UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THE STATE OF NEW YORK and ERIC
:
GONZALEZ
:
:
Plaintiffs,
:
:
-v:
:
U.S. IMMIGRATION AND CUSTOMS
:
ENFORCEMENT, et al.
:
:
Defendants.
:
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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
1

 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
2

 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.
3

 “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.
4

 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.
5

 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.
6

 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.
7

 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
8

 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).
9

 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
10

 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.
11

 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.
12

 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
13

 “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

14

 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.
15

 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
16

 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.
17

 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

18

 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.
19

 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
20

 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
21

 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.”
22

 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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