United States of America v. State of New York et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
UNITED STATES OF AMERICA,
Plaintiff,
vs. 1:25-CV-744
(MAD/PJE)
STATE OF NEW YORK; KATHLEEN HOCHUL,
Governor of New York, in her Official Capacity; and
LETITIA A. JAMES, Attorney General of New
York, in her Official Capacity,
Defendants.
____________________________________________
APPEARANCES: OF COUNSEL:
U.S. DEPARTMENT OF JUSTICE CRISTEN CORI HANDLEY, ESQ.
CIVIL DIVISION ELISABETH NEYLAN, ESQ.
1100 L. Street NW
Washington, DC 20005
Attorneys for the United States
OFFICE OF THE NEW YORK LINDA FANG, AAG
STATE ATTORNEY GENERAL
28 Liberty Street
New York, New York 10005
Attorneys for the State of New York,
Kathleen Hochul, and Letitia James
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
The United States of America commenced this action on June 12, 2025, seeking to enjoin
provisions of New York's Protect Our Courts Act ("POCA") (Ch. 322, Laws of 2020), and
Executive Orders 170 and 170.1 (9 N.Y.C.R.R. §§ 8.170, 8.170.1). See Dkt. No. 1. The United
States alleges that these state laws and executive orders are preempted by federal law and violate
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the intergovernmental immunity doctrine. See id. On August 4, 2025, Defendants moved to
dismiss the complaint, which is currently before the Court. See Dkt. No. 11-1.1
II. BACKGROUND
A. Constitutional and Statutory Background
Pursuant to the United States Constitution, the Federal Government has exclusive
authority to "establish an uniform Rule of Naturalization." U.S. Const. art. I, § 8, cl. 4; see also
Arizona v. United States, 567 U.S. 387, 394 (2012). Congress has thus made laws governing the
entry, admission, presence, status, and removal of aliens within the United States through the
Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1101 et seq., and other related laws.
Responsibility for enforcing the immigration laws rests primarily with the United States
Department of Homeland Security ("DHS") and two of its components – Immigration and
Customs Enforcement ("ICE") and United States Customs and Border Protection ("CBP").
Congress has provided these agencies several tools to carry out their duties under the INA. As
relevant here, the INA authorizes federal agents to make civil immigration arrests, with or without
an administrative warrant. See 8 U.S.C. § 1226(a) ("On a warrant issued by the Attorney General,
an alien may be arrested and detained pending a decision on whether the alien is to be removed
from the United States"); id. § 1357(a)(2) (providing that immigration officers "shall have power
without warrant" to "arrest any alien who ... is entering or attempting to enter the United States in
1 Also submitted in support of Defendants' motion to dismiss are amicus briefs from the
following individuals/organizations: (1) the Legal Aid Society, Immigrant Defense Project,
Sanctuary for Families, New York County Defender Services, LatinoJustice PRLDEF,
Neighborhood Defender Service of Harlem, Make the Road New York, and Brooklyn Defender
Services (Dkt. No. 38); (2) eight former New York Judges and Justices (Dkt. No. 39); (3) Law
and History Professors (Dkt. No. 40); and (4) nineteen New York District Attorneys (Dkt. No.
41). The Federation for American Immigration Reform submitted an amicus brief in support of
the United States. See Dkt. No. 61.
2
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violation of any [immigration] law or regulation ..., or to arrest any alien in the United States, if ...
the alien so arrested is in the United States in violation of any such law or regulation and is likely
to escape before a warrant can be obtained"). When an administrative warrant is required,
immigration officials "must establish probable cause to believe that the subject is an alien who is
removable from the United States." U.S. Immigr. & Customs Enf't, Policy No. 10074.2, Issuance
of Immigration Detainers by ICE Immigration Officers, § 2.4 (Mar. 24, 2017).
In executing the immigration laws, federal agents often rely on law enforcement partners
in state and localities across the country. See Arizona, 567 U.S. at 411 ("Consultation between
federal and state officials is an important feature of the immigration system"). Several provisions
of the INA reflect this expectation of collaboration. See, e.g., 8 U.S.C. § 1357(g)(10)(A)
(providing that no formal agreement is required "for any officer or employee of a State or political
subdivision of a State ... to communicate with the Attorney General regarding the immigration
status of any individual, including reporting knowledge that a particular alien is not lawfully
present in the United States"); id. § 1357(g)(1)(B) (providing that no formal agreement is required
"for any officer or employee of a State or political subdivision of a State ... to cooperate with the
Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully
present in the United States"). Moreover, Section 1373(a) provides that State and local
government entities "may not prohibit, or in any way restrict, any government entity or official
from sending to, or receiving from, the Immigration and Naturalization Service information
regarding the citizenship or immigration status, lawful or unlawful, of any individual." Id. §
1373(a); see also 8 U.S.C. §§ 1373(b) & 1644.
In turn, Section 1373(c) provides that federal immigration authorities "shall respond to an
inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the
3
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citizenship or immigration status of any individual within the jurisdiction of the agency for any
purpose authorized by law, by providing the requested verification or status information." Id. §
1373(c). The United States is also required to provide investigative resources for State and local
authorities "to determine whether individuals arrested by such authorities for aggravated felonies
are aliens." Id. § 1226(d)(1)(A).
B. Agency Guidance on Civil Immigration Arrests
DHS and ICE have promulgated and revised guidelines providing for the enforcement of
civil immigration laws at particular locations. See Dkt. No. 1 at ¶¶ 1-3. Most recently, on May
27, 2025, ICE issued guidance addressing civil enforcement activities in or near courthouses. See
Memorandum from Acting Director of ICE Todd M. Lyons, Civil Immigration Enforcement
Action In or Near Courthouses, dated May 27, 2025, available at https://tinyurl.com/389vfxsj
(last visited Nov. 12, 2025).2 The guidance explains that "[f]ederal, state, and local law
enforcement agencies routinely engage in enforcement activities in or near courthouses because ...
[i]ndividuals entering courthouses are typically screened by law enforcement personnel to search
for weapons and other contraband," which "can reduce safety risks to the public, targeted alien(s),
and ICE officers." Id. at 1. The guidance further states that "enforcement activities in or near
courthouses are often required when jurisdictions refuse to cooperate with ICE," such as by
refusing to "transfer aliens directly to ICE custody." Id.
2 This guidance superseded ICE's January 2025 interim guidance on courthouse arrests,
which expressly acknowledged and abided by state-law protections and restrictions on civil arrests
in or near courthouses. See Memorandum from Acting Director of ICE Caleb Vitello, Interim
Guidance: Civil Immigration Enforcement Actions In or Near Courthouses, dated Jan. 21, 2025,
available at https://tinyurl.com/tcfsdt5a (last visited Nov. 12, 2025). In that interim guidance,
ICE specifically recognized that a civil immigration arrest may be carried out in or near a
courthouse in certain cases only "where such action is not precluded by laws imposed by the
jurisdiction in which the enforcement action will take place." Id. at 2.
4
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The guidance identifies five categories of aliens subject to civil enforcement actions at
courthouses, including those who pose national security or other public safety threats, gang
members, and aliens with criminal convictions. See id. at 2. For aliens not in those categories,
"such as family members or friends accompanying the target alien to court appearances," the
guidance provides for "civil immigration enforcement action on a case-by-case basis considering
the totality of the circumstances." Id. Any enforcement action that takes place in or near a
courthouse "should, to the extent practicable, continue to take place in non-public areas of the
courthouse, be conducted in collaboration with court security staff, and utilize the court building's
non-public entrances and exits." Id. The guidance further explains that any such enforcement
action should be conducted with "substantial efforts to avoid unnecessarily alarming the public or
disrupting court operations," and to "limit [ICE officers'] time at courthouses." Id. at 3; see also
id. at 2 ("When practicable, ICE officers and agents will conduct civil immigration enforcement
actions against targeted aliens discreetly to minimize their impact on court proceedings").
Enforcement actions "should generally [be] avoid[ed]" in or near courthouses, including areas
within those courthouses, "that are wholly dedicated to non-criminal proceedings (e.g. family
court, small claims court)." Id. at 2.
C. Challenged Policies
1. Protect Our Courts Act
Prior to 2017, ICE generally prohibited its officials from engaging in civil enforcement
action at courthouses except in "very limited circumstances." New York v. U.S. Immigration &
Customs Enf't, 466 F. Supp. 3d 439, 441 (S.D.N.Y. 2020). ICE departed from that policy in 2017,
after the start of the first Trump administration. See id. at 442 (recounting ICE's changed policy).
As a result of this policy change, civil immigration arrests at state courthouses in New York
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increased some 1,200% over three years. See Assembly's Memorandum in Support for ch. 322
(2020), at 8.
