N.s., Individually and on Behalf of All Others Similarly Situated v. Robert A. Dixon, United States Marshal, District of Columbia (superior Court)

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 26, 2024 Decided June 27, 2025
No. 21-5275
N.S., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
APPELLEE
v.
R OBERT A. DIXON, UNITED S TATES M ARSHAL, DISTRICT OF
C OLUMBIA (S UPERIOR C OURT), IN HIS OFFICIAL CAPACITY ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-00101)
Elissa P. Fudim, Trial Attorney, U.S. Department of
Justice, argued the cause for appellant. With her on the briefs
were Brian M. Boynton, Principal Deputy Assistant Attorney
General, William C. Peachey, Director, and Erez Reuveni,
Assistant Director. Lauren C. Bingham, Senior Litigation
Counsel, entered an appearance.
John Miano, Christopher J. Hajec, and Gina M. D’Andrea
were on the brief for amicus curiae Immigration Reform Law
Institute in support of appellant.

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Daniel Gonen, Attorney, Public Defender Service for the
District of Columbia, argued the cause for appellee. With him
on the brief were Samia Fam and Alice Wang, Attorneys.
Keren Zwick and Mark Fleming were on the brief for
amicus curiae National Immigrant Justice Center in support of
appellee.
Before: P ILLARD and WALKER , Circuit Judges, and
GINSBURG , Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG .
Opinion concurring in part and concurring in the judgment
in part filed by Circuit Judge WALKER .
GINSBURG , Senior Circuit Judge: The United States
Marshals Service for the Superior Court of the District of
Columbia detained Appellant N.S. pursuant to an immigration
detainer immediately after a Magistrate Judge had released him
from criminal custody. N.S., on behalf of a proposed class,
subsequently sued Robert A. Dixon, in his official capacity as
U.S. Marshal for the Superior Court, challenging his authority
to detain a person on the basis of an immigration detainer. The
district court permanently enjoined Marshal Dixon and his
agents, subordinates, and employees from “arresting and
detaining criminal defendants in the Superior Court . . . for
suspected civil immigration violations.”
We hold the district court correctly determined the U.S.
Marshals were not authorized to make civil immigration arrests
because they had not undergone the training required by
regulations governing civil immigration arrests. The class-
wide relief granted by the district court, however, is barred by

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statute. We therefore vacate the injunction and remand this case
for the district court to enter an appropriate remedy.
I. Background
N.S. was arrested for robbery and destruction of property,
and arraigned before a Magistrate Judge the following day. The
judge, declining to find N.S. would flee or pose a danger to any
person in the community, ordered him released on his own
recognizance. Before N.S. could leave the courthouse, how-
ever, the Marshals detained him on the basis, they said, of an
“ICE hold,” referring to a detainer issued by the Immigration
and Customs Enforcement agency (ICE), a component of the
Department of Homeland Security. N.S. immediately filed a
class complaint alleging that, by making a civil immigration
arrest, the Marshals had acted “in excess of their statutory
authority” and therefore violated the Administrative Procedure
Act (APA). 5 U.S.C. § 706(2)(c).
A. Statutory and Administrative Background
The Secretary of Homeland Security and her delegates,
including ICE agents, are by statute authorized to arrest and
detain an alien with or without a warrant. 8 U.S.C. § 1226(a)
(“On a warrant issued by the [Secretary], an alien may be
arrested and detained pending a decision on whether” to
remove the alien); id. § 1226(c) (authorizing the Secretary,
“when [an alien charged with a listed crime] is released,” to
“take [that alien] into custody”); id. § 1357(a)(2) (authorizing
the Secretary, without a warrant, to “arrest any alien . . . if he
has reason to believe that the alien so arrested is in the United
States in violation of” the immigration laws).1 These
1 The Homeland Security Act of 2002 (HSA) transferred the
detention and removal program previously administered by the

