This is an access to courts case to stop U.S. Immigration and Customs Enforcement (ICE) from making arrests at courthouses without warrants. More information about a similar challenge to ICE’s courthouse arrest policy is available here.

A dual Venezuelan-Spanish citizen who had lived in New York City for four years without lawful immigration status together with immigrant advocacy organizations including Make the Road New York, the Urban Justice Center, the Sanctuary for Families, The Door, and New York Immigration Coalition filed this lawsuit in the U.S. District Court for the Southern District of New York on September 25, 2019. Represented by private counsel, the plaintiffs sued ICE, the U.S. Department of Homeland Security, and several executive branch officials under the Administrative Procedure Act (5 U.S.C. § 551 et seq.) and state law. The plaintiffs alleged that ICE’s policy of surveilling and arresting individuals without judicial warrants at courthouses was arbitrary and capricious and violated the First, Fifth, and Sixth Amendments to the U.S. Constitution as well as state common law. They sought declaratory relief, a permanent injunction against the policy, and an order setting aside the policy.

Specifically, the individual plaintiff alleged that he needed a protective order against a former abusive partner but had not filed in family court because he feared arrest by ICE when appearing in court. The organizational plaintiffs claimed they had to expend time and resources training staff on how to manage ICE's courthouse arrests that could have been spent addressing substantive legal issues.

The defendants moved to dismiss the case, and Judge Alison J. Nathan heard oral arguments on the motion to dismiss on February 12, 2020. On September 28, 2020, Judge Nathan denied the defendants' motion to dismiss except as to the plaintiff's Sixth Amendment claim. 490 F.Supp.3d 672. Notably, Judge Nathan held that both the individual and organizational plaintiffs had standing and that the agency decision was ripe for action. Judge Nathan also held that a common law privilege against civil courthouse arrests exists at New York common law and that the Immigration and Nationality Act (INA) did not preempt this common law privilege. Judge Nathan dismissed the Sixth Amendment claim because the right of access to the courts that the plaintiffs were asserting is not grounded in the Sixth Amendment; it is grounded in the First and Fifth Amendments.

The case is ongoing.

Caitlin Kierum - 03/21/2020
Casey D'Alesandro - 04/11/2021


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