced civil arrest as the chief means of initiating a civil action, the New York Court of Appeals confirmed the continued vitality of the privilege in the context of service of process, noting that “[i]t is the policy of the law to protect suitors and witnesses from arrests upon civil process while coming to and attending the court and while returning home.” Person v. Grier, 66 N.Y. 124, 125 (1876). Like the English courts before it, the Court of Appeals found that the privilege was necessary “[to] the administration of justice,”
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because in its absence “[w]itnesses might be deterred, . . . parties prevented from attending, and delays might ensue or injustice be done.” Id. at 126; see also Parker v. Marco, 136 N.Y. 585, 32 N.E. 989 (1893) (finding the privilege “is not simply a personal privilege, but . . . is also the privilege of the court, and is deemed necessary for the maintenance of its authority and dignity and in order to promote the due and efficient administration of justice.”).
The Court agrees with Judge Rakoff that the “[t]he continuing availability of the common law privilege, and its breadth, is shown by the fact that even after the former kind of civil arrest had become obsolete, and before regulatory civil arrests had become common, . . . the highest court of New York . . . continued to apply the privilege even when the intrusion was not an actual arrest but only a disruptive service of process.” State v. U.S. Immigration & Customs Enf’t, No. 19-cv-8876 (JSR), 2019 WL 6906274, at *9 (S.D.N.Y. Dec. 19, 2019).
The Court also agrees with Judge Rakoff that the continued vitality of the common law privilege is made manifest when one examines “the policy objectives cited for hundreds of years by English and American courts to justify” it. State v. U.S. Immigration & Customs Enf’t, 431 F. Supp. 3d 377, 391 (S.D.N.Y. 2019). As discussed above, the privilege evolved as a means to encourage parties, as well as witnesses, to appear in court voluntarily and to enable the proper, expeditious, and uninterrupted functioning of courts. These policy objectives apply equally—if not with greater force—to modern-day civil immigration arrests and compel this Court to conclude, as Judge Rakoff did, that the common law privilege against civil arrests in and around courthouses persists in the common law of New York State. Id. Indeed, a privilege “so fundamental to the functioning of both federal and state judiciary[] cannot be assumed to have disappeared simply with the passage of time.” Id.
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Having concluded that the common law privilege persists in New York common law, the question remains whether this privilege places any constraints on the INA. Plaintiffs argue that the INA has not overridden the privilege—and thus implicitly incorporates it—and, as a result, conducting civil arrests in and around courthouses exceeds ICE’s authority. See Dkt. No. 74 at 24–29. Defendants argue, on the other hand, that the INA preempts the common law privilege.
“Statutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” United States v. Texas, 507 U.S. 529, 534 (1993) (citation and alterations omitted). In order to abrogate a common-law principle, the federal statute at issue “must ‘speak directly’ to the question addressed by the common law.” Id. (citation omitted). This is so because, under such circumstances, “Congress does not write upon a clean slate.” Id.
Where state law is involved, furthermore, federalism concerns govern. Thus, when considering whether federal law pre-empts state common law, the Court is admonished to “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’” City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 316 (1981) (emphasis added) (citation omitted). “If Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (emphasis added) (alterations, internal quotations, and citation omitted).3 Absent evidence of such a “clear and manifest purpose,” therefore, the
3 The First Circuit, which recently ruled against the Plaintiffs in a similar case, did not reach the question of whether the INA reflects Congress’s clear and manifest purpose to pre-empt state common law because the district court did not address this argument in its analysis. See Ryan v. U.S. Immigration & Customs Enf’t, No. 19-1838, 2020 WL 5201945, at *14 (1st Cir. Sept. 1, 2020). As a result, this Court’s ruling is not in tension with the First Circuit’s holding in Ryan.
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presumption against pre-emption cautions against a judicial determination that state law— including state common law—was superseded by federal action. See Wyeth v. Levine, 555 U.S. 555, 565 (2009).
