Originally Published in BuzzFeed News
Hamed Aleaziz - April 27, 2021
The Department of Homeland Security exclusively revealed the new policy to BuzzFeed News on Tuesday.
New York State Attorney General Letitia James speaks at a press conference in 2019 after filing two lawsuits challenging immigration arrests in state courthouses.
In 2019, a New York prosecutor set to take a burglary case to a grand jury needed the testimony of an undocumented immigrant to secure the indictment. The victim of the alleged burglary wondered: Would being undocumented affect the investigation?
The Queens County prosecutor, Gee Won Cha, assured her that her immigration status would play no role in the prosecution’s case. The prosecutor sought justice on behalf of all people, regardless of whether they were US citizens.
“However, these reassurances failed to put the witness at ease,” Cha wrote in a court filing last year. “Instead, she informed me that she no longer wished to cooperate with the investigation because she was terrified that she would be arrested by ICE if she went to the courthouse to testify before the grand jury in this case.”
For years during the Trump administration, reports of arrests in courthouses across the country were persistent and spurred local leaders, including the chief justice of California’s Supreme Court, to speak out, arguing that arrests by Immigration and Customs Enforcement would dissuade witnesses like Cha’s from appearing at court proceedings.
On Tuesday, the Biden administration will issue a policy that sharply limits the immigrants whom ICE officers can arrest at courthouses after years of criticism of the practice, according to government officials and documents. The policy also applies to US Customs and Border Protection officials as well.
“Ensuring that individuals have access to the courts advances the fair administration of justice, promotes safety for crime victims, and helps to guarantee equal protection under the law,” Homeland Security Secretary Alejandro Mayorkas said in a statement to BuzzFeed News. “The expansion of civil immigration arrests at courthouses during the prior administration had a chilling effect on individuals’ willingness to come to court or work cooperatively with law enforcement. Today’s guidance is the latest step in our efforts to focus our civil immigration enforcement resources on threats to homeland security and public safety.”
The policy will allow ICE officers to make civil immigration arrests in or near a courthouse only when it involves a national security matter, a risk of imminent death or harm to anyone, or a hot pursuit involving a public safety threat. Officers may also make an arrest at a courthouse if it appears evidence in a criminal case will be imminently destroyed, and they may request to make an arrest of a public safety threat if there is no safe alternative and they get approval from agency leaders.
The policy will also apply to interviews, surveillance, and subpoenas handed out at or near courthouses.
“The courthouse is a place where the law is interpreted, applied, and justice is to be done. As law enforcement officers and public servants, we have a special responsibility to ensure that access to the courthouse — and therefore access to justice, safety for crime victims, and equal protections under the law — is preserved,” the policy reads.
Tension over the courthouse arrests typified the conflicts that became common during the Trump administration between progressive cities and states and ICE over the reach of immigration enforcement. Various state and local policies over the years have also aimed to keep ICE from making apprehensions at courthouses.
California Chief Justice Tani Cantil-Sakauye wrote to Trump administration officials in 2017 after learning of courthouse arrests, saying she was “deeply concerned about reports from some of our trial courts that immigration agents appear to be stalking undocumented immigrants in our courthouses to make arrests. Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws.” Prosecutors like Cha have also condemned the practice. In her 2019 burglary case, she said the arrests had “negatively affected my ability to perform my job responsibilities.” She later had to meet with the undocumented witness a second time to convince her to testify, assuring her that she would not ask about her immigration status and a judge would not give her information to ICE.
Trump’s Department of Homeland Security and Department of Justice leaders countered that the arrests were necessary due to the limits placed on their officers in local jails as a result of the “sanctuary” policies, which restrict when federal officers can pick up immigrants from local custody. But by 2020, states like New York and California passed laws restricting ICE arrests in courthouses, and federal court judges also blocked the apprehensions in certain states.
Following the protests of local leaders like Cantil-Sakauye, ICE officials released a policy in 2018 that stated it would not make indiscriminate arrests in courthouses. That policy allowed officers to make arrests at courthouses of immigrants who have been convicted of crimes, are members of gangs, have ignored deportation orders, or are “public safety threats,” the agency said at the time.
Then–San Francisco district attorney George Gascón said in 2018 that the policy did not go far enough. “I know it to be a fundamental truth that our neighborhoods are safer when people from all communities can work with law enforcement and come to our courthouses without fear that their immigration status will be used against them,” he said at the time. Gascón is now the lead prosecutor in Los Angeles.
The effort to pare down who may be arrested in courthouses comes after multiple states, including California and New York, have either passed laws or instituted policies that aim to stop ICE from making court arrests without judicial warrants. In 2019, a Massachusetts state judge was indicted on obstruction of justice charges for allegedly blocking federal immigration enforcement officers from arresting a man who appeared before her court.
But the laws signed by states did not deter deportation officers from continuing to make arrests in courts. ICE officials said courthouses were prime locations for arrests because their targets would go through screening for weapons and contraband to get inside. They claimed the locations were necessary as more cities and counties restricted their ability to efficiently pick up immigrants from local jails.
At one point, a local public defender in Sonoma County, California, said the courthouse arrests had sent a shockwave throughout the community.
“It’s now going to put total fear in the community. People aren’t going to come to court. Victims will refuse to show up. Witnesses will refuse to show up … cases will have to get dismissed,” the lawyer said to the Santa Rosa Press Democrat in 2020.
Agency officials told the Associated Press in 2020 that ICE said the law “will not govern the conduct of federal officers acting pursuant to duly-enacted laws passed by Congress that provide the authority to make administrative arrests of removable aliens inside the United States.” “Our officers will not have their hands tied by sanctuary rules when enforcing immigration laws to remove criminal aliens from our communities,” David Jennings, ICE’s field office director in San Francisco, said in a statement.
State officials were not the only ones who aimed to stop the arrests in courthouses. In June, Jed Rakoff, a federal court judge in New York, ruled that the ICE arrests in the state were illegal and blocked the agency from such sweeps.
The New York attorney general, who brought the lawsuit, filed evidence that indicated that the decision to expand courthouse arrests caused fear among noncitizens who came to court "including reporting domestic violence, litigating family court actions, and pursuing meritorious defenses to criminal charges,” according to the judge. Witnesses and victims expressed concerns about coming forward "for fear of arrest," Rakoff wrote. Cha’s court filing was part of the lawsuit.
“Recent events confirm the need for freely and fully functioning state courts, not least in the State of New York. But it is one thing for the state courts to try to deal with the impediments brought on by a pandemic, and quite another for them to have to grapple with disruptions and intimidations artificially imposed by an agency of the federal government in violation of long-standing privileges and fundamental principles of federalism and of separation of powers,” the judge wrote.
The new policy appears to be part of President Joe Biden’s efforts to overhaul the agency and reform not only how it works, but which immigrants are arrested and detained. Already, ICE officials have created a new appeals process that will allow immigrants and their advocates to challenge arrests, detentions, and deportations. Elsewhere, ICE instructed officers to target alleged threats to national security and public safety, along with those who recently crossed the border, a shift from the Trump administration, which had made nearly every undocumented immigrant a priority.
The Biden administration had previously attempted a 100-day deportation moratorium, but that plan was blocked by a federal judge in Texas. The judge’s order, however, did not stop the White House from moving forward with changing ICE’s enforcement priorities, which has already led to a sharp downturn in arrests of certain populations.