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ICE Arrests at Courthouses — Including at Courtrooms Dedicated to Protect Domestic Violence Victims — Undermine Equal Justice and Public Safety

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In spite of ICE policy that officers should “generally avoid enforcement actions in courthouses,” The Charlotte Observer reports that ICE arrested a woman and her 16-year-old son outside a courtroom set aside for domestic violence cases.  According to the report, the woman, identified as Maria, had moved into a domestic violence shelter with her 16- and 2-year-old son, had a protective order against her former fiance, and was in court that day for what was described by the public defender as a retaliatory misdemeanor complaint filed by the former fiance.  According to the district attorney and the public defender, Maria and her son were arrested just before Maria was going to testify against the former fiance.

At a news conference last week, the county district attorney said:

I’ve never seen anything like it before….How in the world is anybody going to get justice if both the victims and the defendants are not going to come to court because they’re all afraid of being deported? This is crazy….[A]ny attempt in the courthouse to detain a domestic-violence victim clearly frustrates our ability to protect them.

Increases in ICE Arrests in and Around Courthouses Since Trump Took Office

Just weeks after Trump was inaugurated, a woman living in an El Paso, Texas shelter for victims of domestic abuse was arrested at a courthouse where she was seeking a protective order against a boyfriend accused of abusing her.  The El Paso County Attorney said that “[i]t was the first time in her 23 years at the courthouse…that she can remember ICE agents making their presence known during a protective order.”  Worse yet, the County Attorney “speculates, they likely received a tip from the only other person who knew the time and place of the hearing — the woman’s alleged abuser.”

According to a report last year by a former president of the Massachusetts Bar Association, a woman who was in court during the prosecution of her attacker — accused of strangling her in front of her children — was targeted by ICE agents who came to the courthouse looking for her.  “She hid in the bathroom and later was able to sneak out of the building, but the case against her attacker was dismissed because she did not appear in the courtroom.”

According to the Immigrant Defense Project (IDP), based in reports by lawyers and family members of detained individuals, there has been a 1200% increase in ICE arrests and attempted arrests in and around courthouses across New York State from 2016 to 2017. Immigrants were arrested in a broad range of courts:  family, human trafficking intervention, criminal, youth, traffic, and community courts.

Fear of ICE Arrest in Courthouses is Having a Detrimental Effect on Public Safety and Justice

Days after the El Paso incident in February 2017 described above, the county prosecutor said a woman who was scheduled to appear in the same court to receive a protective order against her abusive husband was desperate to dismiss the case: “She was afraid her husband would call immigration authorities and she would be separated from her children.”

The arrest in El Paso and elsewhere has had effects around the country.  The Houston Police Chief reported a 43 percent decrease in sexual assault reports in the first three months of 2017.  In Los Angeles, the police chief also reported a drop in sexual assault reports by Latinos.  In Denver, “at least nine women abandoned pursuit of restraining orders against their abusers after immigration enforcement agents were filmed making an arrest in a city courthouse earlier this year, according to City Atty. Kristi Bronson.”   

Following the arrest of a Nashville immigrant in June last year, the Tennessee Immigrant and Refugee Rights Coalition was contacted about 25 times by people concerned about whether they would be at risk in going to court.  

According to a June 2017 Immigrant Defense Project survey of 225 advocates and attorneys in New York state, “45% have worked with immigrants who have either failed to file a petition or withdrawn a petition due to fear of encountering ICE in the courts.”  

In a survey of 715 advocates by the Tahirih Justice Center, 3 of 4 advocates reported, “immigrant survivors have concerns about going to court for a matter related to the abuser/offender.”     

Judges, Prosecutors, Public Defenders, the ABA, and Civil Rights Organizations Strongly Oppose ICE in Courthouses

As early as March of last year, judges condemned ICE arrests in courtrooms.  The Chief Justice of the California Supreme Court explained in a letter to the U.S. Attorney General and the Secretary of Homeland Security that courthouses are a “vital forum for ensuring access to justice and protecting public safety.”  She further explained:

Crime victims, victims of sexual abuse and domestic violence, witnesses to crimes who are aiding law enforcement, limited-English speakers, unrepresented litigants, and children and families all come to our courts seeking justice and due process of law….Our work is critical for ensuring public safety and the efficient administration of justice….I am concerned about the impact on public trust and confidence in our state court system if the public feels that our state institutions are being used to facilitate other goals and objectives, no matter how expedient they may be….[ICE arrests in courtrooms] not only compromise our core value of fairness but they undermine the judiciary’s ability to provide equal access to justice.  

Days later, the Chief Justice of the Washington Supreme Court sent a similar letter explaining that ICE arrests in courthouses “are deeply troubling because they impede the fundamental mission of our courts, which is to ensure due process and access to justice for everyone, regardless of their immigration status.”

The Chief Justice of the New Jersey Supreme Court sent a similar letter in April last year explaining, “To ensure the effectiveness of our system of justice, courthouses must be viewed as a safe forum.  Enforcement actions by ICE agents inside courthouses would produce the opposite result and effectively deny access to the courts.”

In April last year, 12 California prosecutors sent sent a letter explaining that ICE courthouse arrests, “deter residents concerned about their immigration status from appearing in court — including as crime victims and witnesses — jeopardizing effective prosecution of criminals.”  Prosecutors in Colorado, Massachusetts and New York did the same.  

In August of last year, the American Bar Association adopted a resolution calling on ICE to “to include courthouses as ‘sensitive locations’ in which immigration enforcement actions may only be taken upon a showing of exigent circumstances and with prior approval of a designated supervisory official.”  

In Massachusetts, the Committee for Public Counsel Services Immigration Impact Unit, the Lawyers Committee for Civil Rights and Economic Justice and Greater Boston Legal Services filed a petition to “prevent federal immigration officials (ICE) from arresting individuals on civil immigration matters while they attend to court business.”

The petition was filed on behalf of immigrants who fear going to court because of increased ICE activity in and around courthouses – including an abused woman who needs to renew a restraining order against an abusive ex-husband, a woman seeking guardianship for her disabled adult daughter, a crime victim who wants to serve as a witness in criminal proceedings against his assailant, and a juvenile who needs the testimony of a critical witness who is too afraid to testify in court.

In New York, public defenders were so outraged by courthouse ICE arrests they staged multiple walkouts in protest.

ICE Policy

A 2011 ICE memo still available to the public on the ICE website suggests it continues to be “against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.”  The memo says, “ICE officers, special agents, and attorneys should exercise all appropriate prosecutorial discretion to minimize any effect that immigration enforcement may have on the willingness and ability of victims, witnesses, and plaintiffs to call police and pursue justice.”

A 2018 memo seems to eviscerate the 2011 policy: Although “ICE officers and agents should generally avoid enforcement actions in courthouses, or areas within courthouses that are dedicated to non-criminal (e.g., family court, small claims court) proceedings,” ICE may make courthouse arrests of “targeted aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed.”  There is no exception for victims of crime.

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “When judges, prosecutors, law enforcement officers, the American Bar Association, public defenders, and civil rights organizations are all in agreement that ICE should not be arresting victims of crime in courthouses, ICE should listen. When people go to court to seek justice, they should be able to do so without fear. When ICE agents stalk people at courthouses, they undermine the principle of equal justice under the law and the priority of protecting public safety for all, regardless of skin color, ethnicity or place of birth.”