The INA does not contain the requisite clear and manifest congressional purpose to preempt the New York state common law privilege against civil courthouse arrests. Indeed, the two civil arrest provisions in the INA—Sections 1226 and 1357—authorize arrests with and without a warrant respectively but do not speak to arrests in and around courthouses in any way. See 8 U.S.C. §§ 1226(a) and 1357(a)(2). Because the INA provides no indication that Congress intended to abrogate the common law privilege against civil courthouse arrests—let alone an “unmistakably clear” one—the Court concludes that “the statute incorporates the privilege.” See State v. U.S. Immigration & Customs Enf’t, 431 F. Supp. 3d 377, 391 (S.D.N.Y. 2019).
Defendants argue, to the contrary, that because the INA speaks “directly to the issue of immigration arrests” generally, Dkt. No. 64 at 28, it has displaced the state common law privilege. However, as discussed above, the Sections governing civil immigration arrests are silent as to whether such arrests may be made in and around courthouses. And such silence “falls far short of an expression of legislative intent to supplant the existing common law in that area.” Texas, 507 U.S. at 535. Indeed, in Texas, the Supreme Court concluded that states remain subject to common-law prejudgment interest liability in spite of the Debt Collection Act because that “statute is silent as to the obligation of the states to pay prejudgment interests on such debts.” Id. Moreover, in order to supplant state—as opposed to federal—common law, the relevant statute need not simply “speak directly” to the issue of immigration arrests, but rather it must contain the requisite clear and manifest congressional purpose to displace the relevant
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common law principle. As the Court has already concluded, no such clear and manifest purpose to supplant the common law privilege is evident in the INA’s arrest provisions.
Defendants further argue that Section 1229(e)(1), which was added to the INA in 2006, expressly addresses immigration enforcement actions against aliens at courthouses, and therefore displaces the common law privilege. See Dkt. No. 64 at 29. This Section provides that if an enforcement action leading to a removal proceeding takes place at a courthouse and the noncitizen is appearing “in connection with a protection order case, child custody case, or other civil or criminal case relating to domestic violence, sexual assault, trafficking, or stalking in which the alien has been battered or subject to extreme cruelty or if the alien is described in subparagraph (T) or (U) of section 1101(a)(15) of this title,” the Notice to Appear must include a statement that Section 1367 of the INA has been complied with. See 8 U.S.C. § 1229. Section 1367, in turn, prohibits the Departments of Justice, Homeland Security, and State from making an adverse determination of admissibility or credibility using information furnished solely by various people who battered or subject the noncitizen or the noncitizen’s child to extreme cruelty. See id. § 1367.
The Court concludes that Section 1229, too, falls short of providing the clear and manifest congressional purpose necessary to supplant the common law privilege. At most, as Defendants themselves admit, this Section amounts to an acknowledgement that courthouse arrests were occurring and an attempt to provide those subject to such arrests with certain protections, see Dkt. No. 64 at 29 (“Congress knew that ICE was making courthouse arrests . . . and provided certain requirements that ICE must follow.”)—a far cry from the “unmistakably clear” language necessary to abrogate the common law privilege. Indeed, as Judge Rakoff points out, it would turn this statutory provision—which is intended to protect noncitizens subject to
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courthouse arrests—on its head to find in it a clear and manifest congressional purpose to abrogate the common law privilege against civil courthouse arrests. See State v. U.S. Immigration & Customs Enf’t, 431 F. Supp. 3d 377, 393 (S.D.N.Y. 2019) (“[I]t would be odd to view a provision meant to encourage aliens’ attendance at court as evidence of Congressional intent to allow ICE to undermine that very objective.”). For this reason, the Court agrees with Plaintiffs that “Section 1229(e)’s goal of making courthouses safer for noncitizens precludes reading the statute as an ‘unmistakably clear’ expression of Congress’s intent to make courthouses less safe by affirmatively authorizing ICE civil courthouse arrests.” Dkt. No. 74 at 27.
