Federal Immigration Enforcement in NYS Courthouses: Recommendations

Since January 2017, the New York City Bar Association (“City Bar”) has voiced concerns, along with many others, about the increasing number of Immigration and Customs Enforcement (“ICE”) civil arrests being conducted in and around New York State courthouses.  If continued, this practice poses a threat to the New York State court system’s ability to ensure access to justice and the state’s overall community-based public safety goals.  Further, this practice undermines values of due process and federalism enshrined in the U.S. Constitution as well as the New York Constitution.

The City Bar acknowledges that the Office of Court Administration (“OCA”) has been closely monitoring the dramatic rise in courthouse arrests, has instituted certain protocols in response to ICE enforcement actions, and has continuously engaged in important dialogue with ICE, client advocates and others about the situation.  The City Bar further acknowledges that ICE issued a new directive on January 10, 2018, specifically addressing and purporting to limit courthouse arrests (“January 2018 Directive”).[2]  Despite these steps, ICE’s courthouse arrests continue to adversely impact the administration of justice and leave many individuals fearful of going to court.  It is undeniable that as this situation intensifies, two things likely will happen: (1) immigrant litigants or witnesses will stop coming to court altogether, which would have the effect of creating a class of state residents who are denied access to the justice system; and (2) the exercise of federal interest in civil immigration enforcement will erode the effectiveness of the state’s justice and court system, hampering prosecutions and wasting court resources.  Neither outcome is in the interest of public safety, the justice system, or the legal community.

Given the escalation of civil arrests in and around courthouses and the essential rights at issue, the City Bar respectfully recommends that the Chief Judge exercise her authority under the New York State Constitution and Judiciary Law to issue five administrative rules that would better protect access to justice and the due process rights of all New Yorkers: (1) require judicial, not administrative, warrants for civil arrests, including immigration arrests, conducted in and around New York State courthouses; (2) require the presiding judicial officer to notify the targets of civil immigration enforcement actions of the presence of ICE agents who intend to detain them; (3) limit the cooperation and assistance of court personnel in civil immigration enforcement actions to those actions required by law; (4) reduce the frequency with which parties need to appear in court; and (5) make available for public review the information obtained and recorded by court personnel with respect to ICE enforcement activities in courthouses.[3]  Moreover, we recommend that OCA convene a working group of stakeholders[4] – including defense lawyers, immigration lawyers, prosecutors, court representatives and others – tasked with considering the competing interests and developing a set of recommendations that monitors developments and builds upon OCA’s April 26, 2017 protocols[5] to keep New York State courthouses from becoming the preferred venues for ICE arrests.

I.  An Alarming Trend: Targeting of Courthouses and Scheduled Court Appearances for Civil Immigration Arrests

From the first week of his presidency, Donald Trump has issued a steady stream of executive orders[6] (“EOs”) in an unstinting and public effort to bring on a promised surge in immigration enforcement, and these EOs have set the tone for ICE’s mandate for the foreseeable future.

In pertinent part, these EOs dispense with the enforcement priorities of prior administrations and make the removal of any deportable noncitizen an indiscriminate priority for ICE enforcement, regardless of whether the individual was ever convicted of a crime (thus, any arrest or any violation of any immigration law may now trigger deportation); significantly increase the number of deportation officers; and threaten to withhold federal funds from so-called “sanctuary cities” – several of which have filed cases against the Administration raising Tenth Amendment, spending clause, Administrative Procedure Act, separation of powers, and due process issues.

The increased enforcement efforts have borne fruit.  According to Department of Homeland Security statistics, from January 20, 2017 through the end of the fiscal year, ICE made 110,568 arrests compared to 77,806 in FY2016 – an increase of 40%.[7]  Further, the number of immigrants arrested by ICE who had no criminal convictions increased by 146%.[8]  These numbers demonstrate that dramatically increased enforcement actions have resulted in the deportation of peaceful community members and cannot be explained or justified as an escalation meant to keep the nation safer.[9]

Emblematic of the unprecedented increase in immigration enforcement has been the alarming rise in ICE civil arrests in and around New York’s state and local courthouses.  In 2017, New York City’s area courts saw a 1200% increase in the number of immigrants targeted by ICE.[10]  Moreover, according to the Immigrant Defense Project (“IDP”), which has been tracking ICE enforcement activity in and around New York State courthouses, at least one in five of the immigrants who were targeted in New York City courts in 2017 had no prior criminal record.[11]

