Immigration Law

NY City Bar Issues Recommendations in Response to ICE Arrests in New York State Courthouses

NYCB, July 11, 2018 - "Calling the increasing number of Immigration and Customs Enforcement (ICE) civil arrests in and around New York State courthouses “a threat to the New York State court system’s ability to ensure access to justice and the state’s overall community-based public safety goals” and an undermining of  the “values of due process and federalism enshrined in the U.S. Constitution as well as the New York Constitution,” the New York City Bar Association has issued a report outlining recommendations to address the issue.

Acknowledging that the Office of Court Administration (OCA) has been closely monitoring the dramatic rise in courthouse arrests, as well as the new directive issued by ICE in January which purports to limit courthouse arrests, the report states that, “[d]espite these steps, ICE’s courthouse arrests continue to adversely impact the administration of justice and leave many individuals fearful of going to court. It is undeniable that as this situation intensifies, two things likely will happen: (1) immigrant litigants or witnesses will stop coming to court altogether, which would have the effect of creating a class of state residents who are denied access to the justice system; and (2) the exercise of federal interest in civil immigration enforcement will erode the effectiveness of the state’s justice and court system, hampering prosecutions and wasting court resources. Neither outcome is in the interest of public safety, the justice system, or the legal community.” 

Noting that achieving change on the federal level appears unlikely in the current environment, the report respectfully recommends that Chief Judge Janet DiFiore adopt the following administrative rules to address the harmful effects of ICE enforcement actions in and around courthouses:

  1. require judicial, not administrative, warrants for civil arrests, including civil immigration arrests, conducted in New York State courthouses;
  2. require the presiding judicial officer to notify the targets of civil immigration enforcement actions of the presence of ICE agents who intend to detain them (which would give the individual an opportunity to consult with counsel in the sanctity of the courtroom);
  3. limit the cooperation and assistance of court personnel in civil immigration enforcement actions to those actions required by law and provide training to court personnel as to how ICE arrests differ from criminal arrests (and why that matters) and, second, what court personnel can and cannot do vis-à-vis ICE encounters;
  4. reduce the frequency with which parties need to appear in court; and
  5. make available for public review the information obtained and recorded by court personnel, pursuant to the April 2017 Protocol and the May 2018 Instructions, with respect to ICE enforcement activities in courthouses.

“Paramount among these recommendations is to require ICE to show judicial warrants for civil immigration enforcement actions in courthouses. ICE arrests may appear similar to state or federal criminal arrests and they have similarly dire consequences of detention and deprivation of liberties, but in contrast to state or federal criminal arrests, ICE agents do not need probable cause to initiate civil enforcement actions.”

The report acknowledges that “some of the recommendations may raise concerns on the part of those who think they improperly interfere with enforcement of federal law and may involve further consultation to work out the best solutions and mechanisms for implementation,” the report notes. To that end, we recommend that OCA convene a working group of stakeholders – including defense lawyers, immigration lawyers, prosecutors, court representatives and others – tasked with considering how to best address the concerns and implement the recommendations raised herein. In addition, the working group could develop a mechanism to (1) ensure that the April 2017 Protocol  - as well as any enhancements - are fully understood and being adhered to, and (2) consider enforcement mechanisms to address instances when they are not.

“Ultimately, the bar and bench have shared goals when it comes to preserving safety and decorum in the courthouse, providing unfettered access to justice, and protecting due process for all individuals regardless of immigration status,” the report concludes. “To that end, the New York City Bar Association urges the due consideration of these recommendations and stands ready to assist the Office of Court Administration as it continues to tackle these difficult issues.”

Read the report here."