ICE Barred From Making Arrests Near New York Courthouses by Federal Judge

An Immigration and Customs Enforcement agent in Los Angeles, Calif., on Oct. 14, 2015. John Moore/Getty Images

A federal judge issued an order on Wednesday that stops Immigration and Customs Enforcement (ICE) officials from making civil immigration arrests near courthouses in New York State.

Judge Jed Rakoff of the U.S. District Court for the Southern District of New York ruled (pdf) that ICE is barred from “conducting any civil arrests on the premises or grounds of New York State courthouses, as well as such arrests of anyone required to travel to a New York State courthouse as a party or witness to a lawsuit.”

Rakoff characterized the ICE arrests of illegal immigrants as “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.”

Brooklyn District Attorney Eric Gonzalez and New York Attorney General Letitia James sued the Department of Homeland Security (DHS) and ICE in September 2019 for the practice.

They alleged that the ICE arrests in and around New York state courthouses “are the disruptions of New York courts and the intimidation of parties and witnesses,” and such arrests “make certain parties and witnesses fear coming to court,” as well as create “temporary chaos” that “disrupts court proceedings and makes it impossible for judges to do their jobs effectively.”

Rakoff, in siding with the New York officials, wrote that “the Court declares ICE’s policy of courthouse arrests, as now embodied in the [ICE] Directive, to be illegal.”

In a statement following the ruling, James said, “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.”

In a statement on Thursday, ICE said it is “currently reviewing the court’s order to determine the appropriate course of action.”

The judge said in his order that an ICE directive issued in January 2018 (pdf) “largely codified and regularized the change in courthouse arrest policy.” The directive “expressly allowed ICE officers to arrest in and around courthouses a much broader sweep of aliens,” which included “aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed,” Rakoff wrote.

Rakoff noted how the plaintiffs calculated that ICE carried out some 20 “actions” at or near New York state courthouses in 2015, and 28 in 2016. The number increased to 161 in 2017, 107 in 2018, and 173 in 2019. Rakoff noted that before 2017, ICE officers were required to avoid courthouse arrests “except in very limited circumstances involving high-priority removal targets.”

The judge concluded that ICE officials’ increase in arrests between 2016 and 2017 appears to be due to their interpretation of President Donald Trump’s 2017 Executive Order—issued just five days after Trump took office—on “Enhancing Public Safety in the Interior of the United States.” The order did not specifically address courthouse arrests but “directed DHS to prioritize immigration enforcement against broader categories of aliens than those named in prior policies,” Rakoff wrote.

From this, Rakoff wrote that the 2018 ICE directive “simply memorialized the policy and practices that had already been put in place the preceding year,” referring to both the president’s 2017 Executive Order and a “2017 Implementing Memo” issued by then-DHS Secretary John Kelly.

In June 2019, a federal judge in Boston, Massachusetts, had also blocked ICE from making civil arrests at state courthouses (pdf). ICE has moved to appeal the ruling.