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authorities may be delegated broadly within the Department of
Homeland Security (DHS) and the Department of Justice,
pursuant to section 1103 of the Immigration and Nationality
Act (INA), id. § 1103(a)(4).
To aid in enforcement of the immigration laws, certain
listed classes of officers in the DHS may issue an ICE detainer
to a federal, state, or local law enforcement agency. 8 C.F.R.
§ 287.7(b). An ICE detainer:
serves to advise another law enforcement agency that the
Department seeks custody of an alien presently in the
custody of that agency, for the purpose of arresting and
removing the alien. The detainer is a request that such
agency advise the Department, prior to release of the alien,
in order for the Department to arrange to assume custody,
in situations when gaining immediate physical custody is
either impracticable or impossible.
Id. § 287.7(a). Thus, an ICE detainer is a “request,” not an
order, for another law enforcement agency hold a particular
alien.
With each detainer, an ICE policy requires that it issue an
I-200 Warrant of Arrest (or an I-205 Warrant of
Removal/Deportation, the latter of which is not involved in this
case). ICE Policy 10074.2 ¶ 2.4 (2017),
https://perma.cc/RFQ4-YHTY. An I-200 form must be signed
by an authorized immigration officer who states that he or she
has “probable cause to believe” the named alien is removable.
Attorney General and the Immigration and Naturalization Service
(INS) to the Secretary of Homeland Security. 6 U.S.C. §§ 251(2),
252(a)(3), 271(b); accord Clark v. Martinez, 543 U.S. 371, 375 n.1
(2005).

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Apdx. at 26 (sample Form I-200); 8 C.F.R. § 236.1(a); id.
§ 287.5(e)(2) (listing categories of officers so authorized). It is
directed “To: Any immigration officer authorized [to serve an
arrest warrant for immigration violations] pursuant to sections
236 and 287 of the Immigration and Nationality Act” and its
implementing regulations. To execute an I-200 form, an
immigration officer of a type listed in the regulation must have
“successfully completed basic immigration law enforcement
training.” 8 C.F.R. § 287.5(e)(3); see also id. § 287.5(c)(1)
(same required before making an arrest under 8 U.S.C.
§ 1357(a)(2)). ICE implemented the requirement that an I-200
form must accompany an ICE detainer, which it maintains is
not legally required, after a district court held that detention
pursuant to an ICE detainer alone constituted a warrantless
arrest. ICE Policy 10074.2 ¶ 2.4 n.2 (citing Moreno v.
Napolitano, 213 F. Supp. 3d 999 (N.D. Ill. 2016)).
At issue here are the Attorney General’s orders delegating
to the U.S. Marshals the authority to make civil immigration
arrests. The Marshals are law enforcement officers in the
Department of Justice who serve at the behest of both the
judiciary and the Attorney General. Their “primary role and
mission [is] to provide for the security [of,] and to obey,
execute, and enforce all orders of,” the federal courts.
28 U.S.C. § 566(a).2
2 The Marshals “execute all lawful writs, process, and orders issued
under the authority of the United States,” 28 U.S.C. § 566(c), and
“exercise such other functions as may be delegated by the Attorney
General.” Id. § 561(b). Regulations governing the Marshals describe
their activities as including the “[e]xecution of Federal arrest
warrants pursuant to rule 4 of the Federal Rules of Criminal
Procedure . . . and Federal custodial and extradition warrants as
directed.” 28 C.F.R. § 0.111(a).

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It is undisputed that the Marshals may not make civil
immigration arrests without a proper delegation of authority
and a warrant. In 1996, the Deputy Attorney General delegated
to the Marshals the authority “to perform and exercise the
powers and duties of Immigration Officers for the purpose of
. . . maintaining custody of aliens in the custody of the Attorney
General.” As the legal basis for the 1996 Order, the Deputy
Attorney General cited 8 U.S.C. § 1103 and 28 U.S.C. §§ 509,
510, and 566. As mentioned above, § 1103 authorizes the
delegation of the powers in the INA and, at the time of the 1996
Order, vested that authority in the Attorney General. 8 U.S.C.
§ 1103(a) (1994). Section 509 vests in the Attorney General,
with a few exceptions not relevant here, “[a]ll functions of
other officers of the Department of Justice and all functions of
agencies and employees of the Department of Justice.” Section
510 authorizes the Attorney General in turn to “authoriz[e] the
performance by any other officer, employee, or agency of the
Department of Justice . . . of any function of the Attorney
General.”
In 2002, Attorney General Ashcroft issued an order
authorizing the Marshals “to exercise the functions of
immigration officers for the purpose of . . . apprehending . . .
any alien” who is in violation of the United States’ immigration
laws. When the 2002 Order was sent to the Attorney General
for his signature, it was accompanied by an internal
memorandum (the “Dinh Memorandum”) explaining that the
Order “clarified” the 1996 Order “to ensure that sufficient
apprehension support is available when necessary to
implement program initiatives such as the National Security
Entry - Exit Registration System.” Unlike the 1996 Order,
however, the 2002 Order relied only upon §§ 509 and 510 as
its legal bases.