In response to the impact of these arrests, on December 15, 2020, the New York State
Legislature enacted POCA, with the stated purpose to protect "the operations of [the State's]
judicial system," and "to promote public safety." POCA amended the Civil Rights Law to provide
that "[a] person duly and in good faith attending a court proceeding in which such person is a
party or potential witness, or a family or household member is a party or potential witness, is
privileged from civil arrest while going to, remaining at, and returning from, the place of such
court proceeding, unless such civil arrest is supported by a judicial warrant or judicial order
authorizing such civil arrest." N.Y. Civ. Rights Law § 28(1). The POCA defines "family or
household member" as follows:
(a) persons related by consanguinity or affinity;
(b) persons legally married to one another;
(c) persons formerly married to one another regardless of whether
they still reside in the same household;
(d) persons who have a child in common regardless of whether such
persons are married or have lived together at any time;
(e) unrelated persons who are continually or at regular intervals
living in the same household or who have in the past continually or
at regular intervals lived in the same household;
(f) persons who are not related by consanguinity or affinity and who
are or have been in an intimate relationship regardless of whether
such persons have lived together at any time. Factors that may be
considered in determining whether a relationship is an "intimate
relationship" include, but are not limited to: the nature or type of
relationship, regardless of whether the relationship is sexual in
nature; the frequency of interaction between the persons; and the
duration of the relationship. Neither a casual acquaintance nor
6
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ordinary fraternization between two individuals in business or social
contexts shall be deemed to constitute an "intimate relationship"; or
(g) any other category of individuals deemed to be a victim of
domestic violence as defined by the office of children and family
services in regulation.
N.Y. Soc. Serv. Law § 459-a(2).
Under the POCA, a "civil arrest" is an arrest that is not (i) "for the sole or primary purpose
of preparing the person subject to such arrest for criminal prosecution" for an alleged violation of
state or federal criminal law; or (ii) for contempt of the court in which the proceeding is taking
place or will be taking place[.]" N.Y. Civ. Rights Law § 28(6)(a)(i-ii). Where an arrest is pursued
in connection with an alleged violation of federal law, the POCA defines the arrest as criminal
only if the federal law at issue carries a sentence of imprisonment "and for which federal law
requires an initial appearance before a federal judge, federal magistrate or other judicial officer,
pursuant to the federal rules of criminal procedure that govern initial appearances." Id. §
28(6)(a)(i)(B).
Violating the POCA creates potential criminal and civil liability. Specifically, wilfully
arresting someone in violation of the POCA or a court order, or wilfully assisting such an arrest,
constitutes "contempt of the court and false imprisonment." Id. § 28(2). Under New York law,
those crimes are punishable by up to four years in prison. See N.Y. Penal Law §§ 215.50, 215.51,
135.05 & 135.10. As to civil liability, regardless of whether a contempt proceeding has been
initiated, the POCA allows for civil suits by anyone subject to the arrest privilege and by the New
York Attorney General. See id. § 28(3).
2. Executive Orders 170 & 170.1
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On September 15, 2017, former New York State Governor Andrew Cuomo signed
Executive Order 170, titled "State Policy Concerning Immigrant Access to State Services," which
prohibits state officers and employees from, among other activities, "disclos[ing] information to
federal immigration authorities for the purpose of federal civil immigration enforcement, unless
required by law." 9 N.Y.C.R.R. § 8.170(B)(2). Executive Order 170 further provides that,
"[n]otwithstanding such prohibition, this Order does not prohibit, or in any way restrict, any state
employee from sending to, or receiving from, federal immigration authorities, information
regarding the citizenship or immigration status, lawful or unlawful, of any individual, as required
by law." Id.
On April 25, 2018, former Governor Cuomo issued Executive Order 170.1, titled "State
Policy Concerning Immigrant Access to State Services and Buildings." Id. § 8.170.1. Executive
Order 170.1 provides that "[c]ivil arrests by federal immigration authorities may only be executed
within state facilities when accompanied by a judicial warrant or judicial order authorizing them
to take into custody the person who is the subject of such warrant, unless the civil arrest is related
to a proceeding within such facility." Id. § 8.170.1(B). The Executive Order defines "state
facility" as "any building, or part thereof, owned or leased by any Affected State Entity" and, in
turn, defines "Affected State Entities" as "(i) all agencies and departments over which the
Governor has executive authority, and (ii) all public benefit corporations, public authorities,
boards, and commissions for which the Governor appoints the Chair, Chief Executive, or the
majority of the Board Members, except the Port Authority of New York and New Jersey." Id. §
8.170.1(A).
D. Procedural History
1. Prior Judgment Enjoining ICE's Courthouse Arrests
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In 2019, the State of New York and Kings County District Attorney Eric Gonzalez
commenced an action in the U.S. District Court for the Southern District of New York to enjoin
ICE's changed policy of permitting civil immigration arrests of noncitizens and their family
members in state courthouses. See State of New York v. Immigration & Customs Enf't, 431 F.
Supp. 3d 377 (S.D.N.Y. 2019) ("State of New York I"). The suit asserted claims under the
Administrative Procedures Act and the Tenth Amendment.
The district court denied ICE's motion to dismiss, concluding that a common law privilege
against civil courthouse arrests existed, and expressly rejected ICE's claim that the federal
immigration laws had abrogated that common law privilege. See id. at 392-93. Following
discovery, upon the parties' cross motions for summary judgment, Judge Rakoff found that ICE's
policy of conducting civil courthouse arrests was "illegal" because it exceeded ICE's statutory
authority, which did not include the power to conduct civil courthouse arrests. See State of New
York v. U.S. Immigration & Customs Enf't, 466 F. Supp. 3d 439, 449-50 (S.D.N.Y. 2020) ("State
of New York II"). The court then permanently enjoined "ICE from conducting any civil arrests on
the premises or grounds of New York State courthouses, as well as such arrests of anyone
required to travel to a New York State courthouse as a party or witness to a lawsuit." Id.
ICE appealed to the Second Circuit but "formally revoked" the enjoined policy before the
appeal was heard. See State of New York v. U.S. Immigration & Customs Enf't, No. 20-2622, Dkt.
No. 122 (2d Cir.). Upon the request of the parties, the Second Circuit dismissed the appeal "as
moot and/or waived," vacated the judgment below, and directed that the trial court dismiss the
case. See State of New York v. U.S. Immigration & Customs Enf't, No. 20-2622, 2023 WL
2333979, *1 (2d Cir. Feb. 28, 2023).
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The New York State Legislature enacted POCA after the district court's grant of summary
judgment in the plaintiffs' favor and before the Second Circuit dismissed ICE's appeal.
2. This Lawsuit
The United States commenced this action on June 12, 2025, against Defendants the State
of New York and Governor Kathy Hochul and Attorney General Letitia James, in their official
capacities. See Dkt. No. 1. The complaint raises three separate claims under the Supremacy
Clause of the United States Constitution: preemption (count one); unlawful regulation of the
federal government (count two); and unlawful discrimination against the federal government
(count three). See id. at ¶¶ 55-69. The United States seeks declaratory and injunctive relief
preventing Defendants from further enforcing the challenged laws. Currently before the Court are
Defendants' motion to dismiss and the United States' opposition thereto.
III. DISCUSSION
A. Standard of Review
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal
sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir.
2007) (citation omitted). In considering the legal sufficiency, a court must accept as true all well-
pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This
presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (citation omitted). Although a court's review of a motion to dismiss is
generally limited to the facts presented in the pleading, the court may consider documents that are
"integral" to that pleading, even if they are neither physically attached to, nor incorporated by
10
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reference into, the pleading. Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)
(quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is entitled to
relief.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (citation omitted). Under this
standard, the pleading's "[f]actual allegations must be enough to raise a right of relief above the
speculative level," see id. at 555 (citation omitted), and present claims that are "plausible on
[their] face," id. at 570. "The plausibility standard is not akin to a 'probability requirement,' but it
asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at
678 (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a
defendant's liability, it 'stops short of the line between possibility and plausibility of the
'entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Ultimately, "when the allegations
in a complaint, however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S.
at 558, or where a plaintiff has "not nudged [its] claims across the line from conceivable to
plausible, the [] complaint must be dismissed[,]" id. at 570.
B. Count One: Preemption
In its complaint, the United States first alleges that POCA and the Executive Orders create
unconstitutional obstacles to federal immigration enforcement and are therefore conflict
preempted. See Dkt. No. 1 at ¶¶ 55-60. Specifically, the United States contends that POCA and
Executive Order 170.1 "purport to dictate the locations in which immigration officers perform
their federal functions, including in public areas and areas far from courthouses, thereby impeding
those officers' ability to discharge their official duties." Id. at ¶ 57 (citing 8 U.S.C. §§ 1226a,
1226(c), 1231(a), 1357; 18 U.S.C. §§ 372, 1071). Further, the United States alleges that
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"Executive Orders 170 and 170.1 frustrate the expectation of collaboration reflected in the
immigration laws ... by barring state and local officials from sharing information with federal
immigration officials – even when they wish to do so." Id. at ¶ 59. In their motion to dismiss,
Defendants argue that federal immigration laws do not contain any clear statement of
congressional intent to displace the State's police powers or longstanding common-law protections
against civil courthouse arrests and, therefore, POCA and the Executive Orders are not conflict
preempted. See Dkt. No. 11-1 at 17-27.
