Protesters rally to prohibit US Immigration and Customs Enforcement agents from entering New York courts. (AP Images, Sipa / dpa, Michael Brochstein)
New York’s courts aren’t as dramatic as the movies suggest; they’re mostly filled with bureaucratic affairs and small-scale trials and civil proceedings. But the biggest drama in courthouses these days comes from the blowback from Trump’s border war, as federal immigration agents have for the past two years been stalking immigrants in the courts, threatening to make deportation the cost of seeking justice.
Such encounters between immigrants and ICE agents were rare under previous administrations, but under Trump they have jumped about 17-fold over two years. This has meant more than 200 encounters with Homeland Security, including direct arrests and eavesdropping, mostly in New York City. Not only have the number of incidents exploded; so has ICE’s aggression, according to an analysis by the Immigrant Defense Project, drawn from field surveys and data collected by local community groups. ICE activity in New York courts reflects a wider trend in cities across the country, as the Trump administration has steadily crept into public institutions previously avoided by ICE.
Even when ICE officers merely approach an immigrant, the encounter can quickly escalate, IDP reports:
Reports of ICE using violent force to conduct arrests—slamming family members against walls, dragging individuals from cars, and even pulling guns on people leaving court—have become commonplace. Witnesses to ICE arrests have called 911 to report that they were witnessing a kidnapping.
Agents sometimes take a stealthier approach, according to community observers, including “trailing attorneys to their offices and eavesdropping on confidential attorney-client conversations.” The past year, ICE has also reached into new communities in upstate New York, where more immigrant households are resettling. Westchester County saw the largest increase in ICE targeting.
Over the course of the year, the court-based contacts with ICE agents rose at a slower rate in 2018 compared to 2017, when the rate of incidents soared after Trump took office. But despite protests by local attorneys and civil-rights groups, the agency does not appear to be pulling back, according to IDP attorney Jane Shim: “We do not believe they have maxed out possibilities for arresting people in courts, nor is there any indication that the Trump administration will do anything but increase its efforts to deport more and more people…. the enforcement operations are still increasing at an extremely concerning rate.”
Even just tracking ICE actions is challenging for advocates, because of the agency’s tendency to flout basic precepts of transparency in law enforcement. Despite codes of conduct mandating public disclosure of officers’ identities, IDP observed, “In the vast majority of operations, ICE agents refused to identify themselves, explain why an individual is being arrested, or offer proof that they have reason to believe that the individual they’re arresting is deportable.”
This constant menace of ICE’s unpredictable intrusion into the courts may force many to choose between access to justice and exposing themselves to deportation. ICE might be lurking in the hallway or waiting on the sidewalk, dressed in ordinary clothes, just to “catch” an alleged undocumented immigrant who was reporting to court to testify about intimate-partner abuse. Just attending a bureaucratic hearing to settle a summons for pot or speeding might end with a federal arrest; the cost of challenging an illegal eviction in housing court could be getting locked up in detention. Bringing your child to a custody hearing for divorce proceedings could put your whole family in the midst of a stealth ICE raid.
In one incident documented by IDP, “a domestic violence survivor had just had all charges dismissed at a criminal court hearing,” but before she could walk, “a local law enforcement officer (either a court officer or jail employee) returned to the court and said that ICE was waiting for her. The officer suddenly re-arrested her and took her to a holding cell inside the courthouse which is maintained by the Yonkers police,” where she remained until ICE came to sweep her into federal custody.
In just two years, New York’s legal infrastructure has become stalking grounds for Homeland Security, targeting many people who were previously never considered enforcement priorities, just ordinary residents with business before the court. After stripping down Obama-era policies that steered ICE toward criminal cases rather than immigrants not deemed to be public-safety threats, Trump has intensified the scope and frequency of arrest and prosecution. Accordingly, IDP’s analysis shows that ICE might on a given day pursue a range of immigrant groups, including aggrieved workers, domestic-violence survivors, and parolees in community-based alternative courts. ICE has even targeted a special diversion court for human-trafficking cases. Survivors—who already risk retaliation by voluntarily cooperating with authorities—might find their own narrow pathway to freedom derailed by an ICE arrest.
IDP also cites an increase in “arrests of youth, even when they were eligible for special forms of immigration relief like DACA,” which could deter young migrants from seeking humanitarian reprieve. And any relative or caregiver who wants to attend an immigrant’s trial or hearing should worry about reports of ICE “targeting friends and family members who accompanied a loved one to court.”
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Under current laws, court officials have little recourse when ICE intrudes. Although New York City has established broad sanctuary laws that bar local agencies from directly cooperating with ICE, agents themselves basically have free rein in the city’s public spaces.
There are a few tools that judges and other court personnel can apply to resist ICE and protect immigrants’ right to due process: For example, a defendant under threat of ICE arrest could arrange a teleconference hearing in order to avoid having to physically report to court. Occasionally, retroactive relief can be obtained on the grounds that a defendant’s case had been disrupted by ICE’s intervention, according to Shim:
ICE arrests in courthouses interfere with and undermine [the right to due process], both for individuals arrested in court, and also those who are intimidated from attending court at all. There are various procedural vehicles for vindicating these rights, and an appeal of a negative ruling caused by that interference may be one option.
The pending Protect Our Courts Act would outlaw civil arrest on court premises and ban immigration agents from courts without a warrant. Yet the damage to the court’s social dynamics could be irrevocable. Courtrooms are becoming even less welcoming to immigrants—yet another public institution where they must make a choice between recognition and safety.
Michelle ChenTwitterMichelle Chen is a contributing writer for The Nation.