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NY’s ICE Rule Offers Model For Other Courts

By Natalie Rodriguez | April 21, 2019, 8:02 PM EDT

The New York state court system’s recent bar on U.S. Immigration and Customs Enforcement administrative arrests on its property offers inspiration and a tentative blueprint for other jurisdictions looking to sideline agency tactics that many advocates worry have a chilling effect on the justice system.

Across the country, attorneys and former judges have been petitioning courts and lawmakers to put out rules keeping ICE from making courtroom arrests, which they argue are deterring crime victims and witnesses from using the courts. The New York State Office of Court Administration’s directive, which was issued on Wednesday, states that ICE needs a judicial warrant, rather than an administrative one, to make arrests within its courthouses is the first of its kind, according to several experts.

“The changes in New York are a step in the right direction and will help inspire other jurisdictions to think about protections that they can put in place to protect witnesses and litigants who are afraid of coming to court,” said Ivan Espinoza-Madrigal, executive director for Lawyers for Civil Rights Boston.

Even in areas with a more decentralized court system, individual courts could pass their own directives in a piecemeal fashion, according to Andrew Wachtenheim, supervising attorney for New York-based advocacy group Immigrant Defense Project.

In states where the attorney general has the power to issue a directive, that could also be an option. Further, state legislatures can pass laws that pass even broader protections on the courts, as a bill pending in the New York State Legislature hopes to do.

“The simple and true answer is that many places can impose these kinds of regulations,” Wachtenheim said. Immigrant Defense Project has been active in pushing for the recent court rule change and the pending Protect Our Courts Act.

ICE, which in January clarified its policy to identify under what circumstances it will make such arrests, has argued that such bans will jeopardize public safety.

Also, the policy “overlooks the basic point that federal law allows for the arrest of removable aliens based on administrative — rather than judicial — warrants,” according to Nathalie Asher, ICE’s acting enforcement and removal operations executive associate director.

“Ultimately, this policy increases the likelihood that criminal aliens will avoid detection and accountability for their immigration violations at the expense of the safety and security of the general public,” Asher said in a statement responding to the new New York rule.

But there has been widespread opposition in the legal community to this practice.

In December, scores of former federal and state judges petitioned ICE acting Director Ronald D. Vitiello to treat courts as “sensitive locations,” similar to schools, hospitals and places of worship that are off-limits for enforcement activities except in rare and dire circumstances, such as national security matters or when there is a risk of violence.

The American Bar Association also adopted a resolution last year urging federal lawmakers to codify courthouses as sensitive locations for immigration enforcement actions.

Still, progress has been slow. While California last year passed a law barring judges and attorneys from unnecessarily revealing the immigration status of witnesses and alleged crime victims in open court, several other state and federal bills that would place new restrictions on immigration enforcement actions have stalled.

And in September, a judge from Massachusetts’ highest state court denied giving a group of immigrants a writ of protections that would have kept ICE from making arrests in state courts.

“These dynamics are complex and challenging. These are sensitive matters and I think that is why we have seen some hesitation or reluctance from either judges or state authorities in addressing this growing problem,” Espizona-Madrigal said.

--Additional reporting by Dani Kass. Editing by Katherine Rautenberg.

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