1. General Principles of Preemption
Federal law can preempt state law in three ways: express preemption, conflict preemption,
or field preemption.3 See Murphy v. Nat'l Collegiate Athletic Ass'n, 584 U.S. 453, 477 (2018).
Each type of preemption works the same way: "Congress enacts a law that imposes restrictions or
confers rights on private actors; a state law confers rights or imposes restrictions that conflict with
the federal law; and therefore the federal law takes precedence and the state law is preempted." Id.
Certain rules of preemption flow from federalism. First, given Congress' limited powers,
preemption of a state law must be based in the Constitution or a validly enacted federal law, not
"some brooding federal interest." Virginia Uranium, Inc. v. Warren, 587 U.S. 761, 767 (2019)
(citation omitted); see also Kansas v. Garcia, 589 U.S. 191, 202 (2020).
Second, a federal law only has preemptive effect if it regulates private individuals, whether
alone or in conjunction with regulation of States. See Murphy, 584 U.S. at 477-78. This is so
because Congress may only legislate upon individuals, as is reflected in the Framers' debates
during the Constitutional Convention and their deliberate rejection of a plan that would have
3 Here, the United States relies on the theory of conflict preemption.
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allowed Congress to legislate on States. See New York v. United States, 505 U.S. 144, 164-66
(1992).
Third, courts assume that Congress does not preempt lightly. See Gregory v. Ashcroft, 501
U.S. 452, 460 (1991). Although Congress may legislate in areas traditionally regulated by States,
preemption analysis "assume[s] that 'the historic police powers of the States' are not superseded
'unless that was the clear and manifest purpose of Congress.'" Arizona, 567 U.S. at 400 (quoting
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
2. Conflict Preemption
Conflict preemption involves "'cases where compliance with both federal and state
regulations is a physical impossibility,'" McHenry Cnty. v. Raoul, 44 F.4th 581, 591 (7th Cir.
2022) (quoting Arizona, 567 U.S. at 399), and where the state law "stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress," Hines v.
Davidowitz, 312 U.S. 52, 67 (1941). "Physical impossibility" is not at issue in this case; the
question is whether the POCA and Executive Orders "obstruct[] congressional purposes."
McHenry Cnty., 44 F.4th at 591.
Courts must use their judgment, "informed by examining the federal statute as a whole and
identifying its purpose and intended effects," to determine whether a state statute or regulation is
conflict preempted. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 (2000). The
text is the north star when interpreting statutes. "Extrinsic materials" like legislative history "have
a role in statutory interpretation only to the extent that they shed a reliable light on the enacting
Legislature's understanding of otherwise ambiguous terms." Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 568 (2005).
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A court should not find conflict preemption "unless that was the clear and manifest
purpose of Congress." Arizona, 567 U.S. at 400. "The challenger must show that applying the
state law would do 'major damage' to clear and substantial federal interests." C.Y. Wholesale, Inc.
v. Holcomb, 965 F.3d 541, 547 (7th Cir. 2020) (citation omitted); see also Crosby, 530 U.S. at
373 ("What is a sufficient obstacle is a matter of judgment, to be informed by examining the
federal statute as a whole and identifying its purpose and intended effects"). "In preemption
analysis, courts should assume that 'the historic police powers of the States' are not superseded
'unless that was the clear and manifest purpose of Congress.'" Arizona, 567 U.S. at 400 (quotation
and other citation omitted). Merely because a state law "inconveniences" the federal government
does not render it preempted — the repugnance must be "so direct and positive that the two acts
cannot be reconciled or consistently stand together." Goldstein v. California, 412 U.S. 546, 554-
55 (1973).
a. POCA
Initially, the Court finds that the provisions of POCA challenged here are presumed valid
because they concern the State's right to manage its "judicial systems for the decision of legal
controversies" – a core feature of its inherent sovereignty. Atl. Coast Line R.R. v. Bhd. of
Locamotive 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"); see also Ryan v. U.S.
Immigration & Customs Enf't, 974 F.3d 9, 30 (1st Cir. 2020) (holding that "the operation of a
functioning judiciary is unmistakably a fundamental exercise of state sovereignty").
POCA's provisions prohibit civil arrests of parties and potential witnesses, except where
such arrests are authorized by a judicial warrant or order, "while going to, remaining at, and
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returning from" state court proceedings. See N.Y. Civ. Rights Law § 28(1). These protections
were enacted to protect the State's "compelling" interest in its judicial system. See Gregory, 501
U.S. at 472. As Defendants note, POCA's legislative history contains ample evidence of the
serious impairments experienced by the State's judicial system from disruptive civil courthouse
arrests that were intended to be remedied by POCA. The Legislature further determined that
public safety is enhanced by protecting parties and witnesses from civil arrests in connection with
their attendance at court proceedings, to encourage victims and witnesses to come forward to
participate in the justice system. See Assembly Memorandum in Support, Bill Jacket for ch. 322
(2020), at 8; see also City of Chicago v. Sessions, 888 F.3d 272, 280 (7th Cir. 2018) (noting that
fear among immigrant communities that any contact with government officials "will bring the
scrutiny of federal immigration authorities" may deter crime reporting). Indeed, ICE's own prior
policies urging discretion in conducting enforcement activities expressly acknowledged the
potential that such activities may "deter[] individuals from reporting crimes and from pursuing
actions to protect their civil rights." Memorandum from Director John Morton, Prosecutorial
Discretion: Certain Victims, Witnesses, and Plaintiffs, dated June 17, 2011, available at
https://www.ice.gov/doclib/foia/prosecutorial-discretion/certain-victims-witnesses-plaintiffs.pdf
(last visited Nov. 12, 2025).
The Court also agrees with Defendants that the challenged provisions of POCA are
separately presumed to be valid because they codified New York's "very ancient" privilege
protecting parties and witnesses from civil arrests in courthouses, and while traveling to and from
court proceedings. See Parker v. Marco, 136 N.Y. 585, 589 (1893); Person v. Grier, 66 N.Y.
124, 125 (1876) ("It is the policy of the law to protect suitors and witnesses from arrests upon
civil process while coming to and attending the court and while returning home"). Although the
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United States argues that no such privilege existed, see Dkt. No. 60 at 23, by the beginning of the
twentieth century, "the exemption of persons from the writ of arrest and of summons while
attending upon courts of justice, either as witnesses or suitors," was "firmly rooted in the
jurisprudence of the United States." Hale v. Wharton, 73 F. 739, 740 (C.C.W.D. Mo. 1896)
(collecting cases); Stewart v. Ramsay, 242 U.S. 128, 129 (1916) ("The true rule, well founded in
reason and sustained by the greater weight of authority, is 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").
The Court concludes, as discussed in detail by Judge Rakoff in State of New York I, 431 F.
Supp. 3d at 388-92, that a common law privilege against civil courthouse arrests exists. Case law
and contemporary commentaries indicate that such a privilege derives from English common law.
This privilege emerged at a time when civil arrest was commonplace, because a civil action was
commenced by way of civil arrest of the defendant. In Blackstone's Commentaries on the Laws of
England, "on which early U.S. courts heavily relied in incorporating English common law into the
laws of the several states and the United States," State of New York I, 431 F. Supp. 3d at 388,
Blackstone describes the privilege as follows:
"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."
Id. (quoting 3 William Blackstone, Commentaries on the Laws of England 289 (1768)); see also,
e.g., Meekins v. Smith, 126 Eng. Rep. 363, 363 (1791) ("[A]ll persons who had relation to a suit
which called for their attendance, whether they were compelled to attend by process or not, (in
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which number bail were included) were [e]ntitled to privilege from arrest eundo et redeundo
[going and returning], provided they came bona fide"). The rationales underpinning the existence
of the privilege illustrate that it existed as much for the benefit of the courts as it did for the
benefit of the individual: To permit arrest to be made in court or while persons were coming or
returning "'would give occasion to perpetual tumults,'" State of New York I, 431 F. Supp. 3d at 389
(quoting Orchard's Case, 38 Eng. Rep. 987, 987 (1828)), discourage witnesses from coming
forward voluntarily, id. (citing Walpole v. Alexander, 99 Eng. Rep. 530, 530 (1782)), and "'was
altogether inconsistent with the decorum which ought to prevail in a high tribunal,'" id. (quoting
Orchard's Case, 38 Eng. Rep. at 978).