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B. Procedural History
The district court certified the proposed class and granted
N.S.’s request for an injunction permanently prohibiting
Marshal Dixon and his agents “from arresting and detaining
criminal defendants in the Superior Court for the District of
Columbia for suspected civil immigration violations.”3 In its
initial determination to enter a preliminary injunction, the court
had rejected a variety of arguments Marshal Dixon made to
justify the arrest of N.S., and based its decision upon three
grounds relevant to this appeal. N.S. v. Hughes (Dixon I), 335
F.R.D. 337 (D.D.C. 2020).
First, the district court held an ICE detainer together with
an I-200 form does not authorize the Marshals to make a civil
immigration arrest: An ICE detainer “do[es] not confer upon
the recipient agency the legal authority to make an arrest,” and
an I-200 form “is not a true warrant, as it is not issued by an
independent judicial officer; instead, it is issued by an ICE
agent, causing concerns about a lack of neutrality.” Id. at 346–
47.
Second, the district court held the INA and its
implementing regulations “make clear that only trained,
certified immigration officers have the authority to make civil
immigration arrests;” the Marshals had not received that
training. Id. at 347–48 (citing 8 U.S.C. § 1357(a) & 8 C.F.R.
§ 287.7(b)); id. at 348 n.6 (citing 8 C.F.R. § 287.5(e)(3)).
3 The class was defined as “All indigent criminal defendants in the
Superior Court for the District of Columbia: (1) who were, are, or
will be detained by officers of the United States Marshals Service for
suspected civil immigration violations, and (2) as to whom
Immigration and Customs Enforcement has not effectuated a warrant
of removal/deportation (a form I-205) and/or has not obtained an
order of deportation or removal.”

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Further, the court noted that the implementing regulations say
“[o]nly designated immigration officers are authorized to make
an arrest,” and that the Marshals are not immigration officers.
Id. at 348 n.6 (citing 8 C.F.R. §§ 287.8(c)(1), 236.1(b)(1)).
Third, the district court held 28 C.F.R. § 0.111(a) — which
describes the functions of the Marshals to include the execution
of custodial warrants — did not provide the authority to make
a civil immigration arrest. Id. at 349–50. In addition, relying
upon its earlier analysis, the court concluded the Marshals
could not execute an I-200 form — which, again, is issued to
“[a]ny immigration officer authorized pursuant to” specific
sections of the INA — because the Marshals “are not
immigration officers” and “are certainly not the kind of
specially trained immigration offers specifically authorized
under the applicable provisions.” Id.
Marshal Dixon filed a Motion for Reconsideration, for the
first time arguing the 2002 Order gave the Marshals the
authority to make civil immigration arrests. In response, N.S.
argued the 2002 Order had been overtaken by the Homeland
Security Act (HSA); the Order should have been promulgated
through notice and comment rulemaking; and the Order did not
invoke any proper legal basis to support its delegation of
authority to the Marshals.
The district court rejected the Marshal’s motion. N.S. v.
Hughes (Dixon II), No. 1:20-cv-101, 2020 WL 4260739
(D.D.C. July 24, 2020). The court first held the 2002 Order was
not a valid basis for reconsideration because Marshal Dixon
should have known about and raised the Order in his earlier
brief. Id. at *2. It then rejected N.S.’s first two arguments. As
to the HSA, the district court held the 2002 Order was a
completed administrative action that survived because of the
savings clause in the HSA, 6 U.S.C. § 552(a)(1). Id. at *3–4.