Although ICE has primarily, and most recently, been targeting defendants in criminal court, over the course of 2017, ICE conducted enforcement in a broad range of non-criminal and special interest courts, including in family court,[12] human trafficking court,[13] and in a domestic violence matter.[14] The increase in ICE courthouse arrests across New York State in 2017 was well documented and well covered in the news media.[15]

The trend shows no signs of abating since the January 2018 Directive issued by ICE.  Indeed, the plain language of the January 2018 Directive justifies continued enforcement in state courthouses and offers concrete ways ICE agents can take advantage of courthouse resources to make civil arrests.  The January 2018 Directive vaguely states that ICE agents “should generally avoid enforcement actions in courthouses,” but also goes on to argue that “courthouse arrests are often necess[ary]” because jurisdictions like many in New York have sanctuary city policies in place.[16]  The January 2018 Directive goes on to explicitly outline how ICE agents can benefit from state and local resources available in courthouses—“[c]ivil immigration enforcement actions inside courthouses should . . . continue to take place in non-public areas of the courthouse, be conducted in collaboration with court security staff, and utilize the court building’s non-public entrances and exits.”[17]  As for arrests in non-criminal courthouses, the January 2018 Directive now requires approval from an ICE supervisor beforehand.[18]

It is our understanding that since January 2018, ICE has confined its arrests to New York’s criminal courts; however, the January 2018 Directive clearly contemplates arrests in other courts, and in many upstate courthouses, criminal and non-criminal parts occupy the same building.  Moreover, the concerns we raise in this report apply to all state courthouses, including criminal courts.  No individual should be afraid to attend a criminal courthouse, whether to defend against a charge, support a family member or act as a witness.  And, focusing on the period between January and April 2018, the numbers demonstrate that the January 2018 Directive does not include as one of its goals a decrease in courthouse arrests overall.  Since the beginning of 2018, there have been 48 reported immigration enforcement activities at New York State courthouses.[19]  During 2017, according to IDP, there were 144 reports of ICE enforcement activity in New York State courthouses.  Despite the January 2018 Directive, as of April 2018, the courthouse enforcement numbers have already reached a third of 2017’s annual total, showing no signs of abatement.[20]

Further, the worrying pattern of ICE targeting and arresting individuals with no prior criminal records—has continued.  For example, public defenders protested outside of Bronx Criminal Court on February 8, 2018 after ICE agents arrested a young man, who has no prior convictions, has been in the U.S. since he was 3 years old and is married to a U.S. citizen.[21]  He was at court to resolve a misdemeanor charge when ICE agents arrested him outside the courthouse.[22]  During the week of April 10, 2018, ICE agents conducted three civil arrests at New York City criminal courts.[23]  In the most egregious of the three arrests, ICE agents wrongly arrested a young man – who has a U.S. citizen wife, three young children and no criminal record – outside Bronx criminal court moments after his criminal case was dismissed, almost costing him his job.[24]  ICE released the young man after officials found that the civil detainer was wrongly issued since the young man has a work authorization document while his permanent residency application is pending.[25]  Further demonstrating the vague and discretionary qualities of the January 2018 Directive, just a few weeks after its issuance, ICE arrested and detained a previous DACA recipient, who still qualifies for the status, after he appeared in traffic court in Illinois.  Only after public outcry and negative press did ICE release this young man who was simply trying to address his traffic ticket.[26]

Unsurprisingly, lawyers continue to report that their non-citizen clients are fearful of going to court and many are opting to stay away altogether.[27]  Lawyers further report that, if their non-citizen clients are arrested in the courthouse by ICE, it is becoming more common for the arrestees to be transferred to a detention facility out-of-state where they are not able to access counsel.  Detention can last for months.