Case law and contemporary commentaries further illustrate that by at least the
mid-nineteenth century, the privilege was firmly established in New York common law. Indeed,
David Graham's Treatise on the Practice of the Supreme Court of the State of New York noted in
1836 that "[a]s a general rule, every person who has any relation to a suit, whether his presence be
compulsory or not, is exempt from arrest, eundo, morando, et redeundo [going, staying, and
returning]." David Graham, Treatise on the Practice of the Supreme Court of the State of New
York 129 (2d ed. 1836); see also, e.g., Hopkins v. Coburn, 1 Wend. 292, 293 (N.Y. Sup. Ct.
1828) ("The defendant, as a suitor, was undoubtedly privileged from arrest"); Sandford v. Chase,
3 Cow. 381, 382 (N.Y. Ct. for Correction of Errors 1824) ("The privilege of a witness should be
absolute. An arrest should not be valid even for the purpose of giving jurisdiction to the Court out
of which the process issues; more especially where the witness is attending from a foreign state");
Norris v. Beach, 2 Johns. 294, 294 (N.Y. Sup. Ct. 1807) (same). Even after service of process had
largely replaced civil arrest as the chief means of initiating a civil action, the New York Court of
Appeals confirmed the continued vitality of the privilege in the context of service of process,
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noting that "[i]t is the policy of the law to protect suitors and witnesses from arrests upon civil
process while coming to and attending the court and while returning home." Person, 66 N.Y. at
125. Much like the English courts before it, the Court of Appeals found that the privilege was
necessary "[to] the administration of justice," because in its absence "[w]itnesses might be
deterred, ... parties prevented from attending, and delays might ensue or injustice be done." Id. at
126; see also Parker v. Marco, 136 N.Y. 585, 589 (1893) (finding the privilege "is not simply a
personal privilege, but ... is also the privilege of the court, and is deemed necessary for the
maintenance of its authority and dignity and in order to promote the due and efficient
administration of justice") (citations omitted).
The Court further agrees with Judge Rakoff that "[t]he continuing availability of the
common law privilege, and its breadth, is shown by the fact that even after the former kind of civil
arrest had become obsolete, and before regulatory civil arrests had become common, ... the
highest court of New York ... continued to apply the privilege even when the intrusion was not an
actual arrest but only a disruptive service of process." State of New York I, 431 F. Supp. 3d at 389.
The continued vitality of the common law privilege is made manifest when one examines "the
policy objectives cited for hundreds of years by English and American courts to justify" it. Id. at
391. As discussed above, the privilege evolved as a means to encourage parties, as well as
witnesses, to appear in court voluntarily and to enable the proper, expeditious, and uninterrupted
functioning of courts. These policy objectives apply equally — if not with greater force — to
modern-day civil immigration arrests and compel this Court to conclude, as Judge Rakoff did, that
the common law privilege against civil arrests in and around courthouses (and traveling to and
from courthouses) persisted in the common law of New York State at the time POCA was
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enacted. Id. As such, this fundamental privilege cannot be assumed to have disappeared simply
with the passage of time.4
The United States fares no better with its argument that the common law privilege does
not apply to civil arrests conducted by the government. See Dkt. No. 60 at 24 & n.11. The United
States relies on Ryan v. U.S. Immigration & Customs Enf't, 974 F.3d 9 (1st Cir. 2020), which
found that "the entirety of the pre-1952 case law pertaining to the common law privilege appears
to have involved private civil suits," and there is "no clear historical precedent for extending the
privilege to arrests on behalf of the sovereign." Id. at 24 (quoting Ryan, 974 F.3d at 26). "Thus, as
the First Circuit concluded, there is no reason to believe that 'Congress would have reflexively
inferred that the privilege protected against ... the civil immigration arrests that it was authorizing
in the INA.'" Id. (quoting Ryan, 974 F.3d at 26). Respectfully, the Court disagrees with the
reasoning of the First Circuit in Ryan.5
As discussed above, the privilege belongs not to the parties, but to the court itself. See
Stewart, 242 U.S. at 130 ("The privilege which is asserted here is the privilege of the court, rather
4 In urging the Court to reach a different result, the United States relies on African
Communities Together v. Lyons, ___ F. Supp. 3d ___, 2025 WL 2898389 (S.D.N.Y. Oct. 7,
2025). The Court finds the United States' reliance on this case unpersuasive. The suit there was
concerned with the distinct issue of whether ICE had statutory authority to conduct civil
immigration arrests at federal immigration courthouses, and thus did not implicate the weighty
federalism interests and questions before this Court. Nor did the court pass on the dispositive
question before this Court of whether the INA "reflects Congress's clear and manifest purpose" to
preempt state law. See id. at *18; see also City of Milwaukee v. Illinois, 451 U.S. 304, 316 (1981)
(noting that a more stringent standard applies to determine whether federal statutory law displaces
state common law as compared with federal common law).
5 The Court notes that the First Circuit in Ryan did not reach the question of whether the
INA reflects Congress' clear and manifest purpose to preempt state common law because the
district court did not address this argument in its analysis. See Ryan, 974 F.3d at 29. As such, this
Court's ruling is not in tension with the First Circuit's holding in Ryan. See Doe v. U.S.
Immigration & Customs Enf't, 490 F. Supp. 3d 672, 692 n.3 (S.D.N.Y. 2020).
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than of the defendant") (citation omitted). The United States and the Ryan court neglect to
consider the underlying policy which drives the privilege. "The essence of the privilege is the
sanctity of the court. It is 'founded in the necessities of the judicial administration, which would
be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while
attending upon the court.'" Velazquez-Hernandez, 500 F. Supp. 3d at 1145 (quoting Stewart, 242
U.S. at 130). The privilege, consistent with the constitutional right of access to the court, "enables
the citizen to prosecute his rights without molestation, and procure the attendance of such as are
necessary for their defence and support." Halsey v. Stewart, 4 N.J.L. 366, 369 (N.J. 1817). This
"great object in the administration of justice" is "obstructed" if parties are liable to be civilly
arrested or served while attending court. See id. at 368. The United States' position and the
holding in Ryan wholly ignores this purpose. "Civil arrest — whether by a private individual or
by the government — runs afoul of this privilege of the court. The Executive may have sovereign
power over immigration enforcement, but the Executive does not have sovereign power over the
court." Velazquez-Hernandez, 500 F. Supp. 3d at 1145.6
Finally, the Court finds unpersuasive the United States' argument that the absence of cases
applying the common law privilege to civil immigration courthouse arrests supports the inference
that such arrests were outside the privilege. As Defendants note, the more likely explanation is
that civil immigration arrests, which were not commonplace until more recently, simply did not
occur in state courthouses in light of settled common law protections and because ICE's own
policies previously counseled against such arrests. Additionally, the states were responsible for
6 Moreover, contrary to the United States' position, there is authority that supports the fact
that the privilege applied to arrests initiated by the sovereign. See Ex Parte Russel, 19 Ves. Jun.
163, 166 (1812) (holding that debtor to the Crown "cannot be arrested by the Crown any more
than by a subject" while attending bankruptcy proceedings and ordering the debtor be released
from Crown custody).
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enforcing immigration matters through most of the nineteenth century. See Gerald L. Neuman,
The Lost Century of American Immigration Law (1776-1885), 93 COLUM. L. REV. 1833, 1839-84
(1993); see also New York v. Miln, 36 U.S. 102, 132 (1837) (holding that immigration regulation
fell within police powers that "rightfully belonged to the state"). It was not until 1888 that
Congress created a civil deportation regime. See Act of Sept. 13, 1888, ch. 1015, § 13, 25 Stat.
476, 479; Act of Oct. 19, 1888, ch. 1210, 25 Stat. 565, 566-67. In practice, however, before 1920,
"few people were actually excluded or deported." Lindsay Nash, Inventing Deportation Arrests,
121 MICH. L. REV. 1301, 1333 (2023). It was not until during and after World War II that the
federal government began to expand its use of civil deportation. See id. at 1341-52. And, even
after World War II, civil arrests in and around courthouses were exceedingly uncommon. It was
not until 2017, when the policy changed and arrests in and around New York State courthouses
increased "by a remarkable 1700 percent and more." State of New York I, 431 F. Supp. 3d at 380.
As such, the Court views the absence of caselaw applying the privilege in this particular context
not as a reflection of the fact that the privilege no longer exists; rather, the Court views this
absence as a reflection that prior administrations viewed the privilege, possessed by a co-equal
branch of government, as something so well established and sacrosanct to even consider such
actions.
Of course, ICE agents conducting these arrests act under authority of federal law, not New
York law. The ultimate question then is whether the federal immigration statute, which is silent
on this issue, incorporates the common law privilege, here applicable to the courts of New York,
which was codified in statute through POCA. Defendants argue that it does, while the United
States argues that the INA preempted and, therefore, invalidated any potential common law
privilege, which means that POCA is preempted as well.
