U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:19-cv-08876-JSR

State of New York et al Assigned to: Judge Jed S. Rakoff Cause: 05:702 Administrative Procedure Act

Date Filed: 09/25/2019 Date Terminated: 06/11/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff State of New York

represented by Anjana Malhotra NYS Office of The Attorney General 28 Liberty Street, 20th Floor New York, NY 10005 212-416-6182 Email: anjana.malhotra@ag.ny.gov ATTORNEY TO BE NOTICED

Ari Joseph Savitzky NYS Office of The Attorney General 28 Liberty Street New York, NY 10005 212-416-6073 Email: ari.savitzky@ag.ny.gov ATTORNEY TO BE NOTICED

Daniela Nogueira NYS Office of The Attorney General 28 Liberty Street New York, NY 10005 212-416-6544 Email: daniela.nogueira@ag.ny.gov ATTORNEY TO BE NOTICED

Fiona Jeannette Kaye NYS Office of The Attorney

General 28 Liberty Street New York, NY 10005 212-416-8036 Email: Fiona.Kaye@ag.ny.gov ATTORNEY TO BE NOTICED
Morenike Fajana NYS Office of The Attorney General 28 Liberty Street New York, NY 10005 212-416-6134 Email: morenike.fajana@ag.ny.gov ATTORNEY TO BE NOTICED
Scott Andrew Eisman Freshfields Bruckhaus Deringer US LLP 601 Lexington Avenue Ste 31st Floor New York, NY 10022 212-277-4000 Email: scott.eisman@freshfields.com TERMINATED: 01/14/2020
Steven Chiajon Wu Attorney General of the State of New York 120 Broadway 26th Floor New York, NY 10271 (212)-416-6312 Fax: (212)-416-8962 Email: steven.wu@ag.ny.gov ATTORNEY TO BE NOTICED
Matthew Colangelo New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 212 416 6057 Fax: 212 416 6007 Email:

Plaintiff Eric Gonzalez in his official capacity as the District Attorney of Kings County (Brooklyn)
V. Defendant United States Immigration and Customs Enforcement

Matthew.Colangelo@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Jill Harris Kings County District Attorney 350 Jay Street Brooklyn, NY 11201 718-250-3156 Fax: 718-250-1273 Email: harrisj1@brooklynda.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Toni C. Lichstein Kings County district Attorney Civil Litigation Bureau 350 Jay Street Ste 20th Floor Brooklyn, NY 11201 718-250-2182 Email: lichstet@brooklynda.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Andrew Eisman (See above for address) TERMINATED: 01/14/2020
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Tomoko Onozawa U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637-2721 Fax: (212) 637- 2686 Email: tomoko.onozawa@usdoj.gov LEAD ATTORNEY

Defendant Matthew T. Albence in his official capacity as Acting Director of United States Immigration and Customs Enforcement
Defendant United States Department of Homeland Security

ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212-637-2200 Fax: 212-637-2730 Email: Jeffrey.Oestericher@usdoj.gov 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
Jeffrey Stuart Oestericher (See above for address) 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
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED

Defendant Kevin K. McAleenan in his official capacity as Acting Secretary of Homeland Security
Amicus Immigrant Defense Project
Amicus Immigration Law Scholars
Amicus Former Judges Amicus

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
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED
Rebecca Ruth Friedman (See above for address) ATTORNEY TO BE NOTICED
represented by Theresa Dawn Lawson Immigrant Defense Project 40 W 39th Street 5th Floor New York, NY 10018 646-760-0589 Email: tlawson@lsnyc.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 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nikolas Bowie
Amicus New York City Bar Association 42 West 44th Street New York, NY 10023 212-382-6674
Amicus State of Washington

represented by Jennifer Sokoler O'Melveny & Myers 7 Times Square New York, NY 10036 (212)-326-2000 Email: jsokoler@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nikolas Bowie 1525 Massachusetts Avenue Cambridge, MA 02138 617-304-1371 Email: nbowie@law.harvard.edu ATTORNEY TO BE NOTICED
represented by Lauren Grant Axelrod New York City Council - Office of The General Counsel 250 Broadway, 15th Floor New York, NY 10007 (212)-676-1361 Fax: (212)-513-0701 Email: laxelrod@council.nyc.gov ATTORNEY TO BE NOTICED
represented by Rahul Rao Washington Attorney General's Office Antitrust Division 800 Fifth Avenue Suite 2000 Seattle, WA 98104 206-442-4499 Email: rahul.rao@atg.wa.gov ATTORNEY TO BE NOTICED

Date Filed 09/25/2019

# Docket Text
1 COMPLAINT against United States Immigration and Customs Enforcement, Matthew T. Albence, United States Department of Homeland Security, Kevin K. McAleenan. (Filing Fee $ 400.00,

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Receipt Number ANYSDC-17659362)Document filed by State of New York, Eric Gonzalez. (Attachments: # 1 Exhibit 1 (ICE Directive Number 11072.1, "Civil Immigration Enforcement Actions Inside Courthouses"), # 2 Exhibit 2 (2017 N.Y. State Unified Court System Policy), # 3 Exhibit 3 (2019 N.Y. State Unified Court System Policy))(Colangelo, Matthew) (Entered: 09/25/2019)
2 FILING ERROR - PDF ERROR - CIVIL COVER SHEET filed. (Colangelo, Matthew) Modified on 9/26/2019 (jgo). (Entered: 09/25/2019)
3 REQUEST FOR ISSUANCE OF SUMMONS as to United States Immigration and Customs Enforcement, re: 1 Complaint,,. Document filed by Eric Gonzalez, State of New York. (Colangelo, Matthew) (Entered: 09/25/2019)
4 REQUEST FOR ISSUANCE OF SUMMONS as to Matthew T. Albence, in his official capacity as Acting Director of United States Immigration and Customs Enforcement, re: 1 Complaint,,. Document filed by Eric Gonzalez, State of New York. (Colangelo, Matthew) (Entered: 09/25/2019)
5 REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of Homeland Security, re: 1 Complaint,,. Document filed by Eric Gonzalez, State of New York. (Colangelo, Matthew) (Entered: 09/25/2019)
6 REQUEST FOR ISSUANCE OF SUMMONS as to Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security, re: 1 Complaint,,. Document filed by Eric Gonzalez, State of New York. (Colangelo, Matthew) (Entered: 09/25/2019)
7 CIVIL COVER SHEET filed. (Colangelo, Matthew) (Entered: 09/25/2019)
8 STATEMENT OF RELATEDNESS re: that this action be filed as related to 19-cv-8892. Document filed by Eric Gonzalez, State of New York.(Colangelo, Matthew) (Entered: 09/25/2019)
***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Matthew Colangelo. The following case opening statistical information was erroneously selected/entered: Cause of Action code 05:551;. The following correction(s) have been made to your case entry: the Cause of Action code has been modified to 05:702;. (jgo) (Entered: 09/26/2019)

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***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Matthew Colangelo. The party information for the following party/parties has been modified: State of New York; Eric Gonzalez; United States Immigration and Customs Enforcement; Matthew T. Albence; United States Department of Homeland Security; Kevin K. McAleenan. The information for the party/parties has been modified for the following reason/reasons: party text contained a typographical error; party text was removed. (jgo) (Entered: 09/26/2019)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Unassigned. (jgo) (Entered: 09/26/2019)
Case Designated ECF. (jgo) (Entered: 09/26/2019)
CASE REFERRED TO Judge Alison J. Nathan as possibly related to 19-cv-8892. (jgo) (Entered: 09/26/2019)
9 ELECTRONIC SUMMONS ISSUED as to Kevin K. McAleenan. (jgo) (Entered: 09/26/2019)
10 ELECTRONIC SUMMONS ISSUED as to Matthew T. Albence. (jgo) (Entered: 09/26/2019)
11 ELECTRONIC SUMMONS ISSUED as to United States Department of Homeland Security. (jgo) (Entered: 09/26/2019)
12 ELECTRONIC SUMMONS ISSUED as to United States Immigration and Customs Enforcement. (jgo) (Entered: 09/26/2019)
13 NOTICE OF APPEARANCE by Scott Andrew Eisman on behalf of State of New York. (Eisman, Scott) (Entered: 09/26/2019)
14 AFFIDAVIT OF SERVICE. All Defendants. Service was made by Mail. Document filed by State of New York, Eric Gonzalez. (Colangelo, Matthew) (Entered: 09/26/2019)
CASE DECLINED AS NOT RELATED. Case referred as related to 19cv8892 and declined by Judge Alison Nathan and returned to wheel for assignment. (wb) (Entered: 09/26/2019)
NOTICE OF CASE REASSIGNMENT to Judge Jed S. Rakoff. Judge Unassigned is no longer assigned to the case. (wb) (Entered: 09/26/2019)

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Magistrate Judge Robert W. Lehrburger 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. (wb) (Entered: 09/26/2019)
15 NOTICE OF APPEARANCE by Anjana Malhotra on behalf of State of New York. (Malhotra, Anjana) (Entered: 09/27/2019)
16 NOTICE OF COURT CONFERENCE: Initial Conference set for 10/8/2019 at 11:30 AM in Courtroom 14B, 500 Pearl Street, New York, NY 10007 before Judge Jed S. Rakoff, as further set forth in this order. (Signed by Judge Jed S. Rakoff on 10/3/2019) (jwh) (Entered: 10/03/2019)
***DELETED DOCUMENT. Deleted document number 17 NOTICE OF COURT CONFERENCE. The document was incorrectly filed in this case. (jwh) (Entered: 10/25/2019)
18 NOTICE OF APPEARANCE by Rebecca Ruth Friedman on behalf of Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Friedman, Rebecca) (Entered: 10/07/2019)
19 NOTICE OF APPEARANCE by Jeffrey Stuart Oestericher on behalf of Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Oestericher, Jeffrey) (Entered: 10/07/2019)
20 CIVIL CASE MANAGEMENT PLAN: Ready for Trial by 3/8/2020. Motion To Dismiss: Moving - 10/23; Answering - 11/5; Reply - 11/12; Oral Argument set for 11/20/2019 at 04:00 PM before Judge Jed S. Rakoff. Amended Pleadings due by 12/17/2019. Joinder of Parties due by 12/17/2019. Administrative Record to be filed by 12/10/19. Deposition due by 2/14/2020. Discovery due by 2/14/2020. Motions due by 2/24/2020. Responses due by 3/3/2020. Replies due by 3/10/2020. Oral Argument set for 3/19/2020 at 02:00 PM before Judge Jed S. Rakoff. Final Pretrial Conference set for 3/19/2020 at 02:00 PM before Judge Jed S. Rakoff. (Signed by Judge Jed S. Rakoff on 10/8/2019) (jwh) (Entered: 10/08/2019)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Initial Pretrial Conference held on 10/8/2019, ( Final Pretrial Conference set for 3/19/2020 at 02:00 PM before Judge Jed S. Rakoff., Oral Argument set for 11/20/2019 at 04:00 PM before Judge Jed S. Rakoff.). (Kotowski, Linda) (Entered: 10/11/2019)

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21 NOTICE OF APPEARANCE by Tomoko Onozawa on behalf of Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Onozawa, Tomoko) (Entered: 10/10/2019)
22 NOTICE OF APPEARANCE by Jill Harris on behalf of Eric Gonzalez. (Harris, Jill) (Entered: 10/15/2019)
23 TRANSCRIPT of Proceedings re: CONFERENCE held on 10/8/2019 before Judge Jed S. Rakoff. Court Reporter/Transcriber: Raquel Robles, (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 11/5/2019. Redacted Transcript Deadline set for 11/15/2019. Release of Transcript Restriction set for 1/13/2020.(McGuirk, Kelly) (Entered: 10/15/2019)
24 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 10/8/19 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: 10/15/2019)
25 MOTION to Dismiss . Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. Responses due by 11/5/2019 Return Date set for 11/20/2019 at 04:00 PM.(Onozawa, Tomoko) (Entered: 10/23/2019)
26 MEMORANDUM OF LAW in Support re: 25 MOTION to Dismiss . . Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Onozawa, Tomoko) (Entered: 10/23/2019)
27 DECLARATION of AUSA Tomoko Onozawa in Support re: 25 MOTION to Dismiss .. Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Onozawa, Tomoko) (Entered: 10/23/2019)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 10/25/2019. (Kotowski, Linda) (Entered: 10/25/2019)

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28 NOTICE OF APPEARANCE by Morenike Fajana on behalf of State of New York. (Fajana, Morenike) (Entered: 10/28/2019)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 11/4/2019. (Kotowski, Linda) (Entered: 11/05/2019)
29 Amicus Curiae APPEARANCE entered by Theresa Dawn Lawson on behalf of Immigrant Defense Project.(Lawson, Theresa) (Entered: 11/05/2019)
30 BRIEF BRIEF OF AMICI CURIAE IMMIGRANT DEFENSE PROJECT AND 40 LEGAL SERVICES ORGANIZATIONS, PUBLIC DEFENDER ORGANIZATIONS, AND NON-PROFIT ORGANIZATIONS IN SUPPORT OF PLAINTIFFS. Document filed by Immigrant Defense Project.(Lawson, Theresa) (Entered: 11/05/2019)
31 NOTICE OF APPEARANCE by Brian Adair Sutherland on behalf of Immigration Law Scholars. (Sutherland, Brian) (Entered: 11/05/2019)
32 BRIEF of Amicus Curiae Immigration Law Scholars. Document filed by Immigration Law Scholars.(Sutherland, Brian) (Entered: 11/05/2019)
33 MEMORANDUM OF LAW in Opposition re: 25 MOTION to Dismiss . . Document filed by Eric Gonzalez, State of New York. (Colangelo, Matthew) (Entered: 11/05/2019)
34 BRIEF of Former Judges as Amici Curiae in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss. Document filed by Former Judges.(Adegbile, Debo) (Entered: 11/05/2019)
35 BRIEF of Professor Nikolas Bowie as Amicus Curiae In Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss. Document filed by Nikolas Bowie.(Sokoler, Jennifer) (Entered: 11/05/2019)
36 NOTICE OF APPEARANCE by Jennifer Sokoler on behalf of Nikolas Bowie. (Sokoler, Jennifer) (Entered: 11/06/2019)
37 AMENDED BRIEF of Professor Nikolas Bowie as Amicus Curiae In Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss. Document filed by Nikolas Bowie.(Sokoler, Jennifer) (Entered: 11/07/2019)
38 REPLY MEMORANDUM OF LAW in Support re: 25 MOTION to Dismiss . . Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United

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States Immigration and Customs Enforcement. (Onozawa, Tomoko) (Entered: 11/13/2019)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 11/18/2019. (Kotowski, Linda) (Entered: 11/21/2019)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Oral Argument held on 11/20/2019 re: 25 MOTION to Dismiss . filed by United States Immigration and Customs Enforcement, Kevin K. McAleenan, Matthew T. Albence, United States Department of Homeland Security. (Kotowski, Linda) (Entered: 11/21/2019)
39 TRANSCRIPT of Proceedings re: CONFERENCE held on 11/20/2019 before Judge Jed S. Rakoff. Court Reporter/Transcriber: Raquel Robles, (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)
40 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 11/20/19 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)
41 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition re: 25 MOTION to Dismiss . . Document filed by Eric Gonzalez, State of New York. (Colangelo, Matthew) (Entered: 12/03/2019)
42 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 25 MOTION to Dismiss . . Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Onozawa, Tomoko) (Entered: 12/03/2019)
43 DECLARATION of AUSA Tomoko Onozawa (Supplemental Declaration) in Support re: 25 MOTION to Dismiss .. Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A (Transcript of

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November 20, 2019 oral argument))(Onozawa, Tomoko) (Entered: 12/03/2019)
44 MOTION for Nikolas Bowie to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-18221662. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Nikolas Bowie. (Attachments: # 1 Declaration of Jennifer B. Sokoler, # 2 Declaration of Nikolas Bowie, # 3 Certificate of Good Standing Massachusetts, # 4 Text of Proposed Order)(Sokoler, Jennifer) (Entered: 12/05/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 44 MOTION for Nikolas Bowie to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-18221662. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 12/05/2019)
45 LETTER addressed to Judge Jed S. Rakoff from T. Komatsu, dated 12/5/19 re: Non-party Tomaki Komatsu submits this letter to the Court to request to be granted intervention as of right pursuant to Federal Rule of Civil Procedure Rule 24 (a)(2) or permissive intervention pursuant to FRCP Rule 24(b) in order to intervene as an interested party or to appear in it as an amicus curiae etc. (sc) (Entered: 12/06/2019)
46 ORDER ON MOTION FOR ADMISSION PRO HAC VICE granting 44 Motion for Nikolas Bowie to Appear Pro Hac Vice. SO ORDERED. (Signed by Judge Jed S. Rakoff on 12/8/2019) (ks) (Entered: 12/09/2019)
48 LETTER addressed to Judge Jed S. Rakoff from T. Komatsu, dated 12/9/19 re: Plaintiff files this letterwith the Court in order to supplement the application which he filed on 12/5/19 to intervene in this case; and that supplement primarily concerns audio and visual recordings which he discussed between pages 66 and 69 within a table that appears in that filing etc. (sc) (Entered: 12/11/2019)
47 NOTICE OF APPEARANCE by Nikolas Bowie on behalf of Nikolas Bowie. (Bowie, Nikolas) (Entered: 12/10/2019)
49 LETTER addressed to Judge Jed S. Rakoff from T. Komatsu. dated 12/13/19 re: Nonparty Towaki Komatsu submits this letter to the Court to further supplement the application which he filed in this action to be granted the ability to intervene in it or otherwise appear as an amicus curiae. (sc) (Entered: 12/16/2019)

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50 MEMORANDUM ORDER re: 45 Letter: Non-party Towaki Komatsu, proceeding prose, petitions the Court for leave to intervene in the instant lawsuit under Fed. R. Civ. P. 24 or, in the alternative, to appear as an amicus curiae. ECF Nos. 45, 48 & 49. For the following reasons, his motion is denied. (Signed by Judge Jed S. Rakoff on 12/17/2019) (jwh) (Entered: 12/17/2019)
51 OPINION AND ORDER re: 25 MOTION to Dismiss: For the aforementioned reasons, the motion to dismiss is hereby denied with respect to all of plaintiffs' claims for relief. The stay granted from the bench at oral argument is lifted, and the case management plan adopted on October 8, 2019 is amended as follows: The administrative record is to be filed by no later than January 3, 2020; all discovery is to be completed by February 28, 2020; moving papers for any post-discovery summary judgment motions are to be filed no later than March 13, 2020, with answering papers by no later than March 27, 2020 and reply papers by no later than April 3, 2020; and a final pre-trial conference, as well as oral argument on any summary judgment motions, will be held on April 14, 2020 at 11:00 AM. (Signed by Judge Jed S. Rakoff on 12/19/2019) (jwh) (Entered: 12/19/2019)
Set/Reset Deadlines: Discovery due by 2/28/2020. Motions due by 3/13/2020. Responses due by 3/27/2020. Replies due by 4/3/2020. Set/Reset Hearings: Final Pretrial Conference set for 4/14/2020 at 11:00 AM before Judge Jed S. Rakoff. Oral Argument set for 4/14/2020 at 11:00 AM before Judge Jed S. Rakoff. (jwh) (Entered: 12/19/2019)
52 LETTER addressed to Judge Jed S. Rakoff from T. Komatsu, dated 12/18/19 re: Plaintiff informs the Court that he files this letter pursuant to Federal Rules of Civil Procedure Rule 60 to request to be granted reconsideration of the order, which the Court issued on 12/16/19, denying his request to be granted authorization to intervene in this action and to otherwise appear as an amicus curiae in it etc. (sc) (Entered: 12/20/2019)
53 LETTER addressed to Judge Jed S. Rakoff from T. Komatsu, dated 12/20/19 re: Plaintiff files this letter to present further grounds to be granted reconsideration of the order which the Court issued on 12/16/19 in this action in which the Court denied both his request to be granted authorization to intervene and to otherwise appear as an amicus curiae in it. (sc) (Entered: 12/26/2019)
54 ORDER re: 53 Letter, 52 Letter: Without the permission of the Court, non-pprty Towaki Komatsu has submitted not one but two ex parte letters asking the Court to reconsider its December 17 order denying his motion to intervene in the above-captioned case. Finding the arguments

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in his latest submissions without merit, his motion for reconsideration is denied. Komatsu is directed to refrain from further unauthorized communications with the Court. (Signed by Judge Jed S. Rakoff on 12/29/2019) (jwh) (Entered: 01/03/2020)
55 NOTICE of Filing of Administrative Record. Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 AR 1-110, # 2 AR 111-170)(Onozawa, Tomoko) (Entered: 01/03/2020)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 1/3/2020. (Kotowski, Linda) (Entered: 01/22/2020)
58 LETTER addressed to Judge Jed S. Rakoff from T. Komatsu, dated 1/5/20 re: This letter motion is in response to the order which the Court issued in this action on 12/29/19; and that the order is patently unlawful primarily because it violates my First Amendment right to petition courts for redress of grievances which include violations of my Fourteenth Amendment equal protection rights that would certainly and unlawfully occur if the Court issues a decision in favor of the plaintiffs in this action. (sc) (Entered: 01/09/2020)
56 ANSWER to 1 Complaint,,. Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement.(Onozawa, Tomoko) (Entered: 01/06/2020)
Minute Order Proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 1/7/2020. (Kotowski, Linda) (Entered: 01/22/2020)
57 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Scott Eisman to Withdraw as Attorney . Document filed by Eric Gonzalez, State of New York. (Attachments: # 1 Affidavit of Scott A. Eisman)(Eisman, Scott) Modified on 2/3/2020 (ldi). (Entered: 01/08/2020)
59 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - NOTICE of motion to compel production of privilege log. Document filed by Eric Gonzalez, State of New York. (Colangelo, Matthew) Modified on 1/23/2020 (ldi). (Entered: 01/10/2020)
60 MEMO ENDORSEMENT granting 57 Motion to Withdraw as Attorney. ENDORSEMENT: SO ORDERED. (Attorney Scott Andrew Eisman terminated.) (Signed by Judge Jed S. Rakoff on 1/9/2020) (jwh) (Entered: 01/14/2020)

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61 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION to Compel Defendants to produce privilege log identifying materials withheld from the Administrative Record. Document filed by Eric Gonzalez, State of New York. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Colangelo, Matthew) Modified on 1/23/2020 (ldi). (Entered: 01/14/2020)
62 FILING ERROR - DEFICIENT DOCKET ENTRY - MEMORANDUM OF LAW in Opposition re: 61 MOTION to Compel Defendants to produce privilege log identifying materials withheld from the Administrative Record. . Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Onozawa, Tomoko) Modified on 1/23/2020 (ldi). (Entered: 01/21/2020)
***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT EVENT TYPE ERROR. Notice to Attorney Matthew Colangelo to RE-FILE Document 59 Notice (Other). Use the event type Compel found under the event list Motions. (ldi) (Entered: 01/23/2020)
***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT EVENT TYPE ERROR. Notice to Attorney Matthew Colangelo to RE-FILE Document 61 MOTION to Compel Defendants to produce privilege log identifying materials withheld from the Administrative Record. Use the event type Memorandum of Law in Support of Motion found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 01/23/2020)
***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Tomoko Onozawa to RE-FILE Document 62 Memorandum of Law in Opposition to Motion. ERROR(S): document linked to filing error. (ldi) (Entered: 01/23/2020)
63 MOTION to Compel Defendants to produce privilege log identifying materials withheld from the Administrative Record . Document filed by Eric Gonzalez, State of New York.(Colangelo, Matthew) (Entered: 01/23/2020)
64 MEMORANDUM OF LAW in Support re: 63 MOTION to Compel Defendants to produce privilege log identifying materials withheld from the Administrative Record . . Document filed by Eric Gonzalez, State of New York. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Colangelo, Matthew) (Entered: 01/23/2020)

01/23/2020
01/24/2020 01/24/2020 01/27/2020 01/31/2020 02/06/2020 02/07/2020 02/10/2020
02/10/2020

65 MEMORANDUM OF LAW in Opposition re: 63 MOTION to Compel Defendants to produce privilege log identifying materials withheld from the Administrative Record . . Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Onozawa, Tomoko) (Entered: 01/23/2020)
66 NOTICE OF APPEARANCE by Fiona Jeannette Kaye on behalf of State of New York. (Kaye, Fiona) (Entered: 01/24/2020)
67 REPLY MEMORANDUM OF LAW in Support re: 63 MOTION to Compel Defendants to produce privilege log identifying materials withheld from the Administrative Record . . Document filed by Eric Gonzalez, State of New York. (Kaye, Fiona) (Entered: 01/24/2020)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 1/27/2020. (Kotowski, Linda) (Entered: 01/30/2020)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Discovery Hearing held on 1/31/2020. (Kotowski, Linda) (Entered: 02/03/2020)
68 PROTECTIVE ORDER regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Jed S. Rakoff on 2/3/2020) (jwh) (Entered: 02/06/2020)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 2/7/2020. (Kotowski, Linda) (Entered: 02/07/2020)
69 OPINION AND ORDER re: 63 MOTION to Compel Defendants to produce privilege log identifying materials withheld from the Administrative Record: For the foregoing reasons, the Court grants plaintiffs' motion and directs defendants to produce a privilege log identifying deliberative materials withheld from the administrative record by no later than February 28, 2020. (Signed by Judge Jed S. Rakoff on 2/9/2020) (jwh) (Entered: 02/10/2020)
70 TRANSCRIPT of Proceedings re: CONFERENCE held on 1/31/2020 before Judge Jed S. Rakoff. Court Reporter/Transcriber: Kristen Carannante, (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 3/2/2020. Redacted Transcript Deadline set for 3/12/2020. Release of Transcript Restriction set for 5/11/2020..(McGuirk, Kelly) (Entered: 02/10/2020)

02/10/2020
02/11/2020 02/11/2020
02/13/2020 02/14/2020 02/18/2020 02/18/2020 02/18/2020

71 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 1/31/2020 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: 02/10/2020)
72 MOTION to Compel Defendants to produce documents . Document filed by Eric Gonzalez, State of New York..(Colangelo, Matthew) (Entered: 02/11/2020)
73 LETTER addressed to Judge Lorna G. Schofield from T. Komatsu, dated 2/11/20 re: I am filing this letter to apprise you that all of you are continuing to flagrantly and impermissi violate your legal duties which you share that require all of you to promote civility by everyone who visits the Daniel Patrick Moynihan and Thurgood Marsall federal courthouses while they are inside of them. Document filed by Towaki Komatsu.(sc) (Entered: 02/13/2020)
74 RESPONSE in Opposition to Motion re: 72 MOTION to Compel Defendants to produce documents . . Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement..(Onozawa, Tomoko) (Entered: 02/13/2020)
75 NOTICE of Filing of Supplemental Administrative Record. Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Exhibit AR 171191).(Friedman, Rebecca) (Entered: 02/14/2020)
76 NOTICE OF APPEARANCE by Daniela Nogueira on behalf of State of New York..(Nogueira, Daniela) (Entered: 02/18/2020)
77 MEMORANDUM ORDER denying 72 Motion to Compel: Plaintiffs' motion to compel defendants to produce certifications of compliance prepared pursuant to 8 U.S.C. § 1229(e) is denied, as further set forth in this order. (Signed by Judge Jed S. Rakoff on 2/14/2020) (jwh) (Entered: 02/18/2020)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 2/18/2020. (Kotowski, Linda) (Entered: 02/21/2020)

02/28/2020 03/05/2020 03/06/2020 03/11/2020 03/12/2020 03/12/2020 03/13/2020
03/13/2020 03/13/2020 03/13/2020 03/13/2020 03/13/2020
03/13/2020

