In 1952, Congress passed the Immigration and Nationality Act (INA), which included a provision that gave immigration officers the statutory authority to carry out civil arrests to enforce the nation’s immigration laws.  In 2018, ICE issued the “Courthouse Civil Arrest Directive,” which authorized its agents to make civil immigration arrests inside courthouses under a variety of circumstances.  In 2019, Massachusetts district attorneys and immigrant advocacy organizations challenged ICE’s directive on the grounds that, among other things, it exceeded ICE’s authority by violating the common-law privilege against such courthouse arrests.  A district court granted plaintiffs’ motion for a preliminary injunction, and ICE appealed that decision to the United States Court of Appeals for the First Circuit, where CAC filed an amicus brief on behalf of plaintiffs.

Our brief argued that ICE’s 2018 directive permitting civil immigration arrests in and around courthouses violates the INA. Our brief made three points. First, the brief explained that when Congress codifies a common-law power in a statute without specifying its scope, Congress is presumed to include the limitations that accompanied that power at common law unless statutory text, history, and purpose clearly indicate otherwise.

Second, the brief explained that English and American common law has long recognized a privilege against civil arrests in and around courthouses, and that privilege was well-established at the time that Congress passed the INA in 1952.  The privilege is critical to ensuring that courts can operate without disruption and that individuals can travel to and participate in court proceedings without fear of arrest.  For that reason, the common-law privilege was broad, prohibiting arrests and other forms of civil service of process both in courthouses and against individuals traveling to and from courthouses for official business, and the privilege applied to individuals both in and out of the court’s jurisdiction.  The brief concluded that Congress should be presumed to have incorporated that well-established limitation on civil arrest authority unless Congress spoke directly to the issue in the INA.

Third, the brief argued that because Congress did not speak directly to whether civil immigration arrests may be carried out at courthouses, it incorporated the privilege against such arrests.  Indeed, the INA nowhere addresses—let alone speaks directly to—whether civil immigration arrests may take place in and around courthouses.

The First Circuit, however, disagreed with the district court that plaintiffs were likely to succeed on the merits of their argument that the INA implicitly incorporates the common law privilege against arrests in and around courthouses.  Specifically, the First Circuit determined that it “cannot presume that Congress intended to incorporate the privilege [against courthouse arrests] into the INA” because it is not obvious that “the common law privilege against courthouse arrests clearly applied to civil immigration arrests.”