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Analysis

New York Passes Ban on Immigration Arrests at Courthouses

The legislation continues nationwide momentum to ensure courts are safe and open to all.

Last Updated: December 15, 2020
Published: July 29, 2020
ny courthouse
Elephotos/Shutterstock

Update: Governor Cuomo signed the bill on Decem­ber 15.

Since 2017, ICE officers have made common prac­tice of show­ing up at state and local court­houses to arrest people appear­ing in court for reas­ons unre­lated to immig­ra­tion. Advoc­ates who have been fight­ing back to ensure immig­rant communit­ies can safely access court­houses won a major victory last week as the New York State Legis­lature passed the Protect Our Courts Act, which now awaits Gov. Andrew Cuomo’s signa­ture.

The bill would prohibit ICE from arrest­ing anyone who is going to or leav­ing a court proceed­ing — whether as a party, witness, or family member — unless the officer has a warrant signed by a judge. It would also require court­house person­nel to deny entry to any non-local law enforce­ment officer seek­ing to make a civil arrest without a judi­cial warrant. While a federal judge in New York recently ordered ICE to stop making court­house arrests, this new legis­la­tion makes such a prohib­i­tion perman­ent and stops officers at the court­house door.

With a more than tenfold increase in these types of arrests under the Trump admin­is­tra­tion, there is extens­ive evid­ence of how damaging they are to the justice system. Surveys of community members, attor­neys, and law enforce­ment make clear that undoc­u­mented people are scared to come to court and, as a result, are declin­ing to pursue cases or seek court orders of protec­tion in the way they normally would. This bill enables attor­neys and other community service providers to tell their clients it is safe to come to court.

Judges and law enforce­ment offi­cials have also detailed the tremend­ous chal­lenges that ICE court­house target­ing poses for their work, lead­ing to chaotic court­houses and the disap­pear­ance of parties, victims, and witnesses essen­tial to the justice system. Some arrests have been so viol­ent that onlook­ers repor­ted seeing a kidnap­ping on the court­house steps. While there is no inher­ent reason for ICE officers to be present in state court­houses that do not hear immig­ra­tion matters, ICE lead­er­ship has blamed their aggress­ive tactics on the unwill­ing­ness of “sanc­tu­ary cities” to parti­cip­ate in federal immig­ra­tion enforce­ment.

Outside of New York, several other states have taken major steps to protect their courts as well. In March, Wash­ing­ton Gov. Jay Inslee signed a bill that simil­arly prohib­its court­house immig­ra­tion arrests without a warrant. Cali­for­nia enacted a similar law in 2019. Over the last three years, state and local court systems have them­selves issued orders limit­ing ICE enforce­ment in New York, Oregon, New Jersey, Seattle, and Albuquerque.

Advoc­ates that have sued ICE over its policy of making court­house arrests, mean­while, have also won major victor­ies. Federal courts in Massachu­setts, New York, and Wash­ing­ton have all ruled that ICE simply lacks the author­ity to ignore centur­ies-old protec­tions against civil court­house arrests, protec­tions inten­ded to ensure people are not scared to come to court. (The Bren­nan Center filed a friend-of-the-court brief on behalf of 19 retired Massachu­setts judges in the Massachu­setts litig­a­tion).

Even with these victor­ies in several states, ICE can still make court­house arrests with impun­ity in most of the coun­try. The Biden-Sanders Unity Task Force recently recom­men­ded that the Demo­cratic Party’s 2020 plat­form include a pledge to “prohibit [immig­ra­tion] enforce­ment actions at court­houses that deter access to justice.” The lead­er­ship at the Depart­ment of Home­land Secur­ity could make such a change to ICE policy almost imme­di­ately.

Absent change at the federal level, however, New York and others have forged a clear path that states and cities can follow if they hope to ensure every­one in their communit­ies has safe access to justice.