78 NOTICE of of Withdrawal of Attorney. Document filed by Nikolas Bowie..(Sokoler, Jennifer) (Entered: 02/28/2020)
79 NOTICE OF APPEARANCE by Steven Chiajon Wu on behalf of State of New York..(Wu, Steven) (Entered: 03/05/2020)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 3/6/2020. (kgo) (Entered: 03/18/2020)
80 NOTICE OF APPEARANCE by Ari Joseph Savitzky on behalf of State of New York..(Savitzky, Ari) (Entered: 03/11/2020)
81 NOTICE OF APPEARANCE by Lauren Grant Axelrod on behalf of New York City Bar Association..(Axelrod, Lauren) (Entered: 03/12/2020)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 3/12/2020. (Kotowski, Linda) (Entered: 03/13/2020)
82 BRIEF of Amici Curiae Immigrant Defense Project and 44 Legal Services Organizations, Public Defender Organizations, and NonProfit Organizations In Support of Plaintiffs. Document filed by Immigrant Defense Project..(Lawson, Theresa) (Entered: 03/13/2020)
83 BRIEF of Former Judges as Amici Curiae in Support of Plaintiff's Motion for Summary Judgment. Document filed by Former Judges..(Adegbile, Debo) (Entered: 03/13/2020)
84 BRIEF of Professor Nikolas Bowie in Support of Plaintiffs' Motion for Summary Judgment. Document filed by Nikolas Bowie..(Bowie, Nikolas) (Entered: 03/13/2020)
85 NOTICE OF APPEARANCE by Rahul Rao on behalf of State of Washington..(Rao, Rahul) (Entered: 03/13/2020)
86 BRIEF of Amici Curiae States in Support of Plaintiffs. Document filed by State of Washington..(Rao, Rahul) (Entered: 03/13/2020)
87 BRIEF of Amicus Curiae Association of the Bar of the City of New York In Support of Plaintiffs' Motion for Summary Judgment. Document filed by New York City Bar Association..(Axelrod, Lauren) (Entered: 03/13/2020)
88 MOTION for Partial Summary Judgment . Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement..(Onozawa, Tomoko) (Entered: 03/13/2020)

03/13/2020
03/13/2020 03/13/2020

89 MEMORANDUM OF LAW in Support re: 88 MOTION for Partial Summary Judgment . . Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement..(Onozawa, Tomoko) (Entered: 03/13/2020)
90 MOTION for Summary Judgment . Document filed by Eric Gonzalez, State of New York..(Colangelo, Matthew) (Entered: 03/13/2020)
91 DECLARATION of Matthew Colangelo in Support re: 90 MOTION for Summary Judgment .. Document filed by Eric Gonzalez, State of New York. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92, # 93 Exhibit 93, # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97, # 98 Exhibit 98, # 99 Exhibit 99, # 100 Exhibit 100, # 101 Exhibit 101, # 102 Exhibit 102, # 103 Exhibit 103, # 104 Exhibit 104, # 105 Exhibit 105, # 106 Exhibit 106, # 107 Exhibit 107, # 108 Exhibit 108, # 109 Exhibit 109, # 110 Exhibit 110, # 111 Exhibit 111, # 112 Exhibit 112, # 113 Exhibit 113, # 114 Exhibit 114, # 115 Exhibit 115, # 116 Exhibit 116, # 117 Exhibit 117, # 118 Exhibit 118, # 119 Exhibit 119, # 120 Exhibit 120, # 121 Exhibit 121, # 122 Exhibit 122, # 123 Exhibit 123, # 124 Exhibit 124, # 125 Exhibit 125, # 126 Exhibit 126, # 127 Exhibit 127, # 128 Exhibit 128, # 129 Exhibit 129, # 130 Exhibit 130, # 131 Exhibit 131, # 132 Exhibit 132, # 133 Exhibit 133, # 134 Exhibit 134, # 135 Exhibit 135,

03/13/2020 03/13/2020 03/16/2020 03/16/2020 03/19/2020 04/03/2020 04/07/2020
04/13/2020

# 136 Exhibit 136, # 137 Exhibit 137, # 138 Exhibit 138, # 139 Exhibit 139, # 140 Exhibit 140, # 141 Exhibit 141, # 142 Errata 142, # 143 Exhibit 143, # 144 Exhibit 144).(Colangelo, Matthew) (Entered: 03/13/2020)
92 RULE 56.1 STATEMENT. Document filed by Eric Gonzalez, State of New York..(Colangelo, Matthew) (Entered: 03/13/2020)
93 MEMORANDUM OF LAW in Support re: 90 MOTION for Summary Judgment . . Document filed by Eric Gonzalez, State of New York..(Wu, Steven) (Entered: 03/13/2020)
94 MEMORANDUM OF LAW in Support re: 90 MOTION for Summary Judgment . Corrected Memorandum of Law. Document filed by Eric Gonzalez, State of New York..(Wu, Steven) (Entered: 03/16/2020)
95 NOTICE of filing of corrected Memorandum of Law in support of Plaintiffs' motion for summary judgment. Document filed by Eric Gonzalez, State of New York..(Colangelo, Matthew) (Entered: 03/16/2020)
Minute Entry for proceedings held before Judge Jed S. Rakoff: ( Reply to Response to Brief due by 4/17/2020., Responses due by 4/10/2020, Final Pretrial Conference set for 4/29/2020 at 04:00 PM before Judge Jed S. Rakoff., Oral Argument set for 4/29/2020 at 04:00 PM before Judge Jed S. Rakoff.). (Kotowski, Linda) (Entered: 03/20/2020)
96 NOTICE of filing of corrected exhibit. Document filed by Eric Gonzalez, State of New York. (Attachments: # 1 Exhibit 19 (corrected)).(Colangelo, Matthew) (Entered: 04/03/2020)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 4/7/2020. Plaintiffs' motion to compel discovery is denied. Defendants' motion for an extension of the remaining summary judgment deadlines is granted. The new summary judgment deadlines are as follows: opposition papers by no later than April 20 and replies by no later than April 27. Oral argument on May 4 at 11 AM.(Replies due by 4/27/2020. Responses due by 4/20/2020)(Oral Argument set for 5/4/2020 at 11:00 AM before Judge Jed S. Rakoff.). (tro) (Entered: 04/09/2020)
MEMORANDUM TO THE DOCKET CLERK: Dial in information for the telephonic argument on May 4, 2020 at 11:00am : USA Toll Free: 888-363-4735 Access Code: 1086415.(kgo) (Entered: 04/13/2020)

04/20/2020

97 MEMORANDUM OF LAW in Opposition re: 88 MOTION for Partial Summary Judgment . . Document filed by Eric Gonzalez, State of New York..(Wu, Steven) (Entered: 04/20/2020)

04/20/2020

98 MEMORANDUM OF LAW in Opposition re: 90 MOTION for Summary Judgment . . Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement..(Onozawa, Tomoko) (Entered: 04/20/2020)

04/20/2020

99 COUNTER STATEMENT TO 92 Rule 56.1 Statement. Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement..(Onozawa, Tomoko) (Entered: 04/20/2020)

04/20/2020

100 DECLARATION of Tomoko Onozawa in Opposition re: 90 MOTION for Summary Judgment .. Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y).(Onozawa, Tomoko) (Entered: 04/20/2020)

04/27/2020

101 DECLARATION of Matthew Colangelo in Support re: 90 MOTION for Summary Judgment .. Document filed by Eric Gonzalez, State of New York. (Attachments: # 1 Exhibit 145, # 2 Exhibit 146, # 3 Exhibit 147, # 4 Exhibit 148, # 5 Exhibit 149, # 6 Exhibit 150, # 7 Exhibit 151, # 8 Exhibit 152, # 9 Exhibit 153, # 10 Exhibit 154, # 11 Exhibit 155, # 12 Exhibit 156, # 13 Exhibit 157, # 14 Exhibit 158, # 15 Exhibit 159, # 16 Exhibit 160, # 17 Exhibit 161, # 18 Exhibit 162, # 19 Exhibit 163, # 20 Exhibit 164, # 21 Exhibit 165, # 22 Exhibit 166, # 23 Exhibit 167, # 24 Exhibit 168, # 25 Exhibit 169, # 26 Exhibit 170, # 27 Exhibit 171, # 28 Exhibit 172, # 29 Exhibit 173, # 30 Exhibit 174, # 31 Exhibit 175, # 32 Exhibit 176, # 33 Exhibit 177, # 34 Exhibit 178, # 35 Exhibit 179, # 36 Exhibit 180, # 37 Exhibit 181, # 38 Exhibit 182, # 39 Exhibit 183, # 40 Exhibit 184).(Colangelo, Matthew) (Entered: 04/27/2020)

04/27/2020 102 RULE 56.1 STATEMENT. Document filed by Eric Gonzalez, State of New York..(Colangelo, Matthew) (Entered: 04/27/2020)

04/27/2020

103 REPLY MEMORANDUM OF LAW in Support re: 88 MOTION for Partial Summary Judgment . . Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security,

United States Immigration and Customs Enforcement..(Friedman, Rebecca) (Entered: 04/27/2020)

04/27/2020

104 REPLY MEMORANDUM OF LAW in Support re: 90 MOTION for Summary Judgment . . Document filed by Eric Gonzalez, State of New York..(Colangelo, Matthew) (Entered: 04/27/2020)

04/29/2020

NOTICE of Hearing: The telephonic oral argument on this case has been adjourned to May 4, 2020 at 11:00am.Dial in information for this and all Judge Rakoff's telephonic matters continues to be USA TOLL FREE DIAL IN: 888-363-4735; International caller paid:215-446-3657 Access code: 1086415..(tro) (Entered: 04/30/2020)

05/01/2020

105 NOTICE of Filing. Document filed by Eric Gonzalez, State of New York. (Attachments: # 1 (Unredacted) Plfs' Resps to Defs' Statement of Facts and Plfs' Supp Statement, # 2 Ex. 61 (Redacted), # 3 Ex. 62 (Redacted), # 4 Ex. 63 (Redacted), # 5 Ex. 65 (Redacted), # 6 Ex. 66 (Redacted), # 7 Ex. 67 (Redacted), # 8 Ex. 68 (Redacted), # 9 Ex. 69 (Redacted), # 10 Ex. 70 (Redacted), # 11 Ex. 71 (Redacted), # 12 Ex. 72 (Redacted), # 13 Ex. 73 (Redacted), # 14 Ex. 74 (Redacted), # 15 Ex. 75 (Redacted), # 16 Ex. 76 (Redacted), # 17 Ex. 77 (Redacted), # 18 Ex. 78 (Redacted), # 19 Ex. 79 (Redacted), # 20 Ex. 80 (Redacted), # 21 Ex. 81 (Redacted), # 22 Ex. 82 (Redacted), # 23 Ex. 83 (Redacted), # 24 Ex. 84 (Redacted), # 25 Ex. 85 (Redacted), # 26 Ex. 86 (Redacted), # 27 Ex. 87 (Redacted), # 28 Ex. 88 (Redacted), # 29 Ex. 89 (Redacted), # 30 Ex. 90 (Redacted), # 31 Ex. 131 (Redacted), # 32 Ex. 132 (Redacted), # 33 Ex. 154 (Redacted), # 34 Ex. 155 (Redacted), # 35 Ex. 156 (Redacted), # 36 Ex. 157 (Redacted), # 37 Ex. 158 (Redacted), # 38 Ex. 159 (Redacted), # 39 Ex. 160 (Redacted), # 40 Ex. 161 (Redacted), # 41 Ex. 162 (Redacted), # 42 Ex. 163 (Redacted), # 43 Ex. 164 (Redacted), # 44 Ex. 165 (Redacted), # 45 Ex. 166 (Redacted), # 46 Ex. 167 (Redacted), # 47 Ex. 168 (Redacted), # 48 Ex. 169 (Redacted), # 49 Ex. 170 (Redacted), # 50 Ex. 171 (Redacted), # 51 Ex. 172 (Redacted), # 52 Ex. 173 (Redacted), # 53 Ex. 174 (Redacted), # 54 Ex. 175 (Redacted), # 55 Ex. 176 (Redacted), # 56 Ex. 177 (Redacted), # 57 Ex. 178 (Redacted), # 58 Ex. 179 (Redacted), # 59 Ex. 180 (Redacted), # 60 Ex. 181 (Redacted), # 61 Ex. 182 (Redacted), # 62 Ex. 183 (Redacted)).(Kaye, Fiona) (Entered: 05/01/2020)

05/04/2020

Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 5/4/2020. Present: counsel for plaintiffs State of NY and Kings County and defendant ICE and court reporter.Telephonic argument heard before Judge Rakoff on May 4, 2020 on the motions at 88 and 90 on the docket. (kgo) (Entered: 05/05/2020)

05/05/2020 106 NOTICE OF APPEARANCE by Toni C. Lichstein on behalf of Eric Gonzalez..(Lichstein, Toni) (Entered: 05/05/2020)

06/04/2020

107 TRANSCRIPT of Proceedings re: ARGUMENT held on 5/4/2020 before Judge Jed S. Rakoff. Court Reporter/Transcriber: Eve Giniger, (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 6/25/2020. Redacted Transcript Deadline set for 7/6/2020. Release of Transcript Restriction set for 9/2/2020..(McGuirk, Kelly) (Entered: 06/04/2020)

06/04/2020

108 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ARGUMENT proceeding held on 5/4/2020 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: 06/04/2020)

06/10/2020

109 OPINION AND ORDER re: 90 MOTION for Summary Judgment, 88 MOTION for Partial Summary Judgment: For the foregoing reasons, the Court grants plaintiffs' motion for summary judgment with respect to Counts One and Two, and, as a direct result, is obliged to also grant plaintiffs' requested injunctive and declaratory relief. Specifically, the Court declares ICE's policy of courthouse arrests, as now embodied in the Directive, to be illegal, and hereby enjoins ICE from conducting any civil arrests on the premises or grounds of New York State courthouses, as well as such arrests of anyone required to travel to a New York State courthouse as a party or witness to a lawsuit. Clerk to enter judgment. (Signed by Judge Jed S. Rakoff on 6/10/2020) (jwh) Transmission to Orders and Judgments Clerk for processing. (Entered: 06/10/2020)

06/11/2020

110 CLERK'S JUDGMENT re: 109 Memorandum & Opinion. in favor of State of New York, Eric Gonzalez against United States Department of Homeland Security, United States Immigration and Customs Enforcement, Kevin K. McAleenan, Matthew T. Albence. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated June 10, 2020, the Court grants Plaintiffs' motion for summary judgment with respect to Counts One and Two, and, as a direct result, is obligated to also grant Plaintiffs' requested injunctive and declaratory relief; Specifically, the Court declares ICE's policy of courthouse arrests, as now embodied in the Directive, to be illegal, and hereby enjoins ICE from conducting any

civil arrests on the premises or grounds of New York State Courthouses, as well as such arrests of anyone required to travel to a New York State courthouse as a party or witness to a lawsuit. (Signed by Clerk of Court Ruby Krajick on 06/11/2020) (Attachments: # 1 Notice of Right to Appeal) (dt) (Entered: 06/11/2020)

06/11/2020

Terminate Transcript Deadlines (dt) (Entered: 06/11/2020)

08/07/2020

111 NOTICE OF APPEAL from 110 Clerk's Judgment,,,,. Document filed by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit..(Onozawa, Tomoko) (Entered: 08/07/2020)

08/07/2020

Appeal Fee Not Required for 111 Notice of Appeal iled by Matthew T. Albence, Kevin K. McAleenan, United States Department of Homeland Security, United States Immigration and Customs Enforcement. Appeal filed by U.S. Government..(nd) (Entered: 08/07/2020)

08/07/2020

Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 111 Notice of Appeal,..(nd) (Entered: 08/07/2020)

08/07/2020

Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 111 Notice of Appeal, filed by United States Immigration and Customs Enforcement, Kevin K. McAleenan, Matthew T. Albence, United States Department of Homeland Security were transmitted to the U.S. Court of Appeals..(nd) (Entered: 08/07/2020)

11/20/2020

112 LETTER addressed to Judge William H. Pauley, III from T. Komatsu dated 11/20/20 re: While the New York City public schools are presently closed because of the ongoing Coronavirus pandemic, I am taking this opportunity to school you pursuant to findings in accordance with findings in Barboza v. D'Agata 151 F Supp 3d 363(S.D.N.Y. 2015) about relevant matters. Are you aware of any or all of the following material facts which apply to this case and all other litigation that I have commenced to which you are assigned? Barboza v. D'Agata confirms that criticism which may include views that some may regard as crude and offensive, and at the same time that others may embrace and appreciate it that I express against the government personnel in the context of reporting complaints about government action is protected expression etc. Document filed by Towaki Komatsu.(sc) (Entered: 11/20/2020)

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1:19-cv-08876JSR
1.70

 
 Case 1:19-cv-08876 Document 1 Filed 09/25/19 Page 1 of 36

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK and ERIC GONZALEZ, in his official capacity as the District Attorney of Kings County (Brooklyn),
Plaintiffs,
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; MATTHEW T. ALBENCE, in his official capacity as Acting Director of United States Immigration and Customs Enforcement; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; and KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of Homeland Security,
Defendants.

CIVIL ACTION NO.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. This lawsuit challenges the federal government’s recent unlawful and unconstitutional policy authorizing civil immigration arrests in and around New York State courthouses—a policy that disrupts the effective functioning of our courts, deters victims and witnesses from assisting law enforcement and vindicating their rights, hinders criminal prosecution, and undermines public safety. 2. New York has a compelling interest in the proper functioning of its court system—one of the oldest and busiest in the Nation. The unrestricted participation of parties, witnesses, and complainants is essential to the fair administration of justice. When those
1

Case 1:19-cv-08876 Document 1 Filed 09/25/19 Page 2 of 36
individuals fail to appear in court, justice is sometimes delayed and sometimes left undone. Cases are not adjudicated or prosecuted and decisions are not rendered, or are rendered without complete facts. State resources are also squandered: judges and court staff must prepare for proceedings that are canceled or adjourned, and must rearrange ever-more-crowded dockets to accommodate these disruptions. When the court system fails, that failure not only prejudices the parties but also interferes with the administration of justice and undermines public confidence in the courts.
3. As a reflection of these important interests, the common law has for centuries recognized a privilege against civil arrests in or around courthouses and court-related proceedings. That privilege, which remains a bedrock of New York common law, has long been “deemed necessary for the maintenance of [the courts’] authority and dignity and in order to promote the due and efficient administration of justice.” Parker v. Marco, 136 N.Y. 585, 589 (1893).
4. Nothing in federal law, including in the Immigration and Nationality Act (“INA”), purports to abrogate this common-law privilege. And until recently, federal immigration authorities followed a longstanding practice of avoiding civil immigration arrests in and around state courthouses, in recognition of the severe disruption that such arrests would have on court proceedings and the resulting interference with the administration of justice by the States.
5. In January 2018, U.S. Immigration and Customs Enforcement (“ICE”) formally reversed this longstanding practice by issuing a directive addressing “Civil Immigration Enforcement Actions Inside Courthouses” (the “Courthouse Civil Arrest Directive” or “Directive”). The Courthouse Civil Arrest Directive generally allows civil immigration arrests
2

