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Analysis

Former Judges Denounce Immigration Arrests at Courthouses

Judges from across the country call on ICE Director to halt courthouse arrests.

December 12, 2018

People arriv­ing at a court­house should­n’t have to fear being detained and depor­ted before even having the chance to be heard. But in the last two years, there has been a sharp spike in immig­ra­tion arrests at state court­houses. For some people, this has made court­houses places to avoid at all costs. This includes people who have no other recourse to protect them­selves from viol­ence or to refute false charges against them. 

Now a group of prom­in­ent former judges from across the coun­try are saying that enough is enough.

Since 2017, there have been hundreds of court­house immig­ra­tion arrests docu­mented across the coun­try, includ­ing in at least 23 states. These include the woman arres­ted in El Paso as she sought an order protect­ing her from domestic viol­ence, the young DACA recip­i­ent in Chicago arres­ted while contest­ing a traffic ticket, and the New York City man so viol­ently taken by Immig­ra­tion and Customs Enforce­ment (ICE) officers last month, in cooper­a­tion with state court officers, that onlook­ers believed he was being kidnapped.

Today, a group of 68 former state and federal judges — includ­ing 25 state supreme court justices and 10 chief justices from across the ideo­lo­gical spec­trum — sent a letter to ICE acting director Ronald Viti­ello, urging him to stop ICE officers from making civil immig­ra­tion arrests at state and local court­houses. They write that “for courts to effect­ively do justice, ensure public safety, and serve their communit­ies, the public must be able to access court­houses safely and without fear of retri­bu­tion.” 

Court­house immig­ra­tion arrests grew in frequency over the last two years as Viti­el­lo’s prede­cessor, Thomas Homan, fully embraced court­house immig­ra­tion enforce­ment. Immig­ra­tion advoc­ates, prosec­utors, and sitting state chief justices asked Homan to stop the prac­tice. Instead, he respon­ded by form­al­iz­ing ICE’s court­house arrests policy for the first time, making clear the arrests would continue.

The Senate is consid­er­ing Viti­el­lo’s formal nomin­a­tion to serve as ICE Director. If confirmed, he would be the agency’s first fully-confirmed Director in two years. But Viti­ello already has the power to stop court­house immig­ra­tion arrests, even as his confirm­a­tion process unfolds. For 25 years, under four pres­id­en­tial admin­is­tra­tions, ICE has main­tained a policy instruct­ing officers to avoid making arrests in certain “sens­it­ive loca­tions,” includ­ing schools, hospit­als, reli­gious insti­tu­tions, and public demon­stra­tions, absent special circum­stances. In today’s letter, which the Bren­nan Center helped coordin­ate, the group of judges calls on ICE’s new lead­er­ship to add court­houses to the list of sens­it­ive loca­tions.

Since Homan’s policy was form­al­ized, court­house immig­ra­tion arrests have become so common that they are now a part of the fabric of the justice system. In response, lawyers are factor­ing for ICE’s court­house pres­ence as they advise clients, and judges are facing defend­ants who ask to be detained rather than released into ICE’s hands.

Homan has argued that ICE officers oper­ate in the halls of court­houses because sanc­tu­ary policies make other city agen­cies unwill­ing to cooper­ate with immig­ra­tion enforce­ment. He also claimed that ICE officers feel safe in court­houses where they can be certain targets of arrests have no weapons.

But for every­one who isn’t an ICE officer, ICE’s court­house activ­it­ies under­mine that very feel­ing of safety. In fact, accord­ing to data from cities in Cali­for­nia and Texas, Lati­nos are seek­ing fewer orders of protec­tion than they have in the past. This suggests that, in the face of aggress­ive immig­ra­tion enforce­ment, surviv­ors of domestic viol­ence are balan­cing the fear of an abuser with the fear of ICE. In Brook­lyn and Denver, district attor­neys have acknow­ledged drop­ping cases because witnesses, includ­ing surviv­ors of domestic viol­ence, fear that cooper­at­ing could lead to immig­ra­tion trouble.

Our courts cannot prop­erly serve the public if victims and witnesses are scared away from cooper­at­ing. This fear leaves the public less safe and our system more unjust.

Across the coun­try, advoc­ates are asking state courts, and some­times legis­latures, to take action against court­house immig­ra­tion arrests. In New Mexico and New York, advoc­ates have asked the state’s courts to take admin­is­trat­ive action to limit ICE’s pres­ence in court­houses — either by prohib­it­ing civil arrests entirely or by requir­ing ICE officers obtain more formal warrants before carry­ing out arrests. In Septem­ber, Albuquer­que’s Metro Court imple­men­ted a new “Court­house Access Policy” requir­ing judi­cial warrants for any federal officer to make an arrest in the court­house. In Massachu­setts, civil rights groups chal­lenged court­house immig­ra­tion arrests, arguing that they viol­ate long­stand­ing protec­tions against arrests for persons engaged in court busi­ness. (A judge ruled against their chal­lenge in Septem­ber.) And in Cali­for­nia, a new law prohib­its judges and attor­neys from disclos­ing the immig­ra­tion status of victims or witnesses while in court. 

For much of the coun­try, however, change will come most quickly if ICE volun­tar­ily ramps down its court­house enforce­ment activ­it­ies. As Viti­ello awaits his formal confirm­a­tion as ICE director, he will have to choose whether to continue Homan’s policies or, as the judges write, “restore the public’s confid­ence that it can safely pursue justice in our nation’s courts.”

UPDATE: A hand­ful of new signat­or­ies were added follow­ing the initial public­a­tion, for a total of 75 judges that have signed on to this letter.

Image credit: John Moore/Getty