On June 16, 2017, Immigration and Customs Enforcement (ICE) officers arrived at the New York City Human Trafficking Intervention Court in Queens, seeking a Chinese woman who was a participant in the program. Pursuant to a policy adopted by the New York Office of Court Administration, ICE agents had informed court security officers about their presence, and the security officers had informed the judge. The woman’s attorney asked the judge to set bail and place her client in state custody, which was granted. ICE officials later acknowledged that they arrested three people outside the courthouse that day but no arrests took place inside the court. New York Chief Judge Janet DiFiore later said in a statement that she was “greatly concerned.” She also stated, “We are committed to the safety and security of all New Yorkers who use our courthouses throughout the state. We have met… to convey our concerns that they treat courthouses as sensitive locations.”
This incident in New York City provides just one recent example of similar occurrences, which have taken place in and around courthouses across the United States. Arrests by immigration agents and other federal and local law-enforcement agencies in state courthouses are not new. However, revised immigration-enforcement priorities of the Department of Homeland Security, and reactions from some state and local officials who describe these priorities as “sanctuary policies,” have raised attention given the arrests and their impacts upon courts and the communities they serve.
Federal immigration policy is highly contested, extremely divisive, and politically charged. This article offers no position on what immigration laws, regulations, practices, or procedures should or should not be. However, because these laws and procedures impact local courts and the ability of the courts to carry out their primary responsibility to provide a fair and open forum to all for the timely resolution of disputes, judges and court administrators have a duty to be aware of immigration issues and their potential impact upon court operations.
A Brief Primer on Immigration Law Relevant to Courthouse Arrests
While not mentioned specifically in the U.S. Constitution, the regulation of immigration is clearly understood as a federal responsibility and within the power of the U.S. Congress to regulate. Congress adopted the first immigration rules in 1790 and passed the first legislation in 1819. In 1875 the U.S. Supreme Court made clear that states were not allowed to pass laws to regulate immigration. This principle was reaffirmed in 2012 when, in Arizona v. United States, 567___ (2012), the Supreme Court struck down several immigration statutes passed in Arizona and declared the primacy of the federal government in this area.
Federal immigration laws are found primarily in Title 8 of the United State Code. Significant revisions of the law last occurred in 1996 when the process for expelling noncitizens was restructured, eliminating the former “exclusion” and “deportation” hearings and substituting a procedure defined as “removal.”
The immigration-removal system is a civil, not a criminal, process. There is often confusion about the civil nature of the process since many of the legal grounds to support removal of an individual involve proof of conviction of a state or federal crime. “Illegal entry” is defined as a federal criminal offense under 8 UCS §1325; however, the crime occurs only at the time of entry and does not “continue.” Since it is not a continuing crime, individuals can only be prosecuted for illegal entry if apprehended at the time of entry. Thus, a noncitizen’s mere presence in the country without legal authority, whether having entered without authority or entered with authority and remained after the authority expired, is not a crime but rather a civil immigration violation.
The primary federal agency responsible for immigration enforcement is the Department of Homeland Security (DHS) created by Congress in 2002. Two DHS agencies are assigned responsibility for immigration enforcement and removal. Immigration Customs Enforcement (ICE) is responsible for enforcement within U.S. borders, and Customs and Border Protection (CBP) along U.S. borders and at points of entry. The U.S. Attorney General and the Department of Justice (DOJ) also play a role. The nation’s immigration judges and courts located across the United States and the Board of Immigration Appeals are located within the DOJ. Federal district and circuit courts are also involved, having jurisdiction to hear criminal prosecutions for illegal entry and illegal reentry. These two crimes make up a significant percentage of the criminal caseload of federal district courts.
Arrests in and Around the Courthouse
The principle that the state courthouse is open to all and that, with few exceptions, court proceedings are open to the public is affirmed by all state court systems in the United States. In many jurisdictions, the principle is included in the state constitution. In others, the requirement is found in state statutes, court rules, or custom and is often reinforced by decisions of the courts. Any limitation, therefore, on open and free access to court facilities may violate state law and, additionally, is contrary to the basic inclinations of judges and court administrators.
The authority of federal immigration officials to make arrests is broad. Under 8 USC §1357 agents can interrogate and arrest individuals where probable cause exists to believe the individual is in violation of immigration law.
