Ryan v. U.S. Immigration and Customs Enforcement, --- F.3d ---- (2020)

2020 WL 5201945
Only the Westlaw citation is currently available.
United States Court of Appeals, First Circuit.

Marian RYAN, in her official capacity
as Middlesex County District
Attorney, et al., Plaintiffs, Appellees,
v.
U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT
et al., Defendants, Appellants.
No. 19-1838
 
September 1, 2020
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MASSACHUSETTS,
[Hon. Indira Talwani, U.S. District Judge]
Attorneys and Law Firms
Francesca M. Genova, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, with whom Joseph H.
Hunt, Assistant Attorney General, Civil Division, William C.
Peachey, Director, Office of Immigration Litigation, and Erez
R. Reuveni, Assistant Director, were on brief, for appellants.
Michael M. Hethmon, Christopher J. Hajec, and Ralph L.
Casale on brief for Immigration Reform Law Institute, amicus
curiae.
David J. Zimmer, Special Assistant Attorney General of
Massachusetts, with whom Daryl L. Wiesen, Alicia RubioSpring, and Goodwin Procter LLP were on brief, for appellees
Ryan and Rollins.
Wendy S. Wayne on brief for appellee Committee for Public
Counsel Services.
Oren N. Nimni, Lawyers for Civil Rights, David J. Zimmer,
Daryl L. Wiesen, Alicia Rubio-Spring, and Goodwin Procter
LLP on brief for appellee Chelsea Collaborative, Inc.
Dayna J. Zolle, Elizabeth B. Wydra, Brianne J. Gorod, and
Ashwin Phatak on brief for Constitutional Accountability
Center, amicus curiae.

Nikolas Bowie, Sabrineh Ardalan, Philip L. Torrey, and
Norah Rast on brief for Nikolas Bowie and Harvard
Immigration and Refugee Clinical Program, amici curiae.
Ari J. Savitzky, Assistant Solicitor General of New York,
Letitia James, Attorney General, Barbara D. Underwood,
Solicitor General, Steven C. Wu, Deputy Solicitor General,
William Tong, Attorney General of Connecticut, Karl A.
Racine, Attorney General for the District of Columbia,
Kwame Raoul, Attorney General of Illinois, Brian E. Frosh,
Attorney General of Maryland, Keith Ellison, Attorney
General of Minnesota, Gurbir S. Grewal, Attorney General
of New Jersey, Hector Balderas, Attorney General of New
Mexico, Ellen F. Rosenblum, Attorney General of Oregon,
Josh Shapiro, Attorney General of Pennsylvania, Peter F.
Neronha, Attorney General of Rhode Island, Robert W.
Ferguson, Attorney General of Washington, Thomas J.
Donovan, Jr., Attorney General of Vermont, and Mark R.
Herring, Attorney General of Virginia, on brief for states
of New York, Connecticut, Illinois, Maryland, Minnesota,
New Jersey, New Mexico, Oregon, Pennsylvania, Rhode
Island, Vermont, Virginia, and Washington and the District of
Columbia, amici curiae.
Douglas E. Keith, Alicia L. Bannon, and Brennan Center for
Justice on brief for 19 Former Massachusetts Judges, amici
curiae.
Thomas J. Carey, Jr., Martin W. Healy, and Christopher N.
Lasch on brief for Massachusetts Bar Association, Boston
Bar Association, Massachusetts Academy of Trial Attorneys,
Women's Bar Association of Massachusetts, and South Asian
Bar Association of Greater Boston, amici curiae.
Maria T. Davis, Howard M. Cooper, and Todd & Weld, LLP
on brief for Massachusetts Association of Criminal Defense
Lawyers, amicus curiae.
Lauren Godles Milgroom, Joel A. Fleming, Amanda R.
Crawford, and Block & Leviton LLP on brief for 27 Domestic
and Sexual Violence Advocacy Organizations, amici curiae.
Before Torruella, Selya, and Kayatta, Circuit Judges.
Opinion
SELYA, Circuit Judge.
*1 United States Immigration and Customs Enforcement
(ICE) is the arm of the federal government charged with the
apprehension and detention of noncitizens who are subject

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to removal. Believing state courthouses to be appropriate
locations in which to conduct civil enforcement actions, ICE
increased its efforts to arrest allegedly removable noncitizens
in and around state courthouses when they appeared for
judicial proceedings. In January of 2018, ICE issued Directive
11072.1 (the Directive), formalizing its policy regarding civil
enforcement actions in such courthouses.
ICE's growing presence in Massachusetts courthouses
concerned a number of persons and organizations,
including Marian Ryan and Rachael Rollins (the District
Attorneys of Middlesex County and Suffolk County,
respectively), the Committee for Public Counsel Services
(the main public defender agency for the Commonwealth
of Massachusetts), and Chelsea Collaborative, Inc. (a
nonprofit that provides services to the immigrant community
in Chelsea, Massachusetts). Fearing the effects of ICE's
activities on the proper functioning of both the state judicial
system and access to justice in immigrant communities,
they sued ICE, the United States Department of Homeland
Security (DHS), and three DHS officials (collectively,
the defendants), specifically challenging the Directive and
generally challenging ICE's policy of civilly arresting
individuals attending court on official business.1
1

At present, the three individual defendants, named in
their official capacities, are Chad Wolf, Acting Secretary
of DHS; Matthew T. Albence, Acting Deputy Director
of ICE (who, as the senior official currently in place,
performs the duties of the Director); and Todd M. Lyons,
ICE's Acting Boston Field Office Director.

When the plaintiffs moved for a preliminary injunction, they
argued primarily that ICE lacked statutory authority under
the Immigration and Nationality Act (INA), 8 U.S.C. §§
1101-1537, to conduct such arrests because the INA implicitly
incorporates a hoary common law privilege against civil
arrests for parties and witnesses attending court proceedings.
The district court determined that the plaintiffs were likely
to succeed on the merits of this argument and preliminarily
enjoined ICE from implementing the Directive or otherwise
civilly arresting individuals attending court on official
business anywhere in Massachusetts. See Ryan v. U.S.
Immigr. & Customs Enf't, 382 F. Supp. 3d 142, 159, 161 (D.
Mass. 2019).2 On this interlocutory appeal, we have carefully
considered the district court's rescript and the compendious
briefing furnished by both the parties and an array of
helpful amici. We conclude that the district court abused its
discretion in finding that the plaintiffs were likely to succeed
on the merits of their argument that the INA implicitly

incorporates a common law privilege against civil arrests for
individuals attending court on official business. Turning to
the plaintiffs' backup argument, we likewise conclude that, on
the underdeveloped record before us, the plaintiffs have so
far failed to show that they are likely to succeed in arguing
that ICE lacks statutory authority to conduct such arrests in
Massachusetts because Congress has not clearly stated its
intent to permit arrests that violate state law. Consequently,
we vacate the preliminary injunction and remand for further
proceedings consistent with this opinion.
2

Throughout this litigation, the plaintiffs have described
the individuals whom they believe ICE officers may
not civilly arrest in and around courthouses as those
attending court “on official business.” The plaintiffs have
not clearly defined the contours of this phrase, but they
seem to mean parties, witnesses, and victims at a bare
minimum. Notwithstanding this potential lack of clarity,
the district court adopted the terminology. See Ryan, 382
F. Supp. 3d at 146, 161. We, too, use it as a convenient
shorthand.