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"'[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 evident.'" United States v. Texas, 507 U.S. 529, 534 (1993) (quotation omitted). "In
order to abrogate a common-law principle, the federal statute at issue must 'speak directly' to the
question addressed by the common law." Id. (quotation omitted). This is so because, under such
circumstances, "Congress does not write upon a clean slate." Id. In determining whether a statute
"invades" or enters a field addressed by common law, courts look to whether the purpose and
rationale of the common law apply to the statutory context in which Congress was legislating. See
Pasquantino v. United States, 544 U.S. 349, 360, 368-72 (2005).
Additionally, where state law is involved, federalism concerns must be considered. Thus,
when determining whether federal law preempts state common law, the Court is admonished to
"start with the assumption that the historic police powers of the States were not to be superseded
by the Federal Act unless that was the clear and manifest purpose of Congress.'" City of
Milwaukee, 451 U.S. at 316 (quotation and other citations omitted). "'If Congress intends to alter
the usual constitutional balance between the States and the Federal Government, it must make its
intention to do so unmistakably clear in the language of the statute.'" Gregory, 501 U.S. at 460
(quotation and other citation omitted). Absent evidence of such a "clear and manifest purpose,"
therefore, the presumption against pre-emption cautions against a judicial determination that state
law — including state common law — was superseded by federal action. See Wyeth v. Levine,
555 U.S. 555, 565 (2009).
Against this backdrop, the Court turns to the INA. The Court finds no question that the
purpose and rationale of the common-law rule against civil courthouse arrest applies to the
statutory context in which Congress was legislating. The privilege goes back to at least the
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fifteenth century and persisted for hundreds of years thereafter in English and American common
law. Congress enacted the INA in 1952, only twenty years after the Supreme Court reiterated the
privilege in Lamb v. Schmitt, 285 U.S. 222, 225 (1932) ("[T]he due administration of justice
requires that a court shall not permit interference with the progress of a cause pending before it, by
the service of process in other suits").
When Congress enacted the INA, it did so against the backdrop of New York's
longstanding common law privilege. And yet, nothing in the INA evinces any congressional
intent – let alone a clear and manifest one – to displace the State's settled common law privilege
or its exercise of police powers over the management of its courts. In support of their preemption
argument, the United States contends that "the INA authorizes immigration officials to make civil
arrests, without judicial warrants and without geographical limitations." Dkt. No. 60 at 25 (citing
8 U.S.C. §§ 1226(a), 1357(a)(2) & (4)-(5)). Moreover, the United States notes that "[w]hen
Congress intended limitations on that authority, it was explicit, and no such limitations in the INA
even arguably resemble those in the POCA." Id. (citing 8 U.S.C. § 1357(a)(2) & (4)-(5)).
Although the INA confers broad authority to make warrantless immigration arrests, see 8
U.S.C. §§ 1226(a), 1357(a), those sections are silent as to whether such arrests are permitted in
courthouses. Thus, the statutes on their face do not indicate that Congress intended to abrogate
the common-law privilege. See Pasquantino, 544 U.S. at 359 (holding that Congress must clearly
state its intent to abrogate the common law) (citation omitted). Additionally, in 8 U.S.C. §
1357(a), Congress not only authorized immigration officers to conduct arrests, but provided for
certain restrictions and permissions on where immigration enforcement could take place. It
permitted immigration officers to enter private lands within twenty-five miles of the border to
make such arrests, but prohibited access to dwellings, 8 U.S.C. § 1357(a)(3), and within a
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reasonable distance of the border, permitted officers to board any vessel, railway car, aircraft,
conveyance or vehicle, id. These provisions reflect a concern with the location of arrest, just as
the common-law rule does. Congress' use of explicit language authorizing ICE activity on
otherwise protected private property in certain locations shows that it knows how to speak clearly
when it intends to displace conflicting protections. See Velazquez-Hernandez, 500 F. Supp. 3d at
1143-44 (noting that Congress granted permission to immigration officers "to enter private lands"
close to the border but did not expressly authorize arrests in courthouses). This congressional
silence has led several courts to reach the same conclusion reached here today by this Court – that
the INA did not preempt, but rather incorporated, longstanding state common-law protections
against civil courthouse arrests. See id.; see also State of New York I, 431 F. Supp. 3d at 392;
Doe, 490 F. Supp. 3d at 692 ("Because the INA provides no indication that Congress intended to
abrogate the common law privilege against civil courthouse arrests – let alone an 'unmistakenly
clear' one – the Court concludes that 'the statute incorporates the privilege'") (emphasis in
original); Washington v. U.S. Dep't of Homeland Sec., 614 F. Supp. 3d 863, 879 n.21 (W.D.
Wash. 2020) ("Defendants have not identified any provision of the INA indicating a
Congressional intent to displace the state common-law privilege").
The United States also contends that, "through a 2006 amendment to the INA to add 8
U.S.C. § 1229(e), Congress acknowledged the practice of conducting immigration enforcement
actions at state courthouses." Dkt. No. 60 at 25. The United States argues that this "section
discusses 'cases where an enforcement action leading to a removal proceeding was taken against
an alien at ... a courthouse (or in connection with that appearance of the alien at a courthouse).' ...
It goes on to list primarily state-law offenses, thereby demonstrating Congress's contemplation
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that immigration enforcement actions would occur at state courthouses." Id. (quotation and other
citation omitted). The Court disagrees.
Section 1229(e) provides that if an enforcement action leading to a removal proceeding
takes place at "a courthouse (or in connection with that appearance of the alien at a courthouse) if
the alien is appearing in connection with a protection order case, child custody case, or other civil
or criminal case relating to domestic violence, sexual assault, trafficking, or stalking in which the
alien has been battered or subject to extreme cruelty or if the alien is described in subparagraph
(T) or (U) of section 1101(a)(15) of this title," the Notice to Appear must include a statement that
Section 1367 of the INA has been complied with. Section 1367, in turn, prohibits the
Departments of Justice, Homeland Security, and State from making an adverse determination of
admissibility or credibility using information furnished solely by various people who battered or
subjected the noncitizen or noncitizen's child to extreme cruelty. See 8 U.S.C. § 1367.
Although a "courthouse" is one of the locations specified in Section 1229(e)(2), the thrust
of Section 1229(e) is not on the location where civil immigration enforcement is permitted, but on
limiting the use of information against noncitizen victims – obtained during "domestic violence,
sexual assault, trafficking, or stalking" proceedings – by an immigration judge or hearing officer
to make an adverse determination of deportability. Section 1229 falls far short of providing the
clear and manifest congressional purpose necessary to supplant the common-law privilege. At
most, this Section amounts to an acknowledgment "that courthouse arrests were occurring and an
attempt to provide those subject to such arrests with certain protections ... – a far cry from the
'unmistakably clear' language necessary to abrogate the common law privilege." Doe, 490 F. Supp.
3d at 693. As other courts have recognized, "it would turn this statutory provision – which is
intended to protect noncitizens subject to courthouse arrests – on its head to find in it a clear and
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manifest congressional purpose to abrogate the common law privilege against civil courthouse
arrests." Doe, 490 F. Supp. 3d at 693 (citation and emphasis omitted); see also State of New York
I, 431 F. Supp. 3d at 393 ("[I]t would be odd to view a provision meant to encourage aliens'
attendance at court as evidence of Congressional intent to allow ICE to undermine that very
objective"); Velazquez-Hernandez, 500 F. Supp. 3d at 1144.
Moreover, Congress enacted Section 1229(e) in 2006, over fifty years after the original
INA. See Violence Against Women and Department of Justice Reauthorization Act, P.L.
109–162, January 5, 2006, 119 Stat. 2960. "[T]he views of a subsequent Congress form a
hazardous basis for inferring the intent of an earlier one." United States v. Price, 361 U.S. 304,
313 (1960) (citation omitted). "When a later statute is offered as 'an expression of how the ...
