A New York State directive issued on Wednesday would effectively prohibit Immigration and Customs Enforcement (ICE) agents from arresting immigrants in state courthouses, delivering a significant win to advocacy groups protesting a rapid increase in courthouse arrests in the state since President Donald Trump was inaugurated.
Under the new rule by the New York State Office of Court Administration, ICE agents must present a judicial warrant issued by a federal judge or reviewed by a state judge or court attorney making before making an arrest. ICE agents must also identify themselves to court officials and state their specific reason for being there, a huge victory considering ICE agents routinely show up to court in plainsclothes.
“This sets a precedent,” said Mizue Aizeki, acting executive director of the Immigrant Defense Project. “It sends a strong message to the state of New York that ICE cannot continue this practice of interfering with state court proceedings.”
Courts are unlikely to cooperate with ICE agents for judicial warrants, considering how many judges and attorneys have publicly rebuked the practice of conducting courthouse arrests, citing concerns that it interferes both with their jobs as well as immigrants’ due process rights.
“Judges can’t do their jobs unless people come to court,” Chief Administrative Judge Lawrence Marks told the Associated Press.
In some cases where an immigrant is taken into ICE custody before their criminal case is resolved, ICE is not legally obligated to allow them to attend court, leaving a defendant in legal limbo. ICE attorneys then use these unresolved cases to argue against a defendant’s bond release, further impairing them from being able to prove their innocence.
The Immigrant Defense Project, a New York-based non-profit, has been tracking the troubling trend of heightened ICE enforcement at state courthouses.
Since the beginning of the Trump administration, New York State courthouse ICE arrests and sightings increased by 1700%, according to a report by the organization. In 2016, the number or arrests and sightings was just 11. By 2018, that number has skyrocketed to 202.
ICE’s heightened presence at courthouses has sown distrust between immigrant communities and law enforcement agencies. Many undocumented immigrants feel uncomfortable reporting a crime or attending a court appearance where they are scheduled to testify if they believe there is a chance they may be detained.
The increase in immigration enforcement at courthouses has also had a tangible effect on how many undocumented immigrants have requested U-visas, which offer relief from deportation for victims of crimes like domestic violence. According to a report by the ICE Out of Courts Coalition, requests for U-visas have declined since early 2017.
“In 2016, there were 110 requests for U visa certifications made to the New York City Family Courts,” the report reads. “In 2017, that number dropped to 62 requests, a 44% decline. The number of requests recovered slightly in 2018 to 83, still a 25% decline from the 2016 number of requests.”
While the new directive helps reduce ICE’s presence within a courthouse, it does not prevent the agency from making arrests outside the courthouse. It also does not explicitly prohibit federal immigration officials from communicating with New York court personnel. A recent report from Documented revealed just how troubling that line of communication is. Through a Freedom of Immigration Act request, the outlet found 66 arrests by ICE agents in New York State courthouses between February 2017 and August 2018. In six of those incidents, New York State Court Officers or clerks assisted ICE agents in making their arrests, according to the reports.
The state legislature has an opportunity to address this blindspot. State Senator Brad Holyman (D) has introduced the Protect Our Courts Act, which would outlaw civil arrests of people attending, headed to, or coming from court proceedings in state courthouses without a proper warrant. The bill has received the support of many legal advocates, including the New York Bar Association.
“The next step is a call for legislative action,” Aizeki said. “The court’s implementation of these protections sends a strong message that ICE courthouse activity needs to end.”
As ThinkProgress has previously reported, the number of non-criminal immigrant arrests in New York has skyrocketed under the Trump administration. Nearly half of the immigrants detained in fiscal year 2018 — roughly 1,259 — had no criminal convictions, an 87 percent jump from the previous fiscal year. At least 804 of those detained without a criminal conviction had pending charges, meaning ICE arrested them before they had a chance to clear their name in immigration court.
This story has been updated to clarify a quote from Mizue Aizeki.