Immigrant Defense Project Releases Statement and Analysis in Response to New DHS Guidance on Courthouse Arrests
 

Yesterday, U.S. Immigration and Customs Enforcement and U.S. Customs and Border Patrol released new guidance to ICE and CBP personnel to put new limits on civil immigration enforcement in or near courthouses. In response to this memorandum, the Immigrant Defense Project has released the following statement, along with an analysis of this new guidance.

“The new DHS guidance on ICE courthouse arrests comes in response to years of advocacy against this practice. The Immigrant Defense Project waged a four-year campaign documenting the escalation in ICE surveillance and arrests at courthouses that revealed how ICE’s practice interfered with equal access to the courts—disproportionately targeting Black and Latinx young men—and exacerbated the structural racism within the criminal legal system," says Mizue Aizeki, Interim Executive Director of the Immigrant Defense Project. 
 

“While the memo limits ICE courthouse arrests, it still permits the practice when ICE decides someone poses “a threat to public safety” or a “national security threat” and a few other deceptively broad categories. This seeks to legitimize ICE’s policing practices including continued exploitation of the court system, undermines the right of all people to attend court without fear of civil arrest, and perpetuates discrimination in courthouse access. More insidiously, it furthers ICE’s false narratives that immigrants are a threat. An agency that operates in such a way should never be the judge of what keeps the public safe.”
 

Background on the ICE Out of Courts Campaign and Analysis of the Memo

Under the Trump administration, the Immigrant Defense Project documented an alarming 1700% increase in ICE courthouse arrests and attempted arrests across New York State. The tactic became official policy, widely lauded by Trump Administration officials, and announced through the public release of an internal memorandum, Directive 11072.1. IDP’s campaign to get #ICEOutofCourts includes leading the ICE Out of Courts Coalition, which advocates on multiple fronts in New York State to stop this practice. As a result of our advocacy, New York State has taken a strong stand against ICE courthouse arrests:

• In April 2019, the New York State Office of Court Administration (OCA) implemented rules prohibiting ICE from arresting individuals in state courthouses without a judicial warrant or judicial order. 

• On June 10, 2020, in State of New York, et al. v. U.S. Immigration and Customs Enforcement, et al, Federal District Court Judge Hon. Jed Rakoff enjoined ICE from conducting courthouse arrests.

• In July 2020, after three hard-fought years, the New York State legislature overwhelmingly passed the Protect Our Courts Act during a special session of both chambers. On December 15, Governor Cuomo signed the Protect Our Courts Act into law. This law keeps ICE officers from arresting individuals going to, attending, and returning from court, bringing relief from the constant threat of ICE surveillance and arrest for immigrants who need to go to court.  

Under Trump, ICE used courthouse arrests as one of its tactics to bully jurisdictions with policies limiting police collaboration with ICE—so-called Sanctuary Cities—and also to push its inflammatory and misleading narrative that all people with court contact are a threat to public safety. After four years of ICE agents stalking immigrants at their court appearances across the country, it is encouraging to see the new Administration adopt as policy that a "courthouse is a place where the law is interpreted, applied, and justice is to be done," and to explicitly acknowledge that "civil immigration enforcement actions in or near a courthouse may chill individuals' access to courthouses and, as a result, impair the fair administration of justice." But given this apparent shift in perspective from appointed leadership within DHS, it is difficult to square how the Administration justifies continuing to engage in courthouse arrests, which is precisely what this new policy memorandum does. 
 

The memo asserts as a guiding principle: the goal "not to unnecessarily impinge upon the core principle of preserving access to justice." It remains unclear how ICE will determine when a civil arrest at a courthouse is a necessary impingement on access to justice.
 

This policy announcement from Secretary Mayorkas and ICE and CBP leadership ultimately perpetuates the courthouse arrest practice, but with restrictions—some well-defined, some ill-defined. The memorandum applies to "civil immigration enforcement," defined to include: "civil apprehensions, service of subpoenas, searches, seizures, interviews, and surveillance." All of these things can continue to happen "in or near" ("in the close vicinity of") courthouses, in deceptively broad categories of circumstances:

• "national security threat"

• "imminent risk of death, violence, or physical harm to person"

• "hot pursuit of an individual who poses a threat to public safety"

• "imminent risk of destruction of evidence"

• "an individual" "poses a threat to public safety" and" "safe alternative for such action does not exist or would be too difficult to achieve the enforcement action at that location" and "the action has been approved in advance" by a slightly narrower category of DHS supervisors than previously. 

The policy change does not apply to jails attached to courts or to any "adjacent buildings" "that are not part of the courthouse or otherwise are not used for court-related business."  It does not apply to DHS facilities or offices but does apply to immigration courts.
 

The memorandum also specifically calls for collaboration between DHS agents and local court staff in courthouse arrest cases, which will continue to corrode trust between court-involved communities and the court system. 
 

ICE and CBP will likely arrest fewer people at courthouses than in the past four years. But immigrant community members cannot reliably know that they can attend state and local court proceedings without concern of ICE arrest or other immigration policing. Our advocacy to stop ICE arrests at courthouses is to ensure that all people, including defendants to criminal charges, survivors of violence, those who are homeless, people struggling with mental illness, and other vulnerable individuals, will be able to come to court without the fear of being targeted by ICE, and that ICE policing does not exacerbate the harms of the criminal legal system. This memorandum falls short of that goal.