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As to the notice and comment requirement, the district court
held that process was unnecessary because the 2002 Order
came within the exception to APA rulemaking for procedural
rules. Id. at *4–5.
The court, however, agreed with N.S. that the 2002 Order
lacked sufficient legal support for its purported delegation of
authority. Id. at *5–*6. It held the Attorney General could not
rely upon the general delegation authority of 28 U.S.C. §§ 509
and 510 because those provisions were not part of the INA,
which is a comprehensive and complete federal statutory
scheme for regulation of immigration and naturalization. Id. at
*5 (citing Chamber of Com. of U.S. v. Whiting, 563 U.S. 582,
587 (2011) & Elkins v. Moreno, 435 U.S. 647, 666 (1978)). The
district court then held Marshal Dixon could not now rely upon
8 U.S.C. § 1103 — a more specific legal authority in the INA
that would have provided the Attorney General with the
requisite authority — to justify the Order on the ground that
doing so would violate the principle of SEC v. Chenery Corp.,
332 U.S. 194, 196–97 (1947), that a court must “judge the
propriety of an [agency] action solely by the grounds invoked
by the agency” when it acted. Id. at 196; Dixon II, 2020 WL
4260739, at *6.
The district court thereafter granted N.S.’s motion for
summary judgment. N.S. v. Dixon (Dixon III), No. 1:20-cv-101,
2021 WL 4622490 (D.D.C. Oct. 7, 2021). The court explained
that the 1996 Order — which Marshal Dixon had not raised
before — could not support the Marshals’ authority to make a
civil immigration arrest: Despite invoking the relevant legal
authority (8 U.S.C. § 1103), the 1996 Order to the Marshals to
“maintain[] custody of aliens in the custody of the Attorney
General” did not apply here because N.S. was not in the
custody of the Attorney General when the Marshals detained
him. Id. at *5. The court also rejected Marshal Dixon’s attempt

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to rectify the 2002 Order (which, per the court, was based upon
an inapposite legal authority) by linking it, via the Dinh
Memorandum, to the 1996 Order (which had relied upon the
proper legal authority), saying the Dinh Memorandum “hardly
provided a reasonable path” from the 1996 Order’s invocation
of § 1103” to the 2002 Order. Id. at *7 (cleaned up).
The district court then determined that entry of a
permanent injunction was appropriate because N.S. had
suffered an irreparable injury and the class was likely to suffer
the same irreparable harm, the remedies available at law were
inadequate, and the balance of equities favored the class. Id. at
*7–*8. Marshal Dixon appealed with respect both to his
authority and to the issuance of class-wide relief.
On January 22, 2025, after oral argument and a change of
presidential administration, the Acting Secretary of Homeland
Security issued a new order relating to the authority of the
Marshals to make civil immigration arrests (the 2025 Order).
Letter from Elissa P. Fudim to Clerk of Court, Feb. 3, 2025,
pursuant to Fed. R. App. P. 28(j). Citing 8 U.S.C. § 1103(a)(4)
and (6), the Acting Secretary purported to authorize the
Marshals to “perform the following functions of an
immigration officer granted to the [DHS] by [the INA] and
confer upon them the authority to do the same: . . .
apprehending, any alien who is in the United States in violation
of [the INA] or regulations issued thereunder.”
II. Analysis
“We review the district court’s conclusions of law de
novo.” United States v. Philip Morris USA Inc., 566 F.3d 1095,
1110 (D.C. Cir. 2009). We review the district court’s decision
to issue an injunction for abuse of discretion. Id.

