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ICE limits immigration arrests at courthouses, ending controversial Trump policy

Federal agents with U.S. Immigration and Customs Enforcement cannot arrest people in or near courthouses for civil immigration violations unless there's a public safety threat, Homeland Security Secretary Alejandro Mayorkas announced Tuesday.

The move ends a Trump-era practice that allowed ICE agents to go into courthouses to conduct arrests, a controversial policy that lawyers and judges said hampered justice in the nation's courts, and intimidated some witnesses from appearing in court. 

"Ensuring that individuals have access to the courts advances the fair administration of justice, promotes safety for crime victims, and helps to guarantee equal protection under the law," said Mayorkas, President Joe Biden's appointee to run Homeland Security. "The expansion of civil immigration arrests at courthouses during the prior administration had a chilling effect on individuals’ willingness to come to court or work cooperatively with law enforcement. Today’s guidance is the latest step in our efforts to focus our civil immigration enforcement resources on threats to homeland security and public safety."

Beginning in 2017, ICE agents began making arrests in courthouses across the nation. This included at least one incident in Pima County when a man facing sentencing for a minor drug crime was arrested by ICE agents to the "great consternation" of a Pima County Superior Court judge, the Arizona Daily Star reported.

In January 2018, Thomas Homan, the acting head of ICE, formalized the policy allowing agents to use federal, state and local courthouses for the targeting, and arrest of people accused of violating federal immigration law. Homan wrote that because people are "typically screened by law enforcement personnel to search for weapons and other contraband," agents could make arrests more safely. "When practicable, ICE officers and agents will conduct enforcement actions discreetly to minimize their impact on court proceedings," Homan said. 

Homan claimed that ICE's activities were "wholly consistent with longstanding law enforcement practices, nationwide," and relishing a favored target, Homan blamed so-called "sanctuary cities" arguing that the "unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails" made courthouse arrests necessary. 

The arrests drew outrage from advocates, lawyers, judges and some states' attorneys general. One lawsuit launched from Massachusetts in 2019 was successful in federal court, but ran aground with the First Circuit Court of Appeals. A second lawsuit from New York City was successful in July 2020, but never reached the appellate court. 

In December 2018, a group of 68 retired judges, including 16 from Arizona, wrote a letter to Ronald Vitiello, who had replaced Homan as the acting director of ICE, and asked him to return a long-held policy that treated courthouses as one of several "sensitive locations," which includes schools, hospitals, and churches. The judges argued that the "high-profile arrests" by ICE agents had a "chilling effect" and that "interrupting criminal proceedings with civil immigration arrests undermines the justice system." 

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"We understand that ICE favors courthouse arrests because it considers courts to be safe environments where officers are confident they can operate without danger," they wrote. "But it is exactly that sense of safety that we as judges tried to foster for anyone seeking access to justice, and that we believe ICE’s courthouse activities put at risk."

Mayorkas wrote that ICE's acting director Tae Johnson and CBP's acting commissioner Troy Miller sent memos to their respective personnel outlining the limited circumstances in which civil immigration enforcement actions may be carried out in, or near a courthouse. 

Mayorkas wrote that the interim guidance was "intended to balance the importance of preserving access to courts in the fair administration of justice with legitimate civil immigration enforcement interests."  

Mayorkas wrote that his order supersedes the 2018 directive, and "marks the first time CBP has ever had formal policy guidance regarding civil immigration enforcement in or near courthouses." 

Agents may make arrests if there's a national security matter, or an "imminent risk of death, violence, or physical harm to any person." Agents may also make an arrest if they're in "hot pursuit" of someone who poses a "threat to public safety," or if there's an "imminent risk of destruction of evidence material to a criminal case." 

"The interim guidance also makes clear that civil immigration enforcement is permitted against public safety threats in the absence of hot pursuit where necessary and with prior approval," he said. 

ICE and CBP will also be required to detail "all planned or executed" arrests at or near courthouses to the Office for Civil Rights and Civil Liberties, he said.

In 2019, two Massachusetts district attorneys, backed by two civil rights groups, filed a lawsuit to prohibit civil immigration arrests of people at courthouses, arguing that ICE had exceeded its authority to make those arrests, and the agency was violated centuries-old protections against such arrests. A federal judge agreed, and granted a preliminary injunction, which the Trump administration immediately appealed successfully with the First Circuit Court of Appeals based in Boston. 

Following the court's decision, attorney generals from 13 states and Washington D.C. filed an amicus brief, arguing that the three-judge panel failed to consider states' sovereign interests in administering justice. However, the court refused to reconsider its decision. 

Even as ICE continued to arrests people in courthouses, several states responding by creating rules limiting arrests. In Oregon, the chief justice of the state's supreme court courts installed a rule that "no person may subject an individual to civil arrest without a judicial warrant or judicial order when the individual is in a courthouse or within the environs of a courthouse." 

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"Arrests in courthouses have interfered with judicial proceedings," wrote Martha L. Walters, Oregon's chief justice. "We are adopting this rule to maintain the integrity of our courts and provide access to justice." And, the Washington Supreme Court considered a similar rule, prompting then-Attorney General William Barr and Chad Wolf, who fulfilled the role of Homeland Security Secretary, to argue that such rules created a "clear public danger." In the letter, Barr argued that ICE and U.S. Customs and Border Protection officers are "not subject to  state rules that purport to restrict ICE and CBP for making administrative arrests on property that is otherwise open to the public and other law enforcement officers." 

"Court rules that would purport to further restrict the lawful operation of federal law enforcement officers only serve to exacerbate sanctuary laws and policies that continue to place our communities at unacceptable risk," Barr concluded. 

In summer 2020, New York Attorney General Letitia James and Brooklyn District Attorney Eric Gonzalez field their own lawsuit, and in July, U.S. District Judge Jed S. Rakoff ruled against ICE, writing that the agency's policy of arrests at courthouses was "illegal." 

"It is one thing for the state courts to try to deal with the impediments brought on by a pandemic," Rakoff wrote, noting the restrictions and limitations caused by COVID-19, "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."

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