Through administrative regulations, DHS has self-imposed some limitations on where arrests should take place, recognizing that some locations are so “sensitive” as to make enforcement activities in these locations inappropriate. The current policy was communicated in an ICE Memorandum issued October 24, 2011. It defines sensitive locations as schools, hospitals, places of worship, public ceremonies such as weddings and funerals, and the site of public demonstrations. The underlying rationale for the policy is a recognition that immigration-enforcement actions at these locations might deter individuals from attending or participating in activities deemed basic and fundamental like education, health, religion, and the exercise of First Amendment rights. The policy does not completely bar enforcement activities in these locations but creates a presumption, absent a showing of exigent circumstances and requiring prior agency approval.
Courthouses are not now, nor have they ever been, included in the DHS policy definition of sensitive locations. In response to the higher profile and public attention paid to recent ICE arrests at courthouses, several prominent court officials have argued that the sensitive-location designation should be extended. Since March 2017, five of the nation’s chief justices have written to the DHS director and the attorney general asking ICE agents to limit their enforcement actions in and around state courthouses and to add the courthouse to the definition of sensitive locations. Each of the chief justices, after first recognizing and affirming the federal authority and responsibility to enforce the nation’s immigration laws, argued that the same policy considerations that support the limitation of arrest activities around schools and hospitals applied equally to the courthouse. New Jersey Chief Justice Stuart Rabner stated:
A true system of justice must have the public’s confidence. When individuals fear that they will be arrested for a civil immigration violation if they set foot in the courthouse, serious consequences are likely to follow. Witnesses to violent crime may decide to stay away from court and remain silent. Victims of domestic violence may choose not to testify against their attackers. Children and families in need of court assistance may likewise avoid the courthouse. And defendants in state criminal matters may simply not appear.
Similarly, Chief Justice Mary Fairhurst of Washington stated:
When people are afraid to access our courts, it undermines our fundamental mission. . . . Our ability to function relies on individuals who voluntarily appear to participate and cooperate in the process of justice. When people are afraid to appear for court hearings out of fear of apprehension by immigration officials, their ability to access justice is compromised. Their absence curtails the capacity of our judges, clerks, and court personnel to function effectively.
In spite of these requests, DHS has determined that their policy will not be revised. In a June 5, 2017 letter to Mary McQueen, president of the National Center for State Courts, acting ICE director Thomas D. Homan confirmed that courthouses would not be treated as sensitive locations. However, “enforcement actions are only initiated at or near a courthouse when ICE officers are seeking specific criminal aliens. When arrests at or near a courthouse are planned, ICE officers do so discretely, generally conducting the arrest outside public areas of the courthouse and in a manner so as not to draw attention.” Homan also stated that courthouses, as secure facilities, offer a safe place for ICE officers to effectuate their arrests. He also argued that courthouse arrests are sometimes made necessary because ICE officers are no longer given access to some jails or some local law-enforcement agencies are no longer providing information to ICE officers or honoring ICE detainers.
Related Issues—Detainers, Enforcement Priorities, and Sanctuary Jurisdictions
If the matter of immigration-enforcement actions at courthouses was the only contested issue to be resolved, it is likely that state courts and federal agency officials could find a way to negotiate a mutually successful outcome. Courthouse arrests are, however, only one issue within a large array of difficult and disputed matters involving all branches of government. While judges and court officials have little or no authority over the policy decisions of state and local agencies, the decisions and choices of those agencies about immigration policy have a direct impact upon the courts.
One primary area of dispute between ICE and state and local officials revolves around the use and recognition of ICE detainers. Authority for the use of the detainer is found in 8 U.S.C. §1357 and has been expanded further through federal regulations. The largest number of individuals initially identified by ICE and later subjected to removal proceedings are found as a result of programs through which 1) arrest data collected by local law-enforcement officials and reported to state and federal criminal identification bureaus is then shared with ICE, or 2) booking information collected by local jails and correctional facilities is shared directly with ICE. ICE then compares this information with their own immigration data to identify and locate potential subjects. Once an individual is identified, ICE uses the detainer to either request additional information from the local officials or to request that the officials hold the individual to allow ICE to secure custody at the time of release. Pursuant to the statute, the ability to hold is for not more than 48 hours after the person would otherwise have been released.