ICE courthouse arrests raise significant constitutional, common law, and public safety concerns.  Access to state courts is intimately tied to individual rights as well as the independence of states to pursue their public safety and justice objectives by ensuring that individuals trust institutions enough to come forward to report crimes, act as witnesses, protect themselves from threatening or criminal behavior, and exercise their due process rights to defend any charges against them.  The constitutional and common law rights of all individuals, regardless of immigration status, to have equal access to courts and to be afforded due process of law, are threatened when litigants are given the false choice of exercising their rights or possibly being deported from the country.  Further, federalism issues arise when federal civil enforcement activity impedes the state’s right and obligation to ensure public safety and to effectively administer its court system.

II.  Access to Courts and Due Process Concerns Raised by ICE Courthouse Arrests

Access to courts is a foundational aspect of liberty and due process enshrined in the Constitution.  The First Amendment protects the right “to petition the Government for a redress of grievances” and guarantees anyone, regardless of their immigration status, the right to complain to, or seek the assistance of, the government without fear of punishment or reprisal.  The Fifth and Fourteenth Amendments guarantee due process of law—the right to sue and defend oneself in courts, including a meaningful opportunity to be heard.  Due process is nowhere more important than in criminal court where a defendant must be given the chance to appear in court and confront the witnesses against her.

Equal access to courts requires removing barriers that selectively prevent discrete classes of persons from meaningfully accessing the courts.[28]  ICE’s courthouse arrests have had a chilling effect that threatens to create an impermissible underclass of potential litigants who are blocked from the courts and denied opportunities to exercise their Constitutional rights.[29]

The Supreme Court has described “the essence of the access claim” as “official action [that] is presently denying an opportunity to litigate for a class of potential [litigants].”[30]  ICE’s heightened courthouse activity has had a well-documented chilling effect, denying immigrants the opportunity to litigate their legal rights and claims—whether it be a defendant’s right to defend herself against accusations or a victim’s claim for a restraining order.  In June of 2017, the Immigrant Defense Project surveyed[31] advocates and attorneys across New York State and found that 74% have worked with immigrants who have expressed fear of the courts because of ICE, 45% have clients who have either failed to file a petition or have withdrawn a petition because of fears of encountering ICE in the courts, 48% said their clients have expressed fear of calling the police, and 29% have clients who have failed to appear in court because of their fear of ICE.  The survey also found that 67% of advocates working with survivors of violence had clients who decided not to seek help from the courts because of their fear of ICE, [32] and that 37% have worked with immigrants who did not seek orders of protection because they feared encountering ICE in court.  And 56% of advocates working with tenants in housing court reported that their clients expressed fear about appearing in housing court because of ICE.[33]  These numbers demonstrate that a class of litigants, namely non-citizens who may be targeted for immigration enforcement, are being denied equal opportunity to access the court system.

a. A Solution:  Enforce the Privilege against Civil Arrests

One responsive action that we respectfully submit OCA should consider is to enforce within the state courts the common-law privilege against civil arrests.  The common-law privilege against civil arrests while attending judicial proceedings is long standing.[34]  In existence since the 15th century,[35] the privilege was deeply entrenched in the common-law tradition by the mid-18th century[36] as a right extended not only to parties and witnesses but liberally to all people “necessarily attending” the courts on business, which “includes their necessary coming and returning.”[37]  The rule against civil arrests in connection with court proceedings was adopted and has remained a fundamental one within American jurisprudence.[38]

In 1913, the U.S. Supreme Court recognized the deep roots and historical pedigree of the privilege in the state courts that had existed for close to a century prior, based on the reasoning that: “Courts of justice ought everywhere to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them.”[39]  In 1932, the Supreme Court, in its determination of whether congressmen could be served while in a hearing, affirmed the existence of the common-law privilege rule “that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit, are immune from service of process in another . . . .”[40]  The Supreme Court has affirmed the abatement of suits based where defendant was served while attending as a witness in court in another state.[41]

This common-law privilege has also been established under New York State law since the 1876 Court of Appeals case, Person v. Grier.[42]  The Court of Appeals summarized the common-law privilege as “the policy of the law to protect suitors and witnesses from arrests upon civil process while coming to and attending the court and while returning home.”[43]  The Court of Appeals stressed that this “immunity from the service of process for the commencement of civil actions against them is absolute” precisely because “immunity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process.  Witnesses might be deterred, and parties prevented from attending, and delays might ensue or injustice be done.”[44]