Case 1:19-cv-08876 Document 1 Filed 09/25/19 Page 3 of 36
in or near state courthouses, subject only to vague, ill-defined, and poorly enforced cautions against undue interference that the Directive leaves individual agents and officers to follow or not on a case-by-case basis.
6. ICE enforcement actions at courthouses in New York State have skyrocketed since the Directive was issued. The regularity of ICE’s public and aggressive enforcement activities in and around courthouses has significantly chilled participation in New York State courts: victims fear that ICE will apprehend them if they report crimes; defendants are afraid to exercise their constitutional right to defend their cases; plaintiffs and petitioners worry that bringing a civil action will lead to their arrest; and witnesses refuse to appear in court or assist state and local law enforcement officials, scared that doing so will result in their detention by federal authorities. Without these actors, courts cannot accomplish their fundamental and historical role. Nor can prosecutors effectively administer justice or protect the rule of law, thus endangering the safety of residents throughout New York State.
7. To counteract these direct harms on the state court system, New York’s Office of Court Administration (“OCA”) and the Unified Court System (“UCS”), which OCA oversees, have taken measures to protect the integrity of state judicial functions while allowing ICE immigration arrests under more tailored circumstances. The most recent UCS policy permits ICE agents and officers to conduct criminal arrests authorized by judicial warrants. This policy has not, however, stopped ICE’s practice of arresting parties and witnesses without a judicial warrant near New York State courthouses—including arrests on the courthouse steps.
8. The State of New York and Eric Gonzalez, in his official capacity as the District Attorney of Kings County (Brooklyn), now bring this suit to vacate and enjoin implementation of the Courthouse Civil Arrest Directive, which suffers from numerous legal defects.
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9. First, ICE lacked statutory authority to issue the Directive. Congress’s authorization for the U.S. Department of Homeland Security (“DHS”), of which ICE is a part, to conduct civil arrests under the INA must be interpreted against the centuries-old common-law privilege against civil arrests in and around courthouses—a privilege that has been recognized since fifteenth-century England as essential to protecting courts’ ability to function properly. Since the Founding era, American courts have likewise recognized the importance of the privilege in helping ensure that courts function properly. Because Congress is presumed to retain long-established common-law principles, and because the INA did not expressly displace the common-law privilege against civil arrests in and around courthouses, ICE’s statutory arrest authority does not extend to the areas protected by the privilege. By authorizing civil arrests in violation of the privilege, the Directive exceeded ICE’s statutory authority in violation of the Administrative Procedure Act (“APA”).
10. Second, the Directive also violates the APA because it is arbitrary and capricious. In issuing the Directive, ICE failed to account for its harm to state judicial proceedings or to justify the marginal benefits of the Directive against such harm—important factors that any rational decision-maker should have considered.
11. Third, the Directive violates the Tenth Amendment to the U.S. Constitution. That amendment preserves the States’ historic sovereign autonomy to control the operation of their judiciaries and to pursue criminal prosecutions and other law enforcement actions, without interference by the federal government. The Directive directly infringes on that autonomy.
12. Plaintiffs the State of New York and District Attorney Eric Gonzalez therefore bring this action to vacate the Courthouse Civil Arrest Directive and enjoin its implementation in or around state courthouses.
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JURISDICTION AND VENUE 13. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a). Jurisdiction is also proper under the judicial review provisions of the APA, 5 U.S.C. § 702. 14. Declaratory and injunctive relief is sought consistent with 5 U.S.C. § 706 and as authorized in 28 U.S.C. §§ 2201 and 2202. 15. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b)(2) and (e)(1). Defendants are United States agencies or officers sued in their official capacities. Plaintiff the State of New York is a resident of this judicial district, and a substantial part of the events or omissions giving rise to this Complaint occurred and are continuing to occur within the Southern District of New York.
PARTIES 16. Plaintiff the State of New York, represented by and through its Attorney General, is a sovereign state of the United States of America. The Attorney General is New York State’s chief law enforcement officer and is authorized under N.Y. Executive Law § 63 to pursue this action. 17. Plaintiff Eric Gonzalez is the District Attorney of Kings County (Brooklyn), and brings this suit in his official capacity. The Kings County District Attorney’s Office (the “Brooklyn DA”) is responsible for protecting the public safety of residents and protecting the integrity of the justice system in its jurisdiction. The Office discharges those duties by, among other things, investigating and prosecuting crime, assisting victims, and implementing various crime prevention strategies. The Brooklyn DA is one of the largest and busiest law enforcement agencies in the country; Kings County is the most populous county in New York, and has a population larger than that of fifteen States.
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18. Plaintiffs are aggrieved by Defendants’ actions and have standing to bring this action because the Courthouse Civil Arrest Directive and its implementation harm Plaintiffs’ sovereign, quasi-sovereign, economic, and proprietary interests and will continue to cause injury unless and until the Courthouse Civil Arrest Directive is vacated and Defendants’ practices are permanently enjoined.
19. Defendant U.S. Immigration and Customs Enforcement is a sub-agency of DHS. ICE is responsible for the administration of the interior enforcement provisions of the country’s immigration laws. ICE issued the Courthouse Civil Arrest Directive, and ICE agents and officers execute civil arrests in and around the courts of New York State pursuant to that Directive.
20. Defendant Matthew T. Albence is the Acting Director of U.S. Immigration and Customs Enforcement. He is sued in his official capacity.
21. Defendant the U.S. Department of Homeland Security is a cabinet agency within the executive branch of the United States government and is an agency within the meaning of 5 U.S.C. § 552(f). Its mandate includes the administration of the interior enforcement provisions of the country’s immigration laws. Agents of DHS execute civil arrests in and around the courts of New York State pursuant to the Courthouse Civil Arrest Directive.
22. Defendant Kevin K. McAleenan is the Acting Secretary of Homeland Security. He is sued in his official capacity.
ALLEGATIONS I. The New York State court system.
23. The judiciary of New York is established by the New York Constitution, which provides for a unified court system for the State. See N.Y. Const. art. VI. The New York State court system is one of the oldest in the country. It plays the vital and fundamental role of
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promoting the rule of law and serving the public. 24. Each year, approximately 1,300 state judges and 1,800 local judges, along with
15,000 non-judicial employees, are responsible for administering over three million cases in courthouses across the State. The New York Constitution grants New York’s judiciary the powers required to perform its judicial functions and to protect its dignity, independence, and integrity.
25. In addition to intermediate appellate courts (the Appellate Division) and a court of last resort (the Court of Appeals), New York has trial-level courts of general jurisdiction (the Supreme Court) and specialized trial-level courts, such as Family Court, Housing Court, and Surrogate’s Court. N.Y. Const. art. VI, § 1.
26. Family Court, for instance, “is given a wide range of powers for dealing with the complexities of life so that its action may fit the particular needs of those before it,” and has jurisdiction over abuse and neglect proceedings, custody and visitation, petitions for orders of protection from family members, child and spousal support, and adoption proceedings. N.Y. Family Ct. Act § 141; N.Y. Const. art. VI, § 13. Surrogate’s Court is assigned jurisdiction over actions relating to the affairs of decedents, probate of wills, administration of estates, and guardianship of the property of minors. N.Y. Const. art. VI, § 12.
27. In addition to the courts established by the State Constitution, New York State has established courts designed to meet the evolving needs of access to justice. Since 2000, UCS has created “problem-solving courts,” which use innovative, non-traditional approaches to serve litigants and the community at large. These courts provide holistic remedies tailored to the specific needs of the litigants before them.
28. These courts include the Queens Human Trafficking Intervention Court, which
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works with government agencies and non-profit organizations to provide comprehensive services to rehabilitate survivors of human trafficking; Harlem Community Justice Court; Midtown Community Court; Red Hook Community Justice Court; Brooklyn Young Adult Court; and Brooklyn Mental Health Treatment Court.
29. UCS’s Office of Policy and Planning works together with the Center for Court Innovation to administer these courts by engaging in judicial monitoring, coordination with outside services, treatment where appropriate, the removal of barriers between courts, and increased communication with stakeholders to address the root causes that bring litigants to court. Like the rest of New York State courts, the problem-solving courts are committed to administering justice while enhancing public safety. II. ICE policies regarding immigration enforcement activity in state courthouses.
A. ICE enforcement policies regarding courthouses before 2017. 30. In 1952, Congress enacted the INA, which governs, among other things, the presence of noncitizens in the United States and the associated procedures for enforcing immigration law and removing those present in the United States without federal authorization. See Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified at 8 U.S.C. § 1101 et seq.). 31. Because “[r]emoval is a civil, not criminal, matter,” Arizona v. United States, 567 U.S. 387, 396 (2012), arrests of immigrants who are subject to removal are generally civil arrests. The INA authorizes civil arrests with and without warrants. INA § 242(a), 8 U.S.C. § 1226(a). Such warrants are issued not by judges but instead by DHS officials. See 8 C.F.R. §§ 236.1, 241.2. 32. ICE officers and agents may also execute judicial arrest warrants for federal crimes, see id. § 287.5(e)(4), but these warrants must be supported by probable cause to believe that the subject of the warrant has committed a crime.
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33. Before 2017, it was generally ICE’s practice to instruct its agents and employees to enforce immigration law, and arrest and detain noncitizens, in a tailored manner with defined enforcement priorities through publicly released memoranda from its Director.
34. For example, in March 2011, the then-Director issued a memorandum identifying the agency’s civil immigration enforcement priorities. See ICE Policy Number 10072.1, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011). The memorandum explained that ICE has the resources to remove only about four percent of the estimated removable population each year. Id. ICE thus directed agents to prioritize the removal of the most dangerous (i.e., “Priority 1”) noncitizens, defined as those who pose a danger to national security or a risk to public safety because, for example, they have “engaged in or are suspected of terrorism or espionage,” or have been convicted of violent crimes. Id. at 1. Policy Number 10072.1 then prioritized the apprehension and removal of “[r]ecent illegal entrants” and “[a]liens who are fugitives or otherwise obstruct immigration controls.” Id. at 2.
35. ICE has also issued policies to protect witnesses, crime victims, and other litigating parties. In June 2011, the agency directed all ICE officers, agents, and attorneys to “exercise all appropriate prosecutorial discretion” in removal cases in order “to minimize any effect that immigration enforcement may have on the willingness and ability of victims, witnesses, and plaintiffs to call police and pursue justice.” ICE Policy No. 10076.1, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, at 1 (June 17, 2011).
36. Policy Number 10076.1 provided that “it is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime,” and that “it is similarly against ICE policy to remove individuals in the midst of a legitimate effort to
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protect their civil rights or civil liberties.” Id. at 1-2; see also id. (“To avoid deterring individuals from reporting crimes and from pursuing actions to protect their civil rights, ICE officers, special agents, and attorneys are reminded to exercise all appropriate discretion on a case-by-case basis when making detention and enforcement decisions in the cases of victims of crime, witnesses to crime, and individuals pursuing legitimate civil rights complaints.”). ICE has made clear, in 2014 and 2015 guidance memos, that any exceptions to this policy for arrests in courthouses should be applied narrowly only to a subset of “Priority 1” aliens (for example, aliens engaged in terrorism or espionage, or who present a national security risk).1
37. Similarly, for more than 25 years, ICE has maintained a “sensitive locations” policy that generally prohibits ICE enforcement actions or investigative activities in sensitive community locations such as schools, hospitals, places of worship, funerals or other public religious ceremonies, and public demonstrations.2
B. The implementation of new ICE policies regarding courthouse enforcement activity since January 2017.
38. On January 25, 2017, President Trump issued an Executive Order that sought, among other goals, to dramatically increase immigration enforcement activity by ICE and other federal agencies, including expanded enforcement efforts against removable aliens. Exec. Order
1 Memorandum from Philip T. Miller, Assistant Director for Field Operations, to Field Office Directors & Deputy Field Office Directors, Guidance Update: Enforcement Actions at or Near Courthouses (Jan. 26, 2015); Memorandum from Philip T. Miller, Assistant Director for Field Operations, to Field Office Directors & Deputy Field Office Directors, Enforcement Actions at or Near Courthouses (Mar. 19, 2014). 2 ICE Policy No. 10029.2, Enforcement Actions at or Focused on Sensitive Locations (Oct. 24, 2011); Memorandum from Julie L. Myers, Assistant Secretary, to All Field Office Directors & All Special Agents in Charge, Field Guidance on Enforcement Actions or Investigative Activities At or Near Sensitive Community Locations (July 3, 2008); INS Policy HQ 807-P, Enforcement Activities at Schools, Places of Worship, or at funerals or other religious ceremonies (May 17, 1993).
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No. 13,768, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 8799 (Jan. 30, 2017). According to the President’s Press Secretary, the President’s goal through this Executive Order was to “take the shackles off” ICE agents and other immigration officers.3
39. Rather than prioritizing the removal of only the most dangerous noncitizens, Executive Order 13,768 abandoned previous priorities and directed the Secretary of Homeland Security to prioritize the removal of noncitizens who, among other classes, “[h]ave been charged with any criminal offense, where such charge has not been resolved.” Exec. Order No. 13,768, § 5(b), 82 Fed. Reg. at 8800. In a memorandum implementing the Executive Order, the Secretary of Homeland Security announced that the “Department no longer will exempt classes or categories of removable aliens from potential enforcement.”4
40. ICE also specifically empowered ICE officers and agents to conduct civil immigration arrests in or near courthouses. In March 2017, in response to concerns raised by the Chief Justice of the California Supreme Court regarding the increased presence of ICE agents and officers in state courthouses to make civil immigration arrests, the Secretary of Homeland Security and United States Attorney General jointly issued a public letter defending the practice of conducting immigration arrests in state courthouses and confirming that ICE has been conducting such arrests.5
3 The White House, Press Briefing by Press Secretary Sean Spicer (Feb. 21, 2017), https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretary-sean-spicer-022117. 4 U.S. Dep’t of Homeland Sec., Memorandum from Secretary John Kelly, Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-Immigration-Lawsto-Serve-the-National-Interest.pdf. 5 Letter from Attorney General Jefferson B. Sessions III & Secretary of Homeland Security John F. Kelly to the Hon. Tani G. Cantil-Sakauye, Chief Justice, Supreme Court of California (Mar. 29, 2017).
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41. The Department publicly affirmed this practice throughout 2017. In April 2017, a DHS spokesman confirmed that anyone attending court—including victims and witnesses— would be subject to civil immigration arrest: “Just because they’re a victim in a certain case does not mean there’s not something in their background that 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.”6 And in September 2017, an ICE spokesperson affirmed that “ICE plans to continue arresting individuals in courthouse environments.”7
42. On January 10, 2018, ICE formalized its enhanced enforcement initiative in Directive Number 11072.1, Civil Immigration Enforcement Actions Inside Courthouses (Jan. 10, 2018) (appended as Ex. 1).
43. The Courthouse Civil Arrest Directive purports to generally authorize ICE officials to make civil arrests in any courthouse location. The Directive explains that “law enforcement officials routinely engage in enforcement activity in courthouses throughout the country because many individuals appearing in courthouses for one matter are wanted for unrelated criminal or civil violations.” Id. at 1. As a result, the Directive reasons, “ICE’s enforcement activities in these same courthouses are wholly consistent with longstanding law enforcement practices, nationwide.”
44. The Directive acknowledges that civil immigration arrests in or near courthouses can cause substantial harms, but the Directive imposes little to no meaningful controls to prevent
6 Devlin Barrett, DHS: Immigration Agents May Arrest Crime Victims, Witnesses at Courthouses, Wash. Post (Apr. 4, 2017), https://www.washingtonpost.com/world/national-security/dhs-immigration-agentsmay-arrest-crime-victims-witnesses-at-courthouses/2017/04/04/3956e6d8-196d-11e7-98871a5314b56a08_story.html. 7 Linley Sanders, Federal Immigration Officials Will Continue Nabbing Suspects at New York Courthouses to Subvert Sanctuary City Status, Newsweek (Sept. 15, 2017), https://www.newsweek.com/new-york-immigration-courthouse-arrests-continue-sanctuary-city-665797.
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those harms. For example, the Directive recognizes that ICE officers and agents should “conduct enforcement actions discreetly to minimize their impact on court proceedings,” but says that they must do so only “[w]hen practicable”—a judgment that the Directive leaves to individual officers and agents. Id. at 1.
45. And although the Directive provides that “[a]liens encountered during a civil immigration enforcement action inside a courthouse” who are not “targeted alien[s] . . . will not be subject to . . . enforcement action, absent special circumstances,” the Directive further provides that “ICE officers and agents will make enforcement determinations on a case-by-case basis in accordance with federal law and consistent with [DHS] policy” (with reference to two 2017 memos from the then-Secretary of Homeland Security that say nothing about courthouse arrests). Id. at 1 & n.1.
46. In issuing and enforcing the Courthouse Civil Arrest Directive, ICE did not fully consider the costs of its policy, adequately train its agents or officers, or explain why any marginal benefit of targeting civil arrests in or near courthouses outweighed the significant harms that previous policies identified as arising from such arrests.
47. ICE also failed to consider how the Directive contravened Congress’s vigorous provision of affirmative immigration relief to parties, including witnesses and victims of crime, that are often conditioned on state court access.
48. For example, under 8 U.S.C. § 1101(a)(15)(U), noncitizen crime victims who have cooperated with law enforcement are eligible for immigration relief through the issuance of U-nonimmigrant visas. The U-visa program, designed to encourage noncitizen participation in criminal investigations and prosecutions, and to protect public safety more broadly, often requires noncitizens to appear in state court as a prerequisite to immigration relief.
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49. In addition, Congress has provided for immigration relief for Special Immigrant Juvenile Status (“SIJS”) for certain vulnerable young people under 8 U.S.C. § 1101(a)(27)(J), which is conditioned upon having a state court order that makes findings about juveniles’ family and custodial situations and their inability to return to their countries of origin. 8 U.S.C. § 1101(a)(27)(J)(i)-(ii). The threat of civil arrest at state courthouses directly undermines Congress’s intent in authorizing these programs.
50. Similarly, ICE also failed to consider how the Directive frustrates the administration of New York State’s problem-solving courts, which depend on the robust participation of noncitizen litigants. Because problem-solving courts routinely sentence defendants to non-incarceration alternatives that require continued court monitoring—such as drug treatment programs, mental health counseling, and job training—these courts cannot perform their designated roles if noncitizen defendants are detained on their way to or from court or are too afraid to return to court for fear of ICE apprehension.
51. ICE similarly failed to consider the effect of the Courthouse Civil Arrest Directive on noncitizen claimants, many of whom are especially vulnerable, such as tenants living with hazardous conditions in their apartments, workers employed at unsafe worksites, and survivors of intimate-partner violence.
C. New York’s response to ICE’s civil courthouse arrest policy. 52. ICE enforcement activities in New York State courthouses increased significantly after the Courthouse Civil Arrest Directive was promulgated. According to OCA’s records, ICE has conducted law enforcement activities in New York State courthouses on a weekly basis since 2017. ICE agents and officers have arrested parties in courthouses, as well as on their way into and out of New York State courts. 53. In response to these disruptive activities, OCA’s Chief Administrative Judge, who
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oversees UCS, has twice updated UCS’s policy for arrests in New York State courthouses to protect the integrity of judicial proceedings.
54. First, in April 2017, UCS issued a policy mandating that all law enforcement officers who entered state courthouses to make an arrest identify themselves to security personnel, who must then inform a judge if the entering officers were “present in the courthouse with the intent of arresting or otherwise taking into custody a party or other participant in a case before th[at] judge.” Office of the Chief Admin. Judge, N.Y. State Unified Court Sys., Policy and Protocol Governing Activities in Courthouses by Law Enforcement Agencies (Apr. 26, 2017) (the “2017 UCS Policy”) (appended as Ex. 2).
55. The 2017 UCS Policy also provided that “[a]bsent leave of the court under extraordinary circumstances (e.g., extradition orders), no law enforcement action may be taken by a law enforcement agency in a courtroom.” Finally, the 2017 UCS Policy required that court security personnel file an “Unusual Occurrence Report” for each covered arrest.
56. In April 2018, Governor Cuomo issued Executive Order No. 170.1, limiting federal immigration arrests in state facilities within executive control. The Order provides that “[c]ivil arrests by federal immigration authorities may only be executed within state facilities when accompanied by a judicial warrant or judicial order authorizing them to take into custody the person who is the subject of such warrant, unless the civil arrest is related to a proceeding within such facility.” State of N.Y. Exec. Order No. 170.1, Amendment to Executive Order 170—State Policy Concerning Immigrant Access to State Services and Buildings (Apr. 25, 2018).
57. Governor Cuomo’s Order stated that “federal immigration authorities have increasingly conducted immigration enforcement activity in sensitive spaces crucial to
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immigrants’ full participation in the economic, civil, and cultural life of the State,” which “creates a chilling effect, preventing immigrants from fully participating in the State.”8 Id.
58. Despite these efforts from OCA and the Governor, ICE arrests in and around New York State courthouses continued at an alarming rate. By one calculation, ICE courthouse operations in and around New York State courthouses increased by 1700% in 2018 compared to 2016.9 State and local prosecutors held a press conference in February 2018, imploring ICE to halt its courthouse arrests of immigrants.10
59. In response to continued ICE enforcement activities in 2018 and 2019, UCS issued an updated policy regarding ICE activity in April 2019. Office of the Chief Admin. Judge, N.Y. State Unified Court Sys., Protocol Governing Activities in Courthouses by Law Enforcement Agencies (Apr. 17, 2019) (the “2019 UCS Policy”) (appended as Ex. 3).
60. In relevant part, the 2019 UCS Policy updated the 2017 UCS Policy by providing that ICE arrests inside a courthouse “may be executed . . . only pursuant to a judicial warrant or judicial order authorizing the arrest,” with judicial warrant and judicial order defined to mean “a warrant or order issued by a federal judge or federal magistrate judge.” Id.
61. The 2019 UCS Policy further requires that a UCS judge or court attorney “review the warrant or order to confirm compliance with this requirement prior to any such arrest.” Id.
8 Because the state court system is not under the Governor’s control, Governor Cuomo’s order does not apply to state courthouses. 9 Immigrant Def. Project, The Courthouse Trap: How ICE Operations Impacted New York’s Courts in 2018, at 6 (Jan. 2019), www.immigrantdefenseproject.org/wp-content/uploads/TheCourthouseTrap.pdf. 10 Erin Durkin, City DAs Plead with ICE to Stop Arresting Immigrants at NYC Courthouses: “It Jeopardizes Public Safety”, N.Y. Daily News (Feb. 14, 2018), https://www.nydailynews.com/newyork/city-das-press-ice-stop-arresting-immigrants-courthouses-article-1.3820798.
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III. ICE’s enforcement activity in and near New York courthouses and court proceedings interferes with court functions, undermines public safety, and disrupts the administration of justice in the state. 62. Despite UCS’s efforts to curb ICE arrests in New York State courthouses, ICE’s
ongoing enforcement practices—which include conducting civil arrests of parties and witnesses in the immediate vicinity of state courthouses, while they are going to or coming from judicial proceedings—have continued to deter noncitizens from participating in the judicial process. These arrests have significantly interfered with New York State courts’ functioning and have hindered criminal prosecutions, in turn jeopardizing public safety.
A. ICE’s immigration enforcement activity has significantly interfered with state court functions since 2017.
63. Since 2017, ICE has conducted enforcement activities in and around New York State courthouses, on average, more often than once a week—including after implementation of the 2019 UCS Policy.
64. This law enforcement activity is not limited to the insides of courthouses: ICE has arrested parties on their way to court and as they leave the courthouse and court-related proceedings, regardless of whether they have subsequent court dates.
65. ICE has also failed to produce people that they previously arrested for their criminal court dates, preventing courts from resolving open cases.
66. These disruptions significantly impair the ability of New York courts to perform routine functions. New York courts, like all courts, rely on parties and witnesses to attend proceedings. When those parties and witnesses fail to do so, courts often must adjourn proceedings, thereby wasting judicial resources. Such adjournments also delay the resolution of cases, causing uncertainty and delaying justice for litigants, victims, witnesses, and family members. Indeed, the indefinite adjournment of proceedings when ICE deports individuals
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against whom criminal charges are pending deprives victims of their day in court. And in all events, adjournments only add to the backlog of cases that UCS seeks to combat.
67. Moreover, New York courts, like all courts, rely on public access to court proceedings to serve as a check on “arbitrary judicial behavior,” promoting “confidence in the conscientiousness, reasonableness, [and] honesty of judicial proceedings” and serving as “an essential feature of democratic control.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006); see Mosallem v. Berenson, 76 A.D.3d 345, 348 (1st Dep’t 2010). This “essential feature of democratic control” is undermined when members of the public are deterred from attending court proceedings.
68. Numerous examples illustrate the deep disruptions often caused by ICE’s civil arrests in and around New York courthouses and court-related proceedings. As the examples below show and as OCA’s records confirm, this disruption has not abated following adoption of UCS’s April 2019 Policy designed to limit ICE arrests in New York courthouses to those authorized by judicial warrant; to the contrary, court records show a spike in ICE enforcement activity around courthouses in May 2019, immediately following implementation of the 2019 UCS Policy.
69. For example, in July 2019, ICE agents created a significant disturbance when they arrested a defendant who was entering Yonkers City Court to attend his court hearing. A team of ICE agents approached the man as he walked up to the front door of the courthouse building. When the man began opening the courthouse door, one of the agents stopped the door with his foot, breaking the glass on the door. The agents arrested the man. To ensure public safety, New York State Court Officers had to temporarily restrict entry into the courthouse.
70. In June 2019, an ICE agent entered the New York County Criminal Courthouse
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and informed the court officer that he was there to observe a defendant he intended to arrest. The ICE agent did not produce a judicial warrant, and a court officer stated that he could not arrest the defendant in the building. The ICE agent said he intended to arrest the defendant outside the courthouse. The court accordingly postponed the proceeding for nearly two months.
71. In June 2019, two plainclothes ICE officers followed a criminal defendant and his wife out of the Queens County Criminal Courthouse. Having identified him in the court room, ICE officers pushed him against a fence and arrested him. They told his wife that “they had all entrances covered” and “watched him in the courtroom and followed him out.” His wife asked whether they had a warrant, and the agents said, “[O]h you will see one alright,” but they never produced a warrant before arresting him.
72. In May 2019, ICE agents arrested a noncitizen defendant as he was leaving the Kings County Courthouse. During the arrest, the ICE agents pushed him against a wall and grabbed his phone.
73. In August 2019, an ICE officer was waiting in the next room of Manhattan Criminal Court to arrest a noncitizen who was being offered a disorderly conduct plea to resolve her case. Before her case was called, the attorney was informed that the ICE officer was waiting to arrest the noncitizen. The ICE officer did not have a judicial warrant. The attorney spoke to the ICE officer and informed him of the 2019 UCS Policy. The ICE officer stated that he would wait until the noncitizen was outside and make the arrest outside the courthouse.
74. In August 2019, an ICE agent informed a court officer in Kings County Criminal Court of his intention to arrest a noncitizen who had a court appearance. The ICE agent did not have a judicial warrant. The court officer informed him that he would have to make the arrest outside the courthouse. The noncitizen’s case was subsequently dismissed.
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75. In April 2019, two ICE officers informed a court officer that they were waiting outside the building to take an individual into custody outside of the Westchester County Courthouse. The noncitizen had a 9:30 a.m. court hearing with a judge. The court officer asked the ICE officers whether they were going to let the individual conduct his court business before arresting him, and the ICE officers said no. They arrested him at 9:25 a.m. outside the courthouse.
76. In April 2019, ICE officials arrested a pregnant mother attending a child custody hearing in Family Court in Queens. She had just completed a preliminary custody hearing for her two U.S. citizen children, ages three and eleven, when ICE officials arrested her outside the courthouse, in front of her family members.11 ICE later transferred her to the ICE Bergen County Detention Center, where she received and reported no health care treatment for her pregnancy, despite acute symptoms. Two months after her detention, her lawyers secured her release, alleging that ICE violated her First Amendment rights by placing her in expedited deportation proceedings in retaliation for complaining about poor health conditions and due process violations.12
77. In March 2019, ICE officers in Westchester County Supreme Court informed court officers that they intended to arrest a defendant scheduled to appear in court. In response to the court officers’ question about whether they were going to let the individual attend his
11 Molly Crane-Newman, Stephen Rex Brown, & Cathy Burke, Queens Mom Ensnared in Immigration Quagmire in Race against Deportation Order, N.Y. Daily News (June 24, 2019), https://www.nydailynews.com/new-york/nyc-crime/ny-immigration-deportation-queens-guatamala20190625-plghlwjxy5fqdaivxih43iy5t4-story.html. 12 Dan M. Clark, Attorneys Use First Amendment Argument to Halt Deportation of Pregnant Immigrant, N.Y. Law Journal (July 1, 2019), https://www.law.com/newyorklawjournal/2019/07/01/attorneys-usefirst-amendment-argument-to-halt-deportation-of-pregnant-immigrant; Molly Crane-Newman & Larry McShane, Pregnant Queens Mom Released from ICE Custody, Reunited Saturday with Two Kids in Emotional Airport Scene, N.Y. Daily News (July 6, 2019), https://www.nydailynews.com/new-york/nyccrime/ny-ice-mother-released-20190707-4vafggkau5cwrcuc62d5o7fize-story.html.
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proceedings, the ICE officers said they would not. They then arrested the individual outside the courthouse before he could enter.
78. In March 2019, an ICE agent arrested a noncitizen defendant outside the courtroom in Bronx County Criminal Court before his case was called. The judge was informed and adjourned the defendant’s case.
79. In April 2018, ICE officers arrested a defendant at Queens County Criminal Court, just minutes after the court dismissed the charges against him. The man had a green card application pending and is married to a U.S. citizen, with whom he has three children. He had no prior criminal record.13
80. In June 2018, several ICE officers approached a litigant as he was waiting for his case inside Westchester County Family Court. The man asked the officers whether he could talk to the Family Court judge, his lawyer, or his partner. The ICE officers would not let him, and instead took him into custody and began a proceeding to remove him from the country, thus impairing his ability to defend his case in Family Court.
81. In September 2018, a criminal defendant was leaving Kings County Supreme Court with his attorney and family when he was surrounded by plainclothes ICE agents. Two agents threw him against a wall and put his hands behind his back. Two other plainclothes agents and a court officer blocked him from his attorney. The ICE officers pulled the man into an unmarked car with no plates. Several bystanders witnessed the commotion and one woman, believing that the man was being kidnapped, called 911.
82. In June 2017, ICE officers sought to detain a noncitizen criminal defendant who
13 Nicole Brown & Lauren Cook, ICE Detains Immigrant at Queens Courthouse, Attorneys Say, AM New York (Apr. 10, 2018), https://www.amny.com/news/ice-court-arrest-nyc-1.17942936.
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had been charged with working illegally as a masseuse and identified as a possible survivor of human trafficking at the Queens County Human Trafficking Intervention Court. The defendant had been on track to have the charges against her dismissed after completing her mandated counseling services. The court set bail and later released the defendant on her own recognizance; ICE arrested three other people outside the courthouse, including one as she left the court and was walking toward the subway. The presence of ICE officers inside the Human Trafficking Intervention Court prompted expressions of serious concern from state and local officials.14
83. In November 2018, a defendant was on his way into the Queens County Criminal Court when he was violently arrested by three ICE officers. Although his case was on track to be resolved by a noncriminal disposition, the man never got to resolve his case.15 ICE officers initially detained him in a New Jersey immigration jail, leaving him without access to free immigration counsel that is available in New York, despite facing removal with an open criminal case. He was subsequently transferred to an ICE facility in Oklahoma and was quickly deported. His criminal case remains open.
84. In April 2018, a young woman was leaving the Midtown Community Court, a problem-solving court in Manhattan that imposes alternatives to incarceration for low-level offenses. She had just received an adjournment in contemplation of dismissal when two ICE agents arrested her outside of the courthouse.
85. In March 2018, a young man decided to accompany his brother to Queens County
14 Beth Fertig, Outcry After Immigration Agents Seen at Queens Human Trafficking Court, WNYC (June 16, 2017), https://www.wnyc.org/story/outcry-after-immigration-agents-come-trafficking-victim-queenscourthouse; Liz Robbins, A Game of Cat and Mouse with High Stakes: Deportation, N.Y. Times (Aug. 3, 2017), https://www.nytimes.com/2017/08/03/nyregion/a-game-of-cat-and-mouse-with-high-stakesdeportation.html. 15 Ryan Devereaux, ICE Arrests at New York City Courthouses are Increasing—This Video Captures One, The Intercept (Nov. 2, 2018), https://theintercept.com/2018/11/02/ice-arrests-video-nyc-courts.
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Criminal Court. The man and his brother were leaving the Queens courthouse when plainclothes ICE officers approached them and asked them for identification. When they failed to produce U.S. identification, both men were handcuffed and taken into custody.
86. In January 2019, an ICE agent informed a court officer at Bronx County Criminal Court that he intended to arrest a criminal defendant who had a court appearance that day. The ICE agent did not produce a judicial warrant. Before the defendant’s case was called, the ICE agent arrested him inside the courthouse.
87. In July 2017, ICE officers arrested a noncitizen inside a courtroom in Watervliet City Court, after he had been arraigned on traffic violations.
B. The Courthouse Civil Arrest Directive interferes with the prosecution of crimes in New York State.
88. The inability of state prosecutors to prosecute perpetrators and other dangerous individuals jeopardizes public safety throughout New York State.
89. Plaintiff the Brooklyn DA’s ability to prosecute cases has been deeply affected by ICE’s civil courthouse enforcement activities, because those activities instill fear in immigrant communities, make victims and witnesses afraid to come forward to report crimes, and impair prosecutors’ ability to obtain justice.
90. In one case in the Brooklyn DA’s office, a victim robbed at gunpoint refused to testify because he feared an ICE arrest in court. In another case, a man robbed at knifepoint refused to testify because he was not a U.S. citizen. Without his testimony, the assistant district attorney was forced to reduce the charges in that case to a misdemeanor.
91. From the Brooklyn DA’s experience, the Courthouse Civil Arrest Directive has also caused undocumented workers to fear coming forward with evidence and participate in an ongoing large-scale investigation of construction violations in New York City, thereby hindering
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the overall investigation and prosecution of this matter. 92. In another recent case involving the Brooklyn DA’s office, an ICE arrest
prevented a criminal defendant—a native and citizen of Uruguay—from being held to account for felony sexual and domestic violence. The defendant was due in Kings County Criminal Court in May 2019 for a hearing on a proposed guilty plea that would have required the defendant to spend more than three years in prison. Minutes before the hearing, ICE arrested him for a civil immigration violation. The defendant was removed to Uruguay soon after. Having never answered for his alleged crimes in New York State court, the defendant, since his removal, has continued to harass the victim on social media, where he boasts about getting away with his past crimes.
93. Because of ICE’s premature removal of this defendant, he has evaded not only the criminal consequences of his alleged actions, but the immigration consequences as well. He is not currently inadmissible: he could apply for a visa and would not face any bars to his legal reentry. And if he re-entered illegally, he would not be subject to any of the heightened penalties applicable had he been removed after conviction. Although the defendant’s victim still has an order of protection against him, the defendant’s future harassment of the victim would likely not constitute criminal contempt, because ICE prevented the defendant from receiving notice of the order against him. And although the criminal case remains pending, if the defendant were to reenter and be apprehended, the victim, now traumatized by these developments, would be unlikely to cooperate in the prosecution.
94. Numerous other prosecutors and law enforcement officials across the State have publicly reported that ICE’s enforcement activities impede their prosecutions and crime-fighting efforts.
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95. Bronx County District Attorney Darcel D. Clark has explained that ICE apprehensions of crime witnesses have resulted in dismissals of Bronx DA prosecutions and in “dangerous individuals being released back into the community.”16 DA Clark has also stressed the chilling effect on witnesses and survivors: “Witnesses and survivors already deal with enough trauma and are brave enough to show up to court and testify during a case. They should not have to worry about being arrested at our courthouses.”17
96. New York County District Attorney Cyrus R. Vance, Jr., stated that ICE’s policy of conducting civil arrests in and around Manhattan courthouses reduces cooperation with his office from crime victims and witnesses, and makes criminal defendants less likely to appear: “Deporting New Yorkers who show up to court is antithetical to our values and detrimental to our public safety. The fear of unjust deportation stops crime victims from coming forward, and stops defendants from responsibly attending their court dates. These policies threaten to marginalize immigrant New Yorkers to the point where they no longer report crimes or terror plots. And so, local prosecutors like me now have to work twice as hard to assure immigrants that our office is a safe place to report crime without fear of getting deported.”18
16 Press Release, Office of the Bronx Borough President, Elected Officials, Advocates, & Public Defenders Gather to Introduce Groundbreaking New Bill to Protect Immigrants from Unlawful ICE Arrests at Courthouses (June 5, 2018), http://bronxboropres.nyc.gov/2018/06/05/elected-officialsadvocates-and-public-defenders-gather-to-introduce-groundbreaking-new-bill-to-protect-immigrantsfrom-unlawful-ice-arrests-at-courthouses. 17 Press Release, N.Y. State Senator Brad Hoylman, Hoylman, Solages Intro ICE Out of Courts Bill with Support from DAs, Defenders, & Community Advocates (Jan. 31, 2019), https://www.nysenate.gov/sites/default/files/press-release/attachment/protect_our_courts.pdf. 18 Oversight—ICE Out of New York Courts: Joint Hearing Before the N.Y. City Council Comms. on Immigration & the Justice System (Apr. 10, 2019) (written statement of Cyrus R. Vance, Jr., Manhattan District Attorney), https://www.manhattanda.org/testimony-for-city-council-committees-on-immigrationand-the-justice-system-oversight-hearing-on-ice-out-of-new-york-courts.
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97. Albany County District Attorney David Soares stated, “The activities of Immigration and Customs Enforcement [are] compromising our ability to hold accountable perpetrators who prey upon victims from vulnerable immigrant communities.”19
98. Albany County Sheriff Craig D. Apple, Sr., expressed similar concerns: “If you’re afraid to come forward out of fear of being swept up and deported, how many heinous crimes will go unreported? If people are afraid to come to me and speak with me, then we have a problem.”20
99. Westchester County District Attorney Anthony A. Scarpino, Jr., reported that “[w]hen ICE uses our local courthouses to make civil immigration arrests, both immigrants who are victims of or witnesses to domestic violence, scams, wage theft or violent crimes are now fearful that coming to court may lead to arrest by ICE.”21 DA Scarpino recently noted: “I have cases with witnesses who are scared to death about coming forward and participating in these trials now.” 22
100. Nassau County District Attorney Madeline Singas also expressed concern that ICE’s courthouse arrest practices were impacting crime reporting by noncitizens: “New York’s justice system works best when everyone has access. Immigrants who are victims of domestic
19 Immigrant Def. Project, Protect Our Courts Act: Prosecutor Statements (Feb. 20, 2019), https://www.immigrantdefenseproject.org/wp-content/uploads/Prosecutor-Statements-Updated02202019.pdf. 20 Christina Goldbaum, When Paying a Traffic Ticket Can End in Deportation, N.Y. Times (June 30, 2019), https://www.nytimes.com/2019/06/30/nyregion/ice-courthouse-arrests.html. 21 Immigrant Def. Project, Protect Our Courts Act: Prosecutor Statements (Feb. 20, 2019), https://www.immigrantdefenseproject.org/wp-content/uploads/Prosecutor-Statements-Updated02202019.pdf. 22 Christina Goldbaum, When Paying a Traffic Ticket Can End in Deportation, N.Y. Times (June 30, 2019), https://www.nytimes.com/2019/06/30/nyregion/ice-courthouse-arrests.html.
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violence, wage theft, fraud, or violent crime should be able to seek justice regardless of their status, and they should be able to come to court for that purpose without fear that their appearance will lead to civil arrest by ICE.”23
101. Data from state prosecutors’ offices also confirm the impact of the chilling effect of ICE arrests in state courthouses. For example, calls to the Brooklyn DA’s Immigrant Affairs Unit (“IAU”) decreased by 67% in 2018 compared to 2016.24 Similarly, calls to the Nassau County District Attorney’s IAU fell from 51 calls in 2016 to only three calls in 2017, and eight calls in 2018.25
102. District Attorney “Clean Slate” events (warrant amnesty programs that allow people to resolve any criminal summonses on site without risk of criminal arrest by state or local police) have also seen a sharp decline. The New York County District Attorney’s office reported that the number of people participating in Clean Slate events has declined significantly since 2017—from 460 people at an event in April 2016, to 380 people at an event in June 2017; to approximately 200 people at an event in April 2018—and that this decrease in participation is due in part to a fear that ICE may appear, stemming from ICE’s increased presence in and around courthouses.26 The New York County and Bronx County District Attorneys also
23 Immigrant Def. Project, Protect Our Courts Act: Prosecutor Statements (Feb. 20, 2019), https://www.immigrantdefenseproject.org/wp-content/uploads/Prosecutor-Statements-Updated02202019.pdf. 24 Immigrant Def. Project, Safeguarding the Integrity of Our Courts: The Impact of ICE Courthouse Operations on New York State, at 13-14 & fig. 2 (2019), https://www.immigrantdefenseproject.org/wpcontent/uploads/Safeguarding-the-Integrity-of-Our-Courts-Final-Report.pdf. 25 Id. at 14-15 & fig.3. 26 Id. at 17.
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experienced a decline in requests for victim-related assistance in their Family Justice Centers.27 103. The Domestic Violence Bureau of the Bronx County District Attorney’s office
has publicly reported that numerous complaining witnesses expressed fear of testifying or otherwise participating in criminal proceedings due to ICE presence in the courthouse, including at least one instance in which a previously cooperative complaining witness became extremely reluctant to testify following several news reports regarding ICE arrests occurring in courthouses.28
104. Despite encouragement by state prosecutors, many noncitizens who are survivors of intimate partner violence and would qualify for a protective order are now not willing to seek such an order because it requires going to court, where the victims fear ICE arrest for themselves and their families.
105. ICE enforcement activities directed at witnesses, victims, and defendants who are attending, or traveling to or from, court proceedings greatly impede Plaintiffs’ ability to fairly and effectively prosecute crimes, and thereby threaten public safety and undermine the integrity of the justice system. IV. Common law and federal statutory background.
A. The fundamental common-law privilege against civil arrests in and around courthouses.
106. The common law recognizes a historical privilege against civil arrests in or around courthouses and court-related proceedings, dating back to fifteenth-century England. Parker, 136 N.Y. at 589; see also Meekins v. Smith (1791) 126 Eng. Rep. 363, 364; Orchard’s Case (1828) 38 Eng. Rep. 987, 987; Ex parte Byne (1813) 35 Eng. Rep. 123, 123.
27 Id. 28 Id. at 11-12.
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107. This privilege extends not only to parties and witnesses, but also to all people “necessarily attending” the courts on business. 3 William Blackstone, Commentaries on the Laws of England 289 (1769) (“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.”); accord Meekins, 126 Eng. Rep. at 364; Spence v. Stuart (1802) 102 Eng. Rep. 530, 530.
108. This rule avoids a significant problem posed by civil arrests in courthouses: if courthouses became a convenient forum for effectuating arrests, many parties would not attend, thus undermining the judicial system as a whole. See, e.g., The King v. Holy Trinity in Wareham (1782) 99 Eng. Rep. 530, 531 (holding that “for the purpose of justice,” and “to encourage witnesses to come forward voluntarily,” they are privileged from arrest “in coming, in staying, and in returning” from court); Meekins, 126 Eng. Rep. at 363.
109. This privilege was repeatedly upheld by English courts and remains a bedrock principle of American common law. See, e.g., Lamb v. Schmitt, 285 U.S. 222, 225 (1932) (“[T]he due administration of justice requires that a court shall not permit interference with the progress of a case pending before it, by the service of process in other suits, which would prevent, or the fear of which might tend to discourage, the voluntary attendance of those whose presence is necessary or convenient to the judicial administration in the pending litigation.”); Page Co. v. MacDonald, 261 U.S. 446, 448 (1923); Ryan v. U.S. Immigration & Customs Enf’t, 382 F. Supp. 3d 142, 156 (D. Mass. 2019); Person v. Grier, 66 N.Y. 124, 125 (1876); In re Kimball, 14 F. Cas. 474, 474 (S.D.N.Y. 1867). Like their English counterparts, American courts interpreted the privilege broadly, encompassing “all cases” and “any matter pending before a lawful tribunal” (including arbitrations and examinations). Simon Greenleaf, A Treatise on the
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Law of Evidence § 317, at 475 (16th ed. 1899). 110. New York courts, in particular, have recognized and vigorously enforced the
common law privilege of immunity from civil arrest in and around courthouses. Norris v. Beach, 2 Johns. 294, 294 (Sup. Ct. 1807) (“We have power to compel the attendance of witnesses, and when they do attend, we are bound to protect them redeundo.”); see generally Sanford v. Chase, 3 Cow. 381 (N.Y. 1824).
111. Moreover, like the U.S. Supreme Court, the New York Court of Appeals has recognized that the privilege protected “parties and witnesses from all forms of civil process” not only during their attendance at court” but also “for a reasonable time in going and returning.” Parker, 136 N.Y. at 589; Person, 66 N.Y. at 125. And like the U.S. Supreme Court, the Court of Appeals observed that the privilege belongs to 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.” Parker, 136 N.Y. at 589.
112. Based on this historic principle, it is the duty of “[c]ourts of justice . . . everywhere to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them.” Stewart v. Ramsay, 242 U.S. 128, 130 (1916) (quotation marks omitted).
B. Congress has not abrogated the fundamental common-law right against arrests in and around courthouses and court proceedings.
113. The Supreme Court has long recognized the “presumption favoring the retention of long-established and familiar principles” under the common law, which can be overcome only when “a statutory purpose to the contrary is evident.” United States v. Texas, 507 U.S. 529, 534 (1993) (quotation marks omitted). To demonstrate a contrary statutory purpose, the statute must “speak[] directly to the question addressed by the common law.” Pasquantino v. United States,
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544 U.S. 349, 359 (2005) (quotation marks omitted). 114. The statute in question, the INA, allows the federal government to make civil
arrests for the violation of federal immigration laws. But the INA does not speak directly to the common law privilege against civil courthouse arrests.
115. Because the INA is silent on courthouse arrests, Congress presumably intended to retain rather than displace that “long-established and familiar principle[],” Texas, 507 U.S. at 534, when it authorized civil arrests.
116. As a result, the INA’s grant of civil arrest authority incorporates and is limited by the common law privilege against courthouse arrests.
C. State sovereignty under the Tenth Amendment. 117. The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. 118. The power to administer state court proceedings is a power decidedly reserved to the States. Since our nation’s founding, our federal system of government has recognized the right of States to try cases free from federal interference. See, e.g., Younger v. Harris, 401 U.S. 37, 43 (1971). Indeed, States have the prerogative to control “the internal workings” of state court proceedings, Kaufman v. Kaye, 466 F.3d 83, 86 (2d Cir. 2006)—a prerogative grounded in States’ “fundamental constitutional independence,” Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146 (1988). Likewise, “each State’s power to prosecute is derived from its own ‘inherent sovereignty,’ not from the Federal Government.” Heath v. Alabama, 474 U.S. 82, 89 (1985). 119. Underlying these firmly recognized rights is the principle that the federal government generally may not entrench on a State’s power, “sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the
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people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.” Barbier v. Connolly, 113 U.S. 27, 31 (1884).
120. And States’ “reserved powers” under the Tenth Amendment include the power to regulate their court systems. Atlantic Coast Line R.R. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 285 (1970).
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF (Administrative Procedure Act—Exceeds Statutory Authority) 121. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 122. Under the APA, courts must “hold unlawful and set aside agency action” that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). 123. Defendants may only exercise authority conferred by statute. City of Arlington v. FCC, 569 U.S. 290, 297-98 (2013). 124. New York recognizes a common-law privilege against civil arrests in, or while traveling to or from, courthouses. 125. ICE arrests based on alleged civil immigration infractions are civil arrests authorized by the Immigration and Nationality Act. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). 126. A long-established common-law privilege forbids civil arrests in or near courthouses. Congress is presumed to retain such long-established common-law principles unless it expressly provides otherwise. Congress did not displace the common-law privilege when it enacted the INA. To do so, Congress would have had to “speak[] directly to the question
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addressed by the common law.” Pasquantino, 544 U.S. at 359 (quotation marks omitted). But the civil-arrest provisions in the INA do not speak directly to the common-law privilege against civil arrests in or near courthouses: although the INA contains two provisions that authorize arrests, see 8 U.S.C. § 1226(a) (arrests with warrant); § 1357(a)(2) (arrests without a warrant), neither of them mentions courthouses at all.
127. The Courthouse Civil Arrest Directive authorizing civil arrests of people in, or traveling to or from, courthouses, and ICE’s practice of carrying out civil arrests against parties, witnesses, and others attending New York courts on official business, thus exceed ICE’s statutory authority.
128. The Courthouse Civil Arrest Directive is therefore “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” in violation of the APA. 5 U.S.C. § 706(2)(C).
129. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. SECOND CLAIM FOR RELIEF
(Administrative Procedure Act—Arbitrary and Capricious) 130. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 131. The APA provides that courts must “hold unlawful and set aside” agency action that is “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A). 132. The Courthouse Civil Arrest Directive is arbitrary and capricious because Defendants did not fully consider the foreseeable harms of their policy, did not adequately explain prioritizing civil arrests in or near courthouses over those harms, and did not adequately justify the change from Defendants’ prior policies on courthouse arrests. 133. The Courthouse Civil Arrest Directive is therefore “arbitrary, capricious, [or] an
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abuse of discretion” in violation of the APA. 5 U.S.C. § 706(2)(A). 134. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. THIRD CLAIM FOR RELIEF (U.S. Constitution amend. X) 135. Plaintiffs incorporate by reference the allegations set forth in each of the
preceding paragraphs of this Complaint. 136. The Tenth Amendment preserves the states’ historic, sovereign, and fundamental
autonomy to control the operation of their judiciaries and to pursue criminal prosecutions. 137. The states’ judicial, prosecutorial, and police powers are among the most
important powers that the Constitution reserves to the states. United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”).
138. The INA does not contain an “unmistakably clear” authorization for Defendants to intrude on these core sovereign interests. See Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).
139. The Courthouse Civil Arrest Directive impermissibly interferes with New York’s right to form its own government by interfering with state court operations and impeding criminal prosecutions in violation of the Tenth Amendment. ICE’s Directive, and ICE’s practice under the Directive of carrying out civil arrests against parties, witnesses, and others attending New York courts on official business, unduly interfere with New York’s right and ability to operate its own court system and pursue criminal prosecutions because it interferes with the administration of justice in New York State courts.
140. ICE’s unprecedented civil enforcement activities in and around state courthouses create a documented chilling effect that deters defendants, would-be litigants, claimants, and
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witnesses from bringing violations of state law to law enforcement authorities, and from participating in state court proceedings.
141. The Courthouse Civil Arrest Directive, and ICE’s implementation of the Directive, significantly interfere with core sovereign functions in violation of the Tenth Amendment.
142. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. PRAYER FOR RELIEF
Wherefore, Plaintiffs respectfully request that this Court: 1. Issue an order holding unlawful, vacating, and setting aside the Courthouse Civil Arrest Directive (ICE Directive No. 11072.1 (Jan. 10, 2018)). 2. Declare that the Courthouse Civil Arrest Directive is in excess of Defendants’ statutory jurisdiction, authority, or limitations, or short of statutory right within the meaning of 5 U.S.C. § 706(2)(C); 3. Declare that the Courthouse Civil Arrest Directive is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A); 4. Declare that the Courthouse Civil Arrest Directive is unconstitutional; 5. Enjoin Defendants and all their officers, employees, and agents, and anyone acting in concert with them, from implementing, applying, or taking any action whatsoever under the Courthouse Civil Arrest Directive, and from civilly arresting parties, witnesses, and any other individual coming to, attending, or returning from courthouses or court-related proceedings; 6. Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’ fees. 7. Grant such other and further relief as the Court deems just and proper.
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DATED: September 25, 2019
Steven C. Wu Deputy Solicitor General
Scott A. Eisman Assistant Solicitor General
Of Counsel