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A. The Marshals’ Authority to Arrest N.S.
1. The Delegations to the Marshals
In his briefs on appeal Marshal Dixon contended, inter
alia, that contrary to the district court, the 2002 Order on its
own, and certainly when coupled with the 1996 Order,
constituted a proper delegation of authority: Because we rest
our holding on the narrower ground that the Marshals lack the
requisite training, we may assume without deciding that the
Orders constitute valid delegations of authority to the Marshals
and that those delegations survive the passage of the HSA.4
2. The Training Requirement
Marshal Dixon further challenges the district court’s
holdings that the Marshals are not immigration officers and
that, even if the relevant regulation could be expanded to
include the Marshals, they would still have to receive training
prior to making a civil immigration arrest. In this regard, recall
4 In a post-argument letter to the court, Marshal Dixon now argues
the issuance of the 2025 Order, which expressly invokes 8 U.S.C.
§ 1103(a)(4), moots N.S.’s argument that the 1996 and 2002 Orders
did not properly give the Marshals authority to make civil
immigration arrests. Marshal Dixon is correct that, for arrests made
on or after January 22, 2025, the 2025 Order rests upon the proper
legal authority. Indeed, the 2025 Order invokes precisely the legal
authority N.S. argues the 2002 Order should have invoked. We also
agree with Marshal Dixon that, for arrests made on or after January
22, 2025, the 2025 Order moots N.S.’s contention that the HSA or its
implementing regulations had vitiated any earlier delegation. But we
need not address Marshal Dixon’s arguments regarding the legal
effect of the 2025 Order on pre-order conduct because we assume
without deciding that the earlier Orders were legally supported.

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that under INA regulations (a) an I-200 form “may be served
only by those immigration officers listed in § 287.5(e)(3),” 8
C.F.R. § 236.1(b)(1), and (b) that listed officers must have
completed the required training before serving an I-200 form.
Id. § 287.5(e)(3); see also id. § 287.5(c)(1) (same required
before making an arrest under 8 U.S.C. § 1357(a)(2)). The
Marshals are not listed in those regulations.
The 2025 order authorizes the Marshals to “perform the
following functions of an immigration officer granted to the
[DHS] by [the INA:] . . . apprehending any alien who is in the
United States in violation of [the INA] or regulations issued
thereunder.” (Cleaned up.) Both this Order and the 2002 Order
authorize the Marshals to discharge the “functions of an
immigration officer” for the purpose of making a civil
immigration arrest. We therefore do not view the 2002 and
2025 Orders as meaningfully different with respect to the
requirement to undergo training prior to exercising that arrest
authority.
Assuming the list of officers authorized in § 287.5(e)(3) to
make civil immigration arrests may be thusly expanded
without amending the regulation, as Marshal Dixon claims, the
2025 Order does not relieve the Marshals of the pre-existing
training requirement. Rather, it simply authorizes the Marshals
to “perform the . . . functions of an immigration officer.”
Arresting aliens is not a function of an immigration officer who
has not received the relevant training. We therefore agree with
the district court that the Marshals were not authorized to arrest
N.S.
Marshal Dixon nonetheless argues that because the
Congress has defined an immigration officer to include any
employee “designated . . . individually or by regulation, to
perform the functions of an immigration officer,” 8 U.S.C.

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§ 1101(a)(18) (2002), and because § 287.5 “sets forth a training
requirement for those designated by regulation,” the training
requirement does not apply to immigration officers designated
individually. Dixon Reply Br. 21. Again, however, the Order
delegates only the “functions of an immigration officer.” Those
functions do not include executing I-200 forms before having
completed training. Marshal Dixon offers no authority for the
proposition that a delegation order authorizing individuals to
execute a particular function are thereby excused from the
prerequisites to engaging in that function.
Nor do we think the other training requirement to which
Marshal Dixon points informs the requirements for the
Marshals. The INA provision allowing State and local
government employees to act as immigration officers explicitly
requires training as a prerequisite. 8 U.S.C. § 1357(g)(2).
Marshal Dixon argues that the lack of a similar requirement in
the definition of “immigration officer,” see § 1101(a)(18),
suggests the Congress “did not view such training as essential
for federal immigration officers.” Dixon Reply Br. 21. Section
1357(g)(2), though, addresses a contract-like agreement with
State law enforcement agencies, which are not under the
control of the federal government, whereas the definition of
“immigration officer” in § 1101(a)(18), applies only to federal
officials and is located in a provision defining terms for the
entirety of the INA. The requirements of § 1357(g)(2) apply to
a different situation and therefore have no bearing on the
meaning of the 2025 Order.
In sum, the 2025 Order effects a valid delegation of
authority for arrests that are made on or after January 22, 2025
but does not relieve the Marshals of the requirement to undergo
training prior to making a civil immigration arrest. As a result,
the Marshals who detained N.S. were not authorized to make a
civil immigration arrest. We need not, therefore, address