Defendants finally argue that plenary federal power over immigration means that “state common law cannot bar the federal government from arresting aliens in public places.” See Dkt. No. 64 at 28, 30. But this argument proves too much. Defendants are correct that “[b]ecause Congress possesses plenary authority over immigration-related matters, it may freely displace or preempt state laws in respect to such matters.” Herrera-Inirio v. INS, 208 F.3d 299, 307–08 (1st Cir. 2000) (emphasis added). But that Congress possesses such power does not mean that it has exercised it. Indeed, the Court has already concluded that Congress has not displaced or preempted the state common law privilege. Moreover, the other cases Defendants cite in support of this argument, see United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012); Arizona v. United States, 567 U.S. 387, 410 (2012), are inapposite because they involved specific attempts by states to regulate immigration. As the history of the common law privilege illustrates, on the other hand, it is not—and has never been—an attempt to regulate immigration. Indeed, it does not prohibit only civil immigration arrests in and around courthouses; it prohibits all civil arrests
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in and around courthouses. That it has some incidental effect on federal immigration enforcement authority does not render it preempted or displaced.
Because the Court concludes that the privilege against civil courthouse arrests persists in New York state common law and has not been preempted or displaced by the INA, it denies Defendants’ motion to dismiss Plaintiffs’ common law and APA claims for failure to state a claim. In light of this conclusion, the Court need not consider whether a similar privilege exists in federal common law.4
2. Constitutional Claims The Court finally turns to Plaintiffs’ access to courts claims, which they assert under the First, Fifth, and Sixth Amendments to the United States Constitution. Defendants argue that Plaintiffs have failed to state a claim under any of these Amendments. The Court disagrees with respect to Plaintiffs’ First and Fifth Amendment claims, but it agrees with respect to Plaintiffs’ Sixth Amendment claim and hereby dismisses it.
a) First and Fifth Amendment Claims “It is well established that all persons enjoy a constitutional right of access to the courts, although the source of this right has been variously located in the First Amendment right to petition for redress, the Privileges and Immunities Clause of Article IV, section 2, and the Due Process Clauses of the Fifth and Fourteenth Amendments.” Monsky v. Moraghan, 127 F.3d 243, 246 (2d Cir. 1997). In order to allege a violation of a right of access to the courts, whether construed as arising under the First or Fifth Amendments, a plaintiff must allege that “a defendant caused ‘actual injury,’ i.e., took or was responsible for actions that ‘hindered [a
4 Though Plaintiffs argue that such a privilege exists in both New York state and federal common law, see Dkt. No. 74 at 22–24, they more “strenuously” argue for the existence of a state common law privilege, Dkt. No. 94 at 22:19– 20; see Dkt. No. 74 at 24–29.
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plaintiff’s] efforts to pursue a legal claim.’” Id. at 247 (cleaned up) (quoting Lewis v. Casey, 518 U.S. 343, 351–52 (1996). As relevant here, the Second Circuit has recognized that “hostile action toward a litigant could be so offensive as to effectively drive the litigant out of a courthouse and thereby become the functional equivalent of a denial of access.” Id.
Under this standard, Plaintiffs’ Complaint adequately alleges a violation of the right of access to the courts. Indeed, the Complaint alleges that individuals have been arrested by ICE in and around courthouses pursuant to the Directive, and that these arrests have created an “atmosphere of fear” so significant that it deters Plaintiffs and their clients—including Doe— from bringing meritorious suits. See Compl. ¶¶ 3–6, 58, 60, 62, 69, 77–78, 83–84, 87, 96–98. At this juncture, Plaintiffs have thus adequately alleged that the atmosphere of fear the Directive has engendered is the “functional equivalent of a denial of access.” See Monsky, 127 F.3d at 247.