Respectfully submitted,
LETITIA JAMES Attorney General of the State of New York
By: /s/ Matthew Colangelo Matthew Colangelo
Chief Counsel for Federal Initiatives Anjana Malhotra, Assistant Attorney General Morenike Fajana, Special Counsel Office of the New York State Attorney General 28 Liberty Street New York, NY 10005 Phone: (212) 416-6057 Matthew.Colangelo@ag.ny.gov
Attorneys for the State of New York
ERIC GONZALEZ District Attorney of Kings County (Brooklyn)
By: /s/ Jill Harris Jill Harris, Chief of Policy and Strategy Kings County District Attorney’s Office 350 Jay Street Brooklyn, New York 11201 Phone: (718) 250-3156 harrisj1@BrooklynDA.org
Attorney for the District Attorney of Kings County (Brooklyn)

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 Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 1 of 36

USDCSDNY

DOCUMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x
THE STATE OF NEW YORK and ERIC GONZALEZ

ELECTRONICALLY FD.:·! DOC#:'_- - . . - - - - + - 4
l!:::D::::::~=:::Fll.,=E=D:~~(q

Plaintiffs,
-v-
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.

19-cv-8876(JSR) OPINION AND ORDER

Defendants.
-----------------------------------x

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

Courts cannot be expected to function properly if third

parties (not least the executive branch of the government) feel

free to disrupt the proceedings and intimidate the parties and

witnesses by staging arrests for unrelated civil violations in

the courthouse, on court property, or while the witnesses or

parties are in transit to or from their court proceedings.

Accordingly, more than 500 years ago, the English courts

developed a common law privilege against civil arrests on

courthouse premises and against arrests of parties and other

persons necessarily traveling to or from court. This ancient

privilege, incorporated into American law in the early years of

our republic by virtually all state and federal courts, has

remained largely intact over the centuries. But now, according

to the State of New York, the federal Immigration and Customs

Enforcement agency ("ICE"), in implementation of an Executive

1

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 2 of 36
Order issued by the Trump Administration in January 2017 and a Directive to ICE agents promulgated in January 2018, has increased its civil arrests in or around New York state courthouses by a remarkable 1700 percent and more. By this lawsuit, plaintiff The State of New York, joined by co-plaintiff Eric Gonzalez (the District Attorney of Kings County), demand that these intrusions be halted.
In response, ICE now moves to dismiss the complaint, arguing, first, that it is none of this Court's business and second, that even if it is, the common law privilege against courthouse arrests doesn't apply to ICE. Finding these and ICE's other arguments without merit, the Court denies the motion to dismiss, for the reasons set forth below.
THE ALLEGATIONS Plaintiffs The State of New York and the Kings County District Attorney commenced this suit on September 25, 2019, seeking both de~laratory and injunctive relief. Specifically, the plaintiffs seek a declaration that ICE Directive No. 11072.1, Ex. A to Onozawa Deel. (Oct. 23, 2019), ECF No. 27 (the "Directiven) is invalid, Compl., Prayer for Relief!! 2-4. They further ask that ICE be enjoined from "civilly arresting parties, witnesses, and any other individual coming to, attending, or returning from courthouses or court-related proceedingsn in New York State. Id. ! 5.
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According to the complaint, the Directive, which ICE promulgated on January 10, 2018, Compl. ~ 42, served to formalize aspects of Executive Order No. 13,768, 82 Fed. Reg. 8799, promulgated on January 25, 2017 (immediately after President Trump took office), which directed ICE to vigorously enforce the immigration laws against so-called "sanctuary jurisdictions." According to the complaint, the impact of the Executive Order on arrests on or near the premises of New York state courthouses was immediate: They rose from 11 in 2016 to 172 in 2017. Compl. ~ 58 n.9 (referencing Immigrant Defense Project, The Courthouse Trap 6 (Jan. 2019)). This shift was then formalized by ICE when it issued the Directive in early January 2018, after which such arrests rose still further, to 202 in 2018. Id.
The Directive provides that ICE agents may target for civil arrest on courthouse premises "aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed," Directive§ 2. In addition, the Directive provides that ICE may similarly arrest aliens outside these specified categories, "such as family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding," in "special circumstances, such as
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where the individual poses a threat to public safety or interferes with ICE's enforcement actions." Id.1
In response to the Executive Order and the Directive, civil arrests by ICE officers in and around New York state courthouses have, as noted, dramatically increased. Although the Directive purports only to offer guidance on how ICE officers should exercise their enforcement discretion on a "case-by-case basis," Directive§ 2 n.1, plaintiffs infer from the more than 1700 percent increase in such arrests that the Directive actually embodies a conscious decision to conduct widespread immigration arrests in or around state courthouses, a reversal of ICE's pre2017 policy to largely abstain from such arrests. Compl. 11 3037, 58.
These arrests, according to the Complaint, have seriously prejudiced New York's sovereign interest in maintaining a functioning court system. And this is not just because the arrests are, by their very nature, disruptive. In addition, aliens who are parties to lawsuits have declined to attend
1 The Directive does place some limits on the authority of ICE agents to conduct immigration arrests inside state courthouses. For example, the Directive states that "ICE officers and agents should generally avoid enforcement actions in courthouses, or areas within courthouses that are dedicated to non-criminal (e.g., family court, small claims court) proceedings." Id. The Directive also tells officers to cooperate with court security staff and to utilize non-public entrances and exits to the extent practicable. Id.
4

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 5 of 36
scheduled hearings, fearing arrest. This not only forces courts to adjourn proceedings, thereby wasting judicial resources, see, ~ , Compl. ~~ 68, 70, 75; see also Br. of Former Judges as Amici Curiae in Supp. of Pls.' Oppo. to Defs.' Mot. to Dismiss (Nov. 5, 2019), ECF No. 34, at 10-14 (hereinafter "Br. of Former Judges"), but also undermines New York's interest in allowing plaintiffs to pursue meritorious civil claims, Compl. ~~ 83-84; see generally Br. of Amici Curiae Immigrant Defense Project and 40 Legal Services Organizations, Public Defender Organizations, and Non-Profit Organizations in Supp. of Pls. (Nov. 5, 2019), ECF No. 30 (hereinafter "Br. of Immigrant Defense Project et al."); Br. of Former Judges 10-11. Further still, these arrests have interfered with New York's ability to prosecute crimes, both because witnesses who are undocumented aliens are afraid to come forward and also because even those defendants who are guilty of New York crimes are sometimes taken into ICE custody before they can be tried and convicted. Compl. ~~ 88-105. Finally, the Directive has also chilled crime reporting, with calls to the Brooklyn DA's Immigrant Affairs Unit declining by 67 percent from 2016 to 2018. Compl. ~ 101; see also Br. of Former Judges 7-10.
Citing these harms, plaintiffs challenge the Directive on three separate grounds. Count One, Compl. ~~ 135-42, argues that ICE's courthouse arrest policy violates the ancient common law
5

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 6 of 36
privilege against civil arrest when one is present at a
courthouse or necessarily traveling to or from court
proceedings. This privilege, plaintiffs further argue, is
presumptively incorporated into the Immigration and Nationality
Act ("INA"), rendering the Directive "in excess of statutory
jurisdiction, authority, or limitations" and therefore invalid
under section 706 (2) (C) of the Administrative Procedure Act
("APA"). 5 U.S.C. § 706(2) (C); Compl. CJICJI 121-29. Count Two
argues that ICE's adoption of the Directive was arbitrary and
capricious, in violation of section 7 0 6 (2) (A) of the APA,
because ICE did not adequately consider the harms that this policy would impose. 2 5 U.S.C. § 706(2) (A); Compl. crrcrr 130-34; see
also Compl. crrcrr 62-105; Br. of Former Judges 7-14; Br. of
Immigrant Defense Project et al. Finally, citing these same
harms, Count Three argues that the Directive violates the Tenth
2 The Directive lists three purported justifications for this policy. First, "[i]ndividuals entering courthouses are typically screened by law enforcement personnel to search for weapons and other contraband. Accordingly, civil immigration enforcement actions taken inside courthouses can reduce safety risks to the public, targeted alien(s), and ICE officers and agents." Directive§ 1. Second, "many individuals appearing in courthouses for one matter are wanted for unrelated criminal or civil violations." Id. And third, "courthouse arrests are often necessitated by the unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails." Id. None of these justifications addresses any of the harms thatplaintiffs allege are inherent in implementation of the Directive.
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Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 7 of 36
Amendment to the U.S. Constitution because it impermissibly burdens the State of New York's operation of its judicial system. Compl. ~~ 135-42.
THE MOTION TO DISMISS Defendants present six grounds for dismissal, the first three of which are jurisdictional in nature and are therefore brought under Fed. R. Civ. P. 12(b) (1), and the latter three of which are substantive in nature and therefore brought under Fed. R. Civ. P. 12 (b) (6). The first jurisdictional ground is that the interests plaintiffs ask this Court to protect are not within the "zone of interests" protected by the INA, 8 U.S.C. §§ 1101 et seq. The second is that ICE's immigration enforcement authority is "committed to agency discretion by law" under 5 U.S.C. § 701(a) (2) and therefore unreviewable. The third is that the Directive is not a final agency action and therefore unreviewable under 5 U.S.C. § 704. The first substantive ground is defendants' contention that there is no applicable common law privilege against courthouse civil arrests still extant. The second is that, even if there is such a privilege, it is preempted by the INA. The third is that plaintiffs do not, in any case, state a Tenth Amendment claim.
STANDARDS OF REVIEW
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Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 8 of 36
The Court considers each of these arguments in turn. As to the three grounds for dismissal under Rule 12(b) (1), the plaintiff bears the burden of demonstrating the existence of subject matter jurisdiction. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). But where, as here, the Court "relies solely on the pleadings and supporting affidavits, the plaintiff need only make a prima facie showing of jurisdiction." Id. "In determining whether a plaintiff has met this burden," the Court must "construe jurisdictional allegations liberally and take as true uncontroverted factual allegations." Id.
As to the three arguments under Rule 12(b) (6), the "complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). After discarding allegations that amount to nothing more than legal conclusions, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Court should "accept as true" what remains and "draw all reasonable inferences in plaintiff's favor." Beazley Ins. Co., Inc. v. Ace Am. Ins. Co., 150 F. Supp. 3d 345, 354 (S.D.N.Y. 2015) (citing In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007)) .
REVIEWABILITY 8

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Defendants' three jurisdictional arguments are all premised on the notion that the Directive and ICE's actions pursuant to the Directive are simply not reviewable by a federal district court. Defendants ask the Court to hold that ICE has unfettered and unchallengeable discretion to adopt a policy of conducting immigration arrests in a setting where it previously did so only rarely, thereby expanding the agency's own authority and significantly altering its relationship with state governments. This result would be a most unusual one under our constitutional system, let alone in any nation that prides itself on adhering to the rule of law. The Court therefore approaches defendants' arguments on reviewability with some skepticism.
First, defendants argue that plaintiffs do not have a cause of action under the APA because the interests they seek to protect are not "within the zone of interests to be protected or regulated by" the INA. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchack, 567 U.S. 209, 224 (2012), (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 F.3d 150, 153 (1970)). Defendants note that the INA broadly authorizes the civil arrest of aliens in the United States, see 8 U.S.C. §§ 1226(a) & 1357(a). And while the INA creates immigration courts (that is, courts that are an arm of the executive) that allow individual aliens to challenge their arrest and removal, see 8 U.S.C. § 1252; 8 C.F.R. § 1003.0 et
9

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 10 of 36
seq., the statute does not explicitly provide a cause of action to the plaintiffs here, nor does it "create[] any entitlement or interest that Plaintiffs may invoke." Defs.' Mem. of Law in Supp. of Mot. to Dismiss (Oct. 23, 2019), ECF No. 26, at 8 (hereinafter "Mem.").
If the logic of defendants' arguments were carried to its extreme, ICE would become virtually a fourth branch of government, with unfettered discretion not subject to any meaningful review by any constitutional court. But in fact, the zone-of-interests test that must be satisfied to give the Court jurisdiction is "not especially demanding," Lexmark Intern., Inc. v. Static Control Components, Inc., 572 U.S. 118, 130 (2014) (quoting Match-E-Be-Nash-She-Wish, 567 U.S. at 225) (internal quotation marks omitted), and the Court finds that it is satisfied here. Specifically, plaintiffs offer two rationales as to why their interests are not "so marginally related to or inconsistent with the purposes implicit in the (INA] that it cannot reasonably be assumed that Congress authorized the plaintiff to sue," Id. at 130 (internal quotation marks omitted), and either one is sufficient to satisfy this lenient standard. See Pls.' Mem. of Law in Oppo. to Defs.' Mot. to Dismiss (Nov. 5, 2019), ECF No. 33, at 3-4 (hereinafter "Oppo.").
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First, as Judge Talwani of the District of Massachusetts recently held, the text of the INA reflects a Congressional "preference that federal immigration enforcement not impede state criminal law enforcement." Ryan v. U.S. Immigration and Customs Enf't, 382 F. Supp. 3d 142, 155 (D. Mass. 2019). For example, section 1231 (a) (4) (A) of Title 8 provides that the agency may not remove an alien who is currently serving a sentence of imprisonment. Although an alien may be removed while on parole or supervised release, id., this subparagraph nonetheless demonstrates Congress's decision, at least in some circumstances, to respect the determinations of the various states' criminal justice institutions over those of federal immigration authorities. Similarly, the U-visa program, see8 U.S.C. § 1101(a)(15)(U), provides immigration status to alien crime victims who assist law enforcement. This provision evidences not only "Congressional intent to offer visas to vulnerable persons," Defs.' Suppl. Mem. of Law in Further Supp. Of Mot. to Dismiss (Dec. 3, 2019), ECF No. 42, at 2 (hereinafter "Defs.' Suppl. Mem."), but also Congressional intent to facilitate federal, state, and local criminal law enforcement.
Second, plaintiffs here allege the kind of "secondary economic injuries" resulting from the waste of judicial resources that the Second Circuit recently held sufficient to satisfy the zone-of-interests test, "notwithstanding that the
11

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 12 of 36
statute violated was not intended to protect against the type of injury suffered by the plaintiffs." C.R.E.W. v. Trump, 939 F.3d 131, 154 (2d Cir. 2019); see Compl. ~~ 2, 18, 66. Defendants argue that C.R.E.W.'s holding applies only to suits by competing firms, Defs.' Suppl. Mem. 3-4, but the language of the decision is not so narrow. For example, the C.R.E.W. court cited Bank of America Corp. v. City of Miami, 137 S. Ct. 1297, 1303-05 (2017), in which the Supreme Court held that Miami's predatory-lending suit against the bank fell within the Fair Housing Act's zone of interests because of the impact of foreclosures on the municipal budget.
The Court also notes that at least one circuit court has already recognized that state plaintiffs fall within the INA's zone of interests in a different context. See Texas v. United States, 809 F.3d 134, 163 (5th Cir. 2015), aff'd by an equally divided court, 136 S. Ct. 2271 (2016) (challenging the Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans programs as violations of the INA on the ground that states are harmed as providers of public benefits).
The Court therefore finds that plaintiffs fall within the INA's zone of interests and that plaintiffs therefore have a cause of action for their APA claims under 5 U.S.C. § 702. 3
3 Defendants also cite additional cases where various non-profit organizations were found not to fall within the INA's zone of
12

