Judge in Case about ICE Access to Courthouses Should Ask That It Be Reassigned

By Andrew R. Arthur and Meredith Lapp on June 5, 2019

In Ryan v. ICE, state prosecutors in Massachusetts have joined with public defenders and "civil litigants" to sue Immigration and Customs Enforcement (ICE) for making arrests of aliens subject to removal at state courthouses. Assigned to hear the case is Judge Indira Talwani of the United States District Court for the District of Massachusetts. The choice, although random, is interesting, because Judge Talwani has made well-publicized statements objecting to ICE courthouse arrests. To eliminate any questions of impartiality, Judge Talwani should ask that case be reassigned.

Specifically, Law360 reported that on April 25, 2018, Judge Talwani complained to a federal prosecutor that he "should have stopped" plain-clothes ICE officers who were attending sentencing proceedings in the case of a Chinese national who had admitted to visa fraud. Those officers arrested the student as soon as she left the building after being sentenced to a year probation. The judge reportedly stated, in open court, "I am upset at the notion that ICE thinks a courtroom is a place to go and pick up people." She further opined (again, apparently in open court): "I see no reason for places of redress and justice to become places that people are afraid to show up."

As a rule, judges must be impartial or be disqualified, as both the Code of Conduct for United States Judges and the Massachusetts Code of Judicial Conduct make clear.

According to Canon 3(C)(1) of the Code of Conduct for United States Judges, "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." (Emphasis added.) Similarly, according to Rule 2.11 of the Massachusetts Code of Judicial Conduct ("Massachusetts Code"):

(A) A judge shall disqualify himself or herself in any proceeding in which the judge cannot be impartial or the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances:


(4) The judge ... has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.

Rule 2.2, Comment 1 of the Massachusetts Code is also instructive. It provides: "To ensure impartiality and fairness to all parties, a judge must be objective and open-minded."

Here, Judge Talwani's own statements call into question her impartiality, and suggest that she may have already made up her mind on the issue of ICE courthouse arrests. Simply put, she is against them, as the statements above would appear to indicate.

Federal law, ICE policy, and (apparently) state court policy permit ICE agents to make arrests in courthouses in Massachusetts. Under section 287(a)(2) of the Immigration and Nationality Act (INA), an immigration officer is authorized to perform a civil immigration arrest "if he has reason to believe that the alien so arrested is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest." And pursuant to ICE Directive Number 11072.1: "Civil Immigration Enforcement Actions Inside Courthouses", such enforcement actions may take place inside courthouses.

Finally, the record in United States v. Joseph (about which Art wrote in an April post) reveals that there is a relevant state court policy that explicitly permits ICE to make arrests in courthouses. The indictment in that case states that in November 2017, "the Executive Office of the Massachusetts Trial Court issued guidance to all Massachusetts state judges, clerks, and other courthouse personnel," which stated among other things that "DHS officials may enter a courthouse to perform their official duties." That policy has not, apparently, been published online.

Judicial ethics rules and policies require Judge Talwani to interpret and apply these laws without regard to her well-publicized disapproval of them. Given her prior remarks objecting to ICE courthouse arrests, however, it is reasonable to question whether Judge Talwani can fairly rule on the merits in Ryan.

It is a rare act for a party to request that a judge recuse herself, and it is doubtful that the government will do so in Ryan. As a young lawyer, I was advised by a much more experienced and battle-hardened superior that I had better be sure that the judge had no option but to recuse herself before filing such a motion, lest I incur further wrath from the court when the recusal motion was denied. Judge Talwani likely would contend that recusal is not necessary despite her earlier statements because she could be objective with respect to the law and the facts in Ryan, and deny the motion.

Judge Talwani may, however, herself request the case to be reassigned in the interests of justice. According to Local Rule 40.1(i)(1) of the U.S. District Court for the District of Massachusetts:

In the interest of justice ... a district judge may return a case to the clerk for reassignment ... with the approval of the chief judge, or, with respect to civil cases only, may transfer the case to another district judge, if the other judge consents to the transfer.

Judge Talwani may therefore return the case for reassignment without a motion for recusal, and she should do so in the interest of justice, as a matter of discretion.

Finally, with respect to Rule 2.11 of the Massachusetts Code referenced above, I would note that Judge Talwani's earlier statements were made "in a court proceeding", but her statements were apparently not germane to that proceeding; instead, they reflected her annoyance at the presence of ICE officers in her courtroom. That may be a distinction without a difference (the rule does not require that the prior public statements be relevant to the prior proceedings), but it is relevant to whether Judge Talwani should, as a discretionary matter, ask that Ryan be reassigned.