On Wednesday, June 10, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York ruled that Immigration and Customs Enforcement (“ICE”) can no longer make arrests at state courthouses in a manner that interferes with the state’s administration of justice. The New York Attorney General, Letitia James, counts this as a major victory. Let’s talk about it.
Factual background
Here’s a snip from ICE’s website:
ICE was created in 2003 through a merger of the investigative and interior enforcement elements of the former U.S. Customs Service and the Immigration and Naturalization Service. ICE now has more than 20,000 law enforcement and support personnel in more than 400 offices in the United States and around the world.
ICE has three operational directorates: Homeland Security Investigations (HSI), Enforcement and Removal Operations (ERO) and Office of the Principal Legal Advisor (OPLA). The ERO directorate upholds U.S. immigration law “at, within, and beyond” U.S. borders. In other words, the ERO are the folks tasked with corralling and removing persons that are in the U.S. illegally.
Ordinarily, this is no problem. (I say no problem, but there is a lively debate as to whether it is morally objectionable to remove people who are here illegally in the first place. Personally, I don’t care what your stance is on whether ICE should be removing illegal persons from the U.S. or not; this blog is meant just a discussion of the law.)
What has happened, though, is that, under the Trump administration, there has been an increase in the number of arrests of illegal persons at courthouses. New York alone saw over a 1700% increase in ICE arrests since 2016.
Most of this can be attributed to two things: Executive Order No. 13,768 (the “Executive Order”) (which President Trump implemented five days after taking office), and a subsequent memorandum by then-Department of Homeland Security (“DHS”) Secretary John Kelly. The Executive Order directed DHS to prioritize immigration enforcement against broader categories of aliens than those named in prior policies. Former Secretary Kelly’s memorandum provided that “the Department no longer will exempt classes or categories of removable aliens from potential enforcement.”
Although neither the Executive Order nor the memorandum expressly addressed courthouse arrests, the ICE admitted (on page five) that ICE officers understood the Executive Order in particular, and the memorandum as well, to effectively remove the earlier limitations on courthouse arrests and mandate broader enforcement in and around state courthouses.
Thereafter, on January 10, 2018, ICE released Directive No. 11071.1 (the “Directive”). The Directive explicitly allowed ICE agents to arrest illegal persons in and around courthouses.
You may be thinking, “So what? What’s so special about a courthouse?” Good question. Turns out, a lot.
The underlying legal principles
As Chief Justice for the State of California Tani Cantil-Sakauye once put it, “Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety…. Courthouses should not be used as bait in the necessary enforcement of our country's immigration laws.”
Turns out, this is true. Not just true, but like almost-300-years-of-consistently-applied-law true (page 11):
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.
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.
The rationale behind these principles are pretty common sense, which is why I like them. First, if you want people to come to court for case X, don’t arrest them for case Y when they show up. That one seems pretty obvious. I’m not going to come to court to testify as a witness to a murder if I’m afraid that I’m going to be arrested for being in the country illegally when I show up to testify.
Second, we want courts to function properly. This is sort of an obvious offshoot of the first reason, but if witnesses and parties don’t show up in court, justice doesn’t happen; the truth doesn’t come out. Imagine your key witness didn’t show up because they were afraid they’d get deported. That would suck!
There’s more here, and while the court spent a decent chunk of ink on the issue, it’s a bit more complicated and dense so I’ll briefly touch it. Basically, there’s this fundamental principle that courts follow which says that judges should interpret a federal statute in such a way that it doesn’t abrogate (evade) state law unless Congress’s intention to do so is “manifest” in that statute’s language. In other words, unless it is “unmistakably clear” in a federal statute that the federal law is supposed to override state common law, that state common law still applies. This applies to statutes that give directives and powers to federal agencies, like ICE.
The ruling
So Judge Rakoff ruled in favor of the New York Attorney Generak. How did the court get there?
If you couldn’t already tell, the court held that the near 300-year-old common law about not arresting people that show up to court should be respected. This was consistent with Judge Rakoff’s previous ruling in the same case denying ICE’s earlier motion to dismiss. There, like here, ICE made the argument that the privilege didn’t exist and the court found that it did.
The court also found that the statute granting ICE its power to arrest did not abrogate the 300-year-old state common law privilege. So not only did the court find that the privilege existed, but the court also found that it applied in this case. Like I said before, this one was a bit complicated, so if you want to read the opinion yourself, feel free to go and do so. Quickly, the court looked at cases at the time of the 1952 enactment of the statute, other relevant cases decided at the time, and cases today on similar issues and decided that the privilege applied and was built-in to the federal statute.
Also, the court did some analysis under the Administrative Procedures Act (“APA”). I didn’t mention the APA earlier because it’s really not something a casual reader needs to care about in the context of this case. Perhaps in the future I’ll say more about it. For now, just know that federal agency actions can be challenged and invalidated if found to be “arbitrary and capricious.” One of the basic tenants of agencies is that they must provide reasoned explanations when they deviate from prior policies. If they don’t have a good/convincing/plausible/reasonable/whatever explanation, you can call them our for being arbitrary (or capricious, whatever that means), and they can’t do that deviation from their policies. Here, the court found that ICE didn’t explain its policy well. Actually, the court was a bit meaner:
[ICE] 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.
Thus, after a long-winded explanation, the court decided to issue its order:
[T]he 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.
Conclusion
What does this mean? It means that ICE can’t arrest illegal persons at courthouses in New York. This decision isn’t binding outside of New York, so it doesn’t mean much for the rest of the country. But, it may signal that other states may follow suit. I think Massachusetts has come out similarly before New York even did. Maybe there’s a trend here; maybe not. Who knows.
Importantly, this doesn’t mean that illegal persons can run to courthouses to avoid being arrested. It’s not like a “safe zone” where the person who is “it” can’t tag you; you’re only safe if you’re there for court stuff.
Why is this important? Well, beyond the obvious reasons I described above relating to the 300-year-old common law, I think this hits at some of the fundamentals of American law and the American way. What I mean is, what we have here is a classic state versus federal battle. It’s federalism at its finest. There’s always been a jockeying for power between the federal government and the states ever since the federal government was created. It’s just interesting to see the government clash. Often, we (I say we because I do this and I’m a lawyer so I just assume other people do too) conflate state and federal government to just be “the government.” Too often we just think of “the man” as one unit, one entity. But its not! There are 50 states and the federal government! All independent of each other. It’s always fun to sit on the sidelines and see titans duke it out.
Idk, I’m a nerd. Sue me.