I. BACKGROUND
*2 We briefly rehearse the relevant facts and travel
of the case. For some time, ICE has conducted civil
enforcement actions designed to take removable noncitizens
into custody in courthouses across the country. During
the Obama administration, ICE imposed certain restrictions
on the ability of its officers to conduct such actions in
courthouses. In March of 2014, ICE issued guidance directing
that “[e]nforcement actions at or near courthouses will only be
undertaken against Priority 1 aliens.” An earlier ICE policy,
which remained in effect, defined “Priority 1 aliens” as those
posing a threat to national security or public safety. The 2014
guidance also forbade ICE officers from arresting “collateral”
noncitizens whom they encounter during an enforcement
action against a Priority 1 target, such as family members or
friends accompanying the target to a court appearance.
ICE's enforcement priorities changed when the political
winds shifted. Shortly after taking office, President Trump
issued an executive order (the EO) on January 25, 2017,
declaring the federal government's intention to “[e]nsure
the faithful execution of the immigration laws ... against
all removable aliens.” Exec. Order No. 13,768, 3 C.F.R.,
2017 Comp., p. 268, reprinted in 8 U.S.C. § 1103 app.
at 647-49 (2018). To this end, the EO expanded the
classes of noncitizens prioritized for removal. See id.
at 269. A month later, the Secretary of DHS handed
down a memorandum implementing the EO and rescinding

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any conflicting directives or guidance. This memorandum
reiterated the broader enforcement priorities delineated in the
EO.
Neither the EO nor the implementing memorandum directly
addressed courthouse arrests. It nonetheless appears that
ICE officers began to conduct more civil arrests in and
around state courthouses, including those in Massachusetts.
ICE attributes this change to a newfound unwillingness on
the part of many state and local governments to honor
civil immigration detainers, which ask law enforcement
agencies to hold allegedly removable noncitizens beyond
their scheduled release from criminal custody so that federal
immigration officers may detain them. See City of Providence
v. Barr, 954 F.3d 23, 29 (1st Cir. 2020). Such an unwillingness
was antithetic to ICE's claim that courthouses were the safest
place to arrest such noncitizens because courthouse visitors
are customarily screened for weapons upon their arrival.
In Massachusetts, the situation took on a new dimension
when the Massachusetts Supreme Judicial Court (SJC) held
that state-court functionaries could not detain noncitizens
based solely on civil immigration detainers. See Lunn v.
Commonwealth, 477 Mass. 517, 78 N.E.3d 1143, 1146 (2017)
(per curiam).
The Chief Justice of the Massachusetts Trial Court, in
response to Lunn and ICE's more pervasive presence in
Massachusetts courthouses, promulgated a policy for statecourt personnel regarding civil immigration enforcement
actions in state courthouses. This policy took effect in
November of 2017. Under it, ICE officers “may enter a
courthouse and perform their official duties provided that
their conduct in no way disrupts or delays court operations,
or compromises court safety or decorum.” The policy directs
state-court personnel to ask any armed ICE officer seeking
entry into a courthouse to state his law-enforcement purpose
and to describe the enforcement action that he proposes to
undertake. If an ICE officer attempts to effect a civil arrest
of a noncitizen who is not in the court's custody, the policy
instructs state-court personnel neither to impede nor to assist
with the arrest. ICE officers may not conduct civil arrests
either in nonpublic spaces within a courthouse or (absent
permission in advance) in courtrooms.
In January of 2018, ICE issued the Directive, codifying
its policy anent civil enforcement actions in courthouses.
The Directive enlarged the categories of noncitizens subject
to civil arrest in courthouses beyond those specified in
the agency's 2014 guidance. Specifically, ICE officers were

authorized to target noncitizens “who have been ordered
removed from the United States but have failed to depart”
and those “who have re-entered the country illegally after
being removed.” What is more, the Directive relaxed the
restriction on arresting “collateral” noncitizens present during
an enforcement action: it authorized ICE officers to arrest
such an individual under “special circumstances, such as
where [he or she] poses a threat to public safety or interferes
with ICE's enforcement actions.” Although the Directive
instructed ICE officers to “generally avoid enforcement
actions in courthouses, or areas within courthouses that are
dedicated to non-criminal ... proceedings,” it allowed such
actions when “operationally necessary.”3
3

ICE's implementation of the Directive was debated
extensively during the preliminary injunction hearing.
The defendants represented that ICE applies the
Directive in conjunction with a prior policy discouraging
the removal of victims, witnesses, and other noncitizens
attempting to protect their noncriminal legal rights.
In line with this policy, ICE “generally” conducts
courthouse arrests only of criminal defendants and not
of victims, witnesses, and civil litigants. Ryan, 382 F.
Supp. 3d at 161. The plaintiffs did not dispute this
account of how ICE was implementing the Directive
but observed that the Directive's language appears to
authorize a broader range of civil arrests. At any rate,
the precise manner in which ICE is implementing the
Directive is largely irrelevant to the resolution of this
appeal. To the extent that we rely on facts relative to
ICE's implementation of the Directive, those facts are
uncontroverted.

*3 As ICE started to conduct more civil enforcement actions
in courthouses across Massachusetts, the plaintiffs' concerns
mounted. In their view, the specter of courthouse arrest deters
noncitizens from appearing in court (whether as criminal
defendants, victims of crimes, parties to civil litigation, or
witnesses). This deterrent effect, they say, interferes with the
ability of prosecutors and defense counsel to resolve criminal
charges and the ability of noncitizens to enforce their legal
rights in noncriminal areas ranging from domestic violence to
employment.
Spurred by these concerns, the plaintiffs filed suit in the
United States District Court for the District of Massachusetts.
At the same time, they moved for preliminary injunctive
relief with respect to the first count of their complaint, which
alleged that the Directive exceeds ICE's statutory authority
and, thus, violates the Administrative Procedure Act (APA).
See 5 U.S.C. § 706(2)(C). In support, they argued chiefly

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that the Directive exceeds ICE's statutory authority because
the civil arrest power in the INA implicitly incorporates a
common law privilege protecting against the civil arrest of
individuals attending court on official business.
After a two-day hearing at which no witnesses were called,
the district court granted the plaintiffs' motion. See Ryan,
382 F. Supp. 3d at 161. To begin, the court found that the
plaintiffs had both constitutional and prudential standing to
bring their APA challenge to the legality of the Directive.4
See id. at 152-55. Next, the court found that the plaintiffs
were likely to succeed in showing that the Directive exceeds
ICE's statutory authority. See id. at 155-59. Finally, the
court found that the remaining factors in the preliminary
injunction calculus favored the plaintiffs. See id. at 159-61.
Summing up, the court preliminarily enjoined the defendants
“from implementing [the Directive] in Massachusetts and
from civilly arresting parties, witnesses, and others attending
Massachusetts courthouses on official business while they are
going to, attending, or leaving the courthouse.” See id. at 161.
4

The defendants did not renew their attack on standing
in their appellate briefing and, at oral argument, they
disclaimed any intention of pressing this offensive.
Even so, we have an independent duty to ensure that
constitutional standing exists before proceeding to the
merits. See Merrimon v. Unum Life Ins. Co. of Am., 758
F.3d 46, 52 (1st Cir. 2014). We have reviewed the parties'
submissions in the court below and, for substantially
the reasons given by the district court, see Ryan, 382 F.
Supp. 3d at 152-55, we conclude that the plaintiffs have
constitutional standing to pursue their APA claim.

This interlocutory appeal followed. We have jurisdiction
under 28 U.S.C. § 1292(a)(1).
II. ANALYSIS
We have erected a four-part framework for district courts to
use in determining whether to grant or deny a preliminary
injunction. Under this framework, a district court is tasked
with considering the movant's likelihood of success on the
merits; whether and to what extent the movant will suffer
irreparable harm in the absence of preliminary injunctive
relief; the balance of relative hardships, that is, the hardship
to the nonmovant if enjoined as opposed to the hardship to
the movant if no injunction issues; and the effect, if any, that
either a preliminary injunction or the absence of one will have
on the public interest. See Corp. Techs., Inc. v. Harnett, 731

F.3d 6, 9 (1st Cir. 2013); Ross-Simons of Warwick, Inc. v.
Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996).
*4 The movant's likelihood of success on the merits weighs
most heavily in the preliminary injunction calculus. See RossSimons, 102 F.3d at 16. Indeed, we have described likelihood
of success as the “sine qua non” of preliminary injunctive
relief. New Comm Wireless Servs., Inc. v. SprintCom,
Inc., 287 F.3d 1, 9 (1st Cir. 2002). If the movant “cannot
demonstrate that he is likely to succeed in his quest, the
remaining factors become matters of idle curiosity.” Id.
There is, of course, an important distinction between a
decision at the preliminary injunction stage and a final
decision on the merits. Battles over preliminary injunctions
normally are waged early in a case. At such an embryonic
stage in the litigation, an inquiring court need not conclusively
determine the merits of the movant's claim; it is enough for the
court simply to evaluate the likelihood vel non that the movant
ultimately will prevail on the merits. See Ross-Simons, 102
F.3d at 16.
We assay a district court's decision to grant or deny a
preliminary injunction for abuse of discretion. See Corp.
Techs., 731 F.3d at 10. Within this rubric, we examine answers
to abstract legal questions de novo, findings of fact for clear
error, and any judgment calls concerning the balancing of the
four factors with significant deference to the district court. See
id.; Ross-Simons, 102 F.3d at 16. A district court may be held
to have abused its discretion by, say, making a material error
of law, “ignor[ing] pertinent elements deserving significant
weight, consider[ing] improper criteria, or, though assessing
all appropriate and no inappropriate factors, plainly err[ing]
in balancing them.” Ross-Simons, 102 F.3d at 16; see Corp.
Techs., 731 F.3d at 10.
The parties' briefs leave no doubt that they hold diametrically
opposite positions on whether it is good public policy for
ICE to arrest noncitizens in courthouses. In the plaintiffs'
view, these arrests undermine access to justice in immigrant
communities and interfere with the timely resolution of
criminal prosecutions. In the defendants' view, the game is
worth the candle: they insist that courthouses provide a safe
location for arresting noncitizens who pose a threat to public
safety.
It is not for us to say whether ICE's strategy is sound public
policy or, conversely, whether that strategy is antithetic to
sound public policy. That question lies within the domain of

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the politically accountable branches of the federal and state
governments. Our task is simply to decide the pertinent legal
issues and determine whether the district court abused its
discretion in granting the preliminary injunction.