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Marshal Dixon’s argument that the 2025 Order “delegated [sic]
USMS as Immigration officers,” Dixon Br. 36, and,
consequently, the I-200 form they had was a “Federal custodial
. . . warrant” that the Marshals were authorized to serve.5 28
C.F.R. § 0.111(a). Nor need we address N.S.’s argument that
the delegation of authority to the Marshals is invalid because it
was done without notice and comment rulemaking.
B. The Class-Wide Injunction
Because the arrest of N.S. was not valid, we must go on to
address Marshal Dixon’s challenge to the breadth of the
injunction the court issued. Marshal Dixon argues for the first
time on appeal that 8 U.S.C. § 1252(f)(1) barred the district
court from issuing a class-wide injunction. Section 1252(f)(1)
provides:
Regardless of the nature of the action . . . no court (other
than the Supreme Court) shall have jurisdiction or
authority to enjoin or restrain the operation of [§§ 1221–
1232] . . . other than with respect to the application of such
provisions to an individual alien against whom
proceedings under such part have been initiated.
Marshal Dixon contends the district court’s class-wide
injunction “enjoin[s] or restrain[s] the operation of” two
provisions, both of which authorize the arrest and detention of
removable aliens, to wit, 8 U.S.C. §§ 1226 and 1231. N.S.
responds first that the statutory bar is not jurisdictional and
therefore was forfeited or waived because Marshal Dixon did
not raise it in the district court, and second that, in any event,
5 On appeal, Marshal Dixon does not advance his argument from the
proceedings before district court that § 0.111(a) authorizes the
Marshals to make civil immigration arrests independent of a proper
delegation of authority.

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the injunction does not affect the provisions covered by
§ 1252(f)(1).
1. Whether Section 1252(f)(1) Has Been Forfeited or
Waived
Per N.S., the Supreme Court’s decision in Biden v. Texas,
597 U.S. 785 (2022), holds § 1252(f)(1) is a non-jurisdictional
defense and hence may be forfeited or waived if not timely
raised. Marshal Dixon argues § 1252(f)(1) is “a jurisdictional
limitation on a court’s power [that] can never be forfeited or
waived.” Dixon Reply Br. 2 (cleaned up).
We need not decide now whether § 1252(f)(1) is non-
jurisdictional and therefore subject to being waived or forfeited
because any waiver or forfeiture should be overlooked in this
case. Cf. Young v. SEC, 956 F.3d 650, 655 (D.C. Cir. 2020)
(declining to decide whether a filing deadline is jurisdictional
because the petitioner failed to establish an entitlement to
equitable tolling). A court may overlook a waiver or forfeiture
when there has been an intervening change in the law. See, e.g.,
Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419
(D.C. Cir. 1992); Wakefield v. ViSalus, Inc., 51 F.4th 1109, 1119
(9th Cir. 2022). That is the case here.
During the district court proceedings in 2020 and 2021,
circuit law seemed to foreclose the argument that § 1252(f)(1)
bars the district court’s injunction. See Grace v. Barr, 965 F.3d
883, 907 (2020) (explaining that § 1252(f)(1) “refers only to
‘the operation of the provisions’ — i.e., the statutory provisions
themselves, and thus places no restriction on the district court’s
authority to enjoin agency action found to be unlawful”). Only
after the proceedings in the district court did the Supreme Court
hold § 1252(f)(1) “generally prohibits lower courts from
entering injunctions that order federal officials to take or to
refrain from taking actions to enforce, implement, or otherwise

