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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

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.