An ICE detainer is not an arrest warrant. Unlike criminal arrests warrants, which are issued by a judicial authority and based upon probable cause, the ICE detainer is administratively issued by ICE with no mechanism for judicial review. It is also unlike criminal detainers issued pursuant to the Interstate Agreement on Detainers, which are used to request the transfer of an individual in custody in one state who is then formally charged with a criminal offense in another state. Litigation over more than a decade has successfully challenged various aspects of the use of ICE detainers. Some local jails have been found liable for continuing to hold an individual past the time they would otherwise be entitled to release on the basis of an ICE detainer. Local law-enforcement agencies have been found liable for making arrests or otherwise detaining individuals on the basis of an ICE detainer. The court decisions found that the ICE detainer did not constitute probable cause to believe that the individual had committed a crime and, therefore, any detention of the individual was unconstitutional. Partly in response to the litigation, law-enforcement agencies and local correctional facilities in many jurisdictions have adopted policies that restrict the acceptance of ICE detainers. This may mean that they no longer convey information to ICE about persons in their custody or refrain from providing information about an individual’s release date.
Local agencies’ decisions to refrain from honoring ICE detainer requests or to otherwise fail to cooperate with ICE agents is one basis upon which communities have been labeled as “sanctuary” jurisdictions. While not a legal term, a “sanctuary” jurisdiction is most often used to describe an agency, city, county, or state that has adopted a policy or practice that limits the actions local officials take in support of the enforcement of federal immigration laws. In addition to decisions about ICE detainer requests, other action taken by some agencies or communities include refusing to allow ICE agents to interview detainees at the local jail, failing to respond to requests for information, and adopting policies limiting inquiry, recording, or sharing of an individual’s immigration status.
On January 25, 2017, President Trump signed and released three executive orders involving immigration. One of the orders, “Enhancing Public Safety in the Interior of the United States,” included a more specific definition of “sanctuary jurisdiction” as any political subdivision that fails to comply with 8 U.S.C. §1373. This provision provides that a government entity or official may not “prohibit, or in any way restrict, any government entity or official from sending to, receiving from, the Immigration and Naturalization Service, information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” More recently, Attorney General Sessions announced the use of this definition of “sanctuary” for the purpose of the implementation of DOJ grant programs and required all entities in receipt of DOJ grant funding to certify that they were in compliance with 8 U.S.C. §1373. This has led to further litigation over the meaning and interpretation of 8 U.S.C. §1373 and the ability of DOJ to condition the receipt of federal grant funding on this basis.
Another provision of the president’s executive order encouraged DHS to take steps to increase the number of state and local government officials that formally engage with the federal government to assist in the enforcement of immigration policy. These agreements, sanctioned under 8 U.S.C. §1357(g), allow local governments to voluntarily agree to assist with federal immigration enforcement and to be given the legal authority to investigate, apprehend, and detain aliens. A relatively small number of agencies have entered into the agreements, but where they have, local law-enforcement officers “step in” to the authority of ICE officers with the legal ability to detain and arrest those suspected of immigration violations.
While judges and courts are seldom involved and have little or no authority in the decisions about whether to adopt immigration policies, these local decisions are relevant to the issue of courthouse arrests and may also impact other operations of the courts. ICE officials have stated that the reason they are now engaging in enforcement activities at local courthouses is because sanctuary policies have limited their ability to obtain custody of individuals at jails, and they are forced to seek their targets at other public places. Decisions by local law-enforcement agencies to enter into federal partnerships have the potential of placing them in conflict with the policy decisions made by other local officials. Where the entities and individuals that provide courthouse security are not judicial-branch employees, which is the case in many states and local jurisdictions, it may be local law-enforcement officers, rather than federal agents, that are making or assisting with immigration arrests in the courthouse.
One final issue contained in President Trump’s executive order and now adopted through changes in DHS and ICE regulation involves the enforcement priorities agencies will use in directing their resources and in targeting potential aliens subject to removal. For many decades, the federal government has recognized that the number of unauthorized aliens in the United States is far greater than any capacity to identify and initiate removal proceedings. There has also been at least an informal recognition of the economic and other benefits that many such individuals provide to the country and to the communities in which they live. While each presidential administration has balanced these interests in different ways, each has adopted an immigration-enforcement policy, which established some system of priority for enforcement activities.
