The U.S. Immigration and Customs Enforcement (ICE) agency formalized a directive Wednesday giving authority to federal agents to detain immigrants at courthouses, the Associated Press reported, in an enforcement action that has left immigrant activists outraged.
The four-page directive, which explains that civil immigration enforcement actions can be taken inside federal, state, and local courthouses, was signed by ICE deputy director Thomas Homan.
“ICE civil immigration enforcement actions inside courthouses include actions against specific, targeted aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed, when ICE officers or agents have information that leads them to believe the targeted aliens are present at that specific location,” the directive read in part.
Under the new directive, ICE agents will “generally” not detain immigrant family members and friends who come with people to court. The directive also called on federal agents to “generally avoid enforcement actions” in courthouses dedicated to “non-criminal” proceedings, like in family court and small claims court unless there’s approval from a field office director or special agent in charge. Officers can still make collateral arrests in “special circumstances” where “the individual poses a threat to public safety or interferes with ICE’s enforcement actions.”
The directive appeared to criticize so-called “sanctuary cities,” a non-legal term ascribed to localities where law enforcement officials can choose not to turn over suspected undocumented immigrants in their custody for potential federal deportation proceedings.
“[C]ourthouse 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,” the directive explained.
The directive also calls on ICE agents and officers to “exercise sound judgment” and to “avoid unnecessarily alarming the public. ICE officers and agents will make every effort to limit their time at courthouses while conducting civil immigration enforcement actions.”
Formalizing this courthouse policy confirms what immigrant advocates have already seen anecdotally nationwide since President Donald Trump took office last January. Trump gave federal immigration agents wide discretion to pursue undocumented immigrants. And Homan stated in June 2017, “no population is off the table.” The advocacy group Immigrant Defense Project (IDP) reported a “significant escalation” in the number of ICE courthouse arrests in New York state courts soon after Trump took office.
“This directive purports to be something new, but it’s really just a continuation of what ICE has been doing for the past year under President Trump’s leadership,” according to statement from the Immigrant Defense Project. “In 2017, we saw an alarming 1100% increase in ICE courthouse arrests and attempted arrests in New York courthouses from the previous year. This policy will enable that statistic to continue escalating, and allow ICE to further target vulnerable immigrants, to hunt immigrants down in all courts, and to terrorize friends and family members.”
In February 2017, two federal immigration agents entered an El Paso County Courthouse to arrest an undocumented transgender woman seeking a protective order from her allegedly abusive partner. Her alleged abuser reported tipped off ICE. The judge who presided over her case criticized ICE agents for acting on assisting domestic abusers in this way and said, “there’s no place for that — especially in family court.”
The arrest in El Paso resulted in a “chilling effect” on crime reporting by immigrants. Houston Police Chief Art Acevedo expressed concerned over a sharp drop in the number of people reporting crime to his department. Los Angeles Police Chief Charlie Berk similarly said his department saw a drop in reports of sexual assault among the Latinx population.
Nationwide, courtroom appearances by ICE agents have had a profound impact on immigrants too afraid to attend court proceedings. A June 2017 IDP survey — which included 225 advocates and attorneys from 31 New York counties — found that immigrants have a “profound” fear of going to court, including immigrants who attend court to access orders of protection and those who defend themselves against criminal charges, among other matters. One third of survey respondents reported seeing ICE agents or ICE vehicles in and around courts. Two thirds of survey participants who work with survivors of violence also reported that their clients decided not to seek help in the courtroom because they were afraid of any contact with the ICE agency.
Similarly, an April 2017 Tahirih Justice Center survey of 715 advocates and attorneys from 46 states and the District of Columbia, found an alarming trend of immigrant survivors of domestic violence, sexual assault, and human trafficking too afraid to report their crimes. At least 43 percent of advocates working with immigrant survivors said they had dropped civil or criminal cases because “they were fearful to continue their cases.”
As a January 2017 Tahirih Justice Center report pointed out, women may be hesitant to contact police or seek immigration relief because “the fear is undermining access to safety and justice, and increasing vulnerability to exploitation as abusers know that they can exploit the fear.”
Aside from a drop in the number of cases that immigrants will pursue in courtrooms, experts like Lindsay Nash, a Visiting Assistant Clinical Professor in the Immigration Justice Clinic at the Cardozo School of Law, and Nancy Morawetz a professor of Clinical Law at New York University say the courtroom actions could be “unconstitutional.”
“The principle that equal justice requires access to court dates back to 18th century common law, which barred civil arrests for people attending court,” Nash and Morawetz said in an co-authored op-ed published this week. “In more recent iterations, the Supreme Court has recognized that the Constitution requires that “access to the courts is adequate, effective and meaningful.”
The piece has been updated to include Morawetz as a co-author on the op-ed.