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Federal Judge Declares ICE Arrests at Courthouses ‘Illegal’ in Huge Blow to Trump Administration


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A federal court in New York City determined that Immigration and Customs Enforcement (ICE) agent may no longer arrest immigrants at courthouses in New York State. U.S. District Judge Jed Rakoff declared the policy “illegal” in a massive blow to the Trump administration on Wednesday.

“Recent events confirm the need for freely and fully functioning state courts, not least in the State of New York,” the 24-page opinion begins. “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.”

New York State Attorney General Letitia James and Kings County (Brooklyn) District Attorney Eric Gonzalez sued ICE in the summer of 2019 seeking to enjoin the agency from conducting courthouse arrests after the Empire State experienced an increase of arrests in and around courthouses of over 1,700 percent.

Judge Rakoff noted that this was a significant departure from the recent past–even that of the harsh immigration enforcement methods used by former president Barack Obama, who oversaw one of the largest deportation regimes in American history.

“Prior to 2017, ICE required its officers to avoid courthouse arrests except in very limited circumstances involving high-priority removal targets,” the decision explains before briefly delving into the specific guidance issued to immigration agents by the Obama administration outlining the limited circumstances which previously allowed ICE to effectuate courthouse arrests. “All of this significantly changed after the new federal administration took office in 2017.”

Days after taking office, President Donald Trump issued an executive order which called for ICE to upend precedent and begin targeting undocumented immigrants at and around courthouses. An internal directive issued by ICE officials formalized that request and resulted in a massive upsurge in courthouse arrests.

James and Gonzalez noted that the presence of ICE at New York State courthouses had a chilling effect on “meritorious civil claims” and crime reporting while also interfering with New York’s “ability to prosecute crimes, both because witnesses who are undocumented aliens are afraid to come forward and also because even those defendants who are guilty of New York crimes are sometimes taken into ICE custody before they can be tried and convicted.”

The judge very much agreed with that characterization–citing “substantial evidence that ICE’s decision to expand its courthouse arrest authority impacted litigants and courts in the State of New York even beyond what the numbers themselves might suggest.”

“Evidence proffered by the plaintiffs indicates that substantial numbers of non-citizen litigants, even those who were not themselves subject to these actions, now feared any kind of participation in the legal system, including reporting domestic violence, litigating family court actions, and pursuing meritorious defenses to criminal charges,” Rakoff continued.

The judge noted that the impact was much the same in criminal cases and that ICE’s courthouse arrest policy “undermined the orderly functioning of New York courts themselves.”

According to the plaintiffs, ICE’s policy was a violation of ancient common law protections against courthouse arrests. They also argued the policy was “arbitrary and capricious” under the Administrative Procedure Act (APA) and that courthouse arrests run afoul of federalism protections provided by the Tenth Amendment.

The court ruled for the plaintiffs on the first two issues and summarily declared the Tenth Amendment claim moot.

Judge Rakoff determined the courthouse arrest policy was in violation of the longstanding common law privilege against arrests in courthouses–as well as “on courthouse grounds, or necessarily traveling to or from courthouses for scheduled proceedings”–due to that privilege being enshrined in the federal law controlling ICE’s behavior via the Immigration and Nationality Act (INA).

ICE argued that the privilege never existed for undocumented immigrants but, that if it ever did, the INA preempted its application for such immigrants. The court found those arguments unpersuasive.

On the APA front, the court determined that there were “no reasons for the 2017 change in policy and practice nor for its codification in the 2018 Directive” that were “set forth anywhere in the administrative record.”

Rather, the judge said, ICE agents ramped up immigration enforcement because they believed their superiors–including the president–wanted them to do so.

“[T]he reason for this policy change was ICE’s silent interpretation of the January 2017 Executive Order and the 2017 Implementing Memo as effectively mandating this change,” the opinion notes. “That is, in 2017, ICE greatly increased the frequency and scope of its courthouse arrests because it believed the Executive Order, in particular, required it to do so.”

Judge Rakoff also called ICE out for overstepping their own bounds:

Ironically, in light of ICE agents’ interpretation of the Executive Order and the 2017 Implementing Memo, the Directive represented a mild contraction of ICE’s courthouse arrest authority, though nothing even close to a full return to the pre-2017 policy. For example, the Directive provides that ICE agents should not arrest “family members or friends accompanying the target alien to court appearances or serving in a witness in a proceeding” except in “special circumstances.”The Directive also instructs ICE officers to avoid arrests in public areas of the courthouse and in areas dedicated to non-criminal proceedings.

And, under the terms of the APA, drastic agency action without an administrative record justifying such a change is typically ruled untoward.

“ICE has committed precisely this error,” the opinion continues. “It has effectively offered no rationale other than its misguided reliance on the Executive Order for its consequential decision to expand its agents’ authority to conduct courthouse arrests.

The amount of deference a court is bound to pay such swift changes depends on a highly complex legal framework but suffice to say, the Southern District of New York determined that exacting standard was not met here.

“[T]he record contains no explanation of how the agency balanced any such benefits against the harms of the policy,” Rakoff observed.

Again the opinion:

[T[he Court declares ICE’s policy of courthouse arrests, as now embodied in the Directive, to be illegal, and hereby enjoins ICE from conducting any civil arrests on the premises or grounds of New York State courthouses, as well as such arrests of anyone required to travel to a New York State courthouse as a party or witness to a lawsuit.

Read the full opinion below:

James v. ICE by Law&Crime on Scribd

[image via Chip Somodevilla/Getty Images]

Editor’s note: this article has been amended for clarity.

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