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Do You Need to Worry About ICE Enforcement in Court?

Man Arrested by ICE in Handcuffs

Arrests by Immigration and Customs Enforcement (ICE) outside courthouses showed a sharp increase in 2017. Naturally, this is a great cause for concern for undocumented immigrants who may already avoid contact with the legal system to avoid calling attention to their lack of status.

In 2018, ICE has taken the step of releasing official guidance that authorizes ICE agents to engage in civil immigration enforcement at courthouses. This official policy is simply catching up with with a practice that has been ongoing. Opponents of courthouse arrests argue that the practice actually hurts public safety by causing undocumented witnesses or victims of crime to hesitate to make reports. Fearful that they themselves will be detained if they contact police, many people prefer to stay silent in an effort to remain in the United States. Indeed, many law enforcement agencies report significant decreases in crime reports after a courthouse arrest in the area.

ICE Enforcement in Court: Why?

ICE agents have, as a general rule, been directed to avoid arrests in and near so-called "sensitive locations" such as hospitals, churches, and schools. But courthouses have never been specifically included in the category of sensitive locations. The new memo, issued in January 2018, clearly excludes courthouses from that category.

The directive regarding ICE enforcement in courts includes an explanation of the purpose and background of the new policy. Immigration and Customs Enforcement argues that detaining targets inside courthouses is better for public safety, as those individuals have necessarily been screened for weapons and contraband going into the courthouse. In addition, some individuals who are in court for one matter may be wanted on unrelated matters. The government further argues that because some jurisdictions are unwilling to comply with ICE to transfer undocumented aliens into federal custody, arrests in courthouses are necessary.

The ICE directive issued states that ICE agents will, whenever possible, act discreetly to avoid disrupting court proceedings. Enforcement actions are supposed to be conducted away from the public and to avoid, when possible, areas of the courthouse that are devoted to proceedings other than criminal court, such as family court and other civil proceedings.

The directive emphasizes that the new policy is completely consistent with existing law enforcement practices. While these assertions may be true, they are of little comfort to immigrants who fear being arrested and detained.

Who Will ICE Detain in Court?

The directive clearly describes the enforcement actions ICE agents and officers can take. They include actions against targeted individuals, which includes:

  • specific, targeted aliens with criminal convictions;
  • gang members;
  • national security or public safety threats;
  • undocumented immigrants who have been ordered removed from the United States but have failed to depart;
  • undocumented immigrants who have re-entered the country illegally after being removed.

The directive states in part,

"Aliens encountered during a civil immigration enforcement action inside a courthouse, such as family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding, will not be subject to civil immigration enforcement action, absent special circumstances, such as where the individual poses a threat to public safety or interferes with ICE’s enforcement actions."

The directive also says that arrests of non-targeted individuals are NOT specifically prohibited. That is to say, witnesses, family members, friends, and others who are not identified as targeted may still be arrested and detained under "special circumstances," the scope of which are not clear.

What's more, the things that the directive leaves unstated means that a lot is left to the discretion of ICE officials and agents. With the approval of an agent's field office director or Special Agent in Charge (SAC), ICE agents may take enforcement actions against individuals not specifically described in the directive. Time will tell how ICE agents put into action the instruction given them in the directive.

What Should I Do if I'm Undocumented and Have to Go to Court?

If you are undocumented and have to go to court for any reason, you may, understandably, be concerned about what this new ICE directive means for you. Even if you are not a member of one of the groups targeted for ICE enforcement in courthouses, the broad language of the directive is concerning, especially paired with the increase of courthouse arrests even before the directive was issued. You should consult with an experienced immigration attorney if at all possible before appearing in court.

If you do fall within one of the targeted groups, it is essential to have the guidance of an experienced immigration attorney before appearing at a courthouse. To learn more about how to protect yourself, we invite you to contact our law office.

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Categories: Immigration Law