The Court rejects out of hand Defendants’ suggestion that Plaintiffs’ First Amendment claim fails because non-citizens unlawfully present in the United States do not have any First Amendment rights. See Dkt. No. 64 at 20–21. As Defendants themselves concede, there is no authority, binding on this Court, that stands for the proposition “that nonresident aliens do not fall within the ambit of ‘the people’ for First Amendment protection,” see Dkt. No. 94 at 24:9– 12, and the Court is not prepared to so conclude as a matter of first impression on the authority offered by Defendants. Several cases Defendants rely on to support this proposition are distinguishable in that they arise in the context of extraterritorial application of the First Amendment. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990); Hoffman v. Bailey, 996 F. Supp. 2d 477, 488 (E.D. La. 2014). And the Supreme Court case in which they place the most stock leaves open the possibility that non-citizens unlawfully present in the
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country do possess such rights. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (suggesting that “the people” in the First Amendment refers “to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community”); see also Washington, 2020 WL 1819837, at *13 (“[T]he Verdugo-Urquidez Court did not preclude unlawfully present aliens from asserting rights secured by the First Amendment.”). But even were Defendants correct, it would not be fatal to Plaintiffs’ right of access to the courts claim, because, as stated above, such a right also derives from the Fifth Amendment, which unequivocally applies to citizens and non-citizens alike. See Zadvydas, 533 U.S. at 693 (“[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”). Accordingly, the Court concludes that Plaintiffs have adequately alleged a right of access to the courts claim, regardless of whether such a claim arises under the First or Fifth Amendment.
a) Sixth Amendment Claim To the extent Plaintiffs’ Sixth Amendment claim mirrors their First and Fifth Amendment claims, it fails to state a claim under that Amendment as a matter of law. To begin, Plaintiffs argue that ICE’s courthouse arrest policy “interferes with Plaintiffs’ efforts to pursue legal claims,” see Dkt. No. 74 at 20; see also Compl. ¶¶ 5, 7, 67, 69–71, 78, 81–84, thereby also framing their Sixth Amendment claim as a right of access to the courts claim, see Dkt. No. 74 at 2 (characterizing Sixth Amendment rights as “rights of meaningful access to courts”). As discussed above, however, such an argument is barred by the Second Circuit’s holding that “the right of access to the courts is grounded not in the Sixth Amendment but in various other
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constitutional provisions,” including the First and Fifth Amendments. Bourdon v. Loughren, 386 F.3d 88, 95 (2d Cir. 2004).
To the extent Plaintiffs’ Sixth Amendment claim alleges interference with their ability to be confronted with or offer testimony from noncitizens and to access counsel without fear of arrest, see Dkt. No. 74 at 20, these allegations, too, fail to state a claim. Sixth Amendment rights are “personal to the accused.” Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979). But with respect to Plaintiffs’ confrontation allegations, the Complaint does not allege that the Directive interferes with Plaintiffs’ ability to be confronted with witnesses against them; rather, its allegations regarding the targeting of witnesses for arrest focus on witnesses’ fear to come forward to report criminal activity or cooperate with law enforcement in criminal cases. See Compl. ¶¶ 85–87.
Finally, Plaintiffs’ sparse allegations regarding access to counsel fail because they lack proper foundation in the record. Indeed, this argument is fatally conclusory. See Compl. ¶ 78 (“ICE carries out courthouse arrests at all stages of legal proceedings—at arraignments and other initial appearances, as well as at subsequent appearances. They take place often outside the presence of counsel. In many cases, individuals were arrested as they were on their way to meetings with their lawyers.”). See also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (holding that to survive a 12(b)(6) motion, a plaintiff must assert “more than labels and conclusions.”).
Accordingly, the Court dismisses Plaintiffs’ Sixth Amendment claim for failure to state a claim. III. CONCLUSION
For the foregoing reasons, Defendants’ motion is DENIED as to all but Plaintiffs’ Sixth Amendment claim and GRANTED as to Plaintiffs’ Sixth Amendment claim. Within seven days
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of the date of this Opinion and Order, the parties shall meet and confer and submit a joint letter in which they provide a status update and a proposal for next steps in the litigation.
This resolves Dkt. No. 63. SO ORDERED.

Dated: September 28, 2020 New York, New York

____________________________________ ALISON J. NATHAN
United States District Judge

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