Under the final version of the DHS enforcement policy adopted during the Obama administration, ICE was directed to target its resources through the use of a priority system. In the first priority were aliens suspected of terrorism, those apprehended at the border, and those who had been convicted of a felony. In the second priority were those convicted of three or more misdemeanors or of a “significant” misdemeanor, such as domestic violence. The third priority included anyone who had received a recent final order of removal. Following the 2017 executive order, DHS Secretary Kelly immediately adopted a new policy, which rescinded the previous policy and greatly expanded the scope of immigration enforcement. The current memorandum provides:
Effective immediately… Department personnel shall faithfully execute the immigration laws of the United States against all removable aliens. Except as specifically noted above, the Department no longer will exempt classes or categories of removable aliens from potential enforcement. . . . Additionally, regardless of the basis of removability, Department personnel should prioritize removable aliens who (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense; (4) have engaged in fraud or willful misrepresentation in connection with any official matter before a government agency; (5) have abused any program related to receipt of public benefits; (6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or (7) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
As noted above, one of the reasons that ICE has historically focused its apprehension efforts at local jails and detention facilities is because those who were in state custody likely matched the profile of individuals set out in the agency’s enforcement-priority policy. The current enforcement policy is much broader and includes a large number of individuals unlikely to be in state custody. For one particular category of persons identified in the current policy, those who “have been charged with any criminal offense that has not been resolved,” the courthouse is the location where such an individual is most likely to be identified and apprehended. It may well be that this revision and expansion of the enforcement policy has led to a larger presence of ICE officers and enforcement activities at court facilities.
What Should Courts Do?
Despite the high level of public attention, published news accounts, and discussion of incidents of courthouse arrests, few courts have taken official action or adopted policies in response to the activities. Nor has any consensus developed about what courts, judges, court administrators, or others can or should do. Because many courts are currently reviewing these issues, the following are offered as suggestions of topics and responses that should be considered.
1) Review of State and Local Laws Relevant to Immigration Issues
The first task is a comprehensive review of all state laws, city and county ordinances, and policy statements that may have been adopted. These may guide or limit actions that can or should be taken by the court. In many jurisdictions, court facilities are managed and operated by noncourt officers and agencies. Similarly, court-security officers may be under the direction and control of an executive-branch agency or a law-enforcement agency. In those courts with geographic jurisdiction extending to multiple cities or counties, there may be different policies or limitations in each location. This review should include relevant laws on access to court facilities and proceedings and access to court records and information. The court should determine what, if any, policies have been adopted by government entities, law-enforcement agencies, and correctional facilities regarding the level of cooperation with federal immigration officials, including a review of any formal agreements between local law-enforcement entities and federal immigration under 8 U.S.C. §1357(g).
2) Facility Access Policy
Every court should adopt a written policy that provides guidance on issues of access to the court facility and grounds. At present, many courts have adopted rules and procedures about court security, including the possession of weapons by law-enforcement officers and others. Similarly, many courts have policies about conduct within the courtroom, which may range from issues about appropriate attire to use of cell phones and social media. Few of the policies contain guidance about what activities are permitted or prohibited within the public areas of the facility. In light of the controversy and concern about courthouse arrests, the court should consider adopting a policy that describes clearly if such activities are permitted on court grounds, in the court facility, and in the courtroom. For example, judges in King County, Washington adopted a policy that prohibits the arrest of individuals based upon their immigration status in courtrooms and discourages arrests in other areas of the courthouse. Alternatively, the New York Office of Court Administration issued a policy that allows all law-enforcement agencies to make arrests in the courthouse but establishes special guidelines and protocols for any law-enforcement agencies whose arrest is not based upon a judicial warrant issued by a New York judicial officer. Jurisdictions will likely reach different conclusions based upon legal requirements and restrictions, operational considerations, and policy preferences. Irrespective of the decisions, such a policy should be adopted and clearly communicated to court officers and employees, justice partners, and the public.