Congress interpreted a statute passed by another Congress ... a half century before,' 'such
interpretation has very little, if any, significance.'" Bilski v. Kappos, 561 U.S. 593, 645 (2010)
(Stevens, J., concurring) (quoting Rainwater v. United States, 356 U.S. 590, 593 (1958)). For
these reasons, the Court agrees with Defendants and the other courts that have found that Section
1229(e) "falls short of providing the clear and manifest congressional purpose necessary to
supplant the common law privilege." Doe, 490 F. Supp. 3d at 693; see also Velazquez-Hernandez,
500 F. Supp. 3d at 1144; State of New York I, 431 F. Supp. 3d at 393 (holding that "the provision
is plausibly viewed as a prophylactic against ICE actions that target aliens based on their
participation in judicial proceedings; ... it would be odd to view a provision meant to encourage
aliens' attendance at court as evidence of Congressional intent to allow ICE to undermine that very
objective. For these reasons, section 1229(e) of the INA does not demonstrate that Congress
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unambiguously intended to displace the state common law privilege against courthouse civil
arrests").7
Accordingly, the Court grants Defendants' motion to dismiss the United States' preemption
claim as it relates to POCA.
b. Executive Orders 170 and 170.1
In its complaint, the United States contends that Executive Orders 170 and 170.1 "'stand as
an obstacle to the accomplishment and execution' of the federal immigration laws and are
therefore conflict preempted." Dkt. No. 1 at ¶ 57. The United States argues that Executive Order
170.1 purports to dictate the locations in which immigration officers perform their federal
functions, including public areas, thereby impeding those officers' ability to discharge their
official duties. See id. (citations omitted). Further, the United States alleges that "Executive
Orders 170 and 170.1 frustrate the expectation of collaboration reflected in the immigration laws,
see, e.g., 8 U.S.C. §§ 1373(a)-(b), 1644, 1357(g)(10)(A)-(B), by barring state and local officials
from sharing information with federal immigration officials – even when they wish to do so." Id.
at ¶ 59. Defendants contend that the Executive Orders do not pose any obstacle to federal law
and, therefore, this aspect of the United States' preemption claim must be dismissed. See Dkt. No.
11-1 at 23-27.
7 The Court also finds that the United States is not aided by its complaints regarding the
breadth of POCA's restrictions and purported uncertainty about how the statute would apply in
hypothetical situations. See, e.g., Dkt. No. 1 at ¶ 49. These criticisms do not further Plaintiff's
preemption claim because they have no bearing on the relevant question of whether the INA
contains the requisite clear statements of congressional intent to displace state law. Questions
about how POCA would apply in particular situations, and whether federal officials may be
immune from liability in certain cases, see id. at ¶ 64, do not render the statute facially invalid.
Rather, such questions are properly considered by courts on an as-applied basis in proceedings
seeking to enforce POCA's protections, based on "'actual conduct and not with respect to
hypothetical situations at the periphery of the statute's scope.'" VIP of Berlin, LLC v. Town of
Berlin, 593 F.3d 179, 189 (2d Cir. 2010) (quotation omitted).
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Settled federalism principles and the Tenth Amendment generally empower the States to
control the use of their own facilities, manage their internal affairs, and direct the control of their
officials without federal interference. See, e.g., Adderley v. State of Fla., 385 U.S. 39, 47 (1966)
("The State, no less than a private owner of property, has power to preserve the property under its
control for the use to which it is lawfully dedicated"); New York, 505 U.S. at 175-76 (holding that
Congress lacks the power to compel States to take title to property); City of New York v. United
States, 179 F.3d 29, 36 (2d Cir. 1999) (holding that "the right to set the duties of office for state-
created officials and to regulate the internal affairs of governmental bodies" is "surely" within the
State's sovereign powers). Here, Executive Orders 170 and 170.1, which concern the use of state
facilities and the activities of state employees, are likewise entitled to the presumption against
preemption.
As Defendants note, Executive Order 170.1 was tailored to ensure that New York's
facilities, such as hospitals, schools, and government offices, can operate and be accessed by
residents without undue disruption posed by civil arrests unrelated to state business. See 9
N.Y.C.R.R. § 8.170.1(B) & preamble (explaining the order is intended to counter the "chilling
effect" caused by immigration enforcement activities that prevents residents from accessing state
benefits and services); see also City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 297-300
(E.D. Pa. 2018), rev'd in part on other grounds, 916 F.3d 276 (3d Cir. 2019) (recounting
"credible" testimony of city official that residents are less likely to use city services if they worry
that they may be exposed to ICE enforcement action as a result). And, Executive Order 170
directs the actions of state employees and officials in the performance of their duties and generally
instructs them to avoid participating in federal civil immigration enforcement unless required by
law. See 9 N.Y.C.R.R. § 8.170(B). Specifically, Executive Order 170 instructs state officials not
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to inquire about immigration status unless that information is relevant to state business or to the
enforcement of state laws, and directs state employees to refrain from sharing personal, non-
immigration status information about residents obtained for state business reasons for civil
immigration purposes. See id. § 8.170(B)(2)-(3). The Executive Order also prohibits state law
enforcement officers from using state resources and personnel for enforcing federal civil
immigration offenses. See id. § 8.170(B)(3)(b).
The Court agrees with Defendants that the United States' preemption challenges to these
Executive Orders fail because neither executive order conflicts with federal law. Just as the
general INA civil arrest provisions do not expressly authorize federal officials to undertake
enforcement actions in state courthouses, the INA is similarly silent as to whether civil
immigration arrests may take place in state facilities where a State has exercised its sovereign
prerogative in restricting the use of its facilities for such activities. See, e.g., United States v.
Illinois, No. 25-cv-1285, 2025 WL 2098688, *21-23 (N.D. Ill. July 25, 2025) (holding that state-
law provisions that, among other things, restricted access of federal immigration officials to local
law enforcement facilities for immigration enforcement activities, were not preempted by the
INA).
Similarly, Executive Order 170 is not preempted because no provision of the INA
obligates state officials to provide federal immigration authorities with personal information about
its residents. Courts have consistently upheld similar information-sharing restrictions against
conflict preemption challenges. See id. (rejecting preemption challenge asserted against state and
local laws prohibiting disclosure of information about residents to federal officials); County of
Ocean v. Grewal, 475 F. Supp. 3d 355, 380-82 (D.N.J. 2020), aff'd, 8 F.4th 176 (3d Cir. 2021)
(holding that New Jersey's executive order prohibiting information sharing was not preempted by
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the INA); United States v. California, 921 F.3d 865, 890 (9th Cir. 2019) ("finding no
constitutional infirmity in" a state law prohibiting the provision of an immigrant's release date and
non-public personal information).
The statutes cited by the United States, 8 U.S.C. §§ 1373 and 1644,8 see Dkt. No. 1 at ¶
59, which relate to information-sharing between state and federal officials, do not give rise to a
conflict. These statutes reach only information about an individual's citizenship or immigration
classification (e.g., lawful permanent resident, visa holder, asylum seeker), and not all personal
information about an individual. See Illinois, 2025 WL 2098688, at *10-13; California, 921 F.3d
at 891-92 (holding that 8 U.S.C. § 1373 does not cover address, employment status, or release
date); Ocean Cnty. Bd. of Comms. v. Attorney Gen. of State of New Jersey, 8 F.4th 176, 181-82
(3d Cir. 2021). Regardless, Executive Order 170 adheres to the terms of Sections 1373 and 1644,
as it expressly incorporates the statutory language of those federal law provisions, stating that the
order does not restrict the sharing of "information regarding the citizenship or immigration status,
lawful or unlawful, of any individual, as required by law." 9 N.Y.C.R.R. § 8.170(b)(2). Since
Sections 1373 and 1664 only prohibit restrictions on sharing information regarding citizenship or
immigration status, and because the Executive Order does not prohibit the sharing of such
information, these statutes clearly do not preempt this Executive Order.9
8 Courts have generally held that the relevant provisions in Sections 1373 and 1644 have
no meaningful difference and have analyzed them together. See, e.g., County of Ocean, 475 F.
Supp. 3d at 371-72 & n.13.
9 In its response to the motion to dismiss, the United States argues that "the Second Circuit
has twice confirmed the preemptive effect of Section 1373(a) of the INA, which 'prohibits state
and local governmental entities or officials' from 'directly restricting the voluntary exchange of
immigration information with the [Federal Government].'" Dkt. No. 60 at 19 (citing City of New
York v. United States, 179 F.3d 29, 35 (2d Cir. 1999); State of New York v. Dep't of Justice, 951
F.3d 84, 111-16 (2d Cir. 2020)). However, neither of the cases on which the United States relies
(continued...)
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Nor does 8 U.S.C. § 1357(g) provide a basis for preemption. That provision gives the
States and local governments the option to enter into agreements with federal immigration
officials to assist with immigration enforcement. See 8 U.S.C. § 1357(g). Courts, however, have
consistently found that similar state and local policies, which withhold state cooperation for
federal immigration enforcement activities, are not preempted by this provision. See, e.g.,
McHenry Cnty., 44 F.4th at 592 ("Federal immigration enforcement might have been frustrated by
the California law, but 'the choice of a state to refrain from participation cannot be invalid under
the doctrine of obstacle preemption where, as here, it retains the right of refusal'") (quotation
omitted); California, 921 F.3d at 876-88 (holding a California law that, among other things,
prohibited sharing information about a person's release date, is not preempted by the INA because
the INA does not mandate such cooperation); City of El Cenizo v. Texas, 890 F.3d 164, 178 (5th
Cir. 2018) ("Section 1357 does not require cooperation at all"); Illinois, 2025 WL 2098688, at
*22-23 (same).