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carry out the specified statutory provisions.” Garland v.
Aleman Gonzalez, 596 U.S. 543, 550 (2022). The Supreme
Court’s interpretation of this statute to bar an injunction against
the “carry[ing] out” of the covered provisions is broader than
was our interpretation in Grace. Because the district court’s
injunction in this case seemed not to have been barred under
our prior interpretation of § 1252(f)(1), Marshal Dixon’s
failure to object to it prior to the decision in Aleman Gonzalez
is excusable. The resulting change in circuit law presents an
exceptional circumstance that counsels rejecting N.S.’s waiver
and forfeiture arguments.
2. Whether The Permanent Injunction Implicates
§ 1252(f)(1)
Does the district court’s injunction “restrain the operation”
of the provisions of the INA specified in § 1252(f)(1), as
interpreted by the Supreme Court in Aleman Gonzalez? N.S.
argues § 1252(f)(1) does not apply to this injunction for two
reasons. First, he contends the enjoined actions are governed
by § 1357, which relates to warrantless arrests and is not
among the provisions to which § 1252(f)(1) applies. Second,
he argues that because the injunction applies only to the
Marshals, and not DHS or the entire government, its limited
effect does not amount to restraining the “operation of” the
specified provisions. For the reasons explained below, neither
argument persuades.
As described in the prior section, Aleman Gonzalez holds
an injunction implicates the provisions covered in § 1252(f)(1)
insofar as it would affect the ability of federal officials to
“enforce, implement, or otherwise carry out the specified
statutory provisions.” 596 U.S. at 550. Therefore, the remedial
bar of §1252(f)(1) is not limited to the covered provisions “as
properly interpreted.” 596 U.S. at 552–54 (explaining that this

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reading would not be a natural interpretation of the term
“operation,” as it “is very common to refer to the ‘unlawful’ or
‘improper’ operation of whatever it is that is being operated”).
That limitation would not comport with the provision’s
prefatory clause, which specifies that the bar applies
“[r]egardless of the nature of the action or claim.” 8 U.S.C.
§ 1252(f)(1); see Aleman Gonzalez, 596 U.S. at 553. It would
also make the effect of § 1252(f)(1) contingent upon the merits
of the claim that the Government acted unlawfully. Id. at 554.
In sum, Ҥ 1252(f)(1) has the same force even when the
National Government allegedly enforces the relevant statutes
unlawfully.” Arizona v. Biden, 40 F.4th 375, 394 (6th Cir. 2022)
(Sutton, C.J., concurring).
An injunction that restrains the Government from carrying
out an arrest and detention of a criminal defendant pursuant to
an I-200 form clearly affects provisions to which § 1252(f)(1)
applies. In particular, 8 C.F.R. Part 236 — which encompasses
the regulation providing that only those classes of officers
listed in 8 C.F.R. § 287.5(e)(3) may serve an I-200 form, id.
§ 236.1(b) — claims its authority in part from 8 U.S.C. §§ 1226
and 1231, both of which are covered by § 1252(f)(1). More
specifically, § 1226(a) addresses a civil immigration arrest
made pursuant to a warrant. Section 1226(c), entitled
“Detention of criminal aliens,” additionally authorizes the
Secretary, “when [an alien charged with a listed crime] is
released,” to “take [that alien] into custody.” Moreover, ICE’s
policy to accompany an ICE detainer with an I-200 form, even
if not uniformly followed, suggests an arrest pursuant to an ICE
detainer generally is not without the type of warrant required
by § 1226(a). See ICE Policy 10074.2 ¶ 2.4 (“[A]s a matter of
policy, all detainers issued by ICE must be accompanied by
either: (1) a properly completed Form I-200 . . . or (2) a
properly completed Form I-205”).

