Cleary Gottlieb, together with the Legal Aid Society, represented pro bono individual and organizational clients in successfully defeating a motion to dismiss their claims challenging the legality of the U.S. Immigration and Customs Enforcement’s (ICE) policy of courthouse arrests.
In January 2017, ICE agents began dramatically increasing arrests and surveillance of noncitizens appearing in state courts, departing from a prior policy that recognized the sanctity of courthouses. In early 2018, ICE issued a directive memorializing its courthouse arrest policies and expressly rejecting limitations on its enforcement powers in courthouses. This policy has prevented noncitizens from participating in court proceedings to vindicate their legal rights and has created an atmosphere of fear that has had the effect of keeping countless noncitizens from accessing New York State courts both affirmatively and defensively. In September 2019, an individual noncitizen as well as institutions that represent and assist noncitizens began working with Cleary and the Legal Aid Society to challenge the legality of ICE’s courthouse arrest policy, alleging that it violates the First, Fifth, and Sixth Amendments; the Administrative Procedure Act (APA); and New York State common law. ICE and the U.S. Department of Justice filed a motion to dismiss these claims in December 2019.
On September 28, 2020, Judge Alison J. Nathan of the U.S. District Court for Southern District of New York denied the defendants’ motion to dismiss with respect to all but the plaintiffs’ Sixth Amendment claim. With respect to the plaintiffs’ common law and APA claims, Judge Nathan found that the New York State common law privilege against civil courthouse arrests exists and that such privilege has not been preempted or displaced by the federal Immigration and Nationality Act (INA). To the contrary, the court found that the INA incorporates the privilege and declined to dismiss the plaintiffs’ common law and APA claims for failure to state a claim. Judge Nathan further found that the plaintiffs have adequately alleged a First and Fifth Amendment access-to-court claim, having alleged that ICE’s courthouse arrest policy has created an “atmosphere of fear” so significant that it constitutes the functional equivalent of denial of access to the courts.