A.
Our starting point is the plaintiffs' likelihood of success on
the merits. In support of their assertion that they are likely to
succeed on their APA claim, the plaintiffs renew the principal
argument that they advanced below: that the Directive and
ICE's policy of civilly arresting individuals attending court on
official business exceed ICE's statutory authority under the
INA. Importantly, they do not challenge the power of ICE
officers to conduct criminal arrests in and around courthouses.
See 8 U.S.C. § 1357(a)(4)-(5) (permitting ICE officers to
make warrantless arrests for certain federal crimes). Nor
do they challenge ICE's authority to make civil arrests of
noncitizens brought to courthouses in either state or federal
custody. Instead, their argument focuses exclusively on ICE's
lack of any authority to civilly arrest individuals who travel to
courthouses on their own to attend court on official business.
For ease in exposition, we henceforth refer to this type of
arrest as a “courthouse arrest.”
*5 The plaintiffs' argument presents a pure question of law,
which we review de novo. See Corp. Techs., 731 F.3d at 10. It
is a bedrock principle that the power of an executive agency
administering a federal statute “is 'authoritatively prescribed
by Congress.' ” City of Providence, 954 F.3d at 31 (quoting
City of Arlington v. FCC, 569 U.S. 290, 297, 133 S.Ct.
1863, 185 L.Ed.2d 941 (2013)). When an agency acts in a
manner not authorized by statute, its action is ultra vires and
a violation of the APA. See id.; see also 5 U.S.C. § 706(2)(C).
So viewed, the plaintiffs' argument concerning the scope
of ICE's civil arrest authority under the INA reduces to
a question of statutory construction. As with any effort to
decipher the meaning of a federal statute, the touchstone of
this inquiry is congressional intent. See City of Providence,
954 F.3d at 31. And it is nose-on-the-face plain that “the quest
to determine this intent must start with the text of the statute
itself.” Id.
The text of the INA confers broad authority upon ICE to
conduct civil arrests. Under 8 U.S.C. § 1226(a), an ICE
officer may arrest a noncitizen pursuant to an administrative
warrant and may detain him during the pendency of removal

proceedings. An interlocking INA provision, 8 U.S.C. §
1357(a)(2), authorizes the warrantless arrest of a noncitizen
if an ICE officer has reason to believe that the noncitizen
is in the United States unlawfully and is likely to escape
before he can obtain a warrant. On their face, neither of these
provisions bars ICE officers from exercising their civil arrest
power either in courthouses or against individuals attending
court on official business. Nor do the plaintiffs identify an
explicit limitation to this effect anywhere else in the text of
the INA.
Recognizing that the INA does not prohibit courthouse
arrests in haec verba, the plaintiffs' primary theory invokes
what has been called the “nonderogation canon” of statutory
construction. Pasquantino v. United States, 544 U.S. 349, 359,
125 S.Ct. 1766, 161 L.Ed.2d 619 (2005). They contend that
there is a long-standing common law privilege against civil
courthouse arrests. Given this privilege, they add, we must
presume that Congress intended not to permit courthouse
arrests when it authorized civil arrests in the INA. To cap the
matter, they submit that nothing in the text of the INA rebuts
the presumption that Congress intended to incorporate this
common law privilege, albeit sub silentio, into the statute.
The nonderogation canon instructs that “[s]tatutes which
invade the common law ... are to be read with a presumption
favoring the retention of long-established and familiar
principles, except when a statutory purpose to the contrary is
evident.” Id. (alterations in original) (quoting United States
v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d
245 (1993)). This instruction is rooted in the notion that
when Congress legislates in an area permeated by such
principles, it “does not write upon a clean slate.” Texas,
507 U.S. at 534, 113 S.Ct. 1631. Consequently, a court
must assume that Congress is aware of such long-established
and familiar principles and — in the absence of an evident
statutory purpose to the contrary — intends to retain them.
See Lexmark Int'l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 132, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014);
Samantar v. Yousuf, 560 U.S. 305, 320 n.13, 130 S.Ct.
2278, 176 L.Ed.2d 1047 (2010). Properly envisioned, the
nonderogation canon is just a tool to assist in discerning
congressional intent, which remains the lodestar of the
judicial inquiry into statutory meaning. See Pasquantino, 544
U.S. at 360, 125 S.Ct. 1766; Astoria Fed. Sav. & Loan Ass'n v.
Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96
(1991); cf. Scheidler v. Nat'l Org. for Women, Inc., 547 U.S.
9, 23, 126 S.Ct. 1264, 164 L.Ed.2d 10 (2006) (explaining that

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“canons of interpretation ... are tools designed to help courts
better determine what Congress intended”).
*6 Although we do not question the continuing vitality
of the nonderogation canon, we are less sanguine about its
applicability in the circumstances of this case. After all, the
nonderogation canon does not give courts carte blanche to
read a grab bag of common law rules into federal statutes
simply to effectuate what those courts may perceive as good
policy. See Astoria, 501 U.S. at 108, 111 S.Ct. 2166. It follows
that a court should apply the presumption that Congress
intended to retain a common law rule only if that rule was
“long-established and familiar” at the time of the statute's
enactment. Pasquantino, 544 U.S. at 359-60, 125 S.Ct. 1766
(quoting Texas, 507 U.S. at 534, 113 S.Ct. 1631). In other
words, the nonderogation canon comes into play only if the
terms of a statute appear to disregard a common law rule
that was both long-established and familiar when Congress
enacted the statute. See id.; United States v. Craft, 535 U.S.
274, 288, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002). This
requirement ensures that the assumption that Congress was
aware of a particular rule and, through its silence, intended to
retain it is a reasonable one. See Pasquantino, 544 U.S. at 359,
125 S.Ct. 1766; Astoria, 501 U.S. at 108, 111 S.Ct. 2166.
Against this backdrop, we train the lens of our inquiry on
the INA. Congress enacted the provisions that authorize civil
immigration arrests — 8 U.S.C. § 1226(a) and 8 U.S.C.
§ 1357(a)(2) — in 1952. See Immigration and Nationality
Act, Pub. L. No. 82-414, §§ 242(a), 287(a)(2), 66 Stat. 163,
208-09, 233 (1952). Although Congress revised the wording
of these provisions in 1996, it did not alter the substantive
authority that they conferred. See Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, §§ 303(a), 308(d)(4)(L)(i), 110 Stat. 3009-546,
3009-585, 3009-618. Because the substance of these statutory
provisions dates back to 1952, we must examine the state of
the common law as of that time to determine whether there
was a long-established and familiar common law rule relating
to courthouse arrests, which a court could presume Congress
meant to incorporate into the INA. See Pasquantino, 544 U.S.
at 360, 125 S.Ct. 1766.
The plaintiffs purport to locate such a rule in the common law
privilege against courthouse arrests for parties and witnesses
to a civil suit. For the most part, the origins of this privilege
are uncontroversial. At common law, a plaintiff in a civil
action obtained personal jurisdiction over a defendant by
means of a writ of capias ad respondendum. See Murphy

Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119
S.Ct. 1322, 143 L.Ed.2d 448 (1999). This writ “directed the
sheriff to secure the defendant's appearance by taking him into
custody.” Id. The common law also recognized other types
of arrests in civil suits. The writ of capias ad satisfaciendum,
for example, was a method of executing on a civil judgment
that directed the arrest of the judgment debtor. See Magniac v.
Thomson, 56 U.S. (15 How.) 281, 300, 14 L.Ed. 696 (1853).
English courts in the eighteenth and early nineteenth centuries
protected parties and witnesses attending court from at least
some of these forms of civil arrest. See, e.g., Ex parte
Byne, (1813) 35 Eng. Rep. 123, 123, 126 (Ch.); Walpole
v. Alexander, (1782) 99 Eng. Rep. 530, 531 (K.B.). This
protection — which the plaintiffs refer to as a “privilege”
— was designed both to remove a disincentive for inhibiting
parties and witnesses from coming forward (especially the
risk of arrest in connection with another matter) and to
ensure that arrests did not disrupt the orderly operation of
the courts. See Orchard's Case, (1828) 38 Eng. Rep. 987,
987 (Ch.); Walpole, 99 Eng. Rep. at 531. To effectuate these
dual purposes, the protection extended not only to residents
of England but also to foreigners entering the country for the
purpose of attending court. See Walpole, 99 Eng. Rep. at 531.
The protective carapace sheltered such individuals while
they were physically present in the courthouse and while
traveling to and from court. See Spence v. Stuart, (1802)
102 Eng. Rep. 530, 531 (K.B.); Meekins v. Smith, (1791)
126 Eng. Rep. 363, 363 (C.P.); Walpole, 99 Eng. Rep. at
531. And it applied regardless of whether the individual
attended court voluntarily or under subpoena. See Meekins,
126 Eng. Rep. at 363. As William Blackstone — “whose
works constituted the preeminent authority on English law for
the founding generation,” Alden v. Maine, 527 U.S. 706, 715,
119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) — summarized in
his Commentaries on the Laws of England,
*7 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 *289 (emphasis in
original).
This privilege survived an ocean crossing. “[A]rrests in civil
suits were still common in America” at the time of the

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founding, Long v. Ansell, 293 U.S. 76, 83, 55 S.Ct. 21,
79 L.Ed. 208 (1934), and there is no legitimate doubt that
courts in the newly independent United States engrafted this
privilege against courthouse arrests onto American common
law. In 1804, for instance, Justice Washington, riding circuit
in Pennsylvania, invoked the privilege to authorize the release
of a New York resident arrested on a writ of capias ad
satisfaciendum while in the state to testify at trial. See Hurst's
Case, 4 U.S. (4 Dall.) 387, 387-89, 12 F. Cas. 1019, 1019-20
(C.C.D. Pa. 1804). State courts in the early nineteenth century
widely agreed that parties and witnesses attending court were
not subject to arrest in civil suits. See, e.g., Norris v. Beach, 2
Johns. 294, 294 (N.Y. Sup. Ct. 1807) (per curiam); Fletcher v.
Baxter, 2 Aik. 224, 228-29 (Vt. 1827); Richards v. Goodson, 4
Va. (2 Va. Cas.) 381, 381-82 (Gen. Ct. 1823); cf. In re M'Neil,
3 Mass. (2 Tyng) 288, 288 (1807) (recognizing privilege but
not specifying nature of arrest). Questions concerning the
privilege often arose in cases involving parties and witnesses
crossing state lines to attend court, but the scope of the
privilege was not expressly limited to nonresidents. See, e.g.,
Hurst's Case, 4 U.S. (4 Dall.) at 387-89, 12 F. Cas. at 1019-20;
Norris, 2 Johns. at 294; cf. Thompson's Case, 122 Mass. 428,
429 (1877) (explaining that privilege against arrest applied to
parties and witnesses “whether they are residents of this state
or come from abroad”).

parties and witnesses “extend[ed] only to an exemption from
arrest,” not service of summons). But this view did not
prevail: recognizing that the threat of service of a summons
still risked chilling court attendance, the majority of courts
eventually ruled that a similar privilege against service of a
summons should extend to at least some parties and witnesses.
See Stewart v. Ramsay, 242 U.S. 128, 129-31, 37 S.Ct. 44,
61 L.Ed. 192 (1916) (collecting cases). Courts usually framed
this privilege as protecting nonresidents who had to enter a
jurisdiction to attend court proceedings. See, e.g., Diamond v.
Earle, 217 Mass. 499, 105 N.E. 363, 363 (1914); Richardson
v. Smith, 74 N.J.L. 111, 65 A. 162, 163 (1906); Parker v.
Marco, 136 N.Y. 585, 32 N.E. 989, 989 (1893). The Supreme
Court adopted such a framing of the privilege as a matter of
federal common law in 1916, holding 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.” Stewart, 242 U.S. at 129, 37 S.Ct. 44; see Page Co.
v. Macdonald, 261 U.S. 446, 448, 43 S.Ct. 416, 67 L.Ed.
737 (1923). Nevertheless, the Court restated the rule twice
in the early 1930s without explicitly limiting its scope to
nonresidents. See Long, 293 U.S. at 83, 55 S.Ct. 21; Lamb
v. Schmitt, 285 U.S. 222, 225, 52 S.Ct. 317, 76 L.Ed. 720
(1932).

The practice of arresting parties as a means of securing
personal jurisdiction in civil suits appears to have persisted
to some degree into the late nineteenth and early twentieth
centuries, and courts in such cases continued to recognize
the vitality of the common law privilege against courthouse
arrests. See, e.g., Larned v. Griffin, 12 F. 590, 590 (C.C.D.
Mass. 1882); Dickinson v. Farwell, 71 N.H. 213, 51 A. 624,
625 (1902); Ellis v. De Garmo, 17 R.I. 715, 24 A. 579, 579-80
(1892); see also Monroe v. St. Clair Cir. Judge, 125 Mich. 283,
84 N.W. 305, 306 (1900) (confirming existence of privilege
but declining to discharge arrestee based on circumstances
of arrest). Over time, though, personal service of a summons
generally supplanted the writ of capias ad respondendum as
the method for securing personal jurisdiction over a defendant
in a civil action, see Murphy Bros., 526 U.S. at 350, 119 S.Ct.
1322, and arrests in civil suits fell largely out of fashion.

*8 Relying on this history, the defendants argue that the
common law privilege against courthouse arrests in civil suits
evolved well before 1952 into a privilege against personal
service of a summons — a privilege that they say was
available only to nonresidents entering a jurisdiction for the
purpose of attending court. We should not presume that
Congress intended to incorporate the common law privilege
against courthouse arrests into the INA, their thesis runs,
because the privilege (at least insofar as it applied to arrests)
was a dead letter when Congress passed the statute. The
plaintiffs rejoin that the privilege against courthouse arrests
expanded to safeguard against service of a summons but did
not die off in its original form.

As this shift took place, some courts determined, early on,
that the privilege against arrest pursuant to a writ of capias
ad respondendum should not extend to service of a summons.
See Christian v. Williams, 35 Mo. App. 297, 303 (Ct. App.
1889) (collecting cases); see also Blight v. Fisher, 3 F. Cas.
704, 704-05 (C.C.D.N.J. 1809) (holding that privilege of

The short of it is that the parties draw radically different
conclusions from essentially the same nucleus of historical
facts. Although the defendants' argument about the evolution
of the common law privilege seems plausible, we need not
make a definitive ruling in this regard because there is a
clearer path leading to the conclusion that the plaintiffs have
failed to demonstrate a likelihood of success with respect to
their nonderogation theory.5 Even if (as the plaintiffs posit)
the privilege against courthouse arrests retained some vitality

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in 1952, the plaintiffs' reliance on the nonderogation canon is
misplaced. They have not demonstrated that there was a longestablished and familiar common law rule protecting against
civil arrests on behalf of the sovereign. Put another way, we
cannot presume that Congress intended to incorporate the
privilege into the INA because the plaintiffs have not shown
that it was clear in 1952 that the privilege had any application
to the type of arrest authorized by the INA. We explain briefly.
5

For the same reason, we have no need to explore the
defendants' related argument that the privilege as it
applied to service of process narrowed significantly after
the Supreme Court held in International Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95
(1945), that due process permits the exercise of personal
jurisdiction over certain parties who reside outside of the
territorial boundaries of the state.