In Chase Nat’l Bank of N.Y.C. v. Turner, the Court of Appeals expanded the notion of the privilege, stating that “[t]he tendency has been not to restrict but to enlarge the right of privilege so as to afford full protection to parties and witnesses from all forms of civil process during their attendance at court and for a reasonable time in going and returning . . . . [to even the moments of] a suitor returning from an appointment with his solicitor for the purpose of inspecting a paper in his adversary’s possession in preparation for an examination before a master and while attending at the registrar’s office with his solicitor, to settle the terms of a decree and while attending from another state to hear an argument in his own case in the Court of Appeals.”[45]

What the Court of Appeals cautioned against over a century ago as an embarrassment for the courts[46] is being played out today as ICE continues its policy of arresting immigrants in New York courthouses.  Courts have historically been more aggressive in asserting the privilege to grant individuals immunity from civil arrests as opposed to mere civil service of process.[47]  Immigration arrests are civil in nature and fall within the privilege’s core concern with civil arrests.[48]  ICE courthouse arrests are warrantless seizures[49] of individuals – either the ICE agent has no warrant or, possibly, he or she may be in possession of an administrative warrant signed by an ICE official, not a judge. Moreover, it is generally not a crime for an undocumented person to be present in the United States.[50]  Thus the administrative removal process is a civil, not a criminal matter, “even where the alleged basis for removal is the commission of a criminal offense.”[51]

Pursuant to the OCA May 2018 Instructions given to judicial and non-judicial personnel in Criminal Court, court officers are now directed to inquire whether the ICE officials present at courthouses have a warrant and, if so, whether the warrant was issued by a judge.  In addition, court officers are required to record this information.  These additional instructions do not require a judicial warrant from ICE officials to execute civil arrests.  Instead, we respectfully submit that OCA adopt a new policy that recognizes that civil immigration arrests conducted under these circumstances are prohibited by common-law, and that a judicial warrant is required.[52]

The court system is empowered to decide what takes place inside the courthouses, as stated by the Court of Appeals: “This immunity [from arrest and service while attending court] does not depend upon the statutory provisions, but is deemed necessary for the due administration of justice…and is abundantly sustained by authority.”[53] The burden to administrate justice is on the courts as much as the public, who is burdened when this privilege is at risk. Without the privilege, court proceedings “would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify.”[54]

For immigrants who overcome the fear of ICE arrests and continue to enter New York courts, proceedings have been interrupted by ICE arrests. Based on the American Civil Liberties Union (ACLU’s) reporting, “[f]ifty-four percent of judges [polled reported] court cases were interrupted due to an immigrant crime survivor’s fear of coming to court, representing a significant disruption in the justice system compared with 43 percent of judges reporting this effect in 2016.”[55] Also, judges have been embarrassed and upset by ICE disruptions to court proceedings.[56]  As remarked by U.S. District Judge Talwani in Boston, “I see no reason for places of redress and justice to become places that people are afraid to show up to…I am upset at the notion that ICE thinks a courtroom is a place to go and pick up people.”[57]

ICE’s civil arrests in courthouses not only disrupt the dignity of the courthouse; once those individuals are placed into immigration detention, these arrests can also interfere with the ability of detained individuals to attend future court dates. For all of these reasons, OCA should enforce the full power of immunity of common-law privilege so that all New Yorkers can freely and equally access the courts.

III. Federalism Concerns Raised by ICE Courthouse Arrests

The increase in ICE courthouse civil arrests and the resulting fear in litigants of attending and accessing judicial proceedings have not only infringed upon individual rights but also have interfered with the state’s right to ensure public safety and properly administer its laws and court system.[58]  The decision as to how to best guarantee public safety is one reserved for localities and states in our federalist system.[59]  Further, there has long been a “fundamental policy against federal interference” with the functioning and administration of state courts, particularly in the context of state criminal prosecutions.[60]  ICE courthouse civil arrests interfere with New York’s ability to ensure public safety as well as its ability to administer a well-functioning court system.

