Edward M. Spiro and Christopher B. Harwood

More than 500 years ago, English courts developed a common law privilege protecting against civil arrests of parties and witnesses on courthouse premises and when traveling to or from court. This privilege—which was incorporated into American law in the early years of the republic and has remained a part of the common law since—serves two principal purposes: First, it encourages parties and witnesses to appear at court proceedings, and second, it enables courts to function properly by, for example, avoiding adjournments and other disruptions. Recently, however, the U.S. Immigration and Customs Enforcement agency (ICE), in its implementation of a directive to ICE agents promulgated in January 2018 (the Directive), repeatedly has taken action contrary to this privilege. Indeed, in New York state over the last two years, ICE has increased its courthouse civil arrests of undocumented and other aliens by more than 1700 percent.

In response, the state of New York and the Kings Country District Attorney (plaintiffs) filed suit against ICE, seeking a declaration that the Directive is invalid on a variety of grounds—including because it violates the privilege against courthouse civil arrests—as well as an injunction barring ICE from conducting such arrests. In New York v. U.S. Immigration & Customs Enforcement, 2019 WL 6906274 (S.D.N.Y. Dec. 19, 2019), U.S. District Judge Jed S. Rakoff of the Southern District of New York recently denied ICE's motion to dismiss the lawsuit, finding that (1) the court had jurisdiction to review plaintiffs' challenge to the Directive, and (2) plaintiffs have stated viable claims that the Directive is invalid, including because it violates the privilege against courthouse civil arrests.

'New York v. ICE'

In their complaint, plaintiffs allege that the Directive (ICE Directive No. 11072.1) was intended to formalize aspects of an Executive Order issued by the Trump Administration in January 2017 (Executive Order No. 13,768), which directed ICE to enforce immigration laws against so-called "sanctuary jurisdictions." The Directive provides that ICE agents may civilly arrest on courthouse premises (1) "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," as well as (2) "family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding," provided that "special circumstances" exist, "such as where the individual poses a threat to public safety or interferes with ICE's enforcement actions." New York v. ICE, 2019 WL 6906274, at *2 (quoting Directive §2).

Citing the negative impact that the courthouse civil arrests have had—including chilling undocumented individuals from pursuing meritorious civil claims and appearing as witnesses in criminal proceedings—plaintiffs have challenged the Directive on three grounds. First, they assert that the Directive violates the common law privilege against courthouse civil arrests, and that the privilege was "presumptively" incorporated into the Immigration and Nationality Act (INA), rendering the Directive "in excess of [ICE's] statutory jurisdiction, authority, or limitations" and therefore invalid under the Administrative Procedure Act (APA). Second, plaintiffs argue that ICE's adoption of the Directive was arbitrary and capricious under the APA because ICE did not properly consider the harms that the Directive would impose. Third, plaintiffs claim that the Directive violates the Tenth Amendment of the U.S. Constitution because it burdens New York's operation of its judicial system.

In its motion to dismiss, ICE presented six arguments for dismissal, three of which were jurisdictional in nature and three of which were substantive in nature. With respect to the jurisdictional arguments, ICE argued that its challenged conduct (i.e., its implementation of the Directive) is unreviewable because: (1) the interests that plaintiffs are seeking to protect are not within the "zone of interests" protected by the INA; (2) ICE's immigration enforcement authority is "committed to agency discretion by law"; and (3) the Directive does not constitute a final agency action. For its substantive arguments for dismissal, ICE asserted that: (1) the privilege against courthouse civil arrests no longer exists; (2) even if the privilege still exists, it was not incorporated into—and thus was preempted by—the INA, and therefore does not limit ICE; and (3) plaintiffs have not stated a viable claim under the Tenth Amendment. Judge Rakoff disposed of each of these arguments, thus allowing plaintiffs to proceed with their substantive challenge to the Directive.

Zone of Interests

In addressing ICE's "zone of interests" argument, Judge Rakoff noted that "the zone-of-interests test that must be satisfied to give the court jurisdiction is not especially demanding," and requires only that plaintiffs explain why the interests they are seeking to protect "are not so marginally related to or inconsistent with the purposes implicit in the [INA] that it cannot reasonably be assumed that Congress authorized [them] to sue." Id. at *4 (citations omitted). He found that plaintiffs had identified two "sufficient" reasons why their challenge to the Directive falls within the INA's zone of interests. Id. First, the text of the INA "reflects a Congressional preference that federal immigration enforcement not impede state criminal law enforcement," and plaintiffs have alleged that the Directive does precisely that by, among other things, dissuading aliens from serving as witnesses. Id. Judge Rakoff noted that Judge Indira Talwani of the U.S. District Court for the District of Massachusetts had reached the same conclusion in rejecting a similar "zone of interests" challenge in Ryan v. U.S. Immigration & Customs Enforcement, 382 F. Supp. 3d 142, 155 (D. Mass 2019), appeal docketed, No. 19-1838 (1st Cir. Sept. 5, 2019). Id.

Second, Judge Rakoff concluded that the "secondary economic injuries" that plaintiffs allegedly have suffered due to the Directive—namely, "waste[d] … judicial resources"—are sufficient to bring their challenge to the Directive within the INA's zone of interests. Id. As support for this conclusion, he cited Bank of America v. City of Miami, 137 S. Ct. 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." Id.

