People arriving at a courthouse shouldn’t have to fear being detained and deported before even having the chance to be heard. But in the last two years, there has been a sharp spike in immigration arrests at state courthouses. For some people, this has made courthouses places to avoid at all costs. This includes people who have no other recourse to protect themselves from violence or to refute false charges against them.
Now a group of prominent former judges from across the country are saying that enough is enough.
Since 2017, there have been hundreds of courthouse immigration arrests documented across the country, including in at least 23 states. These include the woman arrested in El Paso as she sought an order protecting her from domestic violence, the young DACA recipient in Chicago arrested while contesting a traffic ticket, and the New York City man so violently taken by Immigration and Customs Enforcement (ICE) officers last month, in cooperation with state court officers, that onlookers believed he was being kidnapped.
Today, a group of 68 former state and federal judges — including 25 state supreme court justices and 10 chief justices from across the ideological spectrum — sent a letter to ICE acting director Ronald Vitiello, urging him to stop ICE officers from making civil immigration arrests at state and local courthouses. They write that “for courts to effectively do justice, ensure public safety, and serve their communities, the public must be able to access courthouses safely and without fear of retribution.”
Courthouse immigration arrests grew in frequency over the last two years as Vitiello’s predecessor, Thomas Homan, fully embraced courthouse immigration enforcement. Immigration advocates, prosecutors, and sitting state chief justices asked Homan to stop the practice. Instead, he responded by formalizing ICE’s courthouse arrests policy for the first time, making clear the arrests would continue.
The Senate is considering Vitiello’s formal nomination to serve as ICE Director. If confirmed, he would be the agency’s first fully-confirmed Director in two years. But Vitiello already has the power to stop courthouse immigration arrests, even as his confirmation process unfolds. For 25 years, under four presidential administrations, ICE has maintained a policy instructing officers to avoid making arrests in certain “sensitive locations,” including schools, hospitals, religious institutions, and public demonstrations, absent special circumstances. In today’s letter, which the Brennan Center helped coordinate, the group of judges calls on ICE’s new leadership to add courthouses to the list of sensitive locations.
Since Homan’s policy was formalized, courthouse immigration arrests have become so common that they are now a part of the fabric of the justice system. In response, lawyers are factoring for ICE’s courthouse presence as they advise clients, and judges are facing defendants who ask to be detained rather than released into ICE’s hands.
Homan has argued that ICE officers operate in the halls of courthouses because sanctuary policies make other city agencies unwilling to cooperate with immigration enforcement. He also claimed that ICE officers feel safe in courthouses where they can be certain targets of arrests have no weapons.
But for everyone who isn’t an ICE officer, ICE’s courthouse activities undermine that very feeling of safety. In fact, according to data from cities in California and Texas, Latinos are seeking fewer orders of protection than they have in the past. This suggests that, in the face of aggressive immigration enforcement, survivors of domestic violence are balancing the fear of an abuser with the fear of ICE. In Brooklyn and Denver, district attorneys have acknowledged dropping cases because witnesses, including survivors of domestic violence, fear that cooperating could lead to immigration trouble.
Our courts cannot properly serve the public if victims and witnesses are scared away from cooperating. This fear leaves the public less safe and our system more unjust.
Across the country, advocates are asking state courts, and sometimes legislatures, to take action against courthouse immigration arrests. In New Mexico and New York, advocates have asked the state’s courts to take administrative action to limit ICE’s presence in courthouses — either by prohibiting civil arrests entirely or by requiring ICE officers obtain more formal warrants before carrying out arrests. In September, Albuquerque’s Metro Court implemented a new “Courthouse Access Policy” requiring judicial warrants for any federal officer to make an arrest in the courthouse. In Massachusetts, civil rights groups challenged courthouse immigration arrests, arguing that they violate longstanding protections against arrests for persons engaged in court business. (A judge ruled against their challenge in September.) And in California, a new law prohibits judges and attorneys from disclosing the immigration status of victims or witnesses while in court.
For much of the country, however, change will come most quickly if ICE voluntarily ramps down its courthouse enforcement activities. As Vitiello awaits his formal confirmation as ICE director, he will have to choose whether to continue Homan’s policies or, as the judges write, “restore the public’s confidence that it can safely pursue justice in our nation’s courts.”
Douglas Keith is Counsel in the Brennan Center’s Democracy Program, where his work focuses on fair, diverse, and impartial courts.