The fear that New York’s immigrant residents have about accessing the state court system due to the drastic spike in ICE courthouse civil arrests has been well-documented.[61]  If witnesses are afraid to come to court, defense attorneys will not be able to defend their clients and prosecutors may be forced to drop charges—directly impacting public safety.  If ICE’s enforcement of civil immigration laws at state courthouses discourages individuals from bringing to light cases concerning public safety and welfare, then these arrests are hampering the state’s ability to ensure public safety.[62]

It is no surprise, then, that many state and local officials elected to enforce our laws and ensure our communities’ safety have condemned ICE civil arrests in and around courthouses.[63]  In 2017, the Office of the Attorney General of New York, the chief law enforcement office for the state, called on the administration to stop the civil arrests of those “in the heart of our justice system” because immigrants will be less likely to report crimes or serve as witnesses, “leav[ing] us all at risk.”[64]  The District Attorneys of Brooklyn, Bronx, and Manhattan recently held a joint press conference with the Public Advocate of New York City to appeal to ICE as fellow law enforcement officers to stop making these arrests that “do[] not keep us safe” and “jeopardize[] public safety.”[65]  All three DAs pointed to the chilling effect the arrests were having on victims and witnesses.  Manhattan DA Cy Vance observed that due to these civil arrests, “important prosecutions” cannot proceed and “New Yorkers are less safe.”[66]  The Brooklyn DA Eric Gonzalez stated, “It is outrageous that ICE is using courts to round up immigrants, a tactic that sends a chilling effect, undermines public safety and subverts due process.”[67]

In the January 2018 Directive, ICE states that “[w]hen practicable, ICE officers and agents will conduct enforcement actions discreetly to minimize their impact on court proceedings.”[68]  However, in actuality, ICE courthouse arrests routinely interfere with court proceedings because ICE often arrests immigrants prior to the resolution of their criminal cases.  ICE detention can have serious detrimental effects on a criminal proceeding beyond effects on the accused’s ability to mount a defense, such as probation violations and other adverse consequences.  ICE interference with the criminal process does not just infringe on the interests of defendants.  It infringes on the victims’ interest in seeing their cases prosecuted when defendants are not available to stand trial; it frustrates the interests of the prosecution which may have to dismiss cases based on speedy trial rules when the defendant cannot be produced; and it wastes valuable court resources on cases that will not be properly resolved.

A recent case in federal criminal court encapsulates the multi-faceted detrimental effects of ICE courthouse arrests.  ICE agents arrested, in the court room, a criminal defendant who had just been ordered released by the district court judge after bail was granted.  The Chief Judge of the District Court for the Eastern District of New York, in an order to release the defendant from immigration detention or dismiss the criminal case with prejudice, expressed grave concern over the “apparent willingness [of ICE] to prejudice the interests of the people of the United States” by “jeopardize[ing] the ability of DOJ to protect the interests of the government and of the people . . . in prosecuting [] crimes” while simultaneously trampling on “the constitutional rights of the accused” and wasting court resources.[69]  This was a federal case in which the agencies of the same Executive Branch were in conflict with one another.  In cases where the federal government’s interests interfere with the state’s sovereign right to ensure public safety and administer its court system, the federalism concerns become even more significant.[70]

These concerns are exacerbated by the fact that the Trump Administration has purposefully targeted sanctuary cities and states for cuts in federal funding, more frequent courthouse arrests, and even a lawsuit by the Department of Justice.[71]  Specifically, Executive Order 13768 seeks to cut federal funding from sanctuary cities—localities with legislation that, to varying degrees, prohibit the use of local resources to carry out federal civil immigration enforcement.  In response, lawsuits have been filed across the country, including by Chicago, Philadelphia, San Francisco and Santa Clara.  These lawsuits challenge the federal government on multiple constitutional grounds—including that EO 13768 violates the separation of powers doctrine (by attempting to usurp congressional spending powers) and the Tenth Amendment’s anti-commandeering doctrine (which prohibits the federal government from commandeering the resources of local jurisdictions).[72]  At the center of these cases is 8 U.S.C. § 1373, a federal law that prohibits state and local governments from restricting government entities or officials from sending to, or receiving from, federal immigration authorities information regarding the citizenship or immigration status of any individual.[73]  In the recent case, Murphy v. NCAA, the Supreme Court held that the anti-commandeering rule did not support any substantive distinction between a federal law that directly orders affirmative action as opposed to directly ordering a prohibition.[74]  One federal district judge has already ruled that under Murphy v. NCAA, 8 U.S.C. § 1373 is unconstitutional.[75]

ICE also specifically targets the courthouses of sanctuary cities for more frequent enforcement[76]—justifying such arrests as a reasonable response to the “sanctuary” policies.  In August, a spokesperson for ICE cited New York City’s refusal to assist in deportation actions against people whom the city did not view as a threat as a main driver in the increase of ICE courthouse arrests[77]  The January 2018 Directive explicitly reinforces this notion.