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 13 of 36
Defendants' second ground for dismissal under Fed. R. Civ. P. 12(b) (1) is that plaintiffs' APA claims are unreviewable because immigration enforcement is "committed to agency discretion by law." 5 U.S.C. § 701 (a) (2). The Court rejects this argument as well. While plaintiffs must "clear the hurdle of§ 701(a)" before asserting an APA claim, Heckler v. Chaney, 470 U.S. 821, 828 (1985), this hurdle is not very high. An action is "committed to agency discretion by law" only where the statute is "drawn in such broad terms that in a given case there is no law to apply." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (emphasis supplied). In other words, agency action is unreviewable "even where Congress has not affirmatively precluded review. . if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Heckler, 470 U.S. at 830.
As above, defendants cite sections 1226 and 1357 of the INA to demonstrate the agency's broad discretion to enforce the immigration laws and argue that such discretion deprives the court of any meaningful standard against which to judge ICE's
interests. E.g., De Dandrade v. U.S. Dep't of Homeland Sec., 367 F. Supp. 3dl74, 188-90 (S.D.N.Y. 2019); INS v. Legal Assistance Project, 510 U.S. 1301 (1993) (in-chambers stay order by O'Connor, J.). But these cases are inapposite to•the instant suit brought by government plaintiffs.
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Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 14 of 36
decision to arrest immigrants in and around state courthouses. Mem. 9-11. But as plaintiffs persuasively respond, Oppo. 5-8, defendants' argument presupposes that plaintiffs are wrong on the merits. As discussed below, plaintiffs 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. Compl. ii 106-16. If true, this would provide an obvious standard against which to evaluate the agency's exercise of discretion. 4 See Heckler, 470 U.S. at 830. Even 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. See Robinson, 21 F.3d at 507.
Defendants also attempt to rely on the well-settled proposition that an agency's individual enforcement or prosecutorial determinations are generally committed to its discretion by law. See, e.g., Heckler, 470 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
4 This argument does not, as defendants claim, conflate APA section 701(a) (2) with section 706(2). See Dep't of Commerce v. New York, 139 S. Ct. 2551, 2568 (2019); Defs.' Suppl. Mem. 4-6. Plaintiffs do not merely assert in the abstract that defendants' conduct violates the INA; they also allege that the common law privilege implicitly adopted by the INA provides a meaningful standard against which to judge the legality of the agency's actions. See 139 S. Ct. at 2568.
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Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 15 of 36
an agency's absolute discretion."). But this argument misunderstands the nature of the suit. 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. Such a policy would not be committed to unreviewable agency discretion.
Finally, defendants' third jurisdictional ground for dismissal under Rule 12(b) (1) is that the Directive is not final agency action and therefore unreviewable under section 704 of the APA. An agency action is final if two conditions are met: first, "the action must mark the 'consummation' of the agency's decisionmaking process;" and second, "the action must be one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.'" Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted).
Defendants concede that the first prong of the finality test is here met, but they argue that the Directive fails the second prong. In defendants' view, the Directive is a general statement of policy that "merely explains how the agency will enforce a statute or regulation - in other words, how it will exercise its broad enforcement discretion . . under some extant statute or rule." Nat'l Mining Ass'n v. McCarthy, 758
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Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 16 of 36
F.3d 243, 251-52 (D.C. Cir. 2014); see Mem. 11-12; Defs.' Reply Mem. of Law in Further Supp. Of Mot. to Dismiss (Nov. 13, 2019), ECF No. 38, at 4-5.
Plaintiffs respond, however, that the facts as alleged in the complaint clearly show that the Directive is effectively an interpretive rule. Oppo. 8-9. It does not simply provide guidance to ICE officers on how to exercise their discretion, but rather embodies a conscious change in policy that is based on a new interpretation of the law. Oppo. 8-10. Such an interpretive rule would have legal consequences, as it would subject aliens to civil immigration arrest in settings where they were not previously so subject, and it would therefore be a final agency action. See Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 106 (2015).
The factors distinguishing policy statements from rules include "the actual legal effect (or lack thereof)," "the agency's characterization of the guidance," and "post-guidance events." McCarthy, 758 F.3d at 252-53. While the Directive purports only to offer guidance to officers on how to exercise their enforcement discretion "on a case-by-case basis," Directive§ 2 n.1, the "post-guidance events" alleged in plaintiffs' complaint show beyond cavil that the Directive actually embodies a legally-consequential change to the agency's interpretation of the INA. Thus, while courthouse arrests by ICE
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were not totally unheard of prior to the Directive,
nevertheless, following its promulgation, according to the
Complaint, civil immigration arrests by ICE officers in and
around New York state courthouses increased by 1700 percent. Compl. ~ 58; see also Br. of Immigrant Defense Project et al. 3.
Moreover, these arrests have taken place within the courthouses themselves, e.g., Compl. ~~ 79-80, on their thresholds, id. ~ 69, and only a short distance away, ~ ' id. ~~ 72, 75, 77, 81.
Among the latter category are situations where ICE officers have
identified an alien within a courthouse and then followed her outside the building to conduct the arrest.~' id. ~ 71. 5
Efforts by New York State to limit the practice, furthermore,
have been ineffective. See Id. ~~ 52-61. A change of this
magnitude necessarily suggests that the Directive embodies ICE's
novel interpretation of its statutory authority to conduct
5 Because of these factual allegations, defendants' argument that any agency action with respect to arrests around (rather than within) courthouses is not final under both Bennett prongs is unavailing. The Directive concededly says nothing on its face about arrests near or outside of a courthouse. But this Court has previously held that "an agency need not dress its decision with the conventional accoutrements of finality" in order to make it so. U.S. Gypsum Co. v. Muszynski, 161 F. Supp. 2d 289, 291 (S.D.N.Y. 2001) (internal quotation marks and alteration omitted). Here, ICE's "own behavior belie[s]" its contention that the Directive does not represent the "consummation of [its] decisionmaking process" about enforcement actions on the peripheries of courthouses. Id. (alterations omitted); Bennett, 520 U.S. at 177-78 (internal quotation marks omitted).
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courthouse arrests, and not merely case-by-case guidance to individual officers.
Legal consequences flow from this interpretation. Particularly instructive on this point is U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016), which stands for the proposition that an agency's decision to deny a safe harbor to a party subject to regulation is a ulegal consequence" for the purpose of a finality analysis. That case involved the U.S. Army Corps of Engineers's practice of issuing ujurisdictional determinations" upon the requesi of a private party, which determinations notified that party whether or not its property was subject to civil and criminal regulation under the Clean Water Act as uwaters of the United States." Respondent Hawkes Co. had requested such a jurisdictional determination of its property; in response, the Army Corps of Engineers notified Hawkes that its property was waters of the United States, though it did not initiate any enforcement proceeding. Hawkes sued to challenge the jurisdictional determination, and the Government moved to dismiss on the ground that the jurisdictional determination was not a final agency action. 136 S. Ct. at 181113. The Supreme Court denied the motion to dismiss, holding that the jurisdictional determination was final agency action because it denied a five-year safe harbor from Clean Water Act regulation that Hawkes would otherwise have received. See also
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Abbott Labs., 387 U.S. at 150 (noting that an agency
interpretation that "would have effect only if and when a
particular action" were brought can still be a final agency
action) (citing Frozen Food Express v. United States, 351 U.S.
40 (1956)).
Here, similarly, the novel interpretation of the INA that
plaintiffs allege to be embodied in the Directive has legal
consequences for the aliens who were not previously subject to
potential enforcement actions at state courthouses, but who now
are, as well as for the proper functioning of the state courtq
themselves. 6 U.S. Army Corps of Engineers is, concededly, not
precisely on point, because a favorable jurisdictional
determination in that case would have granted respondent a
binding, five-year safe harbor, while ICE's pre-Directive policy
6 ICE's pre-Directive policy, promulgated in 2014, allowed courthouse arrests of limited categories of aliens, including those "engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security," as well as those "convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders." Ex. B to Onozawa Deel. In contrast to the Directive, this policy did not, for example, allow "individuals who may be 'collaterally' present, such as family members or friends" accompanying an alien in one of the prior categories to a court proceeding to be arrested at a courthouse. Id. Of course, the extent to which enforcement of the Directive actually differs from enforcement of the 2014 policy is a question of fact to be answered over the course of this litigation. But for the purposes of this motion to dismiss, the Court accepts as true the allegation in plaintiffs' complaint that courthouse arrests have dramatically increased in response to the Directive. Compl. ~ 58; Iqbal, 556 U.S. at 678.
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is not alleged to have prohibited courthouse arrests under all circumstances. 136 S. Ct. at 1812; see Compl. ~ 58. But under a "pragmatic" view of finality, Abbott Labs., 387 U.S. at 149, the magnitude of the change in policy is sufficient to bear legal consequences for aliens subject to potential immigration enforcement. The Directive therefore is final agency action subject to judicial review.
LEGAL SUFFICIENCY The Court now proceeds to consider defendants' three substantive arguments under Fed. R. Civ. P. 12(b) (6). The first such argument is addressed to Count One, which claims that the Directive is invalid because it violates the common law privilege against courthouse civil arrests, i.e., the privilege against arresting people in attendance on courthouse matters for unrelated civil violations either while they are on court premises or are traveling to or from court on their courtrelated matters. This raises two questions. Is the common law privilege still extant? And, if so, did the INA implicitly incorporate this privilege? After careful examination of the history, policy, and application of the common law privilege, as well as the text of the INA, the Court concludes that the answer to each of these questions is yes. As a starting point, it is patently clear that English common law provided a privilege against any civil arrests in and
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Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 21 of 36
around courthouses, and also against civil arrests of witnesses and parties necessarily traveling to and from the courthouse.7 Blackstone's famous Commentaries, on which early U.S. courts heavily relied in incorporating English common law into the laws of the several states and the United States, provides explicitly that:
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). Furthermore, although the privilege goes back to at least the fifteenth century, Lasch, supra n.7, at 423, English courts reconfirmed this privilege in several late eighteenth and early nineteenth century cases, i.e., at the very time that English common law was being incorporated into the laws of the new states of the nascent American republic. See, e.g., Meekins v. Smith (1791), 126 Eng. Rep. 363, 363 ("[A]ll persons who had relation to a suit which called for their attendance, whether they were compelled to attend by process or not, (in which
7 See generally Br. of Immigration Law Scholars as Amici Curiae in Supp. of Pls. (Nov. 5, 2019), ECF No. 32 (hereinafter "Br. of Immigration Law Scholars"); Christopher N. Lasch, A Common-Law Privilege To Protect State and Local Courts During the
Crimmigration Crisis, 127 Yale L.J. F. 410, 432-439 (2017).
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Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 22 of 36

number bail were included) were intitled [sic] to privilege from

arrest eundo et redeundo [going and returning], provided they

came bona fide."); Walpole v. Alexander (1782), 99 Eng. Rep.

530, 530-31 (holding that a witness from France could not be

arrested in England while in the country to testify in another

case); Orchard's Case (1828), 38 Eng. Rep. 987, 987-88 (holding

that a lawyer who was arrested while he was at a court in a non-

professional capacity was not validly arrested).

The purposes of this privilege were both to encourage

parties and witnesses "to come forward voluntarily," Walpole, 99

Eng. Rep at 531; The King v. Holy Trinity in Wareham (1782), 99

Eng. Rep. 530, 530-31, and also to maintain order in the

courthouse, Orchard's Case, 38 Eng. Rep. at 987 ("To permit

arrest to be made in the Court would give occasion to perpetual

tumults .

."). It thus served, in either case, to e~able

courts to function properly. 8

There is no real dispute between the parties here that this

privilege was adopted into American common law after

independence. But they differ as to whether it is still

operative. To be sure, these early cases all occurred at a time

when civil arrest of the defendant was the means by which a

plaintiff initiated a civil suit. See Br. of Immigration Law

8 See generally cases cited at Oppo. 16-18; and Br. of Immigration Law Scholars 8-10, 15-16.
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Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 23 of 36
Scholars at 8; Ryan, 382 F. Supp. 3d at 155-56 (citing Nathan Levy, Jr., Mesne Process in Personal Actions at Common Law and the Power Doctrine, 78 Yale L.J. 52 (1968)). Service of process ultimately replaced this form of civil arrest, and as a result, civil arrests in their earlier form were largely extinct at the time of the adoption of the INA. And, while criminal arrests remained, the common law privilege was never thought to apply to criminal arrests.
However, with the rise of the regulatory state, new forms of civil arrest arose, the most common of which are arrests of allegedly undocumented aliens. See I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984) ("A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime."). The immediate question therefore is whether the common law privilege applies to such arrests.
The answer is plainly yes. The 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, both the highest court of New York and the U.S. Supreme Court continued to apply the privilege even when the intrusion was not an actual arrest but only a disruptive service of process. The
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first such New York case, Person v. Grier, 66 N.Y. 124 (1876), involved a resident of Pennsylvania, William Grier, who was served with process for a New York civil action while in New York in order to serve as a witness in a separate matter. The Court of Appeals held that Grier was immune from service of process in New York under the circumstances, writing that:
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. Upon principle as well as upon authority their immunity from the service of process for the commencement of 'civil actions against them is absolute eundo, morando et redeundo. Id. at 125. Similarly, in Parker v. Marco, 136 N.Y. 585 (1893), a resident of South Carolina who was the defendant in an action in federal court in that state came to New York to attend a deposition of the plaintiff. The next day, as the defendant was beginning his journey back to South Carolina, the plaintiff served him with process for a new suit in New York state court that arose out of the same cause of action as the first lawsuit. The Court of Appeals held this defendant immune from suit, noting that the privilege "has always been held to extend to every proceeding of a judicial nature" and that "[i]t is not simply a personal privilege, but it 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." Id. at 589.
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Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 25 of 36

The leading U.S. Supreme Court case, Stewart v. Ramsay, 242 U.S. 128 (1916), likewise held that a Colorado resident was immune from civil service of process in Illinois while in that state to testify in a case where he was the plaintiff. The rule articulated in that case is that "suitors, as well as witnesses, coming from another state or jurisdiction, are exempt from the service of civil process while in attendance upon court, and during a reasonable time in coming and going." Id. at 129. 9
What these cases demonstrate is that the common law privilege against courthouse arrests had as its fundamental purpose the protection of the courts in carrying out their functions, and that this policy was so strong that, even in the brief period when civil arrests became rare, the privilege was extended to service of process. Far from being abandoned, therefore, the privilege was being expanded. This is as much as stated in Person, where the highest New York court held 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." 66 N.Y. at 125 (emphasis

9 While plaintiffs' argument rests on the contention that this

privilege was incorporated into the common law of the various

states, specifically New York, Stewart recognized this privilege

as a matter of federal common law as well, and did so in part

because of its ubiquity among the common laws of the states. See

242 U.S. at 130 ("The state courts, with few exceptions, have

followed this rule .

.").

25

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 26 of 36
supplied). A fortiori this privilege extends to civil
immigration arrests.10
But, although we are ultimately concerned here with a New
York state privilege recognized by the INA, this conclusion is
also reinforced at the federal level by the limited privilege
10 At oral argument before the Court, see Transcript 11/20/19 at 16:25-17:11, defendants sought to narrow the thrust of these cases by citing Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377 (1910), which in their view demonstrates that the privilege against courthouse civil arrest attaches only when the arrestee travels out of her state of residence for the purpose of attending a court proceeding. See also United States v. Green, 305 F. Supp. 125, 128 (S.D.N.Y. 1969) ("The rule of immunity was seen as generally applicable to persons ordinarily without the jurisdiction of a court, and, therefore, necessarily not amenable to its service of process, who appeared within that jurisdiction solely with respect to the cause there already underway."). Netograph held that a citizen of Ohio who was in New York as a defendant in a criminal trial was not immune from being served with process in an unrelated civil case as he was leaving the state following his acquittal. But Netograph is totally distinguishable, because it dealt with the situation where the defendant who appeared in court was there not voluntarily, but because he was a defendant in a criminal case. The court reasoned that the justification for the common law privilege "is to encourage voluntary attendance upon courts and to expedite the administration of justice," and that "that reason fails when a suitor or witness is brought into the jurisdiction of a court while under arrest or other compulsion of law." Id. at 380. (Given the historical scope of the privilege, the Court notes without deciding a separate issue as to whether even such a criminal defendant could be arrested within a courthouse, rather than during his travels to and from the courthouse as the defendant in Netograph was. See Parker, 136 N.Y. at 589 ("It is not simply a personal privilege, but it 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.").)
26

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 27 of 36

from arrest that the U.S. Constitution grants to legislators,

which also suggests that the courthouse privilege continues to

cover more than just service of process. See U.S. Const. art. I,

§ 6, cl. 1 ("The Senators and Representatives . . shall in all

Cases, except Treason, Felony and Breach of the Peace, be

privileged from Arrest during their Attendance at the Session of

their respective Houses, and in going to and returning from the

same .

."). These two doctrines are historically related. As

the Supreme Court has recognized, the Framers modelled the

privilege for legislators on the privilege against courthouse

arrests for ordinary litigants. Williamson v. United States, 207

U.S. 425, 443 (1908) ("This privilege is conceded by law to the

humblest suitor and witness in a court of justice; and it would

be strange indeed if it were denied to the highest functionaries

of the state in the discharge of their public duties.") (quoting

Joseph Story, Commentaries on the Constitution of the United

States§ 859 (1833)). The scope of the privilege contained in

the Speech or Debate Clause is, accordingly, evidence of the

scope of the common law privilege. Indeed, it would be odd to

read the latter privilege to no longer cover arrest when the

former privilege, enshrined in the Constitution, undoubtedly

does.

Finally, and most importantly, the policy objectives cited

for hundreds of years by English and American courts to justify

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Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 28 of 36

the common law privilege against civil courthouse arrests apply

equally to modern-day immigration arrests. The first such

objective that English courts cited to justify the privilege was

the desire to encourage parties "to come forward voluntarily,"

Walpole, 99 Eng. Rep at 531. American courts have recognized

this same purpose. See, e.g., Person, 66 N.Y. at 126 ("Witnesses

might be deterred, and parties prevented from attending .

. "); Netograph, 197 N.Y. at 380 ("[T]he obvious reason of the

rule is to encourage voluntary attendance upon courts and to

expedite the administration of justice .

."); Stewart, 242

U.S. at 129 ("[T]he fear that a suit may be commenced [at a

court] by sur_nrnons will as effectually prevent his approach as if

a capias might be served upon him."). According to the facts

here alleged, ICE's Directive undermines this purpose by

deterring immigrants from appearing in court, thus denying them

an opportunity to seek justice in their own cases and impeding

civil suits and criminal prosecutions by dissuading them from

serving as witnesses. See Compl. ~~ 88-105; Oppo. 20-22; Br. of

Former Judges 3-11; Br. of Immigrant Defense Project et al.

The second and even more fundamental purpose of the

privilege is to enable courts to function properly. See, e.g.,

Orchard's Case, 38 Eng. Rep. at 987 ("To permit arrest to be

made in the Court would give occasion to perpetual tumults .

. "); Person, 66 N.Y. at 126 ("[D]elays might ensue or injustice

28

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 29 of 36
be done."); Parker, 136 N.Y. at 589 ("It is not simply a personal privilege, but it 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 Directive undermines this purpose as well. It has caused precisely the delays, reschedulings, waste, and disruptions that so many earlier courts feared. See Compl. ~~ 68, 70, 75; Oppo. 21-22; Br. of Former Judges 10-14. This reason, more than any other, compels the Court to find that, as a matter of New York law, aliens are privileged from immigration arrest while present at courthouses and during their necessary coming and going theiefrom.
Of course, the ICE agents conducting these arrests act under authority of federal law, not New York law. The ultimate question then is whether the federal immigration statute, which is silent on this issue, incorporates the common law privilege, here applicable to the courts of New York. Plaintiffs argue that it does, while defendants, on their second substantive argument for dismissal under Fed. R. Civ. P. 12(b) (6), argue that the INA preempted and therefore invalidated any potential common law privilege under the law of New York State.
There is a general presumption in favor of plaintiffs' position. The Supreme Court has held in numerous contexts that "statutes which invade the common law are to be read with a
29

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 30 of 36
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) (internal quotation marks and alterations omitted). Similarly, to the extent that the question implicates issues of federalism, the Supreme Court has also explained that courts should interpret federal statutes not to "alter the usual constitutional balance between the States and the Federal Government" unless Congress's "intention to do so" is "unmistakably clear in the language of the statute." Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 65 (1989)) (internal quotation marks omitted). The standard for finding that f~deral law has preempted state law is that such a result must have been "the clear and manifest purpose of Congress." City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 316 (1981) (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
Gregory v. Ashcroft is particularly relevant. In that case, Missouri state judges challenged a provision of the state constitution that imposed a mandatory retirement age of seventy, arguing that the state law violated the Equal Protection Clause of the Fourteenth Amendment and was preempted by the federal Age Discrimination in Employment Act of 1967. The Governor of Missouri, as respondent, argued that the statute did not violate
30

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 31 of 36

Equal Protection and that the state judges fell within the

federal statute's exemption for "appointees .

'on a

policymaking level.'" 501 U.S. at 455-56. On the preemption

argument, the Supreme Court construed the statute not to

prohibit a mandatory retirement age for state judges. Noting the

important federalism interests in allowing "the people of

Missouri [to] establish a qualification for those who sit as

their judges," Id. at 460, the Court applied a plain statement

rule and held that the statute was not sufficiently clear that

Congress intended to displace state law in this area. Id. at

464.

In the instant case, this Court similarly finds no

indication in the language of the statute that the "clear and

manifest purpose of Congress" was to abrogate the relevant state

common law, City of Milwaukee, 451 U.S. at 316, and consequently

holds that the statute incorporates the privilege.

As evidence for the requisite Congressional intent,

defendants again cite the agency's broad arrest authority under

sections 1226 and 1357 of Title 8 and argue that these

provisions demonstrate that federal immigration regulation is

"so pervasive as to make reasonable the inference that Congress

left no room for the States to supplement it." Rice, 331 U.S. at

230; Mem. 19-24. But this language from Rice is inapposite. The

state common law at issue does not "supplement" the federal

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Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 32 of 36

regulatory scheme at all, but rather creates a very narrow

limitation on federal enforcement authority that is tailored to

protect states' interests in managing their own judicial systems

and one that, indeed, has been recognized as a matter of federal

common law as well. See Stewart, 242 U.S. 128; Lamb v. Schmidt,

285 U.S. 222 (1932). Defendants' reading of the statute would

effectively bar states' sovereign interests from imposing any

limitations on ICE's enforcement discretion, which is a reading

that is not "clear and manifest" from the language of the

statute. City of Milwaukee, 451 U.S. at 316.

Second, and relatedly, defendants argue that "the federal

government has exclusive authority over immigration," Mem. 21,

and that state law cannot undermine federal power in this area.

See Rice, 331 U.S. at 230 (holding that the clear statement rule

may be satisfied where "the Act of Congress

touch[es] a

field in which the federal interest is so dominant that the

federal system will be assumed to preclude enforcement of state

laws on the same subject."); Arizona v. United States, 567 U.S.

387, 394 (2012) ("The Government of the United States has broad,

undoubted power over the subject of immigration and the status

of aliens."). This argument is also unpersuasive. The issue is

not whether Congress could displace state common law in this

area, but whether the general language of the INA in fact did.

Insofar as defendants are arguing that any state law touching

32

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 33 of 36
upon immigration is presumptively invalid, the language of the INA does not compel such a result. While the statute preempts state laws that criminalize federal immigration violations, see Arizona, 567 U.S. at 410, it does not necessarily preempt state laws that narrowly limit federal enforcement authority.
Third, in what is probably their strongest argument, defendants point to section 1229(e) of the INA, which is the only place where the statute mentions courthouse arrests. Section 1229(e), read in conjunction with its cross-reference to section 1367, provides that, when "an enforcement action leading to a removal proceeding" takes place at a courthouse, and the alien arrested is appearing in connection with a protection order, child custody, domestic violence, sexual assault, trafficking, or stalking case, immigration officers may not use certain types of information from the proceeding in making an adverse determination of deportability. See 8 U.S.C. §§ 1229 (e) (1) - (2) (B) & 1367. This section suggests that Congress did anticipate at least some arrests occurring at courthouses. But as plaintiffs convincingly respond, Oppo. 14-15, the section could fairly be read as referring to criminal arrests, against which the state common law privilege does not protect. Furthermore, this provision does not necessarily speak to ICE's arrest authority at all; rather, it may be anticipating criminal arrests by state and local police forces, which lead to eventual
33

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 34 of 36
ICE removal proceedings. Furthermore, the provision is plausibly viewed as a prophylactic against ICE actions that target aliens based on their participation in judicial procee?ings; as plaintiffs argue, id., it 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 these reasons, section 1229(e) of the INA does not demonstrate that Congress unambiguously intended to displace the state common law privilege against courthouse civil arrests.
As their final argument under Fed. R. Civ. P. 12(b) (6), defendants argue that Count Three fails to state a Tenth Amendment claim. The crux of plaintiffs' Tenth Amendment argument is that the Directive undermines New York's sovereign interests by "interfering with state court operations and impeding criminal prosecutions." Compl. 'JI 139. The defendants respond that this is not the kind of interference that involves
is "commandeering" of state agents that in their view necessary
to a Tenth Amendment claim. Mem. 24-25; see Murphy v. Nat'l Collegiate Athletic Ass'n, 138 S. Ct. 1461, 1475 (2018). Here, however, the Complaint unmistakably alleges a type of commandeering similar to those that the Supreme Court has found to lie at the heart of a Tenth Amendment cause of action. See Murphy, 138 S. Ct. 1461, Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992). The
34

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 35 of 36
clear implication of the facts alleged in plaintiffs' complaint is that ICE's policy has commandeered state and' local judges and court officials not to take action in response to ICE's arrests, even when the federal agency causes great disruption to the functioning of the state judiciary and the state agents would therefore normally intervene. See, e.g., Compl. 11 69, 74, 75, 77, 78. Plaintiffs accordingly state a Tenth Amendment claim. See Murphy, 138 S. Ct. at 1475-78.
CONCLUSION For the aforementioned reasons, the motion to dismiss is hereby denied with respect to all of plaintiffs' claims for relief. The stay granted from the bench at oral argument is lifted, and the case management plan adopted on October 8, 2019 is amended as follows: The administrative record is to be filed by no later than January 3, 2020; all discovery is to be completed by February 28, 2020; moving papers for any post-discovery summary judgment motions are to be filed no later than March 13, 2020, with answering papers by no later than March 27, 2020 and reply papers by no later than April 3, 2020; and a final pre-trial conference, as well as oral argument on any summary judgment motions, will be held on April 14, 2020 at 11:00 AM.
35

Case 1:19-cv-08876-JSR Document 51 Filed 12/19/19 Page 36 of 36

SO ORDERED.

Dated:

New York, NY
December l.j, 2019

36

 
 Case 1:19-cv-08876-JSR Document 83 Filed 03/13/20 Page 1 of 11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

: STATE OF NEW YORK and ERIC

GONZALEZ, in his official capacity as the : District Attorney of Kings County

(Brooklyn),

:

Plaintiffs,
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; MATTHEW T. ALBENCE, in his official capacity as Acting Director of United States Immigration and Customs Enforcement; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; and KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of Homeland Security,
Defendants.

