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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.