ICE no longer has unfettered access to New York courthouses. But they can still arrest immigrants right outside.
Immigration and Customs Enforcement officers will no longer be allowed to make arrests inside New York courthouses without a judicial warrant, New York State’s Office of Court Administration announced in a directive Wednesday night.
Though advocates have celebrated the new rule as a win for New York immigrants and families, the measure does not stop ICE from arresting immigrants on their way to and from court.
“Our clients are still at risk of warrantless ICE arrests immediately before and after appearing in court,” said Richard Bailey, supervising attorney for Brooklyn Defender Services’ Immigration Practice.
“There were definitely instances of arrest, where people were on their way or just coming from court,” said Evangeline Chan, director of Safe Horizon’s Immigration Law Project.
In one instance, Chan said, a mother thought her son was being kidnapped when he was arrested by plainclothes ICE agents after appearing at Brooklyn Criminal Court.
To make an arrest in a courthouse under OCA’s new directive, ICE will have to present the judicial warrant – issued by a federal judge – to the judge presiding over the case of the person ICE wishes to detain.
Brooklyn was the site of 35 courthouse arrests in 2018, more than any other borough in New York City. Queens had the next most at 33.
It was not immediately clear how many of those arrests occurred outside as opposed to within courthouses, though a January Immigration Defense Project report documented numerous instances of arrests outside courthouses.
Bailey and Chan stressed the importance of the state legislature passing the Protect Our Courts act, which would shield immigrants from arrest “while going to, remaining at, and returning from” court.
“State Senator Brad Hoylman has introduced a bill in Albany that would extend checks on ICE enforcement operations (their ability to apprehend individuals without a judicial warrant) beyond state courthouses and to protect individuals coming to and from court,” said Claire Thomas, director, of the Asylum Clinic at the New York Law School.
“This bill would further protect the ability of all New Yorkers to access state courts so that people are not subjected to ICE arrests (without a judicial warrant) as they leave the courthouse and are walking to the subway or other transportation,” she said.
ICE arrests have surged 1,700 percent in New York State courts since 2016, according to the IDP report
Advocates argue the arrests have had a chilling effect on immigrants regardless of citizenship status, resulting in fewer immigrants reporting crimes and showing up for court dates.
“Once word got out that ICE was in the courthouses and looking to arrest people, that was deterring people from going to courts,” Chan said.
Chan also supports a bill in congress that would add courthouses to the list of sensitive locations – including schools, hospitals and houses of worship – where ICE cannot make arrests.
Still, Chan said the OCA’s announcement was a win for immigrants and advocates. “The directive is a huge victory.”
“This new rule will truly help protect immigrant New Yorkers from the pervasive and rampant immigration enforcement at courthouses that we have seen on a regular basis since the start of the Trump Administration,” said Janet Sabel, attorney-in-chief of The Legal Aid Society.
“In order for our judicial system to function properly, all immigrants – including our clients who have been accused of a crime, parents appearing in family court, and survivors of abuse, among others – must have unimpeded access to courts.”
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