: Civ. Action No. 1:19-cv-08876 (JSR)
: : : : : : : :

BRIEF OF FORMER JUDGES AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Debo P. Adegbile Jarret A. Zafran WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 Tel: (212) 230-8800 Fax: (212) 230-8888

Case 1:19-cv-08876-JSR Document 83 Filed 03/13/20 Page 2 of 11 TABLE OF CONTENTS Page
INTEREST OF AMICI CURIAE....................................................................................................1 ARGUMENT ...................................................................................................................................2 CONCLUSION................................................................................................................................6 APPENDIX: LIST OF AMICI ........................................................................................................7
i

Case 1:19-cv-08876-JSR Document 83 Filed 03/13/20 Page 3 of 11
TABLE OF AUTHORITIES
Page(s)
News Coverage
Brigitte Hamadey, Opinion: ‘And Justice For All’ Means Barring ICE from NYS Courthouses, City Limits (June 19, 2019), https://citylimits.org/2019/06/19/ice-nys-courthouse-justice/ ...................................................3
Jake Offenhartz, Report: ICE Still Making Arrests In And Around NY Courthouses, Despite State Directive, Gothamist (Jan. 15, 2020, 10:25 a.m.), https://gothamist.com/news/report-ice-still-making-arrests-and-around-nycourthouses-despite-state-directive............................................................................................4
Leonard Greene, ICE ignoring courthouse guidelines to make arrests: report, NY Daily News (Jan. 14, 2020, 7:00 a.m.), https://www.nydailynews.com/newyork/ny-ice-rally-courthouse-arrests-20200114pck7bxjhmbdrfpefwerh53b3fm-story.html................................................................................5
Max Siegelbaum & Mazin Sidahmed, ICE Agents Appear at a Westchester Court the Day After New York State Restricts Access, Documented (Apr. 24, 2019, 6:17 a.m.), https://documentedny.com/2019/04/24/ice-agents-appear-at-awestchester-court-the-day-after-new-york-state-restricts-access/ .............................................5
William Glaberson, In Tiny Courts of N.Y., Abuses of Law and Power, N.Y. Times (Sept. 25, 2006), https://www.nytimes.com/2006/09/25/nyregion/25courts.html ................................................5
Other Authorities
Complaint, State of New York et al. v. U.S. Immigration & Customs Enforcement, No. 1:19-cv-8876 (JSR) (S.D.N.Y. Sept. 25, 2019) ........................................................ passim
Directive from Office of Chief Administrative Judge, N.Y. Unified Court System, to All Uniformed Personnel regarding Protocol Governing Activities in Courthouses by Law Enforcement Agencies (Apr. 17, 2019), http://nycourts.gov/whatsnew/pdf/2017_law_enforcement_activities.pdf ................................3
ICE Out of Courts Coalition, Safeguarding the Integrity of Our Courts: The Impact of ICE Courthouse Operations in New York State (March 2019), https://www.immigrantdefenseproject.org/wp-content/uploads/Safeguardingthe-Integrity-of-Our-Courts-Final-Report.pdf ................................................................. passim
Immigrant Defense Project, Denied, Disappeared, and Deported: The Toll of ICE Operations at New York’s Courts in 2019 (Jan. 2020), https://www.immigrantdefenseproject.org/wp-content/uploads/DeniedDisappeared-Deported-FINAL.pdf.................................................................................. passim
ii

Case 1:19-cv-08876-JSR Document 83 Filed 03/13/20 Page 4 of 11 Interactive Map, ICEwatch, https://raidsmap.immdefense.org/ ......................................................3 U.S. Immigration and Customs Enforcement, Directive No. 11072.1, “Civil
Immigration Enforcement Actions Inside Courthouses,” (Jan. 10, 2018), https://www.ice.gov/sites/default/files/documents/Document/2018/ciEnforcem entActionsCourthouses.pdf ........................................................................................................1
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Case 1:19-cv-08876-JSR Document 83 Filed 03/13/20 Page 5 of 11
INTEREST OF AMICI CURIAE Amici curiae (listed in the Appendix) are former state and federal judges who have a strong interest in ensuring that courts remain open and accessible to the people and that the public continues to perceive courts in that way. Our state courts play an essential role in upholding the rule of law in New York. The courts touch every facet of life, and the justice they administer every day depends upon the claimants, defendants, victims, witnesses, and other important stakeholders who appear before them just as certainly as it depends upon judges and judicial personnel. Amici know firsthand that in order for the courts to function properly and do justice, ensure public safety, and serve their communities, all of these stakeholders must regard courthouses as safe and open spaces. The independent judiciary is a pillar of American democracy and our state courts. Unfortunately, a marked increase in arrests and enforcement activity by U.S. Immigration and Customs Enforcement (“ICE”) in and near courthouses in recent years has seriously threatened that vital perception, creating a chilling effect and deterring stakeholders from participating in the justice system. The January 10, 2018 ICE directive concerning “Civil Immigration Enforcement Actions Inside Courthouses,” (the “Civil Arrest Directive” or “the Directive”), which formally permits civil immigration enforcement actions in and near federal, state, and local courthouses,1 only exacerbates this chilling effect. Amici’s experience presiding over thousands of cases in various courts uniquely qualifies them to explain how the Directive and

1

U.S. Immigration and Customs Enforcement, Directive No. 11072.1, “Civil Immigration

Enforcement Actions Inside Courthouses,” at 1-2, (Jan. 10, 2018),

https://www.ice.gov/sites/default/files/documents/Document/2018/ciEnforcementActionsCourth

ouses.pdf (“Directive”).

1

Case 1:19-cv-08876-JSR Document 83 Filed 03/13/20 Page 6 of 11

ICE’s policy of conducting civil arrests in and around courthouses jeopardize the administration of justice in New York and beyond.
ARGUMENT Informed by amici’s broad and varied judicial experience, this brief addresses the realworld ramifications of ICE’s courthouse arrests and the Directive on the judicial process in New York courts. Amici incorporate by reference the arguments made in their “Brief of Former Judges as Amici Curiae in Support of Plaintiffs’ Opposition to Defendants’ Motion to Dismiss,” filed on November 5, 2019. Dkt. No. 34. That amicus brief argued: (1) the Directive exacerbates a chilling effect that deters noncitizens from participating in the justice system; (2) the chilling effect impedes the administration of justice; and (3) even when individuals are not deterred from accessing the courts, the Directive and policy of conducting civil arrests in and around New York courthouses nonetheless obstruct the judicial process. This brief provides additional information to support a fourth argument—that despite New York’s implementation of policies designed to curb the negative consequences flowing from ICE arrests in or near courthouses, these ramifications persist. Consequently, judicial relief is necessary to create the unequivocal protection needed to restore public confidence in the courts. As detailed in Plaintiffs’ Complaint, the Office of Court Administration (“OCA”) has twice updated Unified Court System (“UCS”) policy in an attempt to reduce ICE courthouse activity, and Governor Cuomo issued an executive order limiting federal immigration arrests in state facilities within executive control.2 According to the UCS policy issued in April 2019

2

See Complaint (“Compl.”) ¶¶ 53-61.

2

Case 1:19-cv-08876-JSR Document 83 Filed 03/13/20 Page 7 of 11

(“UCS Policy”), ICE must present a judicial warrant for review by a judge or court attorney before making an arrest inside a New York state courthouse.3
Despite these efforts, ICE arrests in New York courthouses continue unabated.4 In fact, courthouse operations in 2019 were 1700% higher than in 2016, with nearly half (47%) of total operations occurring after the April 2019 UCS Policy prohibiting warrantless arrests inside courthouses.5 UCS policy can only go so far, as OCA is powerless to regulate ICE arrests and surveillance occurring near, but not inside, courthouses.6 After the UCS Policy was passed, ICE surveilled individuals inside courthouses and arrested them on the courthouse steps or adjacent sidewalks once they exited.7 For example, when a man was arrested by ICE outside the back entrance of Queens Criminal Court, the ICE officer told his wife that they “had all entrances

3

Directive from Office of Chief Administrative Judge, N.Y. Unified Court System, to All

Uniformed Personnel regarding Protocol Governing Activities in Courthouses by Law

Enforcement Agencies (Apr. 17, 2019),

http://nycourts.gov/whatsnew/pdf/2017_law_enforcement_activities.pdf

4

See Compl. ¶¶ 68-74; see also Brigitte Hamadey, Opinion: ‘And Justice For All’ Means

Barring ICE from NYS Courthouses, City Limits (June 19, 2019),

https://citylimits.org/2019/06/19/ice-nys-courthouse-justice/ (reporting at least eight incidents of

courthouse and courthouse-adjacent arrests in New York, including in all five boroughs of NYC,

in the two months following the 2019 Directive); Interactive Map, ICEwatch,

https://raidsmap.immdefense.org/ (documenting eleven ICE arrests inside of courthouses in the

first two months after the implementation of the directive).

5

Denied, Disappeared, and Deported: The Toll of ICE Operations at New York’s Courts

in 2019, Immigrant Defense Project (Jan. 2020) at 6 (“Denied, Disappeared, and Deported”),

https://www.immigrantdefenseproject.org/wp-content/uploads/Denied-Disappeared-Deported-

FINAL.pdf. Courthouse “operations” include both ICE arrests and verified sightings of ICE

agents or vehicles. Id. at 8.

6

See Compl. ¶¶ 73-77; ICE Out of Courts Coalition, Safeguarding the Integrity of Our

Courts: The Impact of ICE Courthouse Operations in New York State (March 2019) at 47

(“Safeguarding Report”), https://www.immigrantdefenseproject.org/wp-

content/uploads/Safeguarding-the-Integrity-of-Our-Courts-Final-Report.pdf (account of ICE

stalking target to nearby restaurant).

7

Denied, Disappeared at 9.

3

Case 1:19-cv-08876-JSR Document 83 Filed 03/13/20 Page 8 of 11
covered,” had watched him in the court and followed him out.8 In 2019, 80% of ICE operations targeting individuals at courthouses occurred while they were on their way to a court proceeding or as they exited the courthouse.9
There is also evidence that ICE agents ignore the mandates of the UCS Policy. In contravention of UCS policy, ICE has arrested individuals inside a courthouse without the supervising judge reviewing their paperwork,10 and without showing a warrant.11 And, as recently as January 2020, ICE maintained that it has “broad at-large arrest authority by Congress and may lawfully arrest removable aliens in courthouses” despite the UCS Policy.12 These comments indicate that ICE has no plans to discontinue its courthouse arrest policy.
Because such activity remains chilling for witnesses, victims, and litigants, New York’s noncitizens and those close to them continue to avoid court.13 Additionally, UCS policy is of little or no practical effect to protect the tens of thousands of individuals interacting with the approximately 1,300 locally-run town and village courts throughout New York (also known as

8

Id. at 10.

9

Id. at 7.

10 Id. at 11.

11 Id. at 13.

12 Jake Offenhartz, Report: ICE Still Making Arrests In And Around NY Courthouses, Despite State Directive, Gothamist (Jan. 15, 2020, 10:25 a.m.), https://gothamist.com/news/report-ice-still-making-arrests-and-around-ny-courthouses-despitestate-directive.

13 Denied, Disappeared at 16.

4

Case 1:19-cv-08876-JSR Document 83 Filed 03/13/20 Page 9 of 11
“justice courts”).14 Justice courts are often located in or near municipal buildings where other government services are offered, compounding ICE’s interference with local government functions.15
UCS policy also relies on state court personnel to navigate complex legal distinctions, leading to uneven and imperfect policy implementation.16 While the policy permits ICE arrests in courthouses based only on judicial warrants, ICE officers can arrest people outside of court based on less stringent administrative warrants. Information from Unusual Occurrence Reports (“UORs”), which should be filed every time an ICE arrest occurs in court, also shows that court personnel often do not recognize or understand warrant distinctions, resulting in ICE courthouse arrests that UCS policy otherwise would have prohibited.17
14 Max Siegelbaum & Mazin Sidahmed, ICE Agents Appear at a Westchester Court the Day After New York State Restricts Access, Documented (Apr. 24, 2019, 6:17 a.m.), https://documentedny.com/2019/04/24/ice-agents-appear-at-a-westchester-court-the-day-afternew-york-state-restricts-access/; see also William Glaberson, In Tiny Courts of N.Y., Abuses of Law and Power, N.Y. Times (Sept. 25, 2006), https://www.nytimes.com/2006/09/25/nyregion/25courts.html; Leonard Greene, ICE ignoring courthouse guidelines to make arrests: report, NY Daily News (Jan. 14, 2020, 7:00 a.m.), https://www.nydailynews.com/new-york/ny-ice-rally-courthouse-arrests-20200114pck7bxjhmbdrfpefwerh53b3fm-story.html. 15 See Safeguarding Report at 47 (account of ICE stalking target to nearby restaurant). 16 See id. at 63. 17 See id. at 61-62.
5

Case 1:19-cv-08876-JSR Document 83 Filed 03/13/20 Page 10 of 11

CONCLUSION For the foregoing reasons, the Court should grant Plaintiffs’ motion for summary judgment.

Dated: New York, New York March 13, 2020

Respectfully submitted,

/s/ Debo P. Adegbile
Debo P. Adegbile Jarret A. Zafran WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 Tel: (212) 230-8800 Fax: (212) 230-8888

6

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APPENDIX: LIST OF AMICI Jonathan Lippman: Former Chief Judge of the New York Court of Appeals; former Chief Administrative Judge of New York; former Presiding Justice of the Appellate Division, First Department Carmen Beauchamp Ciparick: Former Senior Associate Judge of the New York Court of Appeals; former Justice of the New York Supreme Court; former Judge of the Criminal Court of the City of New York Fern A. Fisher: Former Deputy Chief Administrative Judge of the New York City Courts; former Administrative Judge of the Civil Court; former Deputy Supervising Judge of the Civil Court; former Justice of the New York Supreme Court, Matrimonial and City Parts; former Judge of the Housing Part of the Civil Court Howard A. Levine: Former Associate Judge of the New York Court of Appeals; former Associate Justice of the Appellate Division, Third Department; former Justice of the New York Supreme Court; former Family Court Judge, Schenectady County Wallace B. Jefferson: Former Chief Justice of the Supreme Court of Texas E. Leo Milonas: Former Associate Justice of the Appellate Division, First Department; former Chief Administrative Judge of New York; former Deputy Chief Administrative Judge of the New York City Courts A. Gail Prudenti: Former Chief Administrative Judge of New York; former Presiding Justice of the Appellate Division, Second Department Chase T. Rogers: Former Chief Justice of the Connecticut Supreme Court; former Appellate Court Judge; former Superior Court Judge Shira A. Scheindlin: Former United States District Judge for the Southern District of New York; former Magistrate Judge for the Eastern District of New York
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 Case 1:19-cv-08876-JSR Document 84 Filed 03/13/20 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, et al., Plaintiffs,
v. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
Defendants.

1:19-cv-08876 (JSR)

BRIEF OF PROFESSOR NIKOLAS BOWIE AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Nikolas Bowie (pro hac vice) nbowie@law.harvard.edu Harvard Law School Cambridge, Massachusetts 02138 Tel: (617) 496-0888
Counsel for Amicus Curiae

Case 1:19-cv-08876-JSR Document 84 Filed 03/13/20 Page 2 of 9
TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE .............................................................................................. 1 ARGUMENT ................................................................................................................................. 1 CONCLUSION.............................................................................................................................. 5
TABLE OF AUTHORITIES Page(s)
Cases Fong Yue Ting v. United States,
149 U.S. 698 (1893)................................................................................................................... 1 Gregory v. Ashcroft,
501 U.S. 452 (1991)............................................................................................................... 2, 4 Keller v. United States,
213 U.S. 138 (1909)............................................................................................................... 2, 5 McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316 (1819)................................................................................................... 2 Murphy v. NCAA,
138 S. Ct. 1461 (2018).............................................................................................................. 4 New York v. United States,
505 U.S. 144, 161 (1992)................................................................................................... 1, 3, 5 NFIB v. Sebelius,
567 U.S. 519 (2012)............................................................................................................... 2, 5 Prigg v. Pennsylvania,
41 U.S. (16 Pet.) 539 (1842) ...................................................................................................... 3 The Lottery Case,
188 U.S. 321 (1903)................................................................................................................... 2 United States v. Comstock,
560 U.S. 126 (2010)................................................................................................................... 2
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TABLE OF AUTHORITIES (continued)

Page(s)

Statutes

1843 Mass. Acts 33........................................................................................................................ 3

Other Authorities

Indictment, United States v. Joseph, No. 19-cr-10141 (D. Mass. Apr. 25, 2019). ........................ 3

U.S. Immigration & Customs Enf’t, Directive No. 11072.1, Civil Immigration Enforcement Actions Inside Courthouses (2018) ...................................................................... 4

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INTEREST OF AMICUS CURIAE Nikolas Bowie is a historian and an assistant professor of law at Harvard Law School, where he teaches and writes about federal constitutional law, state constitutional law, and local government law. He has an interest in the sound development of this body of law.
ARGUMENT In a case like this, involving the division of authority between federal and state governments, the Tenth Amendment and Article I of the Constitution “are mirror images of each other.” New York v. United States, 505 U.S. 144, 156 (1992). “The Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power.” Id. at 157. As discussed in an amicus brief filed earlier in this litigation (Dkt. 37), New York’s argument that the federal government has violated the Tenth Amendment is another way of stating that the federal government is exercising power beyond what Article I allows. New York is correct: even if this Court concludes that the Immigration and Nationality Act cannot be read to authorize civil arrests in and around state courthouses in light of the common-law privilege against such disruptive arrests, the Act also cannot be read to authorize such arrests because Article I doesn’t give Congress such an unnecessary and improper power. 1. The first amicus brief explains in detail why the Constitution doesn’t empower the federal government to regulate immigration in a manner that disrupts proceedings in state courthouses or interferes with a state’s duty to provide access to its courts. In short: Congress’s power to regulate immigration domestically is grounded in the Necessary and Proper Clause. See Fong Yue Ting v. United States, 149 U.S. 698, 707–13 (1893). Although that clause gives Congress varied and broad powers, see McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421
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(1819), these powers are far more limited when Congress legislates domestically than when it legislates at or beyond the border, see Keller v. United States, 213 U.S. 138, 148 (1909). At the border, Congress is “clothed . . . with that power over international commerce, pertaining to a sovereign nation in its intercourse with foreign nations, and subject, generally speaking, to no implied or reserved power in the States.” The Lottery Case, 188 U.S. 321, 373 (1903). But when Congress legislates domestically, it must consider the powers reserved to the states by the Tenth Amendment: “The laws which would be necessary and proper in the one case would not be necessary or proper in the other.” Id.
Over the last decade, when the Supreme Court has surveyed the outer limits of Congress’s implied powers to legislate domestically, it has asked whether a particular power would be “necessary and proper” for exercising an enumerated power. The Court has considered an implied power unnecessary when it would be “too attenuated” from an enumerated power, and improper when it would “invade state sovereignty or otherwise improperly limit the scope of ‘powers that remain with the States.’” United States v. Comstock, 560 U.S. 126, 144–46 (2010); see NFIB v. Sebelius, 567 U.S. 519, 559–60 (2012). In light of the federal government’s literal invasion of New York’s sovereign courthouses—where federal agents conduct warrantless arrests of immigrants in a manner that disrupts state courthouse proceedings and interferes with New York’s duty to provide access to its courts—no necessary and proper statute could confer upon the federal government the authority it claims. Nor could this Court infer such authority from a statute that lacks an “unmistakably clear” statement that Congress has intended to alter the “usual constitutional balance between the States and the Federal Government.” Gregory v. Ashcroft, 501 U.S. 452, 460–61 (1991).
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2. An additional reason confirms the impropriety of the federal government’s alleged power to conduct warrantless courthouse arrests: such a power would violate the same federalism concerns that underly the Supreme Court’s anticommandeering doctrine.
Over the past two centuries, the Supreme Court has repeatedly held that Congress lacks the power to “commandeer” state governments by requiring them to “enact and enforce a federal regulatory program.” New York, 505 U.S. at 161. For example, in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842), the Supreme Court declared that states could prohibit their officers from “act[ing] under” the Fugitive Slave Act of 1793. Id. at 561. On the basis of this decision, several states passed “personal liberty laws” prohibiting state officials from making state courthouses or state facilities available for the enforcement of the Fugitive Slave Act. See, e.g., 1843 Mass. Acts 33. The Supreme Court subsequently confirmed that Congress lacks the power to compel states to enforce its own legislation. New York, 505 U.S. at 161.
In recent years, the Supreme Court has explained that the anticommandeering doctrine vindicates three valuable principles of federalism—all of which are implicated by this case. First, federalism “divides authority between federal and state governments” to “protect[] individuals” and reduce the “risk of tyranny and abuse from either front.” New York, 505 U.S. at 181. Here, by contrast, the federal government has sought to condense state and federal power into one. In April 2019, for instance, federal prosecutors indicted Judge Shelley Joseph, a Massachusetts judge, for allegedly interfering with an ICE arrest outside her own courtroom. See Indictment, United States v. Joseph, No. 19-cr-10141 (D. Mass. Apr. 25, 2019). Where courthouse arrests are accompanied by a requirement that state judges assist the federal government, state and federal authority is no longer divided in a way that protects individuals from tyranny and abuse.
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Second, federalism increases political accountability by ensuring that “[v]oters who like or dislike the effects of [a] regulation know who to credit or blame.” Murphy v. NCAA, 138 S. Ct. 1461, 1477 (2018). These lines of accountability are blurred when state courthouses and state facilities become associated with an increased risk of federal immigration arrest and detention. Bystanders observing immigration arrests both in and around courthouses have struggled to identify ICE agents as federal officers rather than state officers. Compl. ¶ 81. And the Manhattan district attorney has reported that he has to work “twice as hard to assure immigrants that [his] office is a safe place to report crime without fear of getting deported.” Compl. ¶ 96.
Finally, federalism prevents the federal government from “shift[ing] the cost of regulation” to the states. Murphy, 138 S. Ct. at 1477. Here, the federal government has transgressed that obstacle by purposefully taking advantage of the money that New York spends both on screening people for weapons and other contraband, see U.S. Immigration & Customs Enf’t, Directive No. 11072.1, Civil Immigration Enforcement Actions Inside Courthouses 1 (2018), and on identifying and locating noncitizens. The ICE Directive makes clear that “[c]ivil immigration enforcement actions inside courthouses should . . . be conducted in collaboration with court security staff, and utilize the court building’s non-public entrances and exits.” Id. And as the Complaint highlights, ICE agents can “identif[y] [non-citizens] in the court room” and “follow . . . [them] out of the . . . Courthouse” to make arrests. Compl. ¶71.
In New York v. United States, the Supreme Court invoked these three principles to hold that Congress lacked the power to “commandeer” states into enforcing a federal regulatory program. 505 U.S. at 161. But the three principles also animate every other federalism doctrine, from the “clear statement” rule of Gregory v. Ashcroft, 501 U.S. at 460–61, to the interpretation of the
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Necessary and Proper Clause that considers “whether essential attributes of state sovereignty are compromised by the assertion of federal power.” NFIB, 567 U.S. at 559–60 (quoting Comstock, 560 U.S. at 153 (Kennedy, J., concurring in judgment)). “State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York, 505 U. S. 144, 181 (1992) (internal quotation marks omitted). Federalism secures these same liberties to noncitizens too, as “there is in the Constitution no grant to Congress of the police power.” Keller, 213 U.S. at 148.
CONCLUSION For these reasons, the plaintiff’s motion for summary judgment should be granted. Dated: March 13, 2020
By: /s/ Nikolas Bowie Nikolas Bowie (pro hac vice) nbowie@law.harvard.edu Harvard Law School Cambridge, Massachusetts 02138 Tel: (617) 496-0888
Attorney for Amicus Curiae
5

Case 1:19-cv-08876-JSR Document 84 Filed 03/13/20 Page 9 of 9 CERTIFICATE OF SERVICE
I hereby certify that the foregoing was electronically filed using the Court’s CM/ECF system. I certify that all participants are CM/ECF users and that service will be accomplished via CM/ECF system.
By: /s/ Nikolas Bowie Nikolas Bowie (pro hac vice) Attorney for Amicus Curiae
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 Case 1:19-cv-08876-JSR Document 87 Filed 03/13/20 Page 1 of 19

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al., Plaintiffs,
v. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
Defendants

No. 19-cv-8876 (JSR)

BRIEF OF AMICUS CURIAE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
VICTORIA F. NEILSON (S.B. #2689792) Chair, Immigration and Nationality Law Committee Association of the Bar of the City of New York Email: vneilson@cliniclegal.org
LAUREN G. AXELROD (S.B. #4314613) Senior Legal Counsel Association of the Bar of the City of New York Email: laxelrod@nycbar.org
42 West 44th Street New York, New York 10036 Telephone: (212) 382-6674 Counsel for Amicus Curiae

Case 1:19-cv-08876-JSR Document 87 Filed 03/13/20 Page 2 of 19 TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................................... ii TABLE OF AUTHORITIES..................................................................................................... iii CORPORATE DISCLOSURE STATEMENT ......................................................................... vii STATEMENT OF INTEREST OF AMICUS CURIAE ..............................................................1 SUMMARY OF ARGUMENT ...................................................................................................1 ARGUMENT .............................................................................................................................. 2
I. ICE’s Courthouse Enforcement Operations Undermine Access to Justice, the Proper Functioning of the Courts, and Longstanding Common Law Principles ...................................2 II. ICE Could Have—and Should Have—Considered Reasonable Constraints On Its Enforcement Operations at New York State Courts, But Failed To Do So................................6 CONCLUSION ......................................................................................................................... 10 CERTIFICATE OF SERVICE
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Cases

TABLE OF AUTHORITIES

Page(s)

Boddie v. Conn., 401 U.S. 371 (1971) ……………………………………………………………3

Bounds v. Smith, 430 U.S. 817 (1977) ……………………………………………………………3

Christopher v. Harbury, 536 U.S. 403 (2002) ……………………………………………………3

Cox v. Louisiana, 379 U.S. 559 (1965) …………………………………………………………...8

New York et al. v. U.S. Dep’t of Justice et al., No. 19-267, 2020 WL 911417 (2d Cir. Feb. 26, 2020) …..……………………………………………………………….……...10

New York v. U.S. Imm. & Customs Enf’t, No. 19-cv-8876 (JSR), 2019 WL 6906274 (S.D.N.Y. Dec. 19, 2019)……………………………………………….…………………………3

Northern Light Tech., Inc. v. Northern Lights Club, 236 F.3d 57 (1st Cir. 2001) …..……………3

Philadelphia v. Sessions, 309 F. Supp. 3d 289 (E.D. Pa 2018), aff’d in part, 916 F.3d 276 (3d Cir. 2019)…..……………………………………………………………………………...…..5
Plyler v. Doe, 457 U.S. 202 (1982) ……………………………………………...…..……………3

Sheppard v. Maxwell, 384 U.S. 333 (1966) …………………………………………….………...8 Stewart v. Ramsay, 242 U.S. 128 (1916) ……………………………...………...…..……………3 U.S. v. Grace, 461 U.S. 171 (1983) …………………………………………………….………...8 Younger v. Harris, 401 U.S. 37 (1971) …………………………………………………….……..6

