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Mixed Verdict on ICE’s New Courthouse Guidance

By Hunter Hallman

Tuesday, February 6, 2018

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In December 2017, we published a breakdown of Immigration and Customs Enforcement’s (ICE) sensitive locations policy, the unofficial set of guidelines on where ICE can and cannot conduct immigration enforcement actions. Locations considered to be sensitive include places of worship, health care facilities, funerals, and weddings. As we noted, this policy is simply a discretionary guideline that does not legally prevent ICE agents from entering these locations, which they can in various circumstances. Further, the policy did not cover courthouses, where ICE has increasingly turned to arrest individuals—actions that advocates have criticized over the last year.

However, in January 2018, ICE issued formal guidance detailing circumstances in which its agents may conduct enforcement operations in courthouses. According to the new policy—which is still not as binding as regulations or statute, but is a clearer set of instructions than had previously been available— ICE should “generally avoid” arrests in non-criminal courts, such as family court, and that friends and family members encountered in pursuit of the “target alien” should not be subject to enforcement action while at a courthouse. It also emphasized that ICE operations should be conducted “discreetly” and in the “non-public” areas of the courthouse when possible.

The policy guidance also expands on ICE’s position that courthouses are a preferred place for ICE to operate, because they are by nature safe places to be—the presence of additional law enforcement screening those who enter for weapons and other contraband makes the area safer for the public, the target, and ICE agents. The policy also repeats ICE’s case that the jurisdictions themselves are responsible for ICE operating within their courthouses, saying that “courthouse arrests are often necessitated by the unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails.”

The new guidelines have been met with mixed reaction. On one hand, the document seems to indicate willingness on the part of ICE to place limitations on its enforcement prerogatives, in an attempt to address concerns raised both by court administrators and the advocacy community. The guidelines require ICE agents to enter courthouses to detain only specific convicted individuals, gang members, or previously deported individuals. Agents are directed not to arrest witnesses or family members unless they pose a threat to public safety or interfere with enforcement actions.

California Supreme Court Chief Justice Tani Cantil-Sakauye, an outspoken critic of ICE operations within courthouses, expressed optimism over the new guidance to NPR, saying, “If followed correctly, this written directive is a good start. It’s essential that we protect the integrity of our state court justice system and protect the people who use it.” Other advocates are less convinced, however; the Immigration Defense Project indicated that the policies were simply a continuation of current ICE practices that undercut the constitutional rights of immigrants.

Regardless of the agency’s intentions or reaction from the public, ICE maintains that the new policy does not “create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” It is possible that advocates might raise court challenges to this policy, but as with the broader sensitive locations policy, absent an adverse court decision or congressional act, ICE maintains its broad interpretation of its authorities to enforce immigration law where and when necessary.

KEYWORDS: IMMIGRATION, IMMIGRATION AND CUSTOMS ENFORCEMENT