Immigration advocates and attorneys in New York City are celebrating a state court rule change that limits how Immigration Customs and Enforcement agents can operate in courthouses as the first step toward restoring order and ensuring due process.
The New York State Office of Court Administration, which is responsible for setting court rules and policies, issued a directive on Wednesday that requires ICE officers to obtain a judicial warrant or order to make an arrest in state courthouses. Previously, the federal agency only needed an administrative warrant.
Terry Lawson, director of the Family and Immigration Unit at Bronx Legal Services, said the decision should alleviate some of the fears her clients have over appearing in court.
“We want the courts to be a place where people can go and defend themselves or can go and get custody of their children or get an order of protection or get child support or defend themselves from an eviction and to not feel like at any moment they can be snatched out of the courthouse without any sort of process or warning,” she said. “So that’s what we’re happy to have achieved.”
ICE is now required to provide the same level of probable cause that other law enforcement agencies, such as the NYPD, are required to meet, Lawson added. In order to make an arrest inside a state courthouse, the agency will need to prove to a federal judge that it has probable cause to pick up a specific person, then bring the signed warrant or order to the courthouse and give it to a state court official who would present it to a state judge for approval.
Lawson said before the directive was issued, she couldn’t give her clients guidance or any assurance on what would happen if they went to court.
“So now, there’s a process in place that I can explain to my client that multiple hurdles have to be overcome for my client to be arrested,” she said.
Nathalie Asher, acting ICE Enforcement and Removal Operations (ERO) executive associate director, argued the directive puts public safety at risk and ignores federal law that allows ICE to use administrative warrants.
“The State of New York’s newly-announced court arrest policy to shield removable aliens from arrest imposes obstacles to the enforcement of federal immigration law and singles out one federal agency for disparate treatment,” Asher said in an emailed statement. “Ultimately, this policy increases the likelihood that criminal aliens will avoid detection and accountability for their immigration violations at the expense of the safety and security of the general public.”
Immigrant advocates, attorneys and a host of other parties in the court system have been fighting for this rule change for the last two years, but a massive report that was compiled and released by a coalition of over 100 organizations and entities appears to have been the tipping point for the Office of Court Administration to issue the new directive.
The ICE Out of Courts report detailed how a rise in courthouse arrests since 2016 – an increase of 1,736 percent, as documented by the Immigrant Defense Project – has had a devastating impact on court functions and instilled fear in the city’s immigrant community.
“This was a huge collaborative effort,” Lawson said. “As far as I know, this is the first of its kind where you had prosecutors and public defenders and anti-violence attorneys and judges and elected officials all coming together because we all recognized how important it is that our state courts function properly for everybody."
In one part of the report, district attorneys across the state reported an increase in witnesses who are unwilling to testify in domestic violence and other criminal cases for fear of being arrested by ICE when they appear for court.
With this rule change, Lawson said some of the immigrant community’s most vulnerable members should feel more empowered to seek help. But she also warned that ICE will likely adapt and change its practices.
The directive only addresses ICE arrests within courthouses – not outside or near them.
“It’s not going to quell all fears, nor should it, but it does give us something to start to build a rubric of protection to due process in New York courts,” Lawson said.
Advocates are appealing to state lawmakers to pass the Protect Our Courts Act, which would expand the judicial warrant rule to areas surrounding courthouses.