Constitutional Provisions

U.S. Const. Amend. I ………………………………...………………….………………………..2

U.S. Const. Amend. V …………………...…………………………………………………passim

U.S. Const. Amend. X………………………………………………………………………passim

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U.S. Const. Amend. XIV……………………………………………………………………passim
Other Authorities
American Bar Association, House urges Congress add courthouses to ‘sensitive locations’ to ICE guidelines, Aug. 18, 2017, https://www.americanbar.org/news/abanews/aba-newsarchives/2017/08/aba_house_urges_cong/ ………………………………………………..……...7
Adhikaar et al., Letter to Chief Judge Janet DiFiore Re: Escalation in ICE Arrests in New York State Courts (June 22, 2017), https://www.immigrantdefenseproject.org/wpcontent/uploads/Open-Letter-to-Judge-DiFiore-06222017.pdf ......................................................6
Am. Immigration Council, Immigrants in New York (2017), https://www.americanimmigrationcouncil.org/sites/default/files/research/immigrants_in_new_yo rk.pdf ……………………………………………………………………………………………..3
Angela Irvine, Ph.D, et al., The Chilling Effect of ICE Courthouse Arrests: How Immigration and Customs Enforcement (ICE) Raids Deter Immigrants from Attending Child Welfare, Domestic Violence, Adult Criminal, and Youth Court Hearings, Ceres Policy Research (Oct. 2019) ……………………………………………………………………………………………..3
Assoc. of Bar of City of N.Y., Recommendations Regarding Federal Immigration Enforcement in New York State Courthouses (July 2018), https://s3.amazonaws.com/documents.nycbar.org/files/2017291-ICEcourthouse.pdf ....…..passim
Beth Fertig, Outcry After Immigration Agents Seen at Queens Human Trafficking Court, WNYC (June 16, 2017), https://www.wnyc.org/story/outcry-after-immigration-agents-come-traffickingvictim-queens-courthouse/ ………………………………………………………………………..7
Betsy Woodruff, Legal Immigrants Fear Getting Arrested in Court by ICE, THE DAILY BEAST (Mar. 30, 2017) ……………….…………………………………………………………………..5
Caitlin Dickerson and Zolan Kanno-Youngs, Border Patrol Will Deploy Elite Tactical Agents to Sanctuary Cities, NY TIMES (Feb. 14, 2020), https://www.nytimes.com/2020/02/14/us/BorderPatrol-ICE-Sanctuary-Cities.html .................................................................................................10
Catalina Amuedo-Dorantes & Esther Arenas-Arroyo, Police Trust and Domestic Violence: Evidence from Immigration Policies, IZA Institute of Labor Economics Discussion Papers No. 12721 (Oct. 2019), http://ftp.iza.org/dp12721.pdf …....…………………………………………..4
Christopher N. Lasch, A Common-Law Privilege to Protect State and Local Courts During the Crimmigration Crisis, 127 Yale L.J. F. 410 (2017) ……………………………………………...3
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Deepa Fernandes, Undocumented Workers Fight for Wages Under the Threat of Deportation, PRI (Mar. 20, 1018), https://www.pri.org/stories/2018-03-20/undocumented-workers-fightwages-under-threat-deportation ……………………………..........................................................4
The Fund for Modern Courts, Protecting the Administration of Justice in New York State: Impact of ICE Arrests on New Yorkers’ Access to State Courthouses (Dec. 5, 2017), http://moderncourts.org/wp-content/uploads/2017/12/Modern-Courts-Report-December-2017ICE-and-NY-COURTHOUSES2-1.pdf ………………………………………………………..6, 7
H.D. Res. No. 10C (2017), https://www.americanbar.org/news/reporter_resources/annualmeeting-2017/house-of-delegates-resolutions/10c.html ………………………………………….7
ICE Directive No. 11072.1 Civil Immigration Enforcement Actions Inside Courthouses, U.S. Immigration and Customs Enforcement (Jan. 10, 2018), https://www.ice.gov/sites/default/files/documents/Document/2018/ciEnforcementActionsCourth ouses.pdf ………………………………………………………………………………………….5
ICE Out of Courts Coalition, Safeguarding the Integrity of Our Courts: The Impact of ICE Courthouse Operations in New York State (Jan. 2020), https://www.immigrantdefenseproject.org/wp-content/uploads/Safeguarding-the-Integrity-ofOur-Courts-Final-Report.pdf …………………………………………………………………..4, 7
Immigrant Defense Project, Denied, Disappeared, and Deported: The Toll of ICE Operations at New York’s Courts in 2019, (Jan. 2020), https://www.immigrantdefenseproject.org/wpcontent/uploads/Denied-Disappeared-Deported-FINAL.pdf ………………………....……passim
Immigrant Defense Project, ICE in New York State Courts Survey, https://www.immdefense.org/ice-courts-survey/ ………………………………………................3
Immigrant Defense Project, Protect Our Courts Act (NYS Assembly Bill 11013) Stories (May 31, 2018), https://www.immigrantdefenseproject.org/wp-content/uploads/Protect-Our-Courts-FAQ061118.pdf…..........................................................................................................……….............3
Letter from Former Judges – Courthouse Immigration Arrests, Dec. 12, 2018, https://bit.ly/2BGdbyY ……………..................................................…………………………….8
Mayor’s Office of Immigrant Affairs, State of Our Immigrant City: MOIA Annual Report for Calendar Year 2018 (Mar. 2019), https://www1.nyc.gov/assets/immigrants/downloads/pdf/moia_annual_report%202019_final.pdf ….............................................................................................................................……….............3
Mirela Iverac, City Limits Cooperation with Federal Immigration Officials at Rikers, WNYC (Nov. 22, 2011), wnyc.org/story/171985-blog-city-limits-cooperation-ice-rikers/……………….5
MODEL RULES OF PROF’L CONDUCT Preamble [9] (2019) ………………………………………..4
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New York State Bar Association, Committee on Immigration Representation Resolution Adopted by House of Delegates (Jan. 28, 2018), https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=80429 ……………………………..7 Office of the Chief Admin. Judge, N.Y. State Unified Court Sys., Protocol Governing Activities in Courthouses by Law Enforcement Agencies (Apr. 17, 2019), https://www.immigrantdefenseproject.org/wp-content/uploads/OCA-ICE-Directive.pdf.....passim Rebecca Smith et al., Iced Out: How Immigration Enforcement Has Interfered with Workers’ Rights (Oct. 2009), https://www.jwj.org/wp-content/uploads/2013/12/icedout_report.pdf ...........4 Stephen Rex Brown, Give ICE Cold Shoulder in Courts, Dozens of Groups Urge Top Judge, THE DAILY NEWS (Dec. 20, 2017), http://www.nydailynews.com/new-york/give-ice-cold-shouldercourts-dozens-groups-urge-top-judge-article-1.3710553 ...............................................................6 Tory Johnson, Immigration Arrests at Courthouses Are Under Fire From State Officials, IMMIGRATION IMPACT, (Sept. 28, 2017), http://immigrationimpact.com/2017/09/28/immigration-arrests-at-courthouses-fire-stateofficials/ ….............................................................................................................................……….............7 U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests, https://www.ice.gov/ero/enforcement/sensitive-loc ..........................................................7 Zolan Kanno-Youngs and Jesse McKinley, Trump Administration Freezes Global Entry Enrollment in New York Over Immigration Law, NY TIMES (Feb. 7, 2020), https://www.nytimes.com/2020/02/06/us/politics/dhs-new-york-global-entry.html ....................10
vi

Case 1:19-cv-08876-JSR Document 87 Filed 03/13/20 Page 7 of 19 CORPORATE DISCLOSURE STATEMENT
The Association of the Bar of the City of New York (the “City Bar”) is a non-profit corporation organized under the laws of the State of New York and having its principal place of business at 42 West 44th Street, New York NY 10023. Pursuant to Federal Rule of Civil Procedure 7.1, amicus curiae the City Bar states that it does not have a parent corporation and does not issue stock.
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STATEMENT OF INTEREST OF AMICUS CURIAE Founded in 1870, the Association of the Bar of the City of New York (“City Bar” or “amicus curiae”) is a professional organization of over 24,000 attorneys and law students and has more than 150 standing and special committees, including the Immigration and Nationality Law Committee. The City Bar’s members represent a diverse cross-section of the legal profession, including prosecutors, criminal defense attorneys, immigration attorneys, judges, law firm pro bono attorneys, and lawyers in private practice, academia, non-profit organizations and public sector positions. The City Bar is affiliated with the City Bar Justice Center, which provides free legal services, including immigration and family representation, to low income New Yorkers through mobilizing pro bono lawyers, law firms, and corporate legal departments. The City Bar has a profound interest in ensuring equal access to courts in New York State and New York City.1
SUMMARY OF ARGUMENT When ICE officers conduct arrests in and around New York State courthouses, they impede equal access to courts, violate the principles of federalism enshrined in the United States and New York State constitutions, interfere with the fair and efficient administration of justice, and create a chilling effect among immigrants attempting to access the courts. Amicus curiae has leveraged its professional experience and drafted proposals that would mitigate the negative effects of Immigration and Customs Enforcement (“ICE”) courthouse enforcement operations, while respecting the federal interest in enforcing immigration laws.2 ICE has failed to consider reasonable recommendations, instead increasing enforcement in and around courthouses.
1 The Court granted amicus curiae’s oral motion for leave to file the instant amicus brief via e-mail on March 9, 2020. Plaintiffs consent to the filing of this brief. Defendants take no position. 2 Assoc. of Bar of City of N.Y., Recommendations Regarding Federal Immigration Enforcement in New York State Courthouses (July 2018), https://s3.amazonaws.com/documents.nycbar.org/files/2017291-ICEcourthouse.pdf (app’x updated Oct. 10, 2019) (hereinafter “City Bar Recommendations”).

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ARGUMENT I. ICE’s Courthouse Enforcement Operations Undermine Access to Justice, the
Proper Functioning of the Courts, and Longstanding Common Law Principles Dispensing with the enforcement priorities of prior administrations, ICE, under the Trump Administration, has significantly increased enforcement operations in and around courthouses, particularly in “sanctuary” jurisdictions such as New York State and New York City.3 The impact has been the infringement of individual due process rights and the invasion of state sovereignty in violation of the First, Fifth, Tenth, and Fourteenth Amendments to the U.S. Constitution, as well as long-established common law principles. As lawyers and frequent participants in the judicial system, amicus curiae’s members are champions of equal and unfettered access to courts, a foundational aspect of liberty and due process enshrined in the Constitution. The First Amendment protects the right “to petition the Government for a redress of grievances” and guarantees anyone, regardless of their immigration status, the right to complain to, or seek the assistance of, the government without fear of punishment or reprisal. The Fifth and Fourteenth Amendments guarantee due process of law—the right to sue and defend oneself in courts, including a meaningful opportunity to be heard. Due process is nowhere more important than in criminal court where a defendant must be given the chance to appear in court and confront the witnesses against her. This bedrock principle of equal access to courts also is enshrined in the long-standing common-law privilege against civil arrests of litigants and interested parties while attending judicial proceedings.4 “Courts of justice ought everywhere to be
3 Immigrant Def. Project (“IDP”), Denied, Disappeared, and Deported: The Toll of ICE Operations at New York’s Courts in 2019, at 2 (Jan. 2020), https://www.immigrantdefenseproject.org/wp-content/uploads/Denied-Disappeared-DeportedFINAL.pdf (hereinafter, “IDP Report (Jan. 2020)”). 4 New York v. U.S. Imm. & Customs Enf’t, No. 19-cv-8876 (JSR), 2019 WL 6906274, at *8-9 (S.D.N.Y. Dec. 19, 2019) (finding that the common law privilege against civil arrests in and around courthouses is still operative in U.S. law and applies to civil immigration arrests);
2

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open, accessible, free from interruption, and to cast a perfect protection around every man who
necessarily approaches them.”5 Barriers that selectively prevent discrete classes of persons from
meaningfully accessing the courts should be removed.6 ICE’s courthouse enforcement operations
deny a class of noncitizens equal opportunity to access the court system in violation of these
foundational principles.7 ICE’s heightened courthouse activity, replete with shows of force and
surveillance, has had a well-documented chilling effect, denying immigrants the opportunity to
litigate their legal rights and claims.
Immigrants comprise one out of every five residents in New York State,8 and almost four
out of every ten residents in New York City.9 When so many of our residents, especially those
who are most likely to depend on the legal and judicial systems to avail themselves of rights,10 are
Northern Light Tech., Inc. v. Northern Lights Club, 236 F.3d 57, 62 (1st Cir. 2001) (discussing the “historical pedigree” of the privilege); see also Christopher N. Lasch, A Common-Law Privilege to Protect State and Local Courts During the Crimmigration Crisis, 127 Yale L.J. F. 410, 423 (2017). 5 Stewart v. Ramsay, 242 U.S. 128, 129 (1916). 6 Plyler v. Doe, 457 U.S. 202, 218-219 (1982) (“The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”); Christopher v. Harbury, 536 U.S. 403, 413 (2002) (“the essence of the access claim” as “official action [that] is presently denying an opportunity to litigate for a class of potential [litigants]”); see also Bounds v. Smith, 430 U.S. 817, 828 (1977); Boddie v. Conn., 401 U.S. 371, 377 (1971). 7 See IDP, ICE in New York State Courts Survey, https://www.immdefense.org/ice-courtssurvey/; Angela Irvine, The Chilling Effect of ICE Courthouse Arrests: How Immigration and Customs Enforcement (ICE) Raids Deter Immigrants from Attending Child Welfare, Domestic Violence, Adult Criminal, and Youth Court Hearings, Ceres Policy Research, at 8-9 (Oct. 2019); IDP, Protect Our Courts Act (NYS Assembly Bill 11013) Stories (May 31, 2018), https://www.immigrantdefenseproject.org/wp-content/uploads/Protect-Our-Courts-FAQ061118.pdf. 8 Am. Immigration Council, Immigrants in New York (2017), https://www.americanimmigrationcouncil.org/sites/default/files/research/immigrants_in_new_yo rk.pdf. 9 Mayor’s Office of Immigrant Affairs, State of Our Immigrant City: MOIA Annual Report for Calendar Year 2018 (Mar. 2019), https://www1.nyc.gov/assets/immigrants/downloads/pdf/moia_annual_report%202019_final.pdf. 10 Studies have shown that immigrants are more likely to be victims of wage and workplace violations, sexual harassment, and domestic violence. See Rebecca Smith et al., Iced Out: How
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denied access to courts and equal opportunity to exercise their rights, the entire legal and judicial
systems suffer. The legitimate fear and apprehension among immigrant clients, witnesses, and
litigants about the court system have complicated and frustrated the work of lawyers and members
of the City Bar. District Attorneys’ Offices in Manhattan, Bronx, and Brooklyn reported
heightened fear among immigrant victims and witnesses of testifying in criminal court since 2017, making cases harder to prosecute.11 In New York City, civil legal service providers serving
domestic and gender-based violence victims reported a substantial decline in the number of clients
seeking assistance, and public defender offices reported systematic disruptions to their work, including having to advise their immigrant clients about the risks of attending court.12 ICE’s
courthouse enforcement actions force attorneys to balance their duty to zealously advocate for the best possible disposition in criminal court13 with the risk of ICE arrest, detention, and deportation.
Further, if ICE’s enforcement of civil immigration laws around state courthouses sows
distrust of the judicial system and law enforcement among immigrant populations, discouraging
them from accessing courts and reporting health, safety, and welfare concerns, then these arrests hamper the functioning of the overall justice system.14 ICE has publicly justified its courthouse
Immigration Enforcement Has Interfered with Workers’ Rights (Oct. 2009), https://www.jwj.org/wp-content/uploads/2013/12/icedout_report.pdf; Deepa Fernandes, Undocumented Workers Fight for Wages Under the Threat of Deportation, PRI (Mar. 20, 1018), https://www.pri.org/stories/2018-03-20/undocumented-workers-fight-wages-under-threatdeportation; Catalina Amuedo-Dorantes & Esther Arenas-Arroyo, Police Trust and Domestic Violence: Evidence from Immigration Policies, IZA Institute of Labor Economics Discussion Papers No. 12721 (Oct. 2019), http://ftp.iza.org/dp12721.pdf. 11 ICE Out of Courts Coalition, Safeguarding the Integrity of Our Courts: The Impact of ICE Courthouse Operations in New York State, at 10-13 (Jan. 2020), https://www.immigrantdefenseproject.org/wp-content/uploads/Safeguarding-the-Integrity-ofOur-Courts-Final-Report.pdf. 12 Id. at 23-25, 40-42. 13 See MODEL RULES OF PROF’L CONDUCT Preamble [9] (2019). 14 See, e.g., Philadelphia v. Sessions, 309 F. Supp. 3d 289, 297-99 (E.D. Pa 2018), aff’d in part, 916 F.3d 276 (3d Cir. 2019) (fear of accessing one arm of government can lead to fear of
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arrest policy by claiming that “courthouse arrests are often necessitated by the unwillingness of
[sanctuary] jurisdictions to cooperate with ICE in the transfer of custody of aliens from their
prisons and jails.”15 In the case of New York City, this claim is misleading because the sanctuary
policies that ICE points to have existed since at least 2011,16 and ICE courthouse arrests increased
by 1700% from 2016 to 2019 and increasingly targeted individuals with no prior criminal history.17
In actuality, ICE is pursuing courthouse arrests for simple expediency, placing their own
efficiency above due process and public safety.18 Because information about when and where a
litigant must appear in court is publicly available, ICE agents use courthouses to surveil individuals
as they attend their mandated court appearances, conducting arrests in courtroom hallways and by
entrances. The use of the courthouse as a springboard for civil enforcement actions undermines
state court administration, state public safety decisions, and individual rights. Even after New
York State’s judiciary took a clear stance limiting ICE civil courthouse arrests,19 ICE has continued
accessing other arms and finding need for local and state governments to build trust with its residents, especially those who are most vulnerable). 15 ICE Directive No. 11072.1 Civil Immigration Enforcement Actions Inside Courthouses (Jan. 10, 2018), https://www.ice.gov/sites/default/files/documents/Document/2018/ciEnforcementActionsCourth ouses.pdf. 16 See Mirela Iverac, City Limits Cooperation with Federal Immigration Officials at Rikers, WNYC (Nov. 22, 2011), wnyc.org/story/171985-blog-city-limits-cooperation-ice-rikers/. 17 See IDP Report (Jan. 2020), supra 3, at 2. 18 Betsy Woodruff, Legal Immigrants Fear Getting Arrested in Court by ICE, THE DAILY BEAST (Mar. 30, 2017), https://www.thedailybeast.com/legal-immigrants-fear-getting-arrested-in-courtby-ice (ICE spokesperson: “ICE agents show up at courthouses because they are often the easiest places to find people they are looking for.”). 19 Office of the Chief Admin. Judge, N.Y. State Unified Court Sys., Protocol Governing Activities in Courthouses by Law Enforcement Agencies (Apr. 17, 2019), https://www.immigrantdefenseproject.org/wp-content/uploads/OCA-ICE-Directive.pdf (hereinafter, “UCS Directive”). The Directive was preceded by an April 2017 Protocol and May 7, 2018 Instructions. Office of the Chief Administrative Judge, Policy and Protocol Governing Activities in Courthouses by Law Enforcement Agencies, (April 26, 2017), http://www.nycourts.gov/whatsnew/pdf/2017_law_enforcement_activities.pdf; OCA May 7, 2018 Instructions (additional instructions issued to judges and non-judicial supervisors from the administrative judge for the New York City Criminal Court).
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the manner and increased the frequency of enforcement operations in and around courthouses.20
Such federal interference with access to state and local courthouses, not only threatens individual
rights, but also impermissibly impedes the state’s sovereign rights to ensure public safety and
administer its court system in violation of the Tenth Amendment.21
II. ICE Could Have—and Should Have—Considered Reasonable Constraints On Its Enforcement Operations at New York State Courts, But Failed To Do So
New York State stakeholders issued reasonable recommendations to mitigate the harms
caused by ICE courthouse enforcement operations, but these recommendations were largely
ignored by the agency. ICE’s failure to meaningfully engage with alternatives that would have
served the agency’s goals constitutes arbitrary and capricious action in violation of the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A).22
Having monitored the adverse effects ICE courthouse arrests have on the administration of
justice and the legal community in New York,23 members of the City Bar have engaged in ongoing
public advocacy efforts against ICE’s courthouse arrests for over two years.24 In July 2018, amicus
20 IDP Report (Jan. 2020), supra note 3, at 3, 11 (nearly half of reported ICE operations in and around courthouse occurred after the UCS Directive of April 2019 and that ICE has used tactics designed to skirt the UCS directive). 21 Younger v. Harris, 401 U.S. 37, 44 (1971) (“Our Federalism” dictates that “the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.”). 22 Compl. ¶¶ 130-134. 23 City Bar Recommendations, supra 2. 24 See, e.g., Stephen Rex Brown, Give ICE Cold Shoulder in Courts, Dozens of Groups Urge Top Judge, THE DAILY NEWS (Dec. 20, 2017), http://www.nydailynews.com/new-york/give-ice-coldshoulder-courts-dozens-groups-urge-top-judge-article-1.3710553; Adhikaar et al., Letter to Chief Judge Janet DiFiore Re: Escalation in ICE Arrests in New York State Courts (June 22, 2017), https://www.immigrantdefenseproject.org/wp-content/uploads/Open-Letter-to-Judge-DiFiore06222017.pdf; The Fund for Modern Courts, Protecting the Administration of Justice in New York State: Impact of ICE Arrests on New Yorkers’ Access to State Courthouses (Dec. 5, 2017), http://moderncourts.org/wp-content/uploads/2017/12/Modern-Courts-Report-December-2017ICE-and-NY-COURTHOUSES2-1.pdf.
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curiae issued recommendations for reasonable constraints on ICE courthouse enforcement
operations.25 These recommendations attempt to balance the federal interest in enforcing
immigration laws with the State interests in preserving public safety and decorum in New York
State courthouses, providing unfettered access to the legal system, and protecting due process for
all individuals regardless of immigration status.
Other stakeholders have similarly made reasonable proposals for ICE to consider.26 New
York’s Chief Judge Janet DiFiore, as well as officials in numerous other states around the
country,27 have urged ICE to add courthouses to its list of “sensitive locations” (locations where
ICE enforcement actions are not to occur).28 Nearly 70 former federal and state judges—including
25 former state Supreme Court justices, among them former Chief Judge of the New York Court
of Appeals, Jonathan Lippman—signed on to a December 2018 letter asking ICE to stop making
arrests at courthouses, stating “our justice system cannot function effectively—if victims,
defendants, witnesses and family members do not feel secure in accessing the courthouse.” The
25 City Bar Recommendations, supra note 2, at 19-24. 26 See ABA House urges Congress add courthouses to ‘sensitive locations’ to ICE guidelines, Aug. 18, 2017, https://www.americanbar.org/news/abanews/aba-newsarchives/2017/08/aba_house_urges_cong/ (citing H.D. Res. No. 10C (2017)); see also New York State Bar Association, Committee on Immigration Representation Resolution Adopted by House of Delegates (Jan. 28, 2018), https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=80429 (similar resolution by New York State Bar Association). The Fund for Modern Courts as well as the ICE Out of Courts Coalition also put forth recommendations to address the disruptions caused by ICE courthouse arrests. See Fund for Modern Courts Report (Dec. 5, 2017), supra 24, at 18-23; ICE Out of Courts Coalition Report (Jan. 2020), supra 11, at 80-81. 27 See Beth Fertig, Outcry After Immigration Agents Seen at Queens Human Trafficking Court, WNYC (June 16, 2017), https://www.wnyc.org/story/outcry-after-immigration-agents-cometrafficking-victim-queens-courthouse/; Tory Johnson, Immigration Arrests at Courthouses Are Under Fire From State Officials, IMMIGRATION IMPACT, (Sept. 28, 2017), https://immigrationimpact.com/2017/09/28/immigration-arrests-at-courthouses-fire-stateofficials/#.XmvwdZNKiu4. 28 See ICE, FAQ on Sensitive Locations and Courthouse Arrests, https://www.ice.gov/ero/enforcement/sensitive-loc (Last Reviewed/Updated Sept. 25, 2018) (while ICE enforcement actions may occur at sensitive locations “in limited circumstances,” such activities “will generally be avoided”).
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former judges strongly urged ICE to include courthouses in the list of sensitive locations, as “obstacles . . . to fully accessing courts are intolerable.”29
These recommendations and proposals show, at the least, that there has been ample room
for cooperation by ICE on these issues. ICE should have considered these proposals, both prior to
implementing a heightened and forceful practice of courthouse enforcement operations, and once
New York State and legal stakeholders raised their concerns and began implementing concrete
mitigation efforts. Instead, ICE has continued to increase its courthouse enforcement operations, including after the UCS Directive instituted protections regarding ICE practices.30
Paramount among amicus curiae’s recommendations was the requirement of judicial, not
merely administrative, warrants for civil immigration arrests conducted in and around New York State courthouses.31 While ICE arrests have similarly dire consequences of detention and
deprivation of liberties, in contrast to state or federal criminal arrests, ICE administrative warrants
need not be based on probable cause, are often based on outdated information, and require only
internal, supervisory review. A requirement for judicial warrants ensures that the civil detainer
contains accurate information and has a legal basis that has been independently reviewed. The
City Bar also recommended that presiding judicial officers be notified of the presence of ICE
agents and the intended target of a civil arrest so as to give the individual an opportunity to consult
29 Letter from Former Judges – Courthouse Immigration Arrests, Dec. 12, 2018, https://bit.ly/2BGdbyY. 30 IDP Report (Jan. 2020), supra 3, at 3. 31 City Bar Recommendations, supra 2, at 20-21. If public access threatens the constitutional rights of the litigants and orderly operation of courts, as described above, exclusion is justified. See, e.g., Cox v. Louisiana, 379 U.S. 559, 562 (1965) (holding that “the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy”); Sheppard v. Maxwell, 384 U.S. 333, 358 (1966) (“[T]he courtroom and courthouse premises are subject to the control of the court.”); U.S v. Grace, 461 U.S. 171, 178 (1983) (“There is little doubt that in some circumstances the Government may ban the entry on to the public property that is not a ‘public forum’ of all persons except those who have legitimate business on the premises.”).
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with her counsel about the future of her legal case in the sanctity of the courtroom.32 These recommendations, and other protections, were included in the April 2019 UCS Directive. In response, just one day after the UCS Directive went into effect, ICE declared its intention to skirt the State’s rules by instructing its officers that they should continue to use state courthouses as venues to surveil immigrant New Yorkers since “[they] are good to make the arrest outside the courthouse with or without a judicial warrant.”33
ICE’s formal and informal communications evince a disregard for legitimate concerns of the State and indicate a stark disinterest in cooperation. Since the UCS Directive, ICE has continued to make arrests in the immediate vicinity of courthouses, with half of total operations in 2019 occurring after the April 2019 UCS Directive and 80% of courthouse arrests in 2019 being made while individuals were going into or exiting the courthouse building.34 ICE enforcement operations in and around courthouses have continued to swell in 2019, and ICE has shifted its tactics to skirt the UCS Directive: plainclothes ICE agents now station themselves in courthouses waiting for individuals to be called in criminal court so as to identify them, trail individuals undercover, and then arrest individuals immediately outside courthouses.35 In certain instances, ICE failed to comply with the UCS Directive by not identifying themselves to court staff or waiting for court personnel to review warrants before arresting individuals, and by apprehending individuals inside a courthouse and then escorting them outside to be arrested.36 This type of pervasive presence and surveillance in courthouses actively disregards the State’s desire to mitigate fear among immigrant populations and, indeed only fuels this fear further.
32 City Bar Recommendations, supra 2, at 21-22. 33 IDP Report (Jan. 2020), supra 3 at 3,11 (citing Email Re: Courthouse Arrests (Apr. 18, 2019)). 34 Id. at 3, 7. 35 Id. at 3, 11 (nearly half (47%) of the 2019 operations occurred after the OCA April 17, 2019 Directive that implemented protections around ICE courthouse arrest practices). 36 Id.
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This response by ICE and the federal government is consistent with how the Trump Administration has treated jurisdictions like New York State, which seek to protect the proper administration of their state and local governments, and ensure access to courts and other public agencies for all residents regardless of immigrations status.37 For example, a plan to deploy immigration SWAT teams known as the Border Patrol Tactical Unit (“BORTAC”), who receive military special forces training, to a number of sanctuary jurisdictions including New York, could further exacerbate immigration enforcement actions at courthouses in New York.38
Thus, ICE continues its practice of surveillance, intimidation, and arrest of victims, witnesses, defendants, and other court-involved individuals in and outside courthouses, despite the well-documented impact this has on individual rights and state sovereignty. At the very least, ICE should have considered and addressed proposals by local and state stakeholders that sought to mitigate these harms and provided adequate reasons for disregarding them. Instead, the agency stayed its course, failing to offer a rational connection between the facts on the ground and their enforcement practices.
CONCLUSION For the foregoing reasons, amicus curiae respectfully requests that the Court grant Plaintiffs’ motion for summary judgment.
37 See, e.g., New York et al. v. Dep’t of Justice et al., No. 19-267, 2020 WL 911417 (2d Cir. Feb. 26, 2020) (DOJ could withhold millions of dollars in federal law-enforcement grants from New York City and seven states over their sanctuary policies on immigration); see also Zolan KannoYoungs and Jesse McKinley, Trump Administration Freezes Global Entry Enrollment in New York Over Immigration Law, NY TIMES (Feb. 7, 2020), https://www.nytimes.com/2020/02/06/us/politics/dhs-new-york-global-entry.html. 38 Caitlin Dickerson and Zolan Kanno-Youngs, Border Patrol Will Deploy Elite Tactical Agents to Sanctuary Cities, NY TIMES (Feb. 14, 2020), https://www.nytimes.com/2020/02/14/us/BorderPatrol-ICE-Sanctuary-Cities.html.
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Case 1:19-cv-08876-JSR Document 87 Filed 03/13/20 Page 18 of 19 By: /s/ Victoria F. Neilson____________ VICTORIA F. NEILSON (S.B. #2689792) Chair, Immigration and Nationality Law Committee Association of the Bar of the City of New York Email: vneilson@cliniclegal.org LAUREN G. AXELROD (S.B. #4314613) Senior Legal Counsel Association of the Bar of the City of New York Email: laxelrod@nycbar.org 42 West 44th Street New York, New York 10036 Telephone: (212) 382-6674 Counsel for Amicus Curiae
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CERTIFICATE OF SERVICE I hereby certify that on March 13, 2020, I electronically filed a copy of the attached amicus curiae brief, using the CM/ECF System for the United States District Court for the Southern District of New York, which will send notification of that filing to all counsel of record in this litigation.
/s/ Lauren G. Axelrod Lauren G. Axelrod Senior Legal Counsel Association of the Bar of the City of New York

 
 Case 1:19-cv-08876-JSR Document 109 Filed 06/10/20 Page 1 of 24

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------x

THE STATE OF NEW YORK and ERIC

:

GONZALEZ

:

:

Plaintiffs,

:

:

-v-

:

:

U.S. IMMIGRATION AND CUSTOMS

:

ENFORCEMENT, et al.

