ICE’s Courthouse Arrests Undercut Democracy
César Cuauhtémoc García Hernández is an assistant professor in the Sturm College of Law. He has taught at the University of Denver since 2013. César's academic interests center on crimmigration law, including teaching a seminar on the topic and having published articles about the right to counsel for immigrants in the criminal justice system, immigration imprisonment and race-based immigration policing. He publishes crimmigration.com, a blog about the convergence of criminal and immigration law that is a past recipient of the 100 best law blogs honor by the ABA Journal.
At the door of the Lindsey-Flanigan Courthouse in Denver one Friday in April, federal Immigration and Customs Enforcement agents tackled a man to the ground. A chilling video shows the man — who, according to his lawyer, was there to deal with a traffic ticket — yelling “No!” “My hand!” and “Why?” in Spanish. Sheriff’s deputies order passers-by to stand back, and the violent arrest continues.
The next month, ICE agents returned and arrested another man. His lawyer can be heard in a video of the incident asking the agents if they had a warrant. One responds, “Yes, sir.” The lawyer asks, “Can I see it?”
The agent’s response: “No, sir.”
Both men, according to their lawyers, were taken to immigration detention centers.
This type of arrest is on the rise. Lawyers and judges in Arizona, California, Colorado, Connecticut, New Jersey, New York, Oregon, Texas and Washington all reported in the first year of the Trump administration that immigration officials were breaking with tradition to descend upon their courthouses. Such arrests in New York have increased by 900 percent in 2017, according to the Immigrant Defense Project.
This is a deeply worrisome trend because arrests at courthouses don’t just derail the lives of the unsuspecting people who are detained, they threaten the very operation of our judicial system. Such arrests scare people away from the courts, keeping them, for example, from testifying at trials or seeking orders of protection. By using this tactic, the nation’s lead immigration law enforcement agency is undermining a pillar of our democracy.
That’s why California’s top judicial official asked the Trump administration to stop this practice. “Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws,” Tani Cantil-Sakauye, the state’s chief justice, wrote in March to Attorney General Jeff Sessions and John F. Kelly, then the homeland security secretary. “Enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair.”
Courthouses have a special place in American society. It’s only in a court of law that we can be confident that disputes will be mediated deliberately, and according to a set of rules intended to ensure justice for all parties. As the Supreme Court declared in 1907: “The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government.”
The pursuit of justice depends on getting the parties in the same room. That’s why courts have the power to drag in unwilling participants with subpoenas. They can compel witnesses to testify or risk contempt charges. Courts rely on their hard-earned legitimacy as the rightful locations for resolution of disagreements.
Courthouse arrests by ICE deter not only undocumented immigrants but also people who are here legally but are nervous that they might have somehow compromised their status (or that an officer will think they have). That’s a nuance that is next to impossible for the average person to discern, and those complicated legal questions are exactly what immigration judges spend a lot of energy trying to answer.
In El Paso, ICE arrested a woman moments after she requested a court’s help keeping away an abusive partner. Fear and uncertainty caused by this type of courthouse arrest are already keeping people away from the halls of justice. In Denver, the city prosecutor gave up on four domestic violence cases because the victims said they were too afraid of ICE to appear in court. In a nationwide survey conducted in April by the nonprofit Tahirih Justice Center, four out of 10 social service providers working with immigrant survivors of abuse said they had clients who had abandoned legal claims because of fear of what will happen if they call the police or go to court.
The harm this causes is bigger than the people whom ICE arrests. United States citizens are not immune to the impact of ICE activity in courthouses. All of us — including those of us who could easily prove our immigration status — depend on courts to do their job, and all of us suffer if the fear of ICE keeps people away.
ICE understands its actions can paralyze important institutions. Longstanding ICE policy discourages questioning or arresting people in schools and churches. It is time to add courthouses to that list. But top administration officials have vigorously defended courthouse arrests.
With no change to federal policy in sight, it is up to cities and states to push back. Elected officials must take seriously their legal obligation to keep courthouses accessible. In addition, the cities and states that own and operate most courthouses and ensure that no one uses their courts in a way that halts judicial business — protesters can’t block the doorway, bail bondsmen aren’t allowed to set up shop in the lobby — should do the same here for immigration agents.
ICE should no longer get free rein to tackle, handcuff and haul away immigrants, sending a message to others that they should think twice before trusting in the courts.