D.Mass.: ICE civil immigration arrests at Boston state courthouse enjoined

In a case brought by the Suffolk County DA in Boston, ICE is ordered to not civilly arrest witnesses and defendants at the courthouse. At common law, witnesses were immune from civil arrest at court. The court finds nothing in the INA that shows Congressional intent to override the common law protection against civil arrest at court. Therefore, there is a likelihood of success on the merits and irreparable harm is shown. Ryan v. U.S. Immigration and Customs Enforcement, 1:19-cv-11003-IT (D.Mass. June 20, 2019):

The United States imported that procedure of civil arrest and that common law privilege against civil arrest at courthouses into its judicial system. See Stewart v. Ramsay, 242 U.S. 128, 130 (1916) (“[The privilege] is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify.”) (quoting Parker v. Hotchkiss, 18 F. Cas. 1137, 1138 (C.C.E.D. Pa. 1849)). “It has long been settled that parties and witnesses attending in good faith any legal tribunal, with or without a writ of protection, are privileged from arrest on civil process during their attendance, and for a reasonable time in going and returning.” Larned v. Griffin, 12 F. 590, 590 (C.C.D. Mass 1882). The United States Constitution recognizes a similar privilege from civil arrest during legislative proceedings, stating that members of Congress are “privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same.” U.S. Const. art. I, § 6, cl. 1. In explaining this clause in his treatise on the Constitution, Justice Storey underscored the fundamental nature of the privilege against courthouse arrests, noting that “[t]his privilege is conceded by law to the humblest suitor and witness in a court of justice.” Williamson v. United States, 207 U.S. 425, 443 (1908) (quoting Joseph Story, Commentaries on the Constitution of the United States, (1883)). Indeed, courts in the United States have recognized that “justice requires the attendance of witnesses cognizant of material facts, and hence that no unreasonable obstacles ought to be thrown in the way of their freely coming into court to give oral testimony.” Diamond v. Earle, 217 Mass. 499, 501 (1914).

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The government also argues that “ICE has long exercised its arrest authority at and around courthouses….” Defs.’ Br. at 4 [34]; see also 2014 Courthouse Memorandum [28-2]. And the provisions of the Violence Against Women and Department of Justice Reauthorization Act do signal that immigration courthouse arrests were occurring by 2006, that Congress was aware that those arrests were occurring, and that Congress did not legislate to cease those arrests. “But the significance of subsequent congressional action or inaction necessarily varies with the circumstances, and finding any interpretive help in congressional behavior here is impossible.” United States v. Wells, 519 U.S. 482, 495 (1997). See also Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1015 (2017) (quoting Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633, 650 (1990)) (“‘Congressional inaction lacks persuasive significance’ in most circumstances.”). That this practice has been ongoing and that Congress has not halted courthouse civil arrests does not alter the court’s understanding of the common law privilege against civil courthouse arrests at the time the INA civil arrest provisions were enacted, and the absence of any clearly stated intent to abrogate that privilege at that time. Accordingly, the court finds that Plaintiffs have a strong likelihood of success on the merits of their claim that Courthouse Civil Arrest Directive exceeds the authority granted to ICE by the Congress in the civil arrest provisions of the INA and should be invalidated pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2)(C).