ICE Issues Policy on Civil Immigration Courthouse Arrests: A Precursor to More Such Enforcement Activities?

Those of us who have occasion to visit our local, state or federal criminal courts do not expect to see law enforcement officers, particularly federal U.S. Immigration and Customs Enforcement (“ICE”) officers, enter such respected and orderly places to arrest targeted foreign nationals for civil immigration violations leading to their removal or deportation from the U.S. However, with current stepped-up ICE enforcement activities, will such ICE arrests become more commonplace in criminal courthouses? Will such ICE arrests create more work for local and state law enforcement officers and bail bondsmen because targeted aliens, fearing arrest and removal or deportation, will more often fail to appear for their scheduled criminal court date? Just yesterday, ICE arrested an illegal immigrant outside of a Bronx courthouse, sparking a protest by public defenders.

ICE has previously implemented a policy concerning enforcement actions at “sensitive locations.” These “sensitive locations” include schools, medical treatment and health care facilities, places of worship, religious or civil ceremonies or observances, or public demonstrations, including marches, rallies or parades. Under this policy, ICE civil immigration enforcement actions “are not to occur at or be focused on sensitive locations unless: 1) exigent circumstances exist; 2) other law enforcement actions have led ICE officers to a sensitive location; or 3) prior approval is obtained from a supervisory official.” Such enforcement actions may occur at a sensitive location without prior approval from a supervisor in exigent circumstances involving national security, terrorism, or public safety, or when there is imminent risk of destruction of evidence material to an ongoing criminal case.

Historically, ICE has not viewed courthouses as a “sensitive location.” Instead, it has established practices concerning the conduct of civil immigration enforcement actions inside local, state and federal courthouses. Stating that “the increased unwillingness of some jurisdictions to cooperate with ICE in the safe and orderly transfer of targeted aliens inside their prisons and jails” has “necessitated additional at-large arrests,” ICE now feels it is “appropriate to more formally codify its practices in a policy directive that its law enforcement professionals and external stakeholders can consult when needed.”

Perhaps anticipating public criticism of its potentially increased use of criminal courthouses to apprehend targeted foreign nationals, ICE notes that federal, state and local law enforcement officials “routinely engage in enforcement activity in courthouses throughout the country, as many individuals appearing in courthouses are wanted for unrelated criminal or civil violations.” Therefore, it concludes that ICE’s enforcement activities “in these same courthouses are wholly consistent with longstanding law enforcement practices nationwide.”

ICE also offers increased public safety as one of its justifications for making arrests for civil immigration violations in criminal courthouses. Noting that because “… some law enforcement agencies no longer honor ICE detainers or limit ICE’s access to their detention facilities,” the targeted “aliens, many of whom have serious criminal histories, are released to the street, threatening public safety.” When ICE agents then go into the community to locate these targeted foreign nationals, despite precautions taken, ICE believes that it puts ICE personnel and innocent bystanders at risk. However, because individuals entering courthouses are typically screened for weapons and other contraband by courthouse security personnel, ICE maintains that civil immigration enforcement actions taken inside courthouses substantially diminish ”the safety risks to the public, the targeted alien(s) and ICE officers and agents.”

Finally, ICE acknowledges, “tracking down priority targets is highly resource-intensive.” Since “it is not uncommon for criminal aliens and fugitives to utilize multiple aliases, provide authorities with false addresses, and be working illegally with false documentation or “off the books,” ICE believes that a “courthouse may afford the most likely opportunity to locate a target and take him or her into custody.”

The following is a summary of the key provisions of ICE’s policy/directive on civil immigration enforcement actions inside courthouses:

• For purposes of this policy, “civil immigration enforcement action” means: Action taken by an ICE officer or agent to apprehend, arrest, interview or search an alien in connection with enforcement of administrative immigration violations.
• This policy does not apply to criminal enforcement actions inside courthouses.
• ICE will not make indiscriminate civil immigration arrests inside courthouses.
• Such ICE civil immigration enforcement actions include actions against specific, targeted aliens with criminal convictions, gang members, national security or public safety threats, fugitive aliens who have been ordered removed from the U.S. but have failed to depart, and aliens who have re-entered the U.S. illegally after being removed, when ICE officers or agents have reason to believe the targeted aliens are present in the courthouse.
• Aliens encountered inside a courthouse during a civil enforcement action, such as family members or friends accompanying the targeted alien to the court appearance or serving as a witness in a proceeding will not be subject to civil immigration actions, absent special circumstance, e.g. where the individual poses a threat to public safety or interferes with ICE’s actions. ICE officers and agents will make such enforcement determinations on a case-by-case basis in accordance with federal law and consistent with U.S. Department of Homeland Security policy.
• ICE officers and agents should generally avoid enforcement actions in courthouses (or areas within courthouses) dedicated to non-criminal proceedings, such as family court, small claims court or civil lawsuits. If such enforcement actions are operationally necessary, the approval of the appropriate Field Office Director, Special Agent in Charge, or his/her designee is required.
• To the extent practicable, civil immigration enforcement actions inside courthouses should take place in non-public areas of the courthouse, be conducted in collaboration with courthouse security staff, and utilize the court building’s non-public entrances and exits. When such arrests occur, ICE makes every effort to ensure that the arrest occurs after the matter for which the alien is appearing in court has concluded.
• ICE officers and agents should exercise sound judgment when enforcing federal law and make substantial efforts to avoid unnecessarily alarming the public and should make every effort to limit their time at courthouses while conducting civil immigration enforcement actions.

For more information about enforcement actions inside courthouses, you may read the ICE Directive or the accompanying FAQs.