3) Access to Court Records and Information Policy
The court’s policies on court records and information access should also be reviewed in light of potential requests by immigration officials to use court data in their investigation and apprehension efforts. In the past, federal officials were most interested in arrest and conviction data, probation records, and incarceration data from jails and correctional facilities. With a broadening of the target enforcement population and a move of the potential arrest venue to areas in and around the courthouse, there may be additional requests for docket information and calendars of required appearances and scheduled hearings. In an era in which many courts have adopted policies encouraging free and open electronic access to such information, there is no suggestion that the same access given to the public should be denied to others. However, a comprehensive review should include the individual data elements that are collected and that are accessible by the public (especially information regarding an individual’s immigration status) and the process for accessing or otherwise requesting court information. The policy should provide clear guidance to those who receive requests for court records so they can respond efficiently and appropriately.
4) Communication Protocol Between the Court, Court Security, and ICE
Every court should adopt a policy that describes the steps any law-enforcement agency is required to take should they want to initiate an arrest or other enforcement activity in or around a court facility. The policy might require advance notice from the agency to court security, court administration, or the presiding judge. At a minimum, the policy should require that the agency check in and advise court security of the planned activity upon arrival at the courthouse. In those instances in which an individual who is the target of an arrest is expected to appear as a party, witness, or in some other capacity in a scheduled hearing, the judge who is to preside over the hearing should also be advised.
5) Incident-Reporting System
Crafting an informed and reasonable policy response requires a full and accurate understanding of the nature and extent of the problem. Because immigration enforcement is at the center of such a divisive national debate and there is a high level of fear and distrust within immigrant communities, there are conflicting reports about the number of courthouse arrests. Many courts have adopted recommended practices for courthouse security, which include incident-reporting systems. Courts should use these systems or, should none exist, develop a form and process so that arrest and enforcement activities in and around courthouses can be documented and reported. At a minimum, the report should include the time and date of the incident, the name of the agency making the arrest, the number of individuals arrested, the location of the activity, and a brief description of the activity. If available, the name, nationality, the basis for which the person is being arrested (e.g., they have a conviction for theft, they have been charged with a drug offense), and the reason the individual was in the court facility (e.g., they were appearing as a defendant, a witness, or a family member) is also extremely valuable information. If possible, states should consider developing and adopting a uniform report for use by each individual court to allow for data to be shared and compared.
6) Training for Judges and Administrative Staff
Finally, judges and court staff need training about immigration law and procedures and the potential impacts of these laws on court operations. Many judges have received training on two areas in which federal immigration law and the state criminal justice system overlap, including the consequences of state criminal convictions on an individual’s immigration status and the inclusion of immigration-law issues in the determination of questions of the effective assistance of counsel. Judges are less aware of the broader immigration laws, policies, and agency practices, which may impact their court and its operation. In recent months, judges have been met with requests to limit ICE arrests in their courthouses and even to shield persons before them from federal apprehension. At least one case involved allegations of judicial misconduct. Training on these issues is essential for both judges and court staff, including security officers, who may be forced to respond to these issues.
A Final Note
The primary obligation of state courts is to carry out their fundamental purpose of providing a fair and open forum for the resolution of disputes. The ability to hear, decide, and enforce the state’s civil and criminal laws requires the provision of a safe and secure location for the hearing of those disputes and with the assurance of free and public access to all. One of the important obligations of the federal government is the enforcement of the nation’s immigration laws. Congress has provided authority to immigration agencies and officials to carry out this obligation. These separate obligations of the state courts and federal government are both independent and coequal. One cannot, in the exercise of its power, deprive the other of the ability to exercise its own. Conflicts with respect to federal immigration arrests in state court facilities require a recognition and mutual respect for the separate and sovereign roles being exercised and the adoption of policies and procedures that honor the interests of each.
As local courts consider and develop policies, valuable information and assistance is available from the National Center for State Courts. A comprehensive collection of relevant laws, policies, articles, and other resources on immigration and courthouse arrests is available online. Additionally, a national map that records and reports the location of courthouse arrests and the responses that have been adopted by local courts is available.
ABOUT THE AUTHOR
J. D. Gingerich serves as the founding director of the State Courts Partnership, a collaboration between University of Arkansas at Little Rock William H. Bowen Law School and the National Center for State Courts.