“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.”

The NYCBA stated that it does not expect respite from the federal government so it has officially made five requests of Hon. Janet DiFiore, chief judge for the New York State Court of Appeals.

The first request is for the courts to only accept “judicial warrants” from ICE officers rather than “administrative warrants.” It also requests that judges are required to notify ICE targets that officers intend to detain them, which would allegedly give targets an opportunity to consult and make arrangements with their attorneys.

NYCBA also requested that the cooperation and assistants from court personal be limited in civil immigration actions and wants court officers trained on how ICE arrests differ from criminal arrests. It also wants court appearances limited in the event that a person fears an ICE arrest.

The final request is for the courts to make public the information which has been obtained and recorded by court personnel with respect to ICE enforcement activities within the courthouses.

“Paramount among these recommendations is to require ICE to show judicial warrants for civil immigration enforcement actions in courthouses,” the NYCBA’s press release stated. “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 also recommended that in order for these recommendations to avoid improperly interfering with enforcement of federal law that it wants OCA to create a working group that includes defense lawyers, immigration lawyers, prosecutors, court representatives and others to consider how to best implement these recommendations.

OCA has set standards for how court staff is meant to handle ICE officers. Protocol mandates that ICE officers are supposed to check in with court employees immediately upon entering the courthouse and officers are to maintain their activities to the court hallways, leaving the actual courtrooms off limits.

“While there is not one state court system in the country, including New York State, that solely recognizes judicial warrants for arrests in their facilities, we will, however, review this report and give their recommendations due consideration,” an OCA spokesperson told the Brooklyn Eagle. “Our policies regarding court operations are always open to revision should we feel that in doing so we will make them more accessible to the public and efficiently run.”

OCA and ICE also have an unofficial agreement that ICE officers will limit their activities to the criminal courts and will stay out of family and treatment courts, according to sources. An arrest in Brooklyn’s Family Court, for instance, hasn’t occurred since March 2017.

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