Fundamentally, the United States fails to identify any federal law mandating that state and
local officials generally assist or cooperate with federal immigration enforcement efforts. Nor
could it. No such federal laws exist because the Tenth Amendment prohibits Congress from
conscripting state and local officials and resources to assist with federal regulatory schemes, like
immigration enforcement. See Printz v. United States, 521 U.S. 898, 935 (1997) (holding that a
statute requiring local officials to conduct background checks for firearms purchases contravened
9(...continued)
concerned preemption. Rather, these cases dealt with the issue of whether the certification
condition of Section 1373 was unconstitutional under the anticommandeering doctrine of the
Tenth Amendment. See State of New York, 951 F.3d at 1111-16; see also City of New York, 179
F.3d at 35. As such, the United States' contention that the Second Circuit has addressed the
preemptive effect of Section 1373 is entirely without merit.
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the Tenth Amendment). Indeed, in Printz, the Supreme Court invalidated a federal law on Tenth
Amendment grounds where the law required state actors "to perform discrete, ministerial tasks,"
provide "information that belongs to the State and is available to them only in their official
capacity," and "examin[e] databases and records that only state officials have access to." Id. at
930, 932 n.17.10
It may be, as the United States contends, that Congress had "the expectation of
collaboration" between federal, state, and local authorities when it enacted the federal immigration
laws. See Dkt. No. 1 at ¶ 59.11 But a hope, however fervent, that federal-state cooperation will
occur does not empower the federal government to conscript the States; were it otherwise, the
anticommandeering doctrine would cease to exist. As the Ninth Circuit explained, "when
questions of federalism are involved, we must distinguish between expectations and requirements.
In this context, the federal government was free to expect as much as it wanted, but it could not
require California's cooperation without running afoul of the Tenth Amendment." California, 921
F.3d at 891 (emphasis in original); see also McHenry Cnty., 44 F.4th at 591-92 ("Congress may
have hoped or expected that States would cooperate with" federal immigration enforcement, but
"States are not bound by that hope or expectation" in light of the Tenth Amendment). Here, New
10 Some courts have even questioned whether 8 U.S.C. § 1373 is itself unconstitutional
under the Tenth Amendment. See California, 921 F.3d at 892 n.19 (citing cases).
11 The United States repeatedly conflates the INA's codification of comity with a
requirement that States facilitate federal immigration enforcement. This is incorrect. Comity by
definition is not a legal requirement. See Hilton v. Guyot, 159 U.S. 113, 163-64 (1895); Comity,
Merriam-Webster, https://www.merriam-webster.com/dictionary/comity ("[T]he informal and
voluntary recognition by courts of one jurisdiction of the laws and judicial decisions of another").
The INA provides avenues for States to work with the federal government on immigration
enforcement but uses voluntary language to confirm that any assistance the States may provide is
their choice. See, e.g., 8 C.F.R. § 287.7(a) (referring to detainers as "requests").
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York's permissible decision not to assist federal immigration enforcement in its endeavors is not
an obstacle to that enforcement effort.
For the reasons set forth above, the Court grants Defendants' motion to dismiss the United
States' preemption claim as it relates to the Executive Orders.
C. Counts Two and Three: Intergovernmental Immunity
The United States' final two claims concern intergovernmental immunity. See Dkt. No. 1
at ¶¶ 61-69. Rooted in the Constitution's Supremacy Clause, U.S. Const. art. VI, cl. 2, the
intergovernmental immunity doctrine traces back to the Supreme Court's foundational federal
decision, McCulloch v. Maryland, 17 U.S. 316 (1819). There, the Supreme Court found
Maryland's attempt to tax the Bank of the United States unconstitutional where Maryland imposed
no comparable tax on other banks within the State. See id. at 436-37. Over time, the
intergovernmental immunity doctrine came to be understood as prohibiting state laws that "either
regulate the United States directly or discriminate against the Federal Government" or those with
whom it deals (e.g., contractors). See United States v. Washington, 596 U.S. 832, 838 (2022)
(citing North Dakota v. United States, 495 U.S. 423, 435 (1990)).12
As the Supreme Court has instructed, in considering claims of intergovernmental
immunity, courts must adopt "a functional approach" that "accomodat[es] the full range of each
sovereign's legislative authority." North Dakota, 495 U.S. at 435 (citations omitted).
12 The key difference between intergovernmental immunity and preemption is that the
former applies irrespective of congressional direction. Immunity flows directly from the
Supremacy Clause itself. As such, in a world without federal legislation, intergovernmental
immunity would still invalidate offending state regulations. Because intergovernmental immunity
is such a powerful constraint on states, basic federalism and separation-of-powers principles limit
its application to the clearest state intrusions on federal sovereignty: direct regulations on the
federal government itself and anti-federal discrimination. Preemption, by contrast, "'provid[es]
Congress with the power to preempt state legislation if it so intends.'" Treasurer of N.J. v. U.S.
Dep't of Treasury, 684 F.3d 382, 406 (3d Cir. 2012) (quotation omitted).
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Additionally, "the question whether a state regulation discriminates against the Federal
Government cannot be viewed in isolation. Rather, the entire regulatory system should be
analyzed to determine whether it is discriminatory 'with regard to the burdens that result.'" Id.
(quotation omitted).
The United States argues in count two that POCA and Executive Order 170.1 violate
intergovernmental immunity principles by unlawfully regulating federal officials in the
performance of their official duties. See Dkt. No. 1 at ¶¶ 61-65. It further claims that both
Executive Orders violate this doctrine in that their information-sharing restrictions unlawfully
discriminate against federal immigration authorities. See id. at ¶¶ 66-69. Neither argument is
persuasive.
1. Unlawful Regulation of the Federal Government
In its direct regulation claim, the United States contends that POCA and Executive Order
170.1 impermissibly "dictate where federal agents can effectuate arrests, including in public areas,
and require immigration officers to obtain judicial warrants where Congress has expressly
authorized administrative warrants." Dkt. No. 1 at ¶ 63.
Among other things, the intergovernmental immunity doctrine bars States from directly
regulating the federal government. See McHenry Cnty., 44 F.4th at 592 (citing North Dakota, 495
U.S. at 434). Direct regulation can take many forms, including taxing the federal government or
prohibiting the federal government from taking a particular action. See id. (citations omitted); see
also Hancock v. Train, 426 U.S. 167, 180 (1976); United States v. New Mexico, 455 U.S. 720,
733 (1982). The crux of the inquiry, however, is whether the state law directly regulates the
federal government. See Texas v. U.S. Dep't of Homeland Sec., 123 F.4th 186, 206 (5th Cir.
2024) ("[T]he key question is whether state law seeks to improperly 'control' the employee's
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federal duties, or whether the law only 'might affect incidentally the mode of carrying out the
employment — as, for instance, a statute or ordinance regulating the mode of turning at the
corners of streets'") (quoting Johnson v. Maryland, 254 U.S. 51, 56-57 (1920)).
Here, to the extent that these provisions apply to state-owned facilities, New York "is
acting as a proprietor, not a regulator." Texas, 123 F.4th at 205 (footnote omitted). New York is
not attempting to regulate federal agents and it is not prohibiting the federal government from
enforcing immigration law. See id. Rather, it is simply defining, as a proprietor, what activities
are not permissible in state-owned facilities. Such conduct does not run afoul of the
intergovernmental immunity doctrine. See id.; see also City of Chicago v. Sessions, 888 F.3d 272,
282 (7th Cir. 2018), vacated in part on other grounds, 2018 WL 4268817 (7th Cir. June 4, 2018)
(noting that "nothing in this case involves any affirmative interference with federal law
enforcement at all, nor is there any interference whatsoever with federal immigration authorities.
The only conduct at issue here is the refusal of the local law enforcement to aid in civil
immigration enforcement through informing the federal authorities when persons are in their
custody and providing access to those persons at the local law enforcement facility").
Accordingly, the Court finds that the complaint has failed to allege a plausible claim of
direct regulation in violation of the intergovernmental immunity doctrine.
2. Unlawful Discrimination Against the Federal Government
Count three of the complaint alleges that both Executive Orders violate intergovernmental
immunity for the independent reason that their information-sharing restrictions discriminate
against federal immigration authorities. See Dkt. No. 1 at ¶¶ 66-69.
State law may not discriminate against the federal government by setting it apart for less
favorable treatment based on its federal governmental status. See Washington, 596 U.S. at 839.
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"A state law or regulation discriminates against the federal government if it treats comparable
classes of federal and state employees differently, advantaging the state employees," Nwauzor v.
