Information to inform ICE out of the Courts advocacy
New York’s top prosecutors, public defenders and advocates are rightly speaking out against a pernicious Trump administration policy that encourages Immigration and Customs Enforcement officers to roam the halls of state courthouses with the goal of targeting and arresting immigrants attending to official court business.
As documented by the Immigrant Defense Project, there was a 1,100% increase in incidence of ICE courthouse arrests in New York in 2017 from the previous year.
Immigrants are now afraid to attend court in any capacity — as defendants, plaintiffs, witnesses, victims or supportive family members. This impedes justice.
New York is not helpless in the face of President Trump’s harsh immigration enforcement machine. We believe that courthouse arrests are not only bad policy — they are also unconstitutional. Therefore, we urge the state’s top judicial official, Chief Judge Janet DiFiore, and the Office of Court Administration she leads to immediately adopt rules to restrict these civil arrests in New York’s courthouses.
“Everyone, regardless of their immigration status or the status of their loved ones, should have access to equal justice under the law,” state Attorney General Eric Schneiderman said in speaking out against courthouse arrests.
It’s not a platitude. The principle that equal justice requires access to court dates back to 18th century common law, which barred civil arrests for people attending court. In more recent iterations, the Supreme Court has recognized that the Constitution requires that “access to the courts is adequate, effective and meaningful.”
ICE’s policy of intimidation in effect closes the courthouse doors to immigrants. This not only tramples their rights — the Constitution isn’t only for citizens — but also infringes on the rights of people who may require immigrant witnesses in court to effectively present their cases.
New York City is home to 3.3 million immigrants, who, even if they have legal status, may fear the presence of ICE officers.
Our courts cannot function when 40% of our population believes that if they show up, they may suddenly be dragged off in handcuffs to face unrelated deportation proceedings.
New York must no longer let its justice system be used as a hunting ground. State courts throughout the nation, including in New York, routinely implement rules to ensure order and access to justice for litigants and witnesses. New York should implement rules like those proposed by the Immigrant Defense Project and others, which would flatly prohibit civil arrests in the courthouse unless the arresting officer has a judicial warrant or order, and prevent court resources from being used to assist ICE.
Rules like these are important, timely uses of courts’ longstanding authority to regulate judicial spaces. While the public nature of the courthouses is often held as sacrosanct, this has never meant that those who visit them are free from regulation. On the contrary, the New York State Court of Appeals has repeatedly recognized “the inherent power of the court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice.”
New York courts have accordingly upheld rules restricting the courthouse presence of bail bondsmen, the press and even the general public when necessary to prevent interference with proceedings and prejudice to litigants. The disruption and chilling effect of courthouse arrests surely meets the same standard.
The fact that a rule restricting civil arrests in courthouses would apply to a law enforcement agency, and a federal one at that, does nothing to diminish New York courts’ authority in this respect. In fact, many courts have adopted rules, such as restrictions on carrying firearms, that regulate law enforcement officers’ conduct within courthouses.
As long as ICE threatens the sanctity of our state courthouses, New York has an obligation to push back — to ensure meaningful access to justice for all those who may have concerns about their immigration status, but rely on our courts to vindicate their rights to protection, child custody, housing and a fair defense in criminal proceedings.
Ultimately, New York not only has the authority to prevent this threat to the administration of justice in its courts, it has a duty to do so for the many New Yorkers who depend on them.
Morawetz is a professor of clinical law at NYU School of Law. Nash is a visiting assistant clinical professor of law at Benjamin N. Cardozo School of Law.