To recapitulate, the nonderogation canon only informs the
construction of a federal statute when a relevant common
law rule was long-established and familiar at the time of the
statute's enactment. See Pasquantino, 544 U.S. at 359-60,
125 S.Ct. 1766; Texas, 507 U.S. at 534, 113 S.Ct. 1631.
The contours of the relevant common law rule are of
decretory significance. See Pasquantino, 544 U.S. at 362, 125
S.Ct. 1766. Those contours must be delineated clearly and
precisely. See id. at 360, 362, 125 S.Ct. 1766.
Pasquantino illustrates the point. There, the Supreme Court
addressed whether a scheme to defraud a foreign nation of
tax revenue came within the ambit of the federal wire fraud
statute. See id. at 352-53, 125 S.Ct. 1766. The petitioners
contended that the Court should refrain from construing
the statute in this manner in order to avoid derogating
from the common law revenue rule, which prohibited the
collection of a foreign tax liability. See id. at 359, 361, 125
S.Ct. 1766. The Court rejected this contention, holding that
“[t]he wire fraud statute derogates from no well-established
revenue rule principle.” Id. at 360, 125 S.Ct. 1766. In this
wise, the Court explained that no case decided before the
statute's enactment “held or clearly implied that the revenue
rule barred the United States from prosecuting a fraudulent
scheme to evade foreign taxes” and that its purposes did not
“plainly suggest that it swept so broadly.” Id. Along the way,
the Court declined the plaintiffs' invitation to analogize the
type of prosecution under consideration to factually distinct
circumstances in which the revenue rule had been applied,
such as civil suits indirectly seeking to enforce a foreign tax
obligation. See id. at 362-68, 125 S.Ct. 1766.

*9 Pasquantino teaches that the party seeking to read
a common law rule into the statute can only do so if
the factual circumstances are closely analogous to a case
of which Congress would have been aware. See id. at
364-65, 125 S.Ct. 1766 (explaining that absence of such a
case prevented Court from “say[ing] with any reasonable
certainty whether Congress in 1952 would have considered
this prosecution within the revenue rule”). In other words, the
proponent of the rule cannot rely exclusively on attenuated
analogies and speculative inferences to show that the rule
was long-established and familiar at the time of the statute's
enactment. See id. While the nonderogation canon allows
certain commonsense and obvious comparisons, see Bank
of Am. Corp. v. City of Miami, ––– U.S. ––––, 137 S.
Ct. 1296, 1305, 197 L.Ed.2d 678 (2017) (reading proximate
cause requirement into cause of action for damages under Fair
Housing Act, which is “akin” to tort claim), we only read
a common law rule into the statute if it generally qualifies
as long-established and familiar and if it is widely regarded
as applicable to the specific subject matter covered by the
statute.
In the case at hand, the plaintiffs have failed to demonstrate
that they are likely to succeed in showing that the common
law privilege against courthouse arrests clearly applied to
civil immigration arrests. First and foremost, the plaintiffs
have not offered any pre-1952 case law from an American
court that directly addresses the applicability of the privilege
either to civil immigration arrests or to fairly comparable
forms of civil arrest, that is, civil arrests on behalf of a
sovereign. Nor (to the extent that they might be probative of
how Congress would have viewed the common law in 1952)
do we find direct guidance on this score in the English sources
proffered by the parties. None expressly states whether the
privilege protected against arrests in some or all crowninitiated civil suits. The same lack of clarity is characteristic
of the literature: the plaintiffs do not identify a single treatise
or article directly stating that the common law privilege
extended to civil arrests on behalf of the sovereign.
What skimpy authority there is tends to suggest that crowninitiated suits may well have been exempted from the
operation of the privileges against arrest in court under
English common law. For example, cases and treatises
indicate that certain litigation-related privileges protecting
attorneys on account of their necessary attendance in court
did not apply in the context of such suits. See, e.g., Wheely
v. Richam, (1734) 92 Eng. Rep. 882, 882 (K.B.); 1 William
Tidd, The Practice of the Court of King's Bench in Personal

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Actions 264, 268 (William P. Farrand 1807) (1804). At
the end of the day, these authorities may strengthen the
defendants' hand — the two sets of privileges are intimately
related, as both of them developed in order to ensure that
necessary persons attended court proceedings, see 6 Matthew
Bacon, A New Abridgement of the Law 530 (7th ed. 1832)
(explaining that “[t]he law not only allows privileges to
the officers of the court, but also protects all those whose
attendance is necessary in courts,” including parties to a civil
suit) — but they are not dispositive because they concern the
privilege enjoyed by attorneys, not the privilege at issue here.
For their part, the plaintiffs — like Rumpelstiltskin — try
to convert dross into gold. They strive to persuade us to
treat the fact that various English treatises did not mention
an exception for crown-initiated civil suits to the privilege
for parties and witnesses, see, e.g., Tidd, supra, at 174-75,
as conclusive evidence that no such exception existed. We
are not convinced: the absence of any mention of arrests on
behalf of the sovereign, when coupled with the utter dearth
of any case law holding such arrests to be within the ambit
of the privilege, undercuts the claim that such an application
of the privilege should be regarded as long-established and
familiar.6
6

For similar reasons, we do not find dispositive that
Blackstone's treatise described the common law privilege
in a chapter on initiating process for suits involving
“private wrongs,” a category that apparently included
certain “injuries proceeding from, or affecting, the
crown.” 3 William Blackstone, Commentaries *254,
*289. Notably, Blackstone's description of the attorney
privileges appears on the same page, but he did not
mention the well-settled exception for crown-initiated
civil suits applicable to those privileges. See id. at *289.

*10 Where does this leave us? The absence of clear
precedent involving fairly comparable forms of civil arrest
throws considerable shade on the plaintiffs' effort to show
that, in 1952, there was a long-established and familiar
common law rule privileging individuals attending court on
official business from civil immigration arrests, but it does not
drive a final nail into the coffin of their nonderogation theory.
It remains a possibility that we might be able to presume that
Congress meant to incorporate such a common law privilege
into the INA if the case law as of 1952 “clearly implied”
that the privilege would extend to such arrests. Pasquantino,
544 U.S. at 360, 125 S.Ct. 1766. On further perscrutation,
though, this possibility dissipates: our canvass of the case law
discloses nothing resembling a clear implication to this effect.

The centerpiece of the plaintiffs' forecast that the common
law privilege would have applied to civil immigration arrests
is their claim that, historically, the privilege protected against
any and all forms of civil arrest. This claim, if supportable,
would take them a long way toward their goal, given that
immigration arrests are undeniably civil in nature. See, e.g.,
United States v. Encarnacion, 239 F.3d 395, 400 (1st Cir.
2001) (referring to “civil deportation arrests and detentions
under 8 U.S.C. § 1357(a)(2)”). Such arrests aim to facilitate
the removal of noncitizens from the country, see United
States v. Vasquez-Benitez, 919 F.3d 546, 553 (D.C. Cir.
2019); cf. Demore v. Kim, 538 U.S. 510, 528, 123 S.Ct.
1708, 155 L.Ed.2d 724 (2003) (explaining that detention
during removal proceedings of noncitizens who have certain
criminal convictions “increas[es] the chance that, if ordered
removed, [they] will be successfully removed”), which is a
civil — not criminal — sanction, see Padilla v. Kentucky,
559 U.S. 356, 365, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010);
Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct.
512, 96 L.Ed. 586 (1952). So, too, courts discussing the
scope of the common law privilege sometimes used language
suggesting that the privilege had broad application to many
types of civil arrests. See, e.g., Underwood v. Fosha, 73 Kan.
408, 85 P. 564, 565 (1906) (describing privilege for parties
and witnesses “from civil arrest”); Fisher v. Bouchelle, 134
W.Va. 333, 61 S.E.2d 305, 306 (1950) (referring to “long
existing rule ... that courts will not permit their proceedings
to be disturbed by the arrest in a civil case” of parties and
witnesses).
Digging deeper, though, discloses that the plaintiffs' claim
is insupportable. The authorities that the plaintiffs muster in
their attempt to demonstrate a well-established and familiar
common law rule mostly involved civil arrests in private
litigation, and the exceptions, though silent on the nature of
the underlying lawsuits, offer no reason to think that they
arose out of actions brought on behalf of a sovereign. The
plaintiffs track the origins of the privilege to cases involving
arrests on common law writs in suits between private parties.
See, e.g., Norris, 2 Johns. at 294; Fletcher, 2 Aik. at 224-25,
228-29; Richards, 4 Va. (2 Va. Cas.) at 381-82; Walpole, 99
Eng. Rep. at 530-31; Ex parte Byne, 35 Eng. Rep. at 124.
Similarly, cases that recognized the continuing vitality of the
privilege in the late nineteenth and early twentieth centuries
almost always involved the arrest of a party to a private civil
suit. See, e.g., Larned, 12 F. at 590; Monroe, 84 N.W. at 306;
Dickinson, 51 A. at 625; Ellis, 24 A. at 579-80. As far we can
tell, none involved an arrest on behalf of a sovereign.

