Legislative Memo: The Protect Our Courts Act

As civil immigration enforcement has grown more aggressive under the Trump administration, one of the more pernicious tactics used by U.S. Immigration and Customs Enforcement (ICE) is the practice of arresting people in or around courthouses. Since 2017, in New York City and other parts of the state, ICE agents have been spotted routinely lurking the hallways of state courthouses and arresting people attending their court dates. These tactics undermine the state’s court system and threaten due process and the administration of justice.

The NYCLU supports the Protect Our Courts Act as a means of ensuring that New Yorkers’ access to the courts is not compromised by this misguided approach to immigration enforcement.

The ability to access the state court system is essential to our notions of liberty and due process. The right to sue and defend in the courts is “the right conservative of all other rights, and lies at the foundation of orderly government.”[1] Preserving that right requires that the government do more than merely open the courthouse doors. The government must remove barriers that prevent certain classes of persons from availing themselves of the courts, lest their right to court access be effectively foreclosed.[2] The Supreme Court has required state authorities to take affirmative steps to ensure that the right of court access is realized.[3]

ICE’s practice of targeting and arresting people at courthouses directly undermines this constitutional right, and compels the state to act. In a national survey conducted by the ACLU and the National Immigrant Women’s Advocacy Project of judges, court administrators, attorneys, and law enforcement, more than half of judges surveyed reported that court cases in 2017 were interrupted because of an immigrant domestic violence survivor’s fear of coming to court.[4]  A 2019 survey by Ceres Policy Research found that 60% of survey respondents avoided attending court as witnesses, and 40% reported avoiding attendance in adult criminal court as a defendant or subject of a bench warrant.[5] Several New York district attorneys have condemned ICE’s courthouse enforcement, citing the fear it strikes in witnesses they are relying on to testify.[6] It is impossible to quantify just how great of a chilling effect ICE’s misguided practices have on litigants and witnesses. Yet if even a small number of New York’s 4.3 million foreign-born residents are deterred from availing themselves of the courts, the state’s judicial system is compromised. 

Urgent action is needed to curb ICE’s abusive courthouse enforcement.

Legislation to address ICE’s courthouse enforcement is urgently needed. In just the past few years, the number of immigration arrests at New York courthouses has skyrocketed. In 2018, ICE arrested more nearly seventeen times the number of people at New York courthouses as in 2016, according to statistics gathered by the Immigrant Defense Project.[7] Advocates have also observed ICE’s courthouse actions growing more brazen and aggressive, with reports of ICE using physical force against arrestees, surveilling people in courtrooms and hallways, and even eavesdropping on privileged attorney-client conversations.,[8]

ICE cannot be counted on to correct these abuses itself. Advocates have for years called on the U.S. Department of Homeland Security (DHS) to add courthouses to its list of sensitive locations where ICE cannot make arrests absent exigent circumstances,[9] but the agency has not done so. In January 2018, ICE issued a formal directive to its officers about enforcement actions in courthouses.[10] Though the directive sets out some general guidelines for how ICE courthouse arrests should be targeted, the policy contains few bright lines and largely reinforces ICE’s overall practice of arresting people in courthouses for civil immigration violations.

Courts have begun to push back against ICE’s intrusive courthouse arrest practice, but the results have been limited. The Office of Court Administration (OCA) of the New York State Unified Court System recently acted to limit ICE arrests in courthouses, issuing a directive in April 2018 requiring that ICE only conduct arrests in courthouses under its jurisdiction if done pursuant to a judicial warrant or court order, and that no arrests take place in courtrooms absent exigent circumstances. [11] These are meaningful steps to curb ICE’s courthouse actions, but they have fully deterred ICE from using courthouses as a trap to make civil arrests. A recent report from the Immigrant Defense Project shows that ICE has seemingly reacted to the directive by making more arrests outside of courthouses in 2019, where the policy does not apply, and expanded its courthouse presence in areas outside of New York City.[12] The legislature must act to expand on OCA’s administrative policy and give these protections the force of law.

Litigation against ICE’s courthouse enforcement has also brought early positive results, but should not delay legislative action. Last summer, a federal district court in Massachusetts held that litigants were likely to succeed on the merits of a lawsuit challenging ICE’s courthouse arrest policy in courthouse as violating a common law privilege against civil arrests in courthouses, and issued a preliminary injunction against ICE.[13] At the end of 2019, the U.S. District Court for the Southern District of New York denied ICE’s motion to dismiss a similar lawsuit brought by the New York State Attorney General.[14]

However, these cases remain pending, and the legislature should not wait to put in place meaningful statutory protections to preserve the integrity of its court system.

[1] Chambers v. Baltimore & O.R. Co., 207 U.S. 142, 148 (1907).