IV.  State, Local and Federal Responses So Far

ICE’s enforcement tactics, especially in and around courthouses, have raised concern at local, state, and federal levels.  In New York State, OCA exercised its state constitutional authority[78] to issue guidelines with respect to law enforcement activities in state courthouses in the April 2017 Protocol and the May 2018 Instructions.[79]  Balancing concerns raised by ICE’s heightened courthouse activity with the court system’s policy to “permit law enforcement agencies to act in pursuit of their official legal duties in New York state courthouses” as long as such activities do not disrupt court business or pose a public safety risk, the April 2017 Protocol provides that, without a judicial warrant, a law enforcement officer is prohibited from making arrests inside courtrooms, and a judge must be notified if an agent plans to arrest someone involved in a case before him or her.  Law enforcement officers must identify themselves to court officers and disclose information regarding planned enforcement actions while in the building, and the court officer must relay this information to a supervisor who will then relay it to the judge.[80]

In response to the steady increase of ICE courthouse arrests in New York, Chief Judge Janet DiFiore has pledged her commitment to ensure “the safety and security of all New Yorkers who use our courthouses throughout the state.”[81]  To that end, she has been in a “continuing dialogue” with federal officials and has requested that they amend their existing policy to add courthouses to the list of “sensitive locations, similar to schools, hospitals and places of worship.”[82]  ICE has defined “sensitive locations” as inclusive of, but not limited to, schools (including daycare facilities, preschools, and bus stops), medical treatment facilities (including hospitals, doctor’s offices and urgent care facilities), places of worship, religious and civil ceremonies (including weddings and funerals), and public demonstrations (including marches, rallies and parades).[83] While ICE enforcement actions may occur at sensitive locations “in limited circumstances,” such activities “will generally be avoided.”[84]

New York is not alone in urging ICE to designate courthouses as sensitive locations: officials in states around the country—including California,  New Jersey, Connecticut, Massachusetts, Maine, Oregon, Washington, and Colorado—have made similar calls[85]  In fact, on March 15, 2018, Massachusetts Committee for Public Counsel Services filed a lawsuit in state court seeking the issuance of a writ of protection from civil arrest, including civil immigration arrest, for the named petitioners and all similarly situated individuals.[86]

However, given that ICE has been clear that it does not view courthouses as a sensitive location and that ICE arrests have continued to rise despite the OCA guidelines and ICE’s own directive, New York State elected officials have taken further steps to protect the rights of all New Yorkers, regardless of immigration status.  As discussed earlier, the New York State Legislature has introduced a bill, the Protect Our Courts Act, which would make it unlawful for any law enforcement officer to arrest a person, including a party, witness or family member, for a civil violation, such as civil immigration violations, while that person is going to, attending, or leaving court unless a judicial warrant or court order is presented to court staff.  The bill is supported by law enforcement officials, public defense providers, domestic violence victim advocates, civil rights organizations, labor unions, the Public Advocate and District Attorneys.[87]

Elsewhere on the state level, on April 5, 2018 Governor Andrew Cuomo issued Executive Order 170[88] which requires from ICE a judicial order or warrant in order to execute civil arrests within state facilities.  Although this Order does not extend to state courthouses, Governor Cuomo’s Order and accompanying cease and desist letter to ICE articulates the same access to justice and federalism concerns created by ICE’s enforcement tactics.  The Governor clearly states New York’s right and obligation “to protect its residents from threats to their safety and well-being and ensure the proper functioning of its institutions”[89] as well as its interest in “ensur[ing] that all residents have equal access to State programs, benefits, and services . . . .”[90]  The Order and accompanying letter also note how ICE’s enforcement tactics, particularly in “sensitive spaces” have “unnecessarily stok[ed] terror” among New York’s immigrant residents, creating a class of residents that are prevented from “fully participating in the State.”

