A federal judge has ruled it's illegal for Immigration and Customs Enforcement to make arrests “on the premises or grounds” of New York State courthouses.
Referring to the need for “freely and fully functioning state courts,” U.S. District Court Judge Jed Rakoff said it's one thing for courts to deal with impediments brought on by the current pandemic. But it's quite another for them to grapple with what he called "disruptions and intimidations artificially imposed" by an agency of the federal government.
The suit was brought by State Attorney General Letitia James and Brooklyn District Attorney Eric Gonzalez. They cited a study finding ICE arrests in and around courthouses shot up by 1,700 percent in the first two years after President Donald Trump took office. They said these arrests interfered with court operations and deterred undocumented immigrants from appearing in court, whether as defendants, plaintiffs, or witnesses. Unlike schools and houses of worship, courts are not considered protected locations by ICE because they’re public buildings.
The attorney general and district attorney made the unusual argument that US immigration law incorporates a common law privilege, dating back centuries, that prevents people from being arrested at court.
The government argued that this privilege didn’t apply to the 1952 Immigration and Nationality Act. But Rakoff’s ruling cited prior cases in which courts found it does protect against civil service of process on courthouse grounds.
Therefore, he argued, “it follows that these courts would have held that the privilege applied even more strongly to civil immigration arrest and detention.”
Rakoff also sided with the plaintiffs in finding the Trump administration violated the Administrative Procedure Act, which governs how agencies change their rules. He said Trump’s 2017 Executive Order, which made all immigrants without legal status a priority for detention, did not mean they should be arrested at courthouses. He called this “misguided” and was not persuaded by ICE’s argument that it was reducing safety risks by conducting its arrests in courts where people are screened for firearms.
Rakoff’s ruling bars ICE from arresting anyone on the premises or grounds of New York State courthouses, as well as anyone required to travel to a New York courthouse as a party or witness to a lawsuit.
An ICE official said the agency is “currently reviewing the court’s orders to determine the appropriate course of action.”
Attorney General James applauded the decision.
“Our victory over the Trump Administration’s over-policing policies ensures the important work happening in local courts will continue undeterred without the targeting of immigrants seeking access to our courts,” she said.
Brooklyn District Attorney Gonzalez said he had been calling on the Trump administration to end the courthouse arrests for three years, but it “only escalated this unlawful and dangerous tactic, creating a chilling effect in immigrant communities, which discouraged victims and witnesses from reporting crimes and participating in the legal process.”
Immigrant advocates also immediately cheered the ruling.
Luba Cortés, immigrant defense coordinator of Make the Road New York, cited a similar ruling last year in Massachusetts. She said it shows that “when ICE obstructs state court proceedings by stalking and terrorizing New York courthouses and the community members seeking to appear there, it is breaking the law.”
Make the Road is among a group of plaintiffs in a very similar lawsuit filed last year by the Legal Aid Society and the law firm Cleary Gottlieb. Cortés said her organization hopes this ruling bodes well for their case. But she also called on Albany to pass the Protect Our Courts Act.
State Senator Brad Hoylman and Assembly Member Michaelle Solages introduced the legislation starting in 2018 to prohibit ICE from making civil arrests in and around New York State courthouses, unless they have a judicial warrant or court order.
The state’s Office of Court Administration set its own rules in 2019 to limit ICE arrests without a judicial warrant.
Beth Fertig is a senior reporter covering immigration, courts, and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.