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Because the entirety of the pre-1952 case law pertaining to the
common law privilege appears to have involved private civil
suits, we think that any language in the case law suggesting
a broader rule that the privilege applied to all forms of civil
arrest can best be read as shorthand for a statement that
the privilege applied to a wide swath of arrests in private
civil suits. Had Congress inspected the case law in 1952
with any degree of care, we are confident that it would have
concluded — as we do — that there was no clear historical
precedent for extending the privilege to arrests on behalf of
the sovereign. Thus, we reject the plaintiffs' assertion that
Congress would have reflexively inferred that the privilege
protected against any and all forms of civil arrest, including
the civil immigration arrests that it was authorizing in the
INA.
*11 Of course, the fact that it was well-established and
widely understood in 1952 only that the privilege applied to
arrests in private civil suits does not necessarily doom the
plaintiffs' proposed application of the nonderogation theory.
After all, Congress might have had no reason to believe that
the common law would have treated arrests on behalf of
the sovereign as a breed apart. Cf. Pasquantino, 544 U.S.
at 364, 125 S.Ct. 1766 (rejecting nonderogation argument
when factual differences between common law cases and
application of statute were “significant”). Here, however, this
possibility is more theoretical than real: it is luminously clear
to us (and it would have been luminously clear to Congress
in 1952) that civil immigration arrests differ from arrests in
private civil suits in a key respect. Civil immigration arrests
are initiated by the sovereign in order to vindicate uniquely
sovereign interests rather than private or proprietary interests.
Controlling immigration and the presence of noncitizens
within the country are duties and powers vested exclusively in
the sovereign. See Dep't of Homeland Sec. v. Thuraissigiam,
––– U.S. ––––, 140 S. Ct. 1959, 1982, ––– L.Ed.2d ––––
(2020) (“[T]he power to admit or exclude aliens is a sovereign
prerogative.” (quoting Landon v. Plasencia, 459 U.S. 21, 32,
103 S.Ct. 321, 74 L.Ed.2d 21 (1982))); Galvan v. Press,
347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954)
(“Policies pertaining to the entry of aliens and their right
to remain here are peculiarly concerned with the political
conduct of government.”). It is too abecedarian a proposition
to warrant citation of authority that a private party cannot
initiate proceedings to remove a noncitizen from the country.
Nor does removal remotely resemble any type of civil remedy
available to private litigants.

The fact that civil immigration arrests are initiated by the
sovereign to vindicate uniquely sovereign interests is crucial
to our analysis. This fact affords a powerful reason to
believe that courts would have treated such arrests more like
criminal arrests than like the types of civil arrest at issue
in the cases to which plaintiffs advert. And the plaintiffs
— whose skillful lawyers vigorously contest every arguable
point — do not dispute that the privilege has never been
thought to protect against criminal arrests or other forms
of criminal process. See, e.g., Ex parte Levi, 28 F. 651,
652-53 (W.D.S.C. 1886); Cooper v. United States, 48 A.2d
771, 773 (D.C. 1946); State v. Gillmore, 88 Kan. 835, 129
P. 1123, 1125 (1913); Schwartz v. Dutro, 298 S.W. 769,
771 (Mo. 1927); see also 2 Joseph Story, Commentaries
on the Constitution of the United States325 (Hilliard, Gray,
and Co. 1833) (explaining that constitutional privilege
of members of Congress against arrest, which excludes
arrests for crimes, mirrors common law privilege against
courthouse arrests for parties and witnesses). This is no mere
happenstance: although criminal arrests in courthouses risk
deterring parties and witnesses from coming forward and also
risk disrupting ongoing proceedings, courts have refrained
from extending the privilege to criminal arrests due to the
overriding sovereign interests in enforcing the penal laws and
protecting the public. See United States v. Conley, 80 F. Supp.
700, 702-03 (D. Mass. 1948); cf. Bacon, supra, at 532-33
(explaining that related English common law privilege for
attorneys did not apply to “indictments, informations, or suits,
in which the king alone is concerned” because courts should
not protect “those who offend against the public peace of the
community and the king's interest”).
We add, moreover, that the analogy between criminal arrests
and civil immigration arrests is close enough to preclude
us from saying with sufficient confidence that immigration
arrests would have fit within the privilege from civil arrest.
Just as criminal arrests implicate the uniquely sovereign
interests in enforcing the penal laws and protecting the public,
so too do civil immigration arrests seek to vindicate similar
kinds of interests in controlling immigration and the presence
of noncitizens in the country. And just as the common law
privilege was not applied to criminal arrests because of these
overriding sovereign interests, one would think (for the same
reason) that the privilege would not shield civil immigration
arrests. Especially in light of this plausible argument for
treating civil immigration arrests like criminal arrests vis-àvis the privilege, there is no principled way to find that the
case law in 1952 clearly implied that the privilege would have
afforded a shield against civil immigration arrests.

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*12 The plaintiffs' remaining arguments regarding the
privilege are unavailing. They emphasize, for example, that
the dual purposes undergirding the privilege in the context
of arrests in private civil suits apply in much the same
way to civil immigration arrests. This argument has a patina
of plausibility: ICE's policy of conducting civil courthouse
arrests may inhibit parties and witnesses from attending
court proceedings and, in the bargain, it may in certain
circumstances disrupt orderly court operations. But even
though such considerations may have held dispositive weight
when courts determined whether to privilege parties and
witnesses from arrests in private civil suits, that reasoning
carries much less weight with respect to civil immigration
arrests. As we already have made pellucid, civil immigration
arrests implicate uniquely sovereign interests. Consequently,
the purposes underlying the common law privilege comprise
too frail a foundation for an assumption that the privilege
would have applied to civil immigration arrests.
We find equally unconvincing the plaintiffs' attempt to
analogize civil immigration arrests and arrests on a writ of
capias ad respondendum. It is true that, viewed from ten
thousand feet, these types of arrest bear a faint resemblance:
each involves a government officer taking someone into
custody to ensure his appearance at a civil proceeding. Apart
from the “civil” label, though, removal proceedings have little
in common with a typical private lawsuit. No less an authority
than the Supreme Court has referred to removal as a “unique”
civil penalty in light of its particularly harsh consequences
and its close connection to the criminal process. Padilla, 559
U.S. at 365-66, 130 S.Ct. 1473. To assume that a privilege
that protected against civil arrests pursuant to a writ of capias
ad respondendum would translate to immigration arrests
because of a few superficial similarities would be to accept
exactly the type of attenuated analogy that the Pasquantino
Court deemed insufficient to warrant the application of the
nonderogation canon. Simply put, the two types of arrest are
not fair congeners.
We summarize succinctly. The case law is wholly devoid
of any clear precedent on whether the common law in
1952 would have applied the privilege against courthouse
arrests to civil immigration arrests. The literature is equally
nebulous. But even in this shadowy corner of the law, some
things are manifest. Although the privilege protected against
arrests in private civil suits, it did not apply to criminal
arrests — and the fact that civil immigration arrests aim
to vindicate uniquely sovereign interests supplies a strong

reason to think that the common law would have treated
them like criminal arrests for purposes of this privilege. The
unique nature of removal further undermines any analogy
between civil immigration arrests and arrests in private civil
suits. Given these disparities, we cannot say with a reasonable
degree of assurance that, in 1952, Congress would have
considered the civil immigration arrests authorized in the
INA to come within the scope of the common law privilege.
See Pasquantino, 544 U.S. at 364-65, 125 S.Ct. 1766. We
conclude, therefore, that the plaintiffs are unlikely to succeed
in demonstrating a long-established and familiar common law
rule barring courthouse arrests that can be presumed to have
been incorporated into the INA's civil arrest authority.

