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Fair Courts E-Lert: New Rules to Limit ICE Arrests in New York State Courthouses

Our latest Fair Courts E-Lert highlights new rules set to limit ICE arrests in New York State courthouses, the Department of Justice’s ruling that some asylum seekers cannot be released on bail, and more.

April 29, 2019


ICE Out of Courts

Access to Justice

New Rules to Limit ICE Arrests in New York State Courthouses

Earlier this month, the New York State Unified Court System issued a rule requiring judicial warrants for Immigration and Customs Enforcement (ICE) to make arrests in New York courthouses, a move advocates have heralded “as a major victory for efforts to reduce the ability of federal immigration officials to operate in state courts.”

The rule came a week after the release of a report by the ICE Out of Courts Coalition based on two years of research demonstrating the “full breadth of the negative impact ICE courthouse operations have had on the administration of justice, as well as equal access to justice, in New York State.” Specifically, the report finds that “ICE courthouse operations have had an outsized effect on the most vulnerable New York State residents, including victims and survivors of domestic and gender-based violence,” resulting in “a chilling effect among victims, survivors, and witnesses in reporting abuses to law enforcement” and in “pursu[ing] justice in courts.”

ICE operations inside courthouses increased by 1700% in New York State since 2016, according to the report. Immigration courthouse arrests across the country last year prompted 75 former state and federal judges to urge ICE to stop making civil immigration arrests in courthouses.

Chief Administrative Judge Lawrence Marks said, “We have concluded that this report provides us with a sufficient basis to take the step that many have asked us to take to require that ICE present a judge-issued warrant before conducting an arrest in a state courthouse.”



Department of Justice Rules Some Asylum Seekers Cannot be Released on Bail

Earlier this month, Attorney General William P. Barr issued an order directing immigration judges to deny migrants “transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture” a chance to post bail. According to The New York Times, the order could jail some migrants “indefinitely while they wait for a resolution of their asylum requests.” Advocates say the order “could undermine the basic rights of people seeking safety in the United States.”

Barr’s order is part of an ongoing effort by the Trump administration to remake immigration law precedent and procedures: former Attorney General Jeff Sessions sought to make it more difficult for immigration judges to grant asylum in response to domestic violence, curtailed immigration judges’ ability to manage their heavy caseload, and the DOJ began evaluating immigration judges’ performance using quantitative quotas, an approach the American Bar Association said “pits personal interest against due process."

Further changes are likely. The San Francisco Chronicle reported the DOJ will soon issue rule changes that would allow a two-judge majority of a three-judge panel made up of any of the 21 judges on the Board of Immigration Appeals – the highest administrative body for interpreting and applying immigration laws– to “declare their rulings binding on the entire immigration system.” Such a change would be a departure from the current practice that requires a majority of all permanent sitting judges to issue binding precedent and could “sharply accelerate the administration’s ability to make changes to immigration law that wouldn’t require congressional action.”


Judicial Diversity

Judge Carlton Reeves Calls for “Justice, Truth, and Diversity on the Bench”

Earlier this month, Judge Carlton W. Reeves, U.S. District Judge for the Southern District of Mississippi, received significant attention for his speech, titled, “Defending the Judiciary: A Call for Justice, Truth, and Diversity on the Bench,” delivered upon receiving the Thomas Jefferson Foundation Medal in Law.

Reeves spoke about the importance of diversity on the bench because justice requires “a multitude of different experiences” and the need for “[j]udges, politicians, and citizens alike [to] denounce attacks that undermine [our court’s] ability to do justice.”

A lack of diverse experiences has historically resulted in “one-sided justice,” which “enabled the exclusion, torture, and sale of black people,” as well as the U.S. Supreme Court’s Dred Scott decision, until the inclusion of the black experience during the post-Civil War Reconstruction Era. But the “threat of democratic justice” resulted in the first great assault against the judiciary by the Klan, and “lynchings were sanctioned by a judiciary that was ‘the Klan in black robes instead of white sheets.’”

The “second great pushback against the judiciary,” Reeves said, came from segregationists in response to the U.S. Supreme Court’s decision in Brown v. Board of Education: “White power returned to the playbook of the past: smearing judges, shrinking judicial power, and scrubbing diversity from courtrooms.” Reeves said that “[w]e are now eyewitnesses to the third great assault on our judiciary,” and elevates notable recent examples of “attack[s]” on the judicial branch by Trump, in which “you can hear segregationist Senators,” and the “slurs and threats of executives like George Wallace, echoing into the present.”

For courts to carry out justice and hold the public trust, Reeves said “[w]e need a judiciary as diverse as … ‘We the People.’” This representation is what “instills public confidence in the courts,” “more than any claim to pedigree or prestige.”


State Courts

Kansas GOP Leader Seeks Lawsuit to Prevent Governor from Naming Nominee to State’s Second-Highest Court

Earlier this month, Kansas Senate President Susan Wagle, a Republican, sent a letter to state Attorney General Derek Schmidt, also a Republican, “asking him to sue to block [Gov. Laura] Kelly from submitting another state Court of Appeals nominee to the Senate for confirmation,” according to the Associated Press.

Wagle argues that due to a 2013 law, Kelly does not have the power to name a second nominee. The 2013 law required nominees to the Court of Appeals to receive Senate confirmation and held that if a governor did not make a nomination within 60 days of a vacancy, the Chief Justice of the Kansas Supreme Court instead selects a nominee.

Kelly was forced to withdraw her first nominee “over 2017 tweets that included vulgar language directed at Republicans and criticism of President Donald Trump.” But because Kelly named her first nominee on the 60-day deadline and withdrew it days later, Wagle argues Kelly missed the deadline. Kelly’s staff argues her first nominee “represents a failed nomination and she gets to submit a new name.”

Last week, State A.G. Schmidt asked the Kansas Supreme Court to determine who, if anyone, currently has the authority to nominate a judge to fill the vacancy. Kelly, meanwhile, began the process of nominating a new candidate.