On the City level, the New York City Council recently passed bills to limit various city agencies, including the Department of Probation, from entering into partnerships with ICE to enforce federal immigration laws.[91] The legislation also limits the use of City property, employees and resources in federal immigration enforcement efforts.[92]

On the federal level, in March 2017, a bill was introduced in the House to expand the definition of “sensitive locations” to include courthouses, among other state and local public safety implicated locations. If successful, the Protecting Sensitive Locations Act (H.R. 1815) would require ICE to prove “exigent circumstances” for conducting civil arrests at state courthouses.  The Senate version (S. 845) was introduced in April 2017.[93]  Both bills would amend Section 287 of the Immigration and Nationality Act (8 U.S.C. 1357) to codify what locations are “sensitive” and expand Department of Homeland Security’s definitions of “sensitive locations” to include, inter alia, domestic violence shelters, rape crisis centers, family justice centers, Congressional district offices, public assistance offices, Social Security offices and Department of Motor Vehicles offices. The bills specifically designate federal, state and local courthouses as sensitive locations, along with probation offices and the office of an individual’s legal counsel, and any physical space within 1,000 feet of all sensitive locations.

The bills also provide consequences for violating the requirements: if an immigration enforcement action is conducted in a designated sensitive location without exigent circumstances and prior approval, then “no information resulting from the enforcement action may be entered into the record or received into evidence in a removal proceeding resulting from the enforcement action,” and an individual “who is the subject of such removal proceeding may file a motion for the immediate termination of the removal proceeding.”

In August 2017, the American Bar Association’s House of Delegates passed a resolution in support of the bills, describing this as an important “access to justice” issue.[94]

Achieving change on the federal level, however, appears unlikely in the current environment.  Meanwhile, the residents of New York City and State—as well as the prosecutors and defense attorneys who work on their behalf—continue to suffer from the chilling effect that keeps them from accessing the legal protections of the courts.

V.  Recommendations

The City Bar—as an organization whose diverse members include prosecutors, defense attorneys, judges, legal service providers, court attorneys, immigration lawyers, civil rights attorneys, and others—has been following the detrimental effects of ICE courthouse arrests on the administration of justice and the legal community in New York.  A number of our committees have been actively engaged on this issue over the past year and we hosted a well-attended roundtable discussion in December at which over 50 organizations were represented.  Many of our members have been part of ongoing public awareness and advocacy efforts and are associated with the multiple organizations that have spoken out – and continue to speak out – against ICE’s courthouse arrests.[95]

The City Bar respectfully recommends that the Chief Judge adopt the following administrative rules to address the harmful effects of ICE enforcement actions in and around courthouses:[96]

1. require judicial, not administrative, warrants for civil arrests, including civil immigration arrests, conducted in New York State courthouses;[97]
2. require the presiding judicial officer to notify the targets of civil immigration enforcement actions of the presence of ICE agents who intend to detain them (which would give the individual an opportunity to consult with counsel in the sanctity of the courtroom);
3. limit the cooperation and assistance of court personnel in civil immigration enforcement actions to those actions required by law and provide training to court personnel as to how ICE arrests differ from criminal arrests (and why that matters) and, second, what court personnel can and cannot do vis-à-vis ICE encounters;[98]
4. reduce the frequency with which parties need to appear in court;[99] and
5. make available for public review the information obtained and recorded by court personnel, pursuant to the April 2017 Protocol and the May 2018 Instructions, with respect to ICE enforcement activities in courthouses.

Paramount among these recommendations is to require ICE to show judicial warrants for civil immigration enforcement actions in courthouses. ICE arrests may appear similar to state or federal criminal arrests and they have similarly dire consequences of detention and deprivation of liberties, but in contrast to state or federal criminal arrests, ICE agents do not need probable cause to initiate civil enforcement actions.  Further, ICE administrative warrants are often based on outdated information and require only internal, supervisory review.  A requirement for judicial warrants will ensure that the civil detainer contains accurate information and has a legal basis that has been independently reviewed.[100]