B.
This conclusion does not end our odyssey. The plaintiffs
have a fallback position: they offer a different reason why,
in Massachusetts, ICE's implementation of the Directive and
its policy of conducting civil courthouse arrests exceed its
statutory authority. Their rationale is that even if Congress
has not incorporated the common law privilege against
courthouse arrests into the INA's civil arrest authority, the
statute still should not be construed to allow ICE officers
to conduct civil courthouse arrests that transgress state law.
In support, they assert that the privilege against courthouse
arrests for persons attending court on official business is
firmly established in Massachusetts common law; that this
privilege is emblematic of an exercise of the Commonwealth's
sovereign power to operate its judiciary; and that the INA
does not contain a clear statement of Congress's intent to
permit civil immigration arrests that violate such a core statelaw privilege.
*13 Before tackling this argument, we pause to examine the
framework that guides our inquiry. The plaintiffs dress their
argument in the raiment of preemption, maintaining that the
text of the INA fails to rebut the presumption that Congress
would not have intended to preempt the Massachusetts
common law privilege against courthouse arrests. Federal
preemption, though, is typically a defense to an alleged
violation of state law, see Lawless v. Steward Health Care
Sys., LLC, 894 F.3d 9, 17 (1st Cir. 2018), and the plaintiffs
have sought preliminary injunctive relief only on their APA
claim, not on the ground that ICE's implementation of the
Directive and its policy of conducting civil courthouse arrests
violate Massachusetts law. Refined to bare essence, their
argument suggests that we should construe the INA in a

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way that would not authorize civil arrests in a manner that
interferes with a state's chosen method of maintaining order
and liberty within the confines of the state's courthouses. This
suggestion fits more neatly under the federalism canon of
statutory construction described in Gregory v. Ashcroft, 501
U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). Mindful
that the relevant portion of the plaintiffs' brief relies heavily
on Gregory, we examine their argument through that lens.7
7

It is worth noting that the federalism canon of statutory
construction and the presumption against preemption of
state law are intimately related doctrines. Both reflect a
reluctance to ascribe to Congress an intent to interfere
with a state's exercise of its sovereign powers, see Raygor
v. Regents of the Univ. of Minn., 534 U.S. 533, 543-44,
122 S.Ct. 999, 152 L.Ed.2d 27 (2002), and Congress
must clearly state such an intent if the presumption
created by either doctrine is to be rebutted, compare
Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187,
173 L.Ed.2d 51 (2009) (preemption), with Gregory,
501 U.S. at 460-61, 111 S.Ct. 2395 (federalism canon).
Consequently, our analysis would proceed in much the
same manner were we to examine the plaintiffs' argument
under the rubric of preemption.

The federalism canon of statutory construction flows from
the elementary principle that “the States retain substantial
sovereign powers under our [federal] constitutional scheme.”
Id. at 461, 111 S.Ct. 2395. When Congress acts within the
bounds of its enumerated powers, the Supremacy Clause
permits it to “impose its will on the States” and to “legislate
in areas traditionally regulated by the States.” Id. at 460, 111
S.Ct. 2395. Given the “extraordinary” nature of this power,
we assume that “Congress does not exercise [it] lightly.” Id.
It follows that before construing a federal statute in a way
that “would upset the usual constitutional balance of federal
and state powers,” courts must search for a clear statement
indicating that such a result represents Congress's intent. Id.
at 460-61, 111 S.Ct. 2395; see Bond v. United States, 572 U.S.
844, 858, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014).
The Supreme Court first described this canon of statutory
construction in Gregory, which addressed whether Missouri's
constitutional mandate that state judges must retire at
age seventy violated the federal Age Discrimination in
Employment Act of 1967 (ADEA). See 501 U.S. at 455,
111 S.Ct. 2395. The question before the Court boiled down
to whether a state judge qualifies as “an appointee on the
policymaking level” — a category of persons excluded from
the ADEA's sweep. Id. at 464-65, 467, 111 S.Ct. 2395

(quoting 29 U.S.C. § 630(f)). The Court recognized that a
state's choice of qualifications for its judges “is a decision
of the most fundamental sort for a sovereign entity.” Id. at
460, 111 S.Ct. 2395. Because “[c]ongressional interference”
with this type of state decisionmaking “would upset the usual
constitutional balance of federal and state powers,” the Court
asked whether the ADEA contained a clear statement that
state judges were included within the statute's scope. Id. at
460-61, 467, 111 S.Ct. 2395. Answering this question, the
Court concluded that it was “at least ambiguous whether a
state judge is an 'appointee on the policymaking level' ” and,
therefore, found that the ADEA did not contain the requisite
clear statement indicating that Congress intended to cover
state judges. Id. at 467, 111 S.Ct. 2395.
Invoking the reasoning of Gregory, the plaintiffs contend that
the INA's generic civil arrest authority does not authorize ICE
to conduct civil courthouse arrests in Massachusetts because
the statute does not contain a clear statement of Congress's
intent to interfere with Massachusetts's sovereign decision to
protect individuals attending court on official business from
civil arrests. The district court did not address this contention
because it found that the plaintiffs had shown a likelihood of
success on the merits of their nonderogation theory. See Ryan,
382 F. Supp. 3d at 155-59. This gap in the record presents a
daunting obstacle. While we generally may affirm a district
court's decree on any ground made manifest by the record, see
Kando v. R.I. State Bd. of Elections, 880 F.3d 53, 58 (1st Cir.
2018); Mason v. Telefunken Semiconductors Am., LLC, 797
F.3d 33, 37-38 (1st Cir. 2015), this tenet does not permit us to
affirm on grounds that are premised on factual determinations
that the district court did not make and that the parties dispute.
After all, except in rare circumstances (not present here), an
appellate court may not engage in its own factfinding where
the record contains evidence on a particular point that could
lead reasonable factfinders to competing conclusions. See
Candelario-Del-Moral v. UBS Fin. Servs. Inc. of P.R. (In re
Efron), 746 F.3d 30, 38 (1st Cir. 2014); Dedham Water Co.
v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 463 (1st Cir.
1992).
*14 This is such a case. The absence of pertinent factfinding
by the district court, coupled with the conflicting data points
in the record on Massachusetts's policy on courthouse arrests,
leads inexorably to a conclusion that we cannot affirm the
entry of the preliminary injunction based on the plaintiffs'
clear-statement argument.

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 Ryan v. U.S. Immigration and Customs Enforcement, --- F.3d ---- (2020)

To be sure, the plaintiffs' argument rests on an uncontroversial
premise: the operation of a functioning judiciary is
unmistakably a fundamental exercise of state sovereignty.
See Atl. Coast Line R.R. Co. v. Brotherhood of Locomotive
Eng'rs, 398 U.S. 281, 285, 287, 90 S.Ct. 1739, 26 L.Ed.2d
234 (1970) (explaining that states reserved power to maintain
“judicial systems for the decision of legal controversies” and
referring to “the fundamental constitutional independence
of the States and their courts”). Inasmuch as congressional
interference with a state's ability to manage the core functions
of its judiciary would tilt the constitutional balance between
state and federal power, courts must be certain of Congress's
intent before interpreting a federal statute to authorize such
interference. Against this backdrop, we assume — solely for
purposes of this appeal — that a decision by Massachusetts to
prohibit at least some courthouse arrests would represent an
exercise of the Commonwealth's sovereign power to operate
its judiciary, one with which Congress would not readily
interfere.
Here, however, the train goes off the tracks when we move
from the theoretical state of affairs to the actual state of affairs.
Because the plaintiffs' argument is premised on the notion
that construing the INA to authorize civil courthouse arrests
would clash with a sovereign state decision, we must know
the scope of Massachusetts's policy on courthouse arrests in
order to evaluate the argument. Without such knowledge, we
cannot determine whether and to what extent the INA's civil
arrest authority and ICE's actions pursuant to that authority
may (or may not) interfere with Massachusetts's exercise
of its sovereign power. And because the parties seeking
a preliminary injunction bear the burden of demonstrating
a likelihood of success on the merits of their claim, see
New Comm Wireless Servs., 287 F.3d at 9, the plaintiffs
bear the burden of establishing the contours of the relevant
Massachusetts policy (which is an essential factual predicate
to the success of their argument). They have so far failed to
carry this burden.
The plaintiffs demur, contending that the Commonwealth's
policy is embodied exclusively in the relevant Massachusetts
case law on the common law privilege against courthouse
arrests. To buttress this contention, they point out that
throughout the nineteenth century, the SJC recognized that
parties and witnesses were privileged from civil arrests
while attending court proceedings. See Thompson's Case,
122 Mass. at 429; May v. Shumway, 82 Mass. (16 Gray)
86, 86-87 (1860) (per curiam); Wood v. Neale, 71 Mass. (5
Gray) 538, 538 (1855); In re M'Neil, 3 Mass. (2 Tyng) at

