As the White House steamrolls over immigrants’ rights and cranks up its deportation machine, migrant communities everywhere are seeking sanctuary and developing new methods of mutual protection—through the law, in their churches and schools, and among their neighbors. From the establishment of “sanctuary campuses” at public universities, to the expansion of sanctuary policies for municipalities that refuse to cooperate willingly with Immigration and Customs Enforcement (ICE) investigations, community safeguards are emerging in a volatile political landscape.
Still, while cities have attempted to craft protective policies to prevent or at least minimize ICE interference, federal agents are consistently exploiting loopholes in the ad hoc safety net that has developed in targeted communities. In New York, despite local officials’ declarations that the city would resist the Trump administration’s crackdown, ICE raids are still happening. A new battlefront is emerging in local courthouses, where ICE—unleashed from Obama-era guidelines on “sensitive areas” for raids and arrests—has waged some of the country’s fiercest frontal assaults on immigrant rights.
The advocacy group Immigrant Defense Project (IDP), which provides civil legal aid to immigrants, has condemned the practice, which, according to their surveys, has led to a stunning 1,200 percent rise in arrests and attempted arrests by ICE from 2016 to 2017 at local courts around the state. Across New York, ICE agents have reportedly cracked down on more than 150 people as they exercised their rights to justice (with more recent arrest figures still pending).
IDP Supervising Attorney Andrew Wachtenheim reports, “Many of these individuals have already been deported, some very quickly.” For example, “a longtime lawful permanent resident” was “disappeared from court when he appeared on a non-criminal charge for trespassing in a building.” He was deported quickly despite being diagnosed as “not competent” to stand trial because of psychological and cognitive problems, “learning disabilities, physical illness, and a history of trauma.”
According to IDP’s surveys of 225 legal professionals in New York State, three-quarters of respondents said they had observed a “chilling effect” on their clients due to fear of ICE intervention whenever they attend court. One IDP report described a court scene in which an immigrant undergoing legal proceedings broke down when told that ICE was present, prompting a nearby woman to say “she would tell her friend to not come to court because they would be deported.” Around the country, social-service providers are observing a decline in domestic-violence victims coming forward for fear of being arrested on immigration charges.
On the West Coast, Grisel Ruiz of the California-based Immigrant Legal Resource Center (ILRC), has observed an alarming trend across the state of aggressive ICE activity directly in courthouses. Although reports of arrests have been anecdotal, advocacy groups have reported a pattern of aggressive ICE enforcement focused on immigrants involved in both criminal and civil cases. Fresno has seen an especially troubling spate of ICE actions with several arrests in recent months. For both lawyers and clients, Ruiz argues, “It’s really caused a lot of fear and concern in the community.” If ICE cracks down in the middle of an individual’s hearing, for example, lawyers can do little to intervene in an arrest other than counsel clients on how to assert their rights to an agent. Another alternative might be to ask the judge to intervene.
So far, California has instituted a general policy of noncompliance between local agencies and ICE. But advocates are pressing state authorities for clearer guidelines for courtrooms and on the grounds of courthouses, which are considered public space. Immigrant-rights defenders have petitioned the Judicial Council of California to institute a new rule to prevent ICE intervention by ensuring that “No person may be subjected to civil arrest while the person is inside a courthouse of this state” when engaged in any legal procedure or business of the court.
But on the ground, attorneys are wrestling with the ethical crisis of how to guide clients through a justice system where their safety, let alone their constitutional rights, cannot be guaranteed. When simply walking into a courtroom can lead to a direct encounter with ICE agents, Ruiz says, “In addition to having a chilling effect, it makes it really difficult if not impossible to have meaningful access to due process in the courts.”
The brazen intrusion of ICE in local courts turns on the question of whether immigrants have an equal right to a fair court hearing. New York could set a precedent for other states soon with a new campaign to push the state’s legislature to pass a law formally barring ICE from making any unauthorized enforcement actions in court buildings. The IDP has helped develop landmark legislation, known as the “Protect Our Courts Act”—just introduced in the state legislature with broad support—that would outlaw “the civil arrest of an individual attending a court proceeding while going to, remaining at, and returning from court, absent a judicial warrant or court order.… The protection includes parties, and family or household members of a party or potential witness.” The law would codify existing case law surrounding the application of the Bill of Rights to conduct in and around courtrooms. Historically, the courts have ruled that, under a common-law precept known as “privilege from arrest,” constitutional equality before the law means equal access to the courthouse as a basic organ of justice. Under general principles of federalism, when court spaces are violated by immigration agents, one’s personal rights, as well as the public trust, are breached.
The proposed legislation would draw a legal line against local-government compliance with ICE enforcement actions in courts. Specifically, it would be considered “contempt of court and false imprisonment” to “willfully assist or facilitate” an ICE arrest on court premises. More importantly, ICE could be preemptively barred from entering courts without a valid arrest warrant. An individual victim of an ICE intervention would, at least in theory, have a civil right of action to seek recourse.
For public spaces—particularly areas as sensitive as the halls of justice—freezing ICE out of community institutions is just common sense for the immigrants who rely on these places to exercise their legal rights and get on with the rhythms of everyday life.
Courtrooms are a unique public space, a place to which people of all backgrounds can turn to keep their families safe, or hold landlords, bosses, or their government accountable for respecting their rights. When ICE strikes these sacrosanct spaces, it’s not only a violation of personal dignity but also an assault on the social fabric, an attack on the pursuit of justice that makes life possible.