Ryan v. ICE

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.

- 42 -

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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