288. They note, as well, that the SJC referred to this rule
again in both 1914 and 1968 (albeit in cases involving the
related privilege protecting against service of a summons).
See Valley Bank & Tr. Co. v. Marrewa, 354 Mass. 403, 237
N.E.2d 677, 680 (1968); Diamond, 105 N.E. at 363. Although
the SJC has never addressed whether the privilege protects
against civil immigration arrests, Justice Cypher, in a single
justice opinion, recently described her view “that there exists
a common law privilege against civil arrest in Massachusetts
and that the privilege, as a matter of State law, is broad enough
to include arrests by Federal officers.” Matter of C. Doe,
No. SJ-2018-119, slip op. at 12 (Mass. Sept. 18, 2018). The
plaintiffs urge us to take Justice Cypher's analysis to mean that
all civil immigration arrests of noncitizens attending court on
official business violate Massachusetts law and policy.
*15 But this case law on the common law privilege
is far from the only data point in the record regarding
Massachusetts's policy on courthouse arrests. In November
of 2017, the Chief Justice of the Massachusetts Trial Court
promulgated a set of rules governing how “staff shall respond
when [ICE officers] enter a Massachusetts courthouse with
the intent of taking custody of an individual.” These rules
specify that ICE officers may not civilly arrest noncitizens
in nonpublic areas of state courthouses or (absent advance
permission) in courtrooms. Withal, they recognize that ICE
officers may otherwise conduct civil immigration arrests in
courthouses as long as they follow certain procedures and
do not disrupt court operations. This arrangement, as the
defendants emphasize, is seemingly at odds with the plaintiffs'
interpretation of the Massachusetts common law privilege; it
indicates that Massachusetts courts do not object to all civil
immigration arrests of noncitizens attending court on official
business.
The bottom line is that we are confronted with an unsettled
record concerning Massachusetts's policy on courthouse
arrests. Since the district court grounded the preliminary
injunction solely on its determination that the plaintiffs
were likely to succeed on their nonderogation theory — a
determination that turned on its mistaken assessment of longestablished common law throughout the country rather than
the particulars of Massachusetts law or policy, see Ryan, 382
F. Supp. 3d at 155-59 — it did not perform any factfinding
that would assist in clarifying this unsettled area of the
record. Nor did the court attempt to reconcile the plaintiffs'
interpretation of the Massachusetts common law privilege
against courthouse arrests with the Trial Court's rules, thus

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 Ryan v. U.S. Immigration and Customs Enforcement, --- F.3d ---- (2020)

appearing to accept as a given ICE's authority to arrest certain
noncitizens purportedly protected by the privilege.

*16 Here, moreover, a myriad of other factors beyond the
underdeveloped record must be factored into the equation. For
one thing, the parties have not fully explored the ramifications

This gap in the record is material in the sense that the manner
in which it is filled could affect the outcome of the case.
What is more, there is no avenue (short of a remand) through
which we can bridge it. Undertaking the missing factfinding
in the first instance not only would usurp the district court's
prerogative but also would exceed the limits of our appellate
role. See In re Efron, 746 F.3d at 38; Dedham Water Co., 972
F.2d at 463. Such an act of judicial hubris, problematic at any
time, would be especially unwise where, as here, the record
on appeal is glaringly underdeveloped.

of the Gregory-based argument in their briefing.9 For another
thing, the argument raises complex and novel legal issues,
and we do not have the benefit of the district court's
insights on those issues. To add yet another complication,
it is unclear whether a policy forbidding the arrest of all
individuals attending court proceedings would constitute
the type of exercise of state sovereignty that triggers
Gregory's clear-statement rule. See 501 U.S. at 460, 111
S.Ct. 2395 (emphasizing that state constitutional provision
setting qualifications for judges “is a decision of the most
fundamental sort for a sovereign entity”); cf. EEOC v.
Massachusetts, 987 F.2d 64, 66, 69 (1st Cir. 1993) (finding
Gregory inapplicable in deciding whether state law requiring
public employees to pass medical examination at age seventy
violated ADEA). It is possible that only a narrower range
of courthouse arrests (say, those occurring in the courtroom
itself) would fall within this taxonomy. And this is just the tip
of the iceberg: taken together, the uncertainties that pervade
this area of the record counsel in favor of judicial restraint.
See Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122,
134 (1st Cir. 1997) (refusing to resolve complex legal issue
for first time on appeal in light of deficiencies in the record,
absence of district court opinion, and lack of full briefing from
parties).

An example serves to illustrate this point. The plaintiffs
attempt to diminish the significance of the Trial Court's
rules as evidence of Massachusetts's policy on courthouse
arrests by arguing that a broader ban on civil immigration
arrests in courthouses would be futile because ICE has made
clear that it would not comply with such a ban. Relatedly,
the plaintiffs argue that the Trial Court enacted these rules
in order to restrict the involvement of court staff in ICE's
enforcement actions rather than to cooperate with ICE. But
without more information about both ICE's intent and the
nature and purpose of the Trial Court's rules, we are left
with a predicate that is manifestly inadequate for answering
the factual questions that must be answered to resolve these
arguments.
That ends this aspect of the matter. Given the unsettled
nature of the record and the absence of pertinent factfinding
by the district court, we cannot conclude that the plaintiffs
have made a sufficient showing of Massachusetts's policy
on courthouse arrests to carry their burden. And without
such a showing, we have no baseline from which we can
assess whether the INA's civil arrest authority may (or may
not) interfere with the state's sovereign power to operate its
judiciary.8
8

Once again, an example helps to illustrate the point. The
defendants represented at oral argument that ICE has
exercised its civil arrest authority in compliance with
the Trial Court's rules. If so, and if those rules comport
with Massachusetts's policy, we would be hard-pressed
to hold that ICE's exercise of its civil arrest authority
clashes with the Commonwealth's sovereign power in
a way that would engender federalism concerns. Under
such a scenario, it is questionable whether Gregory's
clear-statement rule would be triggered at all.

9

Although there are many such ramifications, one is
particularly striking. If taken to its logical end point,
the plaintiffs' Gregory-based argument leads to a strange
result: ICE's authority to conduct civil courthouse arrests
might vary on a state-by-state basis, depending on each
state's policy on the subject.

Let us be perfectly clear. We take no view on the role, if any,
that Gregory and the federalism canon may play in construing
the scope of the INA's civil arrest authority. Nor do we make
any determination about the law or policy of Massachusetts
vis-à-vis courthouse arrests. With respect to this issue, we
conclude only that, without additional factfinding, the lack
of clarity in the record about Massachusetts's policy on
courthouse arrests prevents us from determining whether
or not the plaintiffs are likely to succeed on the merits of
their Gregory-based argument. Following remand, the district
court may evaluate this argument, either on a renewed motion
for preliminary injunction or on the merits, with the help of
both a better-developed record and more exegetic briefing.
As part of its evaluation, the district court may consider
whether, on a better-developed record, it would be appropriate

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to certify a question or questions to the SJC in order to pin
down Massachusetts's policy on courthouse arrests. See Mass.
S.J.C. Rule 1:03; see also Matter of C. Doe, No. SJ-2018-119,
slip op. at 12 n.14 (Mass. Sept. 18, 2018) (“If a Federal
Court were at all in doubt about the continued existence of
the privilege in Massachusetts, or its applicability in given
circumstances, it would of course be free to certify to this
court any questions it has about the existence and applicability
of the privilege.”).
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we conclude that the plaintiffs thus far have failed to show
a likelihood of success on the merits of their nonderogation
theory, that is, that the Directive and its authorization of civil
courthouse arrests by the federal government to enforce the
immigration laws, exceed ICE's statutory authority because
the INA implicitly incorporates a common law privilege
against courthouse arrests. The district court's contrary ruling
was based on a material error of law and, thus, we hold that it
constitutes an abuse of discretion. See Corp. Techs., 731 F.3d
at 10. So, too, we hold that the plaintiffs have not to this point
shown a likelihood of success on their APA claim based on the
argument that, in Massachusetts, ICE's implementation of the
Directive and its policy of conducting civil courthouse arrests
exceed its statutory authority because Congress has not made
clear its intent to permit ICE to conduct arrests in violation
End of Document

of state law.10 As a movant may not secure a preliminary
injunction without demonstrating a likelihood of success on
the merits, we have no need to consider the parties' arguments
concerning either the remainder of the preliminary injunction
calculus or the scope of the district court's injunction. See
Wine & Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36,
54 (1st Cir. 2005).
10

Certain amici supporting the plaintiffs asseverate that
ICE's policy of arresting noncitizens in courthouses is
unlawful for a variety of other reasons. We decline to
address these asseverations. The customary praxis in this
circuit is to eschew arguments raised only by amici and
not by the parties. See, e.g., In re Sony BMG Music Ent.,
564 F.3d 1, 3 (1st Cir. 2009); Lane v. First Nat'l Bank of
Bos., 871 F.2d 166, 175 (1st Cir. 1989). We see no reason
to depart from this praxis today.

*17 We vacate the preliminary injunction and remand to
the district court for further proceedings consistent with this
opinion. All parties shall bear their own costs.
Vacated and remanded.
All Citations
--- F.3d ----, 2020 WL 5201945

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Government Works.

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