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Analysis

States Push Back Against ICE Courthouse Arrests

Arresting people in and around courthouses for immigration violations harms the entire justice system.

November 22, 2019
ICE arrest
Allen Schaben/Getty

Since President Trump took office, U.S. Immigration and Customs Enforcement officers have dramatically increased their presence in state courthouses.

ICE officers have walked the halls, sat in courtrooms, and questioned court attendees and staff, trying to identify and arrest people in court for cases unrelated to immigration. The people they target may be appearing as a defendant or witness, seeking a restraining order against an abusive partner, or seeking custody of their children.

Advocates have documented the chilling effect ICE’s presence has on courthouse access — deterring victims, survivors, and witnesses from pursuing justice and using court services — and the resulting harm it does to the justice system. That’s why judgesprosecutors, public defenders, and advocates have demanded an end to ICE’s unwelcome courthouse activities.

ICE has repeatedly rejected these appeals to protect the normal functioning of the justice system, but 2019 has seen momentum build against courthouse immigration arrests as several states have taken action.

Courts Restrict Courthouse Arrests

This month, Oregon became the latest state to push ICE out of its courthouses, prompting a protest from the ICE. The Oregon Supreme Court adopted a rule prohibiting civil immigration arrests inside or near courthouses without a judicial warrant. Because ICE officers usually rely on “administrative” warrants, which don’t require the sign-off of an impartial judge, the rule should effectively put an end to ICE arrests inside the state’s courts and on surrounding sidewalks and parking lots.

In announcing the new rule, Oregon’s chief justice said, “Arrests in courthouses have interfered with judicial proceedings. … We are adopting this rule to maintain the integrity of our courts and provide access to justice.”

A few months earlier, New York’s judiciary was the first to clearly prohibit courthouse arrests without a judicial warrant. In April, New York’s Office of Court Administration issued a directive prohibiting warrantless arrests inside courthouses. It also required that court security officers file “unusual occurrence” reports if they saw on-duty ICE officers observing court proceedings.

New Jersey’s chief justice followed suit in May with a directive that stopped short of requiring a judicial warrant for courthouse arrests, but put in place several procedural requirements so that judges and administrators are at least aware when ICE plans to arrest someone appearing in court.

While these are the only courts to have taken statewide action, a handful of smaller jurisdictions took action in 2017 and 2018. Municipal courts in Seattle and Bernalillo County, New Mexico (home to Albuquerque), updated their courthouse access policies to prohibit warrantless courthouse arrests shortly after observers first noted ICE’s increased courthouse presence in 2017. Bernalillo County’s policy goes further to prohibit non-court law enforcement from “randomly interrogat[ing] individuals about their identity,” recognizing that for an individual coming to court, the prospect of being questioned by ICE may be as much of a deterrent as being arrested.

Progress Through Legislation and Litigation

Courts weren’t the only ones to limit ICE courthouse enforcement this year. In October, California enacted a law that requires a judicial warrant for civil arrests of people attending a court proceeding or dealing with other legal business in a courthouse. The law also authorizes judges to take further action as necessary to “prohibit activities that threaten access to state courthouses and court proceedings.” 

And opponents of ICE courthouse arrests in Massachusetts won a major victory in a lawsuit challenging courthouse arrests this summer. The plaintiffs — public defenders, prosecutors, and a Latino-led community organization — sued ICE in federal court, arguing that its courthouse activity both oversteps the agency’s statutory authority and violates constitutional protections of individual access to courts and states’ authority over their justice systems. The federal district court granted a preliminary injunction, prohibiting ICE from making arrests in Massachusetts courts. The Trump administration has appealed.

More Progress Likely to Come

Recent research and news reports out of Washington StatePennsylvaniaConnecticut, and elsewhere show that ICE is continuing to make warrantless courthouse arrests in states that haven’t taken steps to limit its presence. Meanwhile, Washington State’s chief justice is considering adopting a rule similar to Oregon’s.

In response, Attorney General William Barr and Acting Homeland Security Secretary Chad Wolf sent a letter Thursday to the chief justices of Oregon and Washington objecting to the policies and claiming that federal officers are not subject to such state rules.

Indeed, even where new policies limiting these arrests are in place, ICE may try to sidestep them. In New York, ICE has exploited loopholes to arrest people just outside courthouse entrances and at local courts not covered by the Office of Court Administration’s policy. As a result, New York prosecutors, legal service providers, and advocates have already filed lawsuits similar to the one in Massachusetts. Immigrant rights advocates in New York have also put the Protect Our Courts Act on their list of 2020 legislative priorities. The bill would extend protection from warrantless immigration arrests to people on the way to and from all courthouses.

All of these developments suggest that years of advocacy have had an impact on state officials. They know that ICE is continuing to pursue members of their communities in state and local courts, and they know this presence is leading to the exclusion of some community members from the justice system.

The Trump administration could, on its own, put an end to courthouse immigration arrests, instructing ICE officers to avoid enforcement in courthouses as they do in hospitals, schools, and religious institutions. Since that’s unlikely, however, it is apparent that the fight will continue at the state level to ensure that courthouse doors remain open to all.