GEO Grp., Inc., 127 F.4th 750, 763 (9th Cir. 2025) (citing Dawson v. Steager, 586 U.S. 171, 175-
76 (2019)), and "no 'significant differences between the two classes' justify the differential
treatment," Dawson, 586 U.S. at 175 (quotation and other citation omitted); see also McHenry
Cnty., 44 F.4th at 594 ("Differential treatment is critical ...."). However, a comparator is
necessary; "the mere fact that the [state law] touches on an exclusively federal sphere is not
enough to establish discrimination." McHenry Cnty., 44 F.4th at 594 (citing California, 921 F.3d
at 881).
This is where the United States' claim fails. The challenged policies certainly affect the
federal government as the primary enforcer of civil immigration law. The policies specifically
prohibit the sharing of certain information with federal immigration authorities, except where
otherwise required by law. But the United States never identifies a comparator. The United
States does not identify any state or local government entity that might be entitled to the
information it is prevented from obtaining because of the Executive Orders. See Illinois, 2025
WL 2098688, at *25 (finding that the state and city policies that prohibited state and city
employees from sharing information with federal officials for purposes of civil immigration
enforcement did not violate the intergovernmental immunity doctrine where the United States
failed to identify a comparator). Absent such a comparator, this claim must be dismissed.
It is unlikely that a comparator exists, for the United States concedes that only the federal
government is authorized to enforce civil immigration law. However, the fact that a law affects
an exclusively federal domain is not evidence of discrimination, and failure to identify a
comparator ends the inquiry. See McHenry Cnty., 44 F.4th at 594; Washington, 460 U.S. at 544-
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45 ("The State does not discriminate against the Federal Government and those with whom it
deals unless it treats someone else better than it treats them"). The mere fact that the Executive
Orders touch on an exclusively federal sphere is not enough to establish discrimination. See
McHenry Cnty., 44 F.4th at 594 (citation omitted); see also California, 921 F.3d at 881
(explaining that intergovernmental immunity "is not implicated when a state merely references or
even singles out federal activities in an otherwise innocuous enactment").
The complaint also fails to allege that the Executive Orders impose a burden on the federal
government in a way the intergovernmental immunity doctrine considers problematic. Unlike
most discrimination cases in which a state affirmatively levies a tax or cost on the federal
government, see, e.g., Washington, 596 U.S. at 838-39, the Executive Orders here simply decline
to ease the burden of civil immigration enforcement by permitting state and local government
agents to assist. "The State's refusal to cooperate in the immigration context — a possibility
contemplated by the relevant federal statutes — does not constitute discrimination against the
federal government." McHenry Cnty., 44 F.4th at 594 n.7.
Accordingly, the Court finds that the complaint has failed to allege a plausible claim of
unlawful discrimination against the United States.
D. Tenth Amendment and Anticommandeering
Federal preemption and intergovernmental immunity are also bounded by the
anticommandeering doctrine. Although recognized long after the Founding Era,
anticommandeering "is simply the expression of a fundamental structural decision incorporated
into the Constitution, i.e., the decision to withhold from Congress the power to issue orders
directly to the States." Murphy, 584 U.S. at 470. Centered on the principle of voluntariness, the
anticommandeering doctrine holds that "[t]he Federal Government may not compel the States to
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enact or administer a federal regulatory program." New York, 505 U.S. at 188. Nor can it
conscript state or local officers directly, Printz, 521 U.S. at 935, or coerce States to action through
improper influence, Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 578 (2012). This holds
true no matter how strong the federal interest at play. See New York, 505 U.S. at 178. Therefore,
while Congress has many enumerated powers, and may even overtake state law, it may not wield
States as federal tools. In this way, anticommandeering is a bulwark against abuse of government
power. It also promotes political accountability by enabling voters to distinguish which sovereign
is responsible for a specific policy, and "prevents Congress from shifting the costs of regulation to
the States." Murphy, 584 U.S. at 473-74.
Insofar as POCA and the Executive Orders can be read to restrict certain federal activities
in state courthouse and facilities, or to treat the federal government differently, it does so only as
part of implementing New York's permissible choice not to participate in federal civil
immigration enforcement. See McHenry Cnty., 44 F.4th at 594 n.7; California, 921 F.3d at 980.
Invalidating the challenged laws in this case based on intergovernmental immunity principles
"would imply that [New York] cannot choose to discriminate against federal immigration
authorities by refusing to assist their enforcement efforts – a result that would be inconsistent with
the Tenth Amendment and the anticommandeering rule." California, 921 F.3d at 891 (emphasis in
original).
As the complaint makes abundantly clear, commandeering is the entire purpose of this
lawsuit. The United States' own allegations make plain its desire to commandeer New York's
resources to aid in federal immigration efforts. For example, the United States details its
preference for effectuating civil arrests "in the safe and controlled environments of [state]
government facilities" and claims that having information about noncitizens' "scheduled
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appearances" in state court proceedings makes it easier for federal officials to locate and
apprehend noncitizens. See Dkt. No. 1 at ¶¶ 47, 50. The United States further contends that
"[t]hese restrictions further prevent New York officials from disclosing even basic logistical
information, such as whether an alien wanted for violations of civil immigration laws has been
screened by security or is physically present in a state facility, because such information could be
construed as 'for the purpose of civil immigration enforcement' under the Executive Orders." Id. at
¶ 53. As the complaint acknowledges, these state facilities are "safe and controlled" only because
state officials have "screened [entrants] for weapons or other contraband." Id. at ¶ 3. And,
information about "scheduled appearances," id. at ¶ 47, is available only because state officials
have assembled and published court calendars – all in service of the safe and orderly operations of
the State's judicial system. Notably, ICE's own policies expressly provide that enforcement
activities "in or near courthouses should ... take place in non-public areas of the courthouse, be
conducted in collaboration with court security staff, and utilize the court building's non-public
entrances and exists." Memorandum from Acting Director of ICE Todd M. Lyons, Civil
Immigration Enforcement Action In or Near Courthouses, dated May 27, 2025, available at
https://tinyurl.com/389vfxsj (last visited Nov. 12, 2025). But adherence to such protocols would
plainly conscript state court officers to expend state time and resources, for instance, to grant ICE
agents access to "non-public areas" and "non-public entrances," in order to help ICE enforce the
federal civil immigration laws.
Compelling New York to allow federal immigration authorities to reap the benefits of the
work of state employees is no different than permitting the federal government to commandeer
state officials directly in furtherance of federal objectives. As explained, the Executive Orders
and POCA reflect Defendants' decision to not participate in enforcing civil immigration law – a
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decision protected by the Tenth Amendment and not preempted by the INA. Finding that these
same provisions constitute discrimination or impermissible regulation would provide an end-run
around the Tenth Amendment. It would allow the federal government to commandeer states
under the guise of intergovernmental immunity – the exact type of direct regulation of states
barred by the Tenth Amendment. See California, 921 F.3d at 891; Illinois, 2025 WL 2098688, at
*27; McHenry Cnty. v. Raoul, 574 F. Supp. 3d 571, 582 (N.D. Ill. 2021), aff'd sub nom. McHenry
Cnty., 44 F.4th 581; United States v. New Jersey, No. 20-cv-1364, 2021 WL 252270, *13 (D.N.J.
Jan. 26, 2021).
The United States argues that "the Tenth Amendment is not implicated where, as here, the
Federal Government seeks to regulate private actors – illegal aliens – by facilitating the
enforcement of federal laws against those actors." Dkt. No. 60 at 28 (citing Murphy, 584 U.S. at
476-77; New York, 951 F.3d at 114 n.27). The Court disagrees. Although the INA and the New
York provisions both implicate noncitizens, POCA and the Executive Orders govern how New
York and its localities can interact with the federal government, not the activities of private
individuals. See California, 921 F.3d at 889 n.15 (rejecting similar argument raised by the United
States).
Invalidating New York's protections against civil immigration arrests of residents
participating in state court proceedings and accessing state facilities for state services would mean
that "state participation in [immigration enforcement] efforts would no longer be voluntary." New
Jersey, 2021 WL 252270, at *13. Where, as here, the Tenth Amendment permits a state to
decline to assist with federal immigration efforts, that state's determination that its interests are
best served by not permitting its resources to be conscripted for federal immigration enforcement
cannot be invalidated merely by recasting that otherwise permissible choice under the
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intergovernmental immunity lens. See Illinois, 2025 WL 2098688, at *27 (holding that
invalidating state policies reflecting Illinois' "decision to not participate in enforcing civil
immigration law" under intergovernmental immunity "would provide an end-run around the Tenth
Amendment"); California, 921 F.3d at 889-90. To hold to the contrary would improperly elevate
the concerns of the federal sovereign over that of a State and deprive New York of its essential
ability to protect its sovereign interests in the face of undue federal interference.
Accordingly, the Court finds that, for this additional reason, Defendants' motion to dismiss
must be granted.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, the Court hereby
ORDERS that Defendants' motion to dismiss (Dkt. No. 11) is GRANTED; and the Court
further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: November 17, 2025
Albany, New York
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