Ryan v. ICE ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1838
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Torruella, Selya, and Kayatta,
Circuit Judges.
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 Rubio-Spring, 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.
September 1, 2020
SELYA, Circuit Judge. 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 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
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the Directive and generally challenging ICE's policy of civilly
arresting individuals attending court on official business.1
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
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.
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.
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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.
I. BACKGROUND
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
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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 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
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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, 78 N.E.3d 1143,
1146 (Mass. 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 state-court 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
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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
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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 that the Directive
exceeds ICE's statutory authority because the civil arrest power
"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.
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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.
4The 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.
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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).
The movant's likelihood of success on the merits weighs
most heavily in the preliminary injunction calculus. See Ross-
Simons, 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.- 11 -
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
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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
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.
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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."
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 (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
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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
(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
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evident." Id. (alterations in original) (quoting United States v.
Texas, 507 U.S. 529, 534 (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. 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 (2014); Samantar v. Yousuf,
560 U.S. 305, 320 n.13 (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;
Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108
(1991); cf. Scheidler v. Nat'l Org. for Women, Inc., 547 U.S. 9,
23 (2006) (explaining that "canons of interpretation . . . are
tools designed to help courts better determine what Congress
intended").
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
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Astoria, 501 U.S. at 108. 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(quoting Texas, 507 U.S. at 534). 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 (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; Astoria,
501 U.S. at 108.
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
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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.
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 (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 (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
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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 (1999) — summarized in his Commentaries on the Laws of
England,
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.
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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
founding, Long v. Ansell, 293 U.S. 76, 83 (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.
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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").
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, 51 A. 624, 625 (N.H. 1902); Ellis v. De Garmo, 24 A.
579, 579-80 (R.I. 1892); see also Monroe v. St. Clair Cir. Judge,
84 N.W. 305, 306 (Mich. 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, and arrests in
civil suits fell largely out of fashion.
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 parties and
- 21 -
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 (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, 105 N.E. 363, 363 (Mass. 1914); Richardson v. Smith, 65 A.
162, 163 (N.J. 1906); Parker v. Marco, 32 N.E. 989, 989 (N.Y.
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; see Page Co. v. Macdonald, 261 U.S. 446,
448 (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; Lamb v. Schmitt, 285 U.S.
222, 225 (1932).
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
- 22 -
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.
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 in
1952, the plaintiffs' reliance on the nonderogation canon is
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
(1945), that due process permits the exercise of personal
jurisdiction over certain parties who reside outside of the
territorial boundaries of the state.
- 23 -
misplaced. They have not demonstrated that there was a long-
established 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.
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; Texas, 507 U.S.
at 534. The contours of the relevant common law rule are of
decretory significance. See Pasquantino, 544 U.S. at 362. Those
contours must be delineated clearly and precisely. See id. at
360, 362.
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. 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. The Court rejected this contention, holding that "[t]he
wire fraud statute derogates from no well-established revenue rule
- 24 -
principle." Id. at 360. 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.
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 (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, 137 S. Ct. 1296, 1305 (2017) (reading proximate cause
requirement into cause of action for damages under Fair Housing
- 25 -
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 crown-initiated 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
crown-initiated suits may well have been exempted from the
operation of the privileges against arrest in court under English
- 26 -
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 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
- 27 -
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
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. 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
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.
- 28 -
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 (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
(2010); Harisiades v. Shaughnessy, 342 U.S. 580, 594 (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, 85 P. 564, 565 (Kan. 1906) (describing privilege for
parties and witnesses "from civil arrest"); Fisher v. Bouchelle,
61 S.E.2d 305, 306 (W. Va. 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).
- 29 -
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.
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
- 30 -
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.
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 (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
- 31 -
noncitizens within the country are duties and powers vested
exclusively in the sovereign. See Dep't of Homeland Sec. v.
Thuraissigiam, 140 S. Ct. 1959, 1982 (2020) ("[T]he power to admit
or exclude aliens is a sovereign prerogative." (quoting Landon v.
Plasencia, 459 U.S. 21, 32 (1982))); Galvan v. Press, 347 U.S.
522, 531 (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, 129 P.
1123, 1125 (Kan. 1913); Schwartz v. Dutro, 298 S.W. 769, 771 (Mo.
- 32 -
1927); see also 2 Joseph Story, Commentaries on the Constitution
of the United States 325 (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
- 33 -
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-à-vis 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.
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.
- 34 -
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. 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
- 35 -
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. 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
- 36 -
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 state-law privilege.
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
- 37 -
in a 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 (1991).
Mindful that the relevant portion of the plaintiffs' brief relies
heavily on Gregory, we examine their argument through that lens.7
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. 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. 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
7It 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 (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 (2009)
(preemption), with Gregory, 501 U.S. at 460-61 (federalism canon).
Consequently, our analysis would proceed in much the same manner
were we to examine the plaintiffs' argument under the rubric of
preemption.
- 38 -
state powers," courts must search for a clear statement indicating
that such a result represents Congress's intent. Id. at 460-61;
see Bond v. United States, 572 U.S. 844, 858 (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. 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 (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. 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. 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.
- 39 -
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).
- 40 -
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.
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 (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.
- 41 -
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.
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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, 237 N.E.2d 677, 680 (Mass. 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.
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
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(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 long-established 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 appearing to accept as a given ICE's
authority to arrest certain noncitizens purportedly protected by
the privilege.
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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.
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.
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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
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 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
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.
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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 (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).
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
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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 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
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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 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).
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.
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.
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