City Bar Condemns “Bureaucratic Trap” of ICE Tactics That Undermine Due Process in Immigration Courts

The New York City Bar Association has issued a statement condemning a new pattern in immigration courts across New York State, whereby Immigration and Customs Enforcement (ICE) attorneys are moving for case dismissals with the apparent intent to strip noncitizens of legal protections and facilitate immediate arrests and deportations.

According to reports from immigration legal service providers and advocates, ICE’s Office of the Principal Legal Adviser (ICE OPLA) has been moving to dismiss removal cases, even when individuals have pending applications for relief such as asylum. These dismissals eliminate the forum where noncitizens can seek humanitarian protection, leaving them vulnerable to expedited removal proceedings with severely limited due process rights.

The City Bar’s statement describes how ICE’s Enforcement and Removal Operations (ICE ERO) has stationed officers—some in plainclothes, some in black uniforms or vests, some armed, mostly masked—inside courtrooms and court buildings at 26 Federal Plaza, 290 Broadway and 201 Varick Street in New York City, as well as in Buffalo, to detain individuals immediately after their cases are dismissed. Some detainees have been transferred to facilities as far away as Louisiana before legal advocates could intervene.

This practice “creates a perverse legal Catch-22,” or “bureaucratic trap,” the City Bar says. “To seek protection, one must be in court—but going to court can now result in the case being dismissed and the person being immediately arrested and removed. Legal presence and legal vulnerability are now paradoxically linked, with no clear pathway for individuals to secure safety without risking detention or deportation.”

Those actions are particularly concerning in light of reports that ICE OPLA has, in some cases, verbally reassured advocates and pro se respondents that they were not seeking enforcement action. This creates what the City Bar calls “procedural ambush” and a “dangerous bait-and-switch dynamic,” where ICE OPLA attorneys verbally reassure advocates and individuals that they are not seeking enforcement action, while ICE ERO operates in the same building with the clear aim of doing exactly the opposite.

The City Bar says such practices by government officers “not only erode the integrity of the process and undermine trust between government actors and those whom they are charged to serve, but also raise serious constitutional and legal concerns, particularly with respect to due process under the Fifth Amendment. The Supreme Court has long held that noncitizens are entitled to due process protections in immigration proceedings.”

The City Bar urges the following immediate actions:

• Immigration judges should refrain from ruling on dismissal motions on the spot, conduct hearings remotely when possible, carefully scrutinize motions to dismiss, and exercise discretion to deny dismissal requests that would leave applicants without recourse.
• Immigration attorneys should be vigilant and strategic when ICE seeks dismissal, assess full immigration consequences for clients, and consider opposing motions that would violate due process.
• Legal service providers and community advocates should monitor and document ICE ERO presence in courts, support requests for remote appearances, and provide know-your-rights information about dismissal consequences, and urge investigation of these practices.
• Congress should investigate these actions through hearings, public inquiry, and/or formal requests for data and accountability from ICE leadership.

Read the full statement here.

About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has over 20,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org.