Appeals court reverses ban on ICE courthouse arrests

Judges say lower court ‘abused’ it discretion in granting injunction

A FEDERAL APPEALS COURT has lifted a ban that kept immigration authorities from civilly detaining immigrants in and around Massachusetts courthouses.

The First Circuit Court of Appeals on Tuesday vacated an injunction that barred US Immigration and Customs Enforcement agents from making civil arrests in courthouses.

The lawsuit to obtain the injunction, first reported by CommonWealth, was brought in April 2019 by Middlesex District Attorney Marian Ryan and Suffolk District Attorney Rachael Rollins, along with the nonprofit Chelsea Collaborative and the Committee for Public Counsel Services, the state agency overseeing legal representation for indigent defendants. The plaintiffs alleged ICE arrests were interfering with court business, including witness testimony and supporting family members who are victims of crimes.

“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,” wrote judges Juan Rafael Torruella, Bruce Selya, and William Kayatta in the decision.

The appeals judges said the US District Court had “abused its discretion” in supporting the plaintiffs’ argument that the Immigration and Nationality Act implicitly incorporates a common-law privilege against civil arrests for individuals attending court on official business.

A spokesman for ICE declined to comment on Tuesday’s decision, citing the fact that the litigation is ongoing. Attorneys for ICE requested the court lift the injunction during a July hearing.

The reversal won’t go into effect immediately to allow plaintiffs time to respond.

Francesca Genova, who represents ICE, argued that it is safer to arrest undocumented immigrants at courthouses than on the street and that longstanding practice and a 1952 federal law allow it.

David Zimmer, an attorney at Goodwin Procter, which is providing pro bono representation of the two district attorneys in the case, argued that longstanding common law in Massachusetts prohibits civil arrests in courthouses. He also argued that Congress can’t authorize federal enforcement agents to violate state court rules without explicitly mentioning it in legislation.

The original suit, filed in US District Court, said ICE has decided to “flout” the state courts for federal immigration purposes.

The complaint said noncitizen witnesses often do not appear for cases out of fear of arrest or deportation, and criminal defendants refuse to appear in court, choosing to default rather than risk detention and removal by ICE.

In June 2019, US District Court Judge Indira Talwani ordered an injunction, the first of its kind, barring certain civil arrests from being made by ICE at state courthouses.

Talwani’s order did not block ICE agents from arresting undocumented individuals brought to a courthouse while in state or federal custody. But it said undocumented criminal defendants who come to court on their own volition, such as those out on bail returning for a court date, may not be subject to arrest.

“During the past 14 months while the preliminary injunction has been in place, that right has been guaranteed,” Ryan said in a statement. “Today’s decision by the United States Court of Appeals, which seeks to end that protection, is a disappointment.”

“In Suffolk County, we fight to protect the right of every person, irrespective of immigration status, to have access to our courts without fear of civil arrest,” said Rollins in a statement released by her office. “Although we are disappointed with the First Circuit’s decision, this fight is far from over.”

The case will now be sent back to District Court in Boston for further proceedings. The First Circuit recommended that Talwani ask the state’s Supreme Judicial Court to “pin down Massachusetts’ policy on courthouse arrests,” and continue fact-finding on the issue.

Meet the Author

Sarah Betancourt

Reporter, CommonWealth

About Sarah Betancourt

Sarah Betancourt is a bilingual journalist reporting across New England. Prior to joining Commonwealth, Sarah was a reporter for The Associated Press in Boston, and a correspondent with The Boston Globe and The Guardian. She has written about immigration, social justice, and health policy for outlets like NBC, The Boston Institute for Nonprofit Journalism, and the New York Law Journal. Sarah has reported stories such as a national look at teacher shortages, how databases are used by police departments to procure information on immigrants, and uncovered the spread of an infectious disease in children at a family detention center. She has covered the State House, local and national politics, crime and general assignment.

Sarah received a 2018 Investigative Reporters and Editors Award for her role in the ProPublica/NPR story, “They Got Hurt at Work and Then They Got Deported,” which explored how Florida employers and insurance companies were getting out of paying workers compensation benefits by using a state law to ensure injured undocumented workers were arrested or deported. Sarah attended Emerson College for a Bachelor’s Degree in Political Communication, and Columbia University for a fellowship and Master’s degree with the Stabile Center for Investigative Journalism.

About Sarah Betancourt

Sarah Betancourt is a bilingual journalist reporting across New England. Prior to joining Commonwealth, Sarah was a reporter for The Associated Press in Boston, and a correspondent with The Boston Globe and The Guardian. She has written about immigration, social justice, and health policy for outlets like NBC, The Boston Institute for Nonprofit Journalism, and the New York Law Journal. Sarah has reported stories such as a national look at teacher shortages, how databases are used by police departments to procure information on immigrants, and uncovered the spread of an infectious disease in children at a family detention center. She has covered the State House, local and national politics, crime and general assignment.

Sarah received a 2018 Investigative Reporters and Editors Award for her role in the ProPublica/NPR story, “They Got Hurt at Work and Then They Got Deported,” which explored how Florida employers and insurance companies were getting out of paying workers compensation benefits by using a state law to ensure injured undocumented workers were arrested or deported. Sarah attended Emerson College for a Bachelor’s Degree in Political Communication, and Columbia University for a fellowship and Master’s degree with the Stabile Center for Investigative Journalism.

“The full case continues to progress in the district court where we will further develop the evidentiary record and pursue our additional constitutional claims with the final goal of securing a permanent injunction blocking ICE courthouse arrests,” said Iván Espinoza-Madrigal, executive director of Lawyers for Civil Rights, which handled the case for the two DAs along with attorneys from Goodwin Procter.

The Lawyers Committee said victims of domestic assault who are in the country without authorization have been carrying copies of the injunction with them as they sought restraining orders against abusive partners in the past year.