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18
As a result, we conclude the injunction in this case
implicates provisions to which § 1252(f)(1) applies: It prevents
the Marshals from arresting and detaining any criminal defend-
ant in the D.C. Superior Court for a suspected civil immigration
violation, including arrests made pursuant either to an ICE
detainer and I-200 form or pursuant to an ICE detainer alone.6
We disagree with N.S.’s argument that the injunction has
only a collateral effect on the provisions covered by
§ 1252(f)(1) because it restrains only the Marshals from
making a civil immigration arrest. By preventing Marshal
Dixon and his agents from making civil immigration arrests,
the injunction directly and substantially restricts the ability of
those federal officials to “carry out” provisions covered by
§ 1252(f)(1) and pro tanto frustrates enforcement of the law.
Aleman Gonzalez, 596 U.S. at 550 (“[T]he ‘operation of the
provisions’ is a reference ‘not just to the statute itself but to the
way that [it is] being carried out’”).
N.S. further contends the Marshals arrested him without a
warrant, and therefore the injunction implicates only § 1357 —
the provision governing warrantless arrests — and not
§ 1252(f)(1). N.S. may be correct that he was not served with
an I-200 form at the appropriate time and place. See Dixon
Reply Br. Ex. A (showing N.S.’s I-200 Form was served in
Lorton, Virginia, not at the D.C. Superior Court). He may also
be correct that despite ICE policy there are multiple instances
6 See Oral Arg. Tr. 37:21–38:1 (“JUDGE WALKER: Does the
district court’s injunction cover class members for whom there are I-
200 warrants that [the] Marshal Service was aware of, that were
served properly . . . [with] all the t's crossed and all the i's dotted?
MR. GONEN [for N.S.]: Yes, it does”).

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of the Marshals making civil immigration arrests without an I-
200 form. All that is beside the point.
What matters is that the district court enjoined the
Marshals from arresting and detaining any criminal defendant
suspected of a civil immigration violation, which includes
arrests made with a warrant issued pursuant to § 1226(a) and
the detention of any alien charged with any of the crimes listed
in § 1226(c). Notwithstanding the court’s conclusion in Part
II.A that the Marshals were not lawfully able to execute a civil
immigration arrest for want of the requisite training, the district
court was barred by § 1252(f)(1) from entering a class-wide
injunction preventing such arrests and detention. Aleman
Gonzalez, 596 U.S. at 552–53.
III. Conclusion
For the foregoing reasons, we vacate the district court’s
order enjoining Marshal Dixon and his agents, subordinates,
and employees “from arresting and detaining criminal
defendants in the Superior Court for the District of Columbia
for suspected civil immigration violations.” We remand this
case to the district court to reconsider the appropriate remedy.7
So ordered.
7 This court has stated, and Marshal Dixon does not contest, that
§ 1252(f)(1) “does not proscribe issuance of a declaratory
judgment[.]” Make the Rd. New York v. Wolf, 962 F.3d 612, 635
(2020); accord Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir.
2011); Nielsen v. Preap, 586 U.S. 392, 402 (2019) (plurality opinion)
(explaining “whether the [district] court had jurisdiction to enter
. . . [a class-wide] injunction is irrelevant because [it] had jurisdiction
to entertain the plaintiffs’ request for declaratory relief” (cleaned

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up)). At least one court of appeals has held § 1252(f)(1) does not bar
vacatur under the APA. See Texas v. United States, 40 F.4th 205,
219–20 (5th Cir. 2022).

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WALKER, Circuit Judge, concurring in Part II.B and concurring
in the judgment to vacate the injunction and remand to the
district court:
N.S. brought a class action against the United States
Marshal for the Superior Court, alleging that the Marshals lack
authority to detain individuals for civil immigration violations.
The district court agreed and entered a permanent injunction.1
In Part II.B, the Court holds that 8 U.S.C. § 1252(f)(1) bars
the district court’s injunction. I join that part of the Court’s
opinion. It fully explains the Court’s decision to vacate the
injunction and remand — the relief requested on appeal.2
Unlike the majority, I would not narrow the remand to
reconsideration of the appropriate remedy. Under my
approach, if the district court grants new remedies on remand,
the Government would be able to appeal the district court’s
decision with regard to both the merits and the new remedy.
If that day comes, it might then be necessary for this court
to decide the merits questions discussed in Part II.A. But that
day may never come. For one thing, the Marshals might elect
to provide the training that N.S. argues is required, which might
moot any not-already-moot claims related to the regulations
about training.
1 N.S. v. Dixon, No. 1:20-cv-101-RCL, 2021 WL 4622490, at *1
(D.D.C. Oct. 7, 2021) (enjoining the Marshals from “arresting and
detaining criminal defendants in the Superior Court for the District
of Columbia for suspected civil immigration violations”).
2 See Appellant Br. 45 (“The Court should overturn the district
court’s permanent injunction.”).

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