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Existing Rules To Regulate ICE Officers In Courts Are 'Pretty Much Useless,' Lawyers Say

While immigrant advocates continue to raise the alarm about a 2017 spike in Immigration and Customs Enforcement arrests in New York City courthouses, the state Office of Court Administration this week confirmed guidelines ICE officers must follow if they enter a state court to make an arrest. The guidelines were quietly released in April, the Daily News reports.

The OCA has placed some restrictions on ICE activity. For example ICE agents are prohibited from making arrests in courtrooms. But legal services providers say ICE activity has spiked since these rules quietly went into effect, and that this proves OCA is not doing enough to help immigrants feel safe in a court of law.

"How do you know they are not strong enough? Because since April the main ratcheting up of ICE in courthouses has happened," said Tina Luongo, head of the criminal practice at the Legal Aid Society. "They are pretty much useless. Here's the reality: ICE is ignoring [the rules], and they are not strong enough, and the language is not strong enough to direct court staff."

There have been 19 ICE arrests and nine attempted arrests in NYC courthouses this year to date, according to the Legal Aid Society, For comparison, there were eight courthouse arrests in all of 2016, and 11 in all of 2015.

Immigrants are fearful, attorneys say, and are thinking twice about attending mandatory appearances, or seeking child support or a restraining order. An Immigrant Defense Project study out this week found that 74 percent of surveyed advocates and attorneys this month have clients who've reported "fear of the courts because of ICE." Forty-eight percent have clients who have failed to seek custody, and 37 percent have clients who have failed to seek an order of protection.

In the February OCA memo, which applies to ICE agents as well as cops, court officers are directed to "permit law enforcement agencies to act in the pursuit of their official legal duties in New York state courthouses" so long as these don't endanger the public or interrupt court proceedings. ICE agents must identify themselves to a court agent when they enter a courthouse, and that agent must inform the appropriate judge if an arrest is planned for his or her courtroom.

ICE agents possessing a judge's arrest warrant don't have to adhere to these rules, according to OCA. In the case of a judicial warrant, ICE might be seeking someone who is actively evading a felony arrest. For comparison, an administrative warrant might be for a person with a prior removal order.

ICE's own guidelines direct agents to avoid certain "sensitive" locations, but not courts. A spokeswoman told Gothamist that courthouse arrests are "generally" reserved for cases where other options have been exhausted.

"We recently raised directly with ICE our serious concerns about ICE activity at certain locations, such as family court and human trafficking court," an OCA spokesman stated.

Advocates have called for stronger guidelines—that ICE agents be required to inform attorneys of their presence, and that any ICE agent without a judicial warrant be banned from the courts entirely. Lawyers also testified at a City Council hearing this week that they've witnessed court officers and ICE agents working together. From the Daily News:

Office of Court Administration staff have helped identify people ICE agents are targeting but don’t recognize, called out their names in hallways so they’ll respond, or adjusted the timing of arraignments and court appearances to make it easier for ICE to make arrests, defenders said at a City Council oversight hearing on ICE presence in courts.

They have also blocked lawyers and bystanders from entering courtroom vestibules while ICE attempts to take a person into custody inside the vestibule.

City Council Speaker Melissa Mark-Viverito, who rallied against ICE in courtrooms with legal services providers last week, called the OCA measures "commonsense policies" that "reflect the importance of access to justice for all New Yorkers." She added that the City Council will "continue to closely monitor ICE's activities in the courts to determine whether further restrictions are needed."

Luongo said that lawyers will continue to document instances of ICE in courts. In the meantime, she urged lawmakers to look closely at the consequences of low level arrests that land vulnerable populations in courthouses to begin with. For example, yesterday, the Manhattan District Attorney's office pledged to phase out criminal prosecution of turnstile jumping in most cases.

"We should be looking at each and every city regulation or state law, and really question whether or not the criminal justice system is the way we need to handle something," Luongo said. "Why do we have to do this in the first place?"

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