Our second recommendation is a natural extension of established protocols outlined in OCA’s April 2017 Protocol.  Under established protocols, ICE agents must notify court officers of their specific law enforcement purpose, and the court officer supervisors must in turn inform the judges that an ICE agent is in the courthouse to take a party in a case before a given judge into custody.  We recommend that the presiding judge then inform the target, the target’s counsel, and the opposing counsel in the case about the presence of ICE agents and their intent to take the target into federal custody.  This rule will afford the targeted individual with due notice of enforcement,[101] which would allow the individual and her counsel to pursue the immediate actions necessary in court that day to protect that individual’s best interests in the case.  For example, currently, when a defendant in a criminal proceeding is apprehended by ICE before her case is called, if her counsel is not notified, her counsel cannot know to ask that the bench warrant be stayed and to put the District Attorney’s office on notice that it has the duty to produce the defendant from federal custody at the next court date.  Both of these actions are crucial to preserve the basic ability (indeed, requirement) that defendants appear in their criminal proceedings as well as upholding speedy trial laws.[102]

Our third recommendation mirrors the guidelines for state agencies outlined in Governor Cuomo’s Executive Order 170.[103]   Court personnel should be prohibited from divulging identifying information beyond an individual’s citizenship and immigration status, unless required by law.[104]  Many instances have been documented in which court personnel have physically pointed out individuals for ICE agents, called out individuals’ name for the ICE agents’ benefit, delayed calling specific cases for the ICE agents’ benefit, or even escorted individuals through non-public areas of the courthouse to where ICE agents were waiting.[105]  In fact, ICE openly encourages agents to request that court personnel restrict individuals’ movements and potentially isolate them from their counsel in non-public areas of the courthouse to effectuate their civil arrests.[106]  These instances of “collaboration” not only impede the courts’ administration of justice, but also appear to raise the commandeering concerns described above.  Indeed, by its very terms, the January 2018 Directive puts court personnel in the untenable position of being asked to assist in detaining an individual, without a warrant or probable cause, in a non-public area of the courthouse.

Our fourth recommendation seeks to curb the sudden, exponential increase in courthouse ICE arrests.  In the January 2018 Directive, ICE claims that “courthouse arrests are often necessitated by the unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails.”  This claim is misleading because the sanctuary city policies that ICE points to as the reason necessitating courthouse arrests have existed for several years.  New York City’s laws against honoring civil immigration detainer requests have been in place since 2014.  Yet, compared to 2016, courthouse arrests increased more than 1200% in 2017,[107] expanding to target individuals with no prior criminal history who have never been in the custody of local or state prisons that refused to turn them over to ICE.  The more likely reason, as confirmed by ICE, is that courthouses are the easiest places to find the individuals the agents are looking for.[108]  Because information about when and where a litigant must appear in court is publicly available, ICE agents are able to surveil individuals as they attend their mandated court appearances.  Facilitating the ease of civil enforcement actions should not be permitted to undermine state court administration and individual rights.  By reducing the frequency with which litigants must appear in court,[109] OCA can help to disincentivize ICE agents from using courthouses as their preferred venue for enforcement.

Our final recommendation—that OCA publicize its data-gathering regarding ICE activities in courthouses—is meant to provide a mechanism for sharing and comparing information among the bar, bench and court officials so that a full complement of solutions can be implemented and then monitored based on a common understanding of the facts.

All of these proposed solutions merit attention and deliberation.  We acknowledge that some of the recommendations may raise concerns on the part of those who think they improperly interfere with enforcement of federal law and may involve further consultation to work out the best solutions and mechanisms for implementation.  To that end, we recommend that OCA convene a working group of stakeholders – including defense lawyers, immigration lawyers, prosecutors, court representatives and others – tasked with considering how to best address the concerns and implement the recommendations raised herein.[110]  The working group could develop a mechanism to (1) ensure that the April 2017 Protocol  – as well as any enhancements – are fully understood and being adhered to, and (2) consider enforcement mechanisms to address instances when they are not.

Ultimately, the bar and bench have shared goals when it comes to preserving safety and decorum in the courthouse, providing unfettered access to justice, and protecting due process for all individuals regardless of immigration status.  To that end, the New York City Bar Association urges the due consideration of these recommendations and stands ready to assist the Office of Court Administration as it continues to tackle these difficult issues.

July 2018