Agency Discretion by Law

Judge Rakoff next rejected ICE's argument that plaintiffs' APA claims are unreviewable because immigration enforcement is "committed to agency discretion by law." Id. at *5. He observed that agency action is "committed to agency discretion by law only where the [relevant] statute is drawn in such broad terms that in a given case there is no law to apply." Id. (citation omitted). Here, Judge Rakoff found that plaintiffs had satisfied their burden at the pleading stage "to present a prima facie case for reviewability," because (1) they had "allege[d] that the INA incorporates [the] pre-existing common law privilege against [courthouse] civil arrest[s]," and (2) if plaintiffs are correct, that "would provide an obvious standard against which [the court could] evaluate" ICE's challenge to the Directive. Id.

Final Agency Action

In addressing ICE's final jurisdictional argument for dismissal—"that the Directive is not final agency action and therefore unreviewable under … the APA"—Judge Rakoff noted that an agency action is final if: (1) "the action … mark[s] the consummation of the agency's decision making process," and (2) "the action [is] … one by which rights or obligations have been determined." Id. (citations omitted). Here, ICE conceded that the first prong is satisfied, and Judge Rakoff found that the second prong also is satisfied. Id. at *6. He reasoned that although "the Directive purports only to offer guidance to officers on how to exercise their enforcement discretion," the sharp increase in courthouse civil arrests that allegedly occurred immediately following ICE's promulgation of the Directive "show[s] beyond cavil" that the Directive has had the type of "legal consequences" that are sufficient to satisfy the second prong of the finality analysis. Id. at *6-*7.

Privilege Against Courthouse Civil Arrests

Having rejected ICE's jurisdictional arguments, Judge Rakoff turned to ICE's first two substantive arguments for dismissal: that (1) the privilege against courthouse civil arrests no longer exists, and (2) even if it does, it was not incorporated into the INA, and therefore does not limit ICE. Id. at *7-*9. With respect to the first argument, he noted that although there was no dispute that, in the late 1700s and early 1800s, the privilege was adopted into American common law, the parties disagreed as to whether it still exists as a matter of state common law. Id. at *8. On this issue, Judge Rakoff concluded that the privilege "plainly" still exists. Id. He reasoned that "the continuing availability of the common law privilege, and its breadth, is shown by the fact that even after [service of process replaced civil arrests as the means by which a plaintiff initiates a civil suit], both the highest court of New York and the U.S. Supreme Court continued to apply the privilege." Id.

Judge Rakoff further observed that "the policy objectives cited for hundreds of years by English and American courts to justify the common law privilege against civil courthouse arrests apply equally to modern-day immigration arrests." Id. at *10. He identified those policy objectives as (1) "encourag[ing] parties to come forward voluntarily" to "seek justice in their own cases and … serv[e] as witnesses," and (2) "enabl[ing] courts to function properly" by avoiding "delays, re-schedulings, waste, and disruptions." Id. Accordingly, he found that, under state common law, "aliens [continue to be] privileged from immigration arrest while present at courthouses and during their necessary coming and going therefrom." Id.

However, because "the ICE agents conducting [courthouse civil] arrests [are] acting under authority of federal law, not [state common] law," Judge Rakoff turned to ICE's second substantive argument for dismissal—"that the INA preempted and therefore invalidated any potential common law privilege" that might otherwise protect aliens from courthouse civil arrests. He rejected this argument, reasoning that (1) "[t]he standard for finding that federal law has preempted state [common] law is that such a result must have been 'the clear and manifest purpose of Congress,'" (2) here, there is "no indication in the language of the [INA] that the 'clear and manifest purpose of Congress' was to abrogate the [common law privilege against courthouse civil arrests]," and therefore (3) "the [INA] incorporates the privilege." Id. at *11. Judge Rakoff noted that ICE's preemption argument "would effectively bar states[] … from imposing any limitations on ICE's enforcement discretion, which is a reading that is not 'clear and manifest' from the language of the [INA]." Id.

Tenth Amendment

Judge Rakoff readily disposed of ICE's final substantive argument for dismissal—that plaintiffs had failed to state a viable challenge to the Directive under the Tenth Amendment. Judge Rakoff concluded that plaintiffs had alleged the "type of commandeering [of state agents] … that the Supreme Court has found [sufficient to state] a Tenth Amendment cause of action." Id. at *12. Specifically, plaintiffs alleged that, as a result of its policy pursuant to the Directive, "ICE … has commandeered state and local judges and court officials not to take action in response to ICE's arrests, even when [the ICE arrests] cause[] great disruption to the functioning of the state judiciary and the state agents would therefore normally intervene." Id.

Conclusion

Judge Rakoff's decision demonstrates that although ICE enjoys broad discretion to enforce the nation's immigration laws, its discretion is not without limits, with one powerful such limit potentially being the dusted-off, centuries old privilege against courthouse civil arrests.

Edward M. Spiro and Christopher B. Harwood are principals of Morvillo Abramowitz Grand Iason & Anello P.C. Mr. Spiro is the co-author of "Civil Practice in the Southern District of New York," 2d Ed. (Thomson Reuters 2019), and Mr. Harwood is the former Co-Chief of the Civil Frauds Unit at the U.S. Attorney's Office for the Southern District of New York. Max Rodriguez, an associate at the firm, assisted in the preparation of this article.