:

:

Defendants.

:

-----------------------------------x

19-cv-8876(JSR) OPINION AND ORDER

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

Recent events confirm the need for freely and fully

functioning state courts, not least in the State of New York.

But it is one thing for the state courts to try to deal with the

impediments brought on by a pandemic, and quite another for them

to have to grapple with disruptions and intimidations

artificially imposed by an agency of the federal government in

violation of long-standing privileges and fundamental principles

of federalism and of separation of powers.

Here, plaintiffs the State of New York and the Kings County

District Attorney seek to end what they allege are the

disruptions of New York courts and the intimidation of parties

and witnesses caused by the decision of the United States

Immigration and Customs Enforcement agency (“ICE”) to greatly

increase civil immigration arrests in and around New York State

courthouses. According to plaintiffs, not only do these

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immigration arrests make certain parties and witnesses fear coming to court, but the temporary chaos they create disrupts court proceedings and makes it impossible for judges to do their jobs effectively.
Accordingly, plaintiffs here seek injunctive and declaratory relief against ICE’s current courthouse arrest policy as set forth in an ICE Directive issued in January 2018. In their first cause of action, plaintiffs argue that the policy exceeds ICE’s authority under the Immigration and Nationality Act (“INA”), and is thus invalid under section 706(2)(C) of the Administrative Procedure Act (“APA”). In their second cause of action, plaintiffs argue that the agency adopted this policy in an arbitrary and capricious manner, thereby violating section 706(2)(A) of the APA.
Following discovery and motion practice, the contending parties now cross-move for summary judgment on both of these claims. For the following reasons, the Court rules in plaintiffs’ favor on both claims and grants the requested relief.
BACKGROUND In their complaint filed on September 25, 2019, plaintiffs the State of New York and the Kings County District Attorney sought injunctive and declaratory relief from ICE’s policy of conducting civil immigration arrests of aliens at New York state
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courthouses. Compl., Prayer for Relief ¶¶ 2-5, ECF No. 1 (Sept. 25, 2019).1 Prior to 2017, ICE required its officers to avoid
courthouse arrests except in very limited circumstances
involving high-priority removal targets. In furtherance thereof,
ICE, on March 19, 2014, issued its 2014 courthouse arrest
guidance, declaring that “[e]nforcement actions at or near
courthouses will only be undertaken against Priority 1 aliens,” Ex. 46,2 AR 76,3 a term narrowly defined in an earlier memorandum
issued by ICE’s parent, the Department of Homeland Security
(“DHS”), as “[a]liens who pose a danger to national security or a risk to public safety,” Ex. 48 at 1.4 Additionally, the 2014
courthouse arrest guidance did not permit courthouse arrests of
1 The complaint also named as defendants ICE’s parent agency — the United States Department of Homeland Security — as well as the heads of both agencies. Compl. ¶¶ 20-22. 2 Numbered exhibits refer to the exhibits to the Declaration of Matthew Colangelo in Support of Plaintiffs’ Motion for Summary Judgment, ECF No. 91 (Mar. 13, 2020). 3 AR citations refer to the administrative record filed at ECF Nos. 55 (Jan. 3, 2020) and 75 (Feb. 14, 2020). 4 The Priority 1 category was further specified to include “aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security”; “aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders”; “aliens not younger than 16 years of age who participated in organized criminal gangs”; “aliens subject to outstanding criminal warrants”; and “aliens who otherwise pose a serious risk to public safety.” Id. at 1-2.
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“individuals who may be ‘collaterally’ present, such as family
members or friends who may accompany the target alien to court
appearances or functions.” AR 76.5 In January 2015, ICE
promulgated its 2015 courthouse arrest guidance, slightly
revising but not materially expanding the categories of aliens
subject to courthouse arrest. AR 171.6
All of this significantly changed after the new federal
administration took office in 2017. To begin with, President
Trump, only five days after taking office, issued Executive
Order No. 13,768 (the “Executive Order”), Enhancing Public
Safety in the Interior of the United States, 82 Fed. Reg. 8799
(Jan. 25, 2017), AR 71-75. The Executive Order, though not
5 Whether even the very limited and circumscribed arrest policy embodied in ICE’s 2014 guidance violated the law is a question this Court need not address. As a practical matter, it was unlikely to raise a threat of the disruptions and interruptions that the present policy presents.
6 Specifically, the 2015 courthouse arrest guidance directed that immigration arrests “at or near” courthouses “only be undertaken against” Priority 1(a), 1(c), 1(d), and 1(e) aliens, categories defined as, respectively, “(a) aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;” “(c) aliens convicted of an offense for which an element was active participation in a criminal street gang;” “(d) aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien’s immigration history;” and “(e) aliens convicted of an ‘aggravated felon[y]’ as defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.” Id.
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specifically addressed to courthouse arrests, directed DHS to
prioritize immigration enforcement against broader categories of aliens than those named in prior policies.7 Very shortly
thereafter, in February 2017, then-DHS Secretary John Kelly
issued a memorandum (the “2017 Implementing Memo”), AR 91-96,
that, once again in general terms, sought to implement the
Executive Order by rescinding the earlier guidance on
immigration enforcement priorities and providing that “the
Department no longer will exempt classes or categories of
removable aliens from potential enforcement.” AR 92.
Although neither the Executive Order nor the Implementing
Memo expressly addressed courthouse arrests, the parties here
agree that ICE officers understood the Executive Order in
particular, and the 2017 Implementing Memo as well, to
effectively remove the earlier limitations on courthouse arrests
and mandate broader enforcement in and around state courthouses.
7 The Executive Order named as priorities for removal any noncitizens who “(a) [h]ave been convicted of any criminal offense”; “(b) [h]ave been charged with any criminal offense, where such charge has not been resolved”; “(c) [h]ave committed acts that constitute a chargeable criminal offense”; “(d) [h]ave engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency”; “(e) [h]ave abused any program related to receipt of public benefits”; “(f) [a]re subject to a final order of removal, but who have not complied with their legal obligation to depart the United States”; or “(g) [i]n the judgment of an immigration officer, otherwise pose a risk to public safety or national security.” AR 72.
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See, e.g., Ex. 29 at Tr. 127:15-129:14; Ex. 38 at Tr. 217:6-14; Ex. 41 Tr. at 108:3-15. The result was a great increase in courthouse arrests, including (as detailed below) in New York State.
About a year later, on January 10, 2018, ICE promulgated Directive No. 11072.1 (the “Directive”). Ex. 53. The Directive largely codified and regularized the change in courthouse arrest policy that was already being implemented by ICE agents. Specifically, the Directive expressly allowed ICE officers to arrest in and around courthouses a much broader sweep of aliens, including, inter alia, “aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed.” Id. ¶ 2. While the Directive further provided that “family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding” should not be arrested absent “special circumstances,” it left the determination of whether such circumstances exist to the case-by-case judgment of individual ICE officers. Id.8
8 The Directive also instructed ICE agents to generally avoid enforcement actions in family court, small claims court, and similar courts, and further directed that arrests “should, to the extent practicable, continue to take place in non-public areas of the courthouse.” Id.
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Even before the Directive was issued, however, the number
of civil immigration arrests undertaken in and around New York
State courthouses greatly increased as a result of ICE’s
interpretation of the 2017 Executive Order. Based on extensive arrest records produced by defendants,9 plaintiffs calculate
that, while ICE conducted 20 enforcement actions at or near New
York state courthouses in 2015 and 28 in 2016, this increased to 161 in 2017, 107 in 2018, and 173 in 2019.10 Ex. 42 ¶ 13. The
striking increase from 2016 to 2017 further confirms that ICE
effectively expanded its courthouse arrest policy in early 2017
in response to the Executive Order (and the 2017 Implementing
Memo), and that the Directive, promulgated in 2018, simply
memorialized the policy and practices that had already been put
in place the preceding year.
9 These records include I-213 arrest reports and ICE Field Operation Worksheets, as well as Unusual Occurrence Reports produced by the New York state courts. Ex. 42 ¶¶ 4, 9; see also Onozawa Decl. ¶ 27, ECF No. 100 (Apr. 20, 2020). 10 There is no disagreement among the parties that ICE’s enforcement activity in and near New York State courthouses increased greatly between 2016 (and before) and 2017 (and after). Defendants calculate somewhat different numbers — from 52 immigration arrests in 2015 and 39 in 2016 to 139 in 2017, 228 in 2018, and 247 in 2019, Onozawa Decl. ¶¶ 27-28 — owing to a different definition of the term “near” a courthouse, as well as disagreements over which documents to include in the calculation, among other discrepancies. Id. But this minor factual dispute between the parties is not relevant to any legal issue here involved.
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Plaintiffs here have offered substantial evidence that ICE’s decision to expand its courthouse arrest authority impacted litigants and courts in the State of New York even beyond what the numbers themselves might suggest. Evidence proffered by the plaintiffs indicates that substantial numbers of non-citizen litigants, even those who were not themselves subject to these actions, now feared any kind of participation in the legal system, including reporting domestic violence, e.g., Ex. 1 ¶¶ 6-8; Ex. 15 ¶¶ 4-11, litigating family court actions, Ex. 1 ¶ 9; Ex. 3 ¶¶ 5-7, and pursuing meritorious defenses to criminal charges, Ex. 7 ¶ 7. And in criminal cases, alien victims and witnesses expressed concern about coming forward for fear of arrest. E.g., Ex. 2 ¶ 13; Ex. 32 at Tr. 72:7-24; Ex. 43 at Tr. 48:6-25; see also, e.g., Amicus Br. of Immigrant Defense Project et al., ECF No. 82 (Mar. 13, 2020) at 6-7 (providing examples of ICE agents using force against aliens in and around courthouses).
Plaintiffs have also submitted substantial evidence indicating that these arrests, in addition to their impact on litigants, undermined the orderly functioning of New York courts themselves. Because ICE arrested aliens as they were entering court for scheduled proceedings, e.g., Ex. 28 at Tr. 55:9-15; Ex. 39 at Tr. 41:17-42:9; Ex. 59 at 84, the agency forced courts to adjourn proceedings at the last minute, wasting scarce
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judicial time and resources, see e.g., Ex. 32 at Tr. 38:10-14. Similar results occurred when ICE failed to produce a criminal defendant for a scheduled conference. Ex. 43 at Tr. 77:22-80:9. Even worse were those occasions when ICE conducted an arrest in the courthouse itself, resulting in “complete chaos,” id. Tr. at 73:17 (testimony of a Brooklyn assistant district attorney), as well as physical damage, Ex. 59 at 14. Finally, ICE further undermined the interests of justice by arresting and deporting criminal defendants who were appearing in court in connection with their own cases, thereby ensuring that these defendants never faced justice for their crimes. E.g., Ex. 32 at Tr. 18:1621:25, 32:7-16, 36:3-39:25; Ex. 104. See generally Amicus Br. of States, ECF No. 86 (Mar. 13, 2020); Amicus Br. of N.Y.C. Bar Ass’n, ECF No. 87 (Mar. 13, 2020).11
Defendants, however, dispute many of the foregoing characterizations. See, e.g., Defs.’ Counter Statement to Pls.’ Rule 56.1 Statement ¶¶ 139, 146, 185, 216-79, ECF No. 99 (Apr. 20 2020). Although the Court is persuaded, upon careful review of the record, that ICE’s courthouse arrest policy has generated substantially the harms that plaintiffs claim and that
11 New York’s Office of Court Administration has implemented policies to try to mitigate the negative impacts of ICE’s activities in and around state courthouses, but these policies have not entirely succeeded. See Amicus Br. of Former Judges at 2-5, ECF No. 83 (Mar. 13, 2020).
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defendants have not raised genuine disputes in these respects, nevertheless, the Court need not, and does not, reach these factual contentions. This is because the questions in the instant motion can be resolved as pure issues of law, the resolution of which does not depend on these facts. See New York v. U.S. Dep’t of Health and Human Servs., 414 F. Supp. 3d 475, 516 (S.D.N.Y. 2019).
Specifically, as already noted, plaintiffs argue in their first cause of action, Compl. ¶¶ 121-29, that ICE’s courthouse arrest policy as embodied in the Directive exceeds the agency’s authority under the INA, because that statute incorporates a common law privilege against civil arrest of those present in courthouses, on courthouse grounds, or necessarily traveling to or from courthouses for scheduled proceedings. By conducting these arrests, plaintiffs argue, ICE therefore violates section 706(2)(C) of the APA. In their second cause of action, Compl. ¶¶ 130-134, plaintiffs argue that ICE’s adoption of this policy beginning in 2017, and its codification a year later in the Directive, was arbitrary and capricious, in violation of section 706(2)(A) of the APA. The parties now cross-move for summary judgment on both of these claims.12 It is these pure questions of law that the Court now decides.
12 Plaintiffs also advance a third cause of action, arguing that ICE’s policy unconstitutionally infringes on New York’s state
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DISCUSSION I. Count One
The parties first cross-move for summary judgment on plaintiffs’ first cause of action. Plaintiffs here argue that the Directive exceeds ICE’s statutory authority because the INA incorporates the centuries-old common law privilege against courthouse civil arrest. See 5 U.S.C. § 706(2)(C). Defendants counter that there is no such privilege still extant, and that, alternatively, even if such privilege still exists, the INA preempts it.
The Court has already addressed this dispute at great length in its December 2019 Opinion and Order denying defendants’ earlier motion to dismiss (the “Motion to Dismiss Opinion”), ECF No. 51 (Dec. 19, 2019), at 20-34, and hereby readopts that Opinion by reference. In brief, English courts from at least the late eighteenth century repeatedly recognized a common law privilege against civil arrest for anyone present on courthouse premises and grounds or necessarily coming and going to a court proceeding. E.g., Walpole v. Alexander (1782), 99 Eng. Rep. 530, 530-31; Meekins v. Smith (1791), 126 Eng. Rep.
sovereignty, in violation of the Tenth Amendment. Compl. ¶¶ 13542. Because the Court holds in plaintiffs’ favor on the APA claims, and because each of those claims independently provides a basis for all of the relief plaintiffs here seek, the Court need not and does not reach the Tenth Amendment claim and treats it as having become moot.
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363, 363; see also 3 William Blackstone, Commentaries on the Laws of England 289 (1768). During the nineteenth and early twentieth centuries, American courts, including those of New York State as well as the U.S. Supreme Court, confirmed that this privilege was part of our law as well. See Person v. Grier, 66 N.Y. 124, 125 (1876); Parker v. Marco, 136 N.Y. 585, 589 (1893); Stewart v. Ramsay, 242 U.S. 128, 129 (1916).
These decisions recognized two independently sufficient rationales supporting the privilege: first, to encourage parties and witnesses to attend court proceedings, e.g. Person, 66 N.Y. at 126, and, second, to enable courts to function properly, e.g. Parker, 136 N.Y. at 589.
As further detailed in the Court’s Motion to Dismiss Opinion, although this privilege first arose at a time when civil arrest of the defendant was the means by which a plaintiff initiated a civil suit, by the era of Person, Parker, and Stewart, this practice had given way to more familiar forms of service of process. Yet rather than abandon the privilege, those courts found it to be so strong as to apply even to the far-less disruptive process service of the day. And now that immigration detention has arisen as a new, intrusive form of civil arrest, see I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984), it follows that the privilege applies in this context as well. Motion to Dismiss Opinion at 22-29.
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This Court further held in the Motion to Dismiss Opinion that the statute governing ICE’s arrest authority, the INA, incorporates this privilege into federal law. Motion to Dismiss Opinion at 29-34. The Court’s reasoning, fully elaborated there, drew on the fundamental principle that courts should interpret a federal statute not to abrogate contrary state law unless Congress’s intention to do so is “manifest” in the statute’s language. City of Milwaukee v. Ill. and Mich., 451 U.S. 304, 316 (1981) (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); see also Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (holding that courts should interpret federal statutes not to “alter the usual constitutional balance between the States and the Federal Government” unless the language of the statute is “unmistakably clear” to that effect) (internal quotation marks omitted).
As they did in their briefing on the motion to dismiss, defendants here again raise several arguments to the effect that the INA did not incorporate, but rather preempted, this privilege. But none persuades the Court to abandon its earlier conclusion. To begin with, defendants argue that the general presumption that federal statutes do not preempt the common law should not apply where, as here, there is some ambiguity as to the scope of the common law principle at issue. See United States v. Craft, 535 U.S. 274, 288 (2002) (explaining that the
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“common-law rule” at issue there “was not so well established . . . that we must assume that Congress considered the impact of [a statute’s] enactment on the question now before us”); cf. Pasquantino v. United States, 544 U.S. 349, 360 (2005) (holding that a federal wire fraud prosecution for evading foreign taxes did not derogate a common-law principle known as the “revenue rule” because no revenue rule cases at the time of the enactment of the federal statute had “held or clearly implied that the revenue rule barred the United States from prosecuting a fraudulent scheme to evade foreign taxes”).
Concededly, no cases at the time of the 1952 enactment of the relevant provision of the INA, 8 U.S.C. § 1226, had expressly held that the privilege applied in the exact context of civil immigration arrest. Rather, as outlined above, the cases in the preceding decades applied the privilege to protect against civil service of process on courthouse grounds and to those traveling to and from the courthouse. But this only proves plaintiffs’ point: if courts of that era recognized this privilege as so fundamental as to apply to the relatively small burden of service of process, it follows that these courts would have held that the privilege applied even more strongly to civil
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immigration arrest and detention. The Congress in 1952 surely recognized as much.13
Next, defendants cite 8 U.S.C. § 1229(e), a provision of the INA that, in their view, demonstrates that Congress intended to abrogate the common law privilege in the context of immigration arrests. This section, read in conjunction with its cross-reference to 8 U.S.C. § 1367, essentially provides that, when “an enforcement action leading to a removal proceeding” takes place at a courthouse, and the arrested alien had been appearing in court in connection with specified types of proceedings including domestic violence and sexual assault, immigration officers may not use information provided by abusers to support an adverse determination of deportability. See 8 U.S.C. § 1229(e)(1) & (2)(B); id. § 1367; H.R. Rep. No. 190-233, at 120 (2005).
13 Defendants cite United States v. Green, 305 F. Supp. 125 (S.D.N.Y. 1969) as evidence that mid-twentieth century courts did not view the common law privilege so broadly. There, the court declined to apply this privilege to defendants who were served with a grand jury subpoena while present in court for a “preliminary examination” in a criminal matter. Id. at 127. But in that case, the process served upon these defendants at the courthouse was for a criminal proceeding, i.e., the defendants’ alleged destruction of their draft cards in violation of 50 App. U.S.C.A. § 462(b)(3) (now codified at 50 U.S.C. § 3811(b)(3)). Green, therefore, does not implicate the courthouse civil arrest privilege at issue here.
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Defendants raised an identical argument in their earlier motion to dismiss, see Defs.’ Mem. of Law in Supp. of Mot. to Dismiss at 8, 23-24, ECF No. 26 (Oct. 23, 2019), and the Court still finds it unpersuasive, for two independent reasons. First, the legislative history that defendants cite does not establish that the enacting Congress contemplated civil immigration arrests of aliens occurring at courthouses. See H.R. Rep. 190233 at 120-21. The legislative history explains that the statute’s restrictions on immigration officers using information provided by abusers applies at all stages of a removal proceeding, not just the initial arrest. Id. at 120. The statute’s language about courthouse enforcement actions, therefore, does not necessarily refer to civil immigration arrest, but more likely refers to civil removal proceedings arising out of criminal arrests by state and local law enforcement, arrests which the common law privilege at issue would not cover.
Second, as Judge Talwani of the District of Massachusetts recently wrote in an opinion on this same issue, Congress added section 1229(e) to the INA in 2006, see Pub. L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006), over fifty years after the original passage of the INA. Ryan v. U.S. Immigration and Customs Enf’t, 382 F. Supp. 3d 142, 158-59 (D. Mass. 2019). This is significant. Defendants read section 1229(e) as evidence, not of
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what Congress intended in 2006, but as evidence of what Congress intended in 1952 when it enacted 8 U.S.C. § 1226, the provision of the INA that grants the executive branch broad authority to conduct immigration arrests.14 But Congress’s views in 2006 are of little help to the Court in interpreting what Congress intended in 1952. See Ryan, 392 F. Supp. at 158 (“When a later statute is offered as an expression of how the Congress interpreted a statute passed by another Congress a half century before, such interpretation has very little, if any, significance.”) (quoting Bilski v. Kappos, 561 U.S. 593, 645 (2010) (Stevens, J., concurring)).
Finally, defendants rely on a recent Second Circuit case not considered by the Court at the time of its Motion to Dismiss Opinion, United States v. Lett, 944 F.3d 467 (2d Cir. 2019). In Lett, the Second Circuit held that ICE could lawfully detain an alien charged with importing cocaine even after that alien had been granted bail in his federal criminal case under the Bail Reform Act. Id. at 469. Defendants read this case for the proposition that Congress granted ICE arrest authority so broad
14 Even if defendants were to read this section as evidence that Congress in 2006 intended to abrogate the common law privilege, such an argument would be unavailing. As the Court previously explained, “it 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.” Motion to Dismiss Opinion at 34.
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as to override other laws to the contrary. This, in defendants’ view, is further evidence that the INA preempts the common law civil arrest privilege in the context of immigration arrest. But Lett is inapposite. There, the court held that the Bail Reform Act and the INA “serve different purposes, govern separate adjudicatory proceedings, and provide independent statutory bases for detention.” 944 F.3d at 470. There was, therefore, as the Second Circuit expressly found, “no conflict” between the statutes. Id. Here, however, there is a clear conflict — a conflict between the broad, generally-worded arrest authority of the INA and the narrow state common-law privilege against courthouse civil arrest. Lett gives the Court no guidance in resolving this conflict, leading the Court, again, to rely instead on the well-established principle against preemption of state common law.
Finding these and defendants’ other arguments unpersuasive, the Court accordingly finds that the INA incorporates the state common-law privilege against civil immigration arrest for those present in New York state courthouses, or on courthouse grounds, or necessarily traveling to or from court proceedings, and therefore grants plaintiffs’ motion for summary judgment on Count One.
II. Count Two
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Next, the parties cross-move for summary judgment on plaintiffs’ second cause of action, their claim that ICE adopted its courthouse arrest policy in an arbitrary and capricious manner, in violation of section 706(2)(A) of the APA.
It is axiomatic that an agency must provide a reasoned explanation for a departure from its prior policy. Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983); FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009). As explained above, ICE initially changed its courthouse arrest policy in 2017, when it greatly increased both the number and scope of courthouse arrests, purportedly in response to the January 25 Executive Order and the February 20 Implementing Memo. While neither the January 25 Executive Order nor the February 20 Implementing Memo says anything expressly about courthouse arrests, it is here undisputed that ICE officers interpreted the Executive Order in particular, along with the 2017 Implementing Memo, not only to remove the earlier limitations on courthouse arrests, but also effectively to mandate that they occur whenever necessary to ICE enforcement. See, e.g., Ex. 29 at Tr. 127:15-129:14; Ex. 38 at Tr. 217:6-14; Ex. 41 at Tr. 108:3-15. Accordingly, beginning in February 2017, the agency’s policy was effectively that ICE officers had unfettered authority to arrest aliens on state courthouse grounds.
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This change was largely codified in the adoption of the Directive in January 2018. Ironically, in light of ICE agents’ interpretation of the Executive Order and the 2017 Implementing Memo, the Directive represented a mild contraction of ICE’s courthouse arrest authority, though nothing even close to a full return to the pre-2017 policy. For example, the Directive provides that ICE agents should not arrest “family members or friends accompanying the target alien to court appearances or serving in a witness in a proceeding” except in “special circumstances.” Ex. 53 ¶ 2. The Directive also instructs ICE officers to avoid arrests in public areas of the courthouse and in areas dedicated to non-criminal proceedings.
But while the administrative record produced by defendants provides an explanation for this modest narrowing, it says nothing about the reasons for the broad change in post-2016 policy that the Directive largely adopts. Indeed, if anything, the documents in the record demonstrate some of the problems with ICE’s unconstrained authority to conduct courthouse arrests throughout 2017. The administrative record contains, for example, several 2017 media reports about disruptive courthouse arrests conducted under the pre-Directive policy. AR 136-43; 144-45; 146-55. The administrative record also contains correspondence from 2017 between ICE and several state courts, see AR 134-35 (Chief Justice Tani Cantil-Sakauye, Supreme Court
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of California); 160-61 (Chief Justice Mary Fairhurst, Supreme Court of Washington); 162-63, 167-70 (Lawrence Marks, Chief Administrative Judge, New York State Unified Court System); 16466 (Thomas Balmer, Chief Justice, Oregon Supreme Court); 188-89 (Mary McQueen, National Center for State Courts), in which various state chief justices and other judiciary personnel express concern about ICE courthouse arrests.
In short, no reasons for the 2017 change in policy and practice nor for its codification in the 2018 Directive are set forth anywhere in the administrative record of this case. This is because, as defendants essentially conceded at oral argument on the instant motions, see Tr. at 14:12-16:24, ECF No. 107 (May 4, 2020), the reason for this policy change was ICE’s silent interpretation of the January 2017 Executive Order and the 2017 Implementing Memo as effectively mandating this change. That is, in 2017, ICE greatly increased the frequency and scope of its courthouse arrests because it believed the Executive Order, in particular, required it to do so.
In actuality, however, the Executive Order did no such thing (nor for that matter did the 2017 Implementing Memo). As the Court observed at oral argument, Tr. at 12:12-18, the Executive Order (as well as the 2017 Implementing Memo) is silent on the topic of courthouse arrests. See AR 71-75. It merely directs, in general terms, that ICE must “employ all
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lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens,” AR 72 (emphasis supplied), and it instructs the Secretary of Homeland Security to “review agency regulations, policies, and procedures for consistency with this order,” AR 74.
However, for all the reasons previously explained, courthouse civil arrests are not lawful, because they contravene the common-law privilege, which the INA is best read to incorporate, that protects courts and litigants against these intimidating and disrupting intrusions. Regardless of what ICE may have believed, then, the Executive Order in fact did not compel the agency to undertake its vast broadening of the scope of courthouse arrests.15 To the contrary, by its use of the term “lawful,” it effectively forbade such unlawful intrusions.
“[I]t is black letter law that where an agency purports to act solely on the basis that a certain result is legally required, and that legal premise turns out to be incorrect, the action must be set aside, regardless of whether the action could have been justified as an exercise of discretion.” Regents of
15 The fact that ICE’s leadership may have held its interpretation in good faith is irrelevant. Although courts often defer to an agency’s reasonable interpretation of the language of an executive order, see Udall v. Tallman, 380 U.S. 1, 4 (1965), the case for deference is at its weakest where the word in question is “lawful.”
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the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 505 (9th Cir. 2018) (citing SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 94 (1943) (“[I]f the [agency] action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law.”)).
ICE has committed precisely this error. It has effectively offered no rationale other than its misguided reliance on the Executive Order for its consequential decision to expand its agents’ authority to conduct courthouse arrests. Although the Directive itself makes conclusory references to the “reduce[d] safety risks” of conducting arrests in a place where people are screened for firearms, and the “unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails,” Ex. 53 ¶ 1, the record contains no explanation of how the agency balanced any such benefits against the harms of the policy discussed above. Accordingly, the adoption of the Directive by ICE, as well as less formal shift in practice and policy in 2017, were arbitrary and capricious, in violation of § 706(2)(A) of the APA.
CONCLUSION For the foregoing reasons, the Court grants plaintiffs’ motion for summary judgment with respect to Counts One and Two, and, as a direct result, is obliged to also grant plaintiffs’
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requested injunctive and declaratory relief. Specifically, the

Court declares ICE’s policy of courthouse arrests, as now

embodied in the Directive, to be illegal, and hereby enjoins ICE

from conducting any civil arrests on the premises or grounds of

New York State courthouses, as well as such arrests of anyone

required to travel to a New York State courthouse as a party or

witness to a lawsuit.

Clerk to enter judgment.

SO ORDERED.

Dated:

New York, NY June 10, 2020

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

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