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Retired State Judges Ask Federal Appeals Court to Halt ICE Arrests in Courthouses

Arresting people in court for immigration violations subverts the justice system.

May 22, 2020

As courts across the country gradually reopen to the public, it is as crucial as ever to ensure that they can safely serve everyone, regardless of immigration status. Yet federal officials continue to insist they have the authority to show up at state and local courts to make immigration arrests, creating an atmosphere of fear around courts and leaving members of some communities reluctant to come to court  to protect themselves or vindicate their rights. On Thursday in federal appeals court, 19 retired Massachusetts judges, represented by the Brennan Center, filed a friend-of-the-court brief explaining that a fair and equitable justice system does not tolerate immigration officials deterring access to the courts.

The judges filed this brief in a lawsuit brought by Boston-area prosecutors, defense attorneys, and a community organization challenging U.S. Immigration and Customs Enforcement’s increased practice of detaining people who are appearing in courts for reasons unrelated to immigration. Under the Trump administration, these arrests have increased dramatically — by as much as 17 times in New York — and have been seen in more than 20 states.

ICE has arrested victims, witnesses, and defendants in civil and criminal cases. Even after a January 2018 agency directive stating that ICE officers would limit courthouse arrests, they have continued arresting people appearing in court for matters as common as traffic violations and as sensitive as child custody matters.

As the judges make clear in their brief, these arrests do real harm to the justice system. Based on their more than 300 combined years on the bench, serving in leadership positions on Massachusetts’ trial and appellate courts, the judges argue that “courthouse arrests by ICE are incompatible with the judiciary’s responsibility to ensure courthouse access, maintain orderly and efficient dockets and courthouses, and safeguard the public’s trust in its courts.”

The brief highlights the many incidents across the country that have impeded court functions, including arrests by undercover officers so violent that onlookers believed they were witnessing a kidnapping or court security had to abandon their normal responsibilities to deescalate a disruption caused by an ICE arrest. The brief also notes the numerous surveys showing that members of immigrant communities are reluctant to appear in court and are bringing fewer cases to due to fear of encountering an immigration officer in court. 

In 2019, the federal district court granted the plaintiffs’ request for a preliminary injunction prohibiting ICE from arresting anyone coming to a Massachusetts courthouse on official business. Judge Indira Talwani found that the plaintiffs were likely to show that ICE exceeded its authority when it violated a centuries-old common law protection against being arrested for alleged civil violations (which include immigration offenses) when appearing in court. The Trump administration has appealed the ruling to the First Circuit Court of Appeals.

The plaintiffs also argue that these arrests violate crucial constitutional protections that prohibit the government from obstructing access to the courts and prohibit the federal government from coopting state courts to further federal immigration goals. These claims will be considered as the case proceeds to trial.

Judge Talwani isn’t alone in finding that courthouse immigration arrests may violate the law. Federal courts in Washington State and New York have allowed similar lawsuits to move forward. In denying ICE’s request to dismiss a lawsuit filed by New York’s attorney general, Judge Jed Rakoff wrote, “Courts cannot be expected to function properly if third parties (not least the executive branch of the government) feel free to disrupt the proceedings and intimidate the parties and witnesses by staging arrests for unrelated civil violations in the courthouse, on court property, or while the witnesses or parties are in transit to or from their court proceedings.”

While legislators and court systems in several states, including New York, Oregon, and California, have taken significant steps to limit ICE’s ability to make arrests in their courthouses, these lawsuits may be crucial to finally stopping courthouse immigration arrests. In November, after Oregon instituted a requirement that immigration officers obtain a judicial warrant before making an arrest in the state’s courthouses, Attorney General William Barr wrote to Oregon’s chief justice calling the policy “dangerous” and “unlawful,” concluding for good measure that immigration officials aren’t bound by state rules anyway.

Ultimately, ICE leadership could swiftly halt these arrests, instructing field officers not to detain anyone coming to or leaving courts on court-related business. In doing so, the agency could send a strong message conveying that continued safe access to courts is essential to the safety of our communities.

As long as ICE continues making courthouse arrests, however, the courts themselves are well-positioned to affirm long-standing guarantees of equal access to justice.