Time for Denver to Haul ICE Into Court
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.
Under President Trump, ICE has displayed an unprecedented aggressiveness towards those in the country illegally. Agents have tackled a man in the doorway of Denver’s Lindsey-Flanigan Courthouse. They have arrested someone at a home next to a public school during the morning drop-off window. Last week they opened fire on a man in a Denver street.
Denver officials have complained. So far, they have been rebuffed. In a letter published last week by The Denver Post, U.S. Immigration and Customs Enforcement officials told Mayor Michael Hancock that the agency will continue its single-minded focus on arresting people it thinks might be in the United States without the federal government’s permission.
Denver makes much of its claim to welcome immigrants. After President Trump took office, Mayor Hancock waffled before declaring Denver a welcoming city. Months later, several city council members attended or were represented by staff at a community forum about protecting immigrants from federal threats.
ICE’s actions signal that Denver’s complaints have fallen flat. How will Denver respond?
The federal government is supreme when it comes to immigration law. Despite efforts by Arizona, Texas, and other Republican-led states during the Obama years, the federal government’s primacy in immigration law remains constant. Within constitutional limits, Congress can make immigration laws and the president can direct federal enforcement officers.
But cities can push back. When the ability of vital public services like schools and courthouses to function are threatened and when residents’ lives are at stake, it becomes time for cities to do so.
Denver can equip itself with the power of creative legal advocacy. Lawyers can push back against ICE courthouse arrests by pointing to the First Amendment’s guarantee of access to the courts. They can tap the Supreme Court’s 1982 decision in Plyler v. Doe upholding equal access to public schools to challenge ICE enforcement actions uncannily close to schools. They can craft a path to end all cooperation — except the bare minimum required by other federal laws — with an agency that has shown itself unwilling to bend to local concerns.
While it embraces cutting-edge legal arguments, Denver can do the same for its residents. In immigration court, there is no right to appointed counsel. If an immigrant facing deportation can’t afford to hire an attorney, she is forced to defend against a trained prosecutor alone. This is the courtroom equivalent of being blindfolded and having your hands tied behind your back.
Right now, the Denver immigration court is full of immigrants facing the prospect of deportation without a lawyer. From 2007 to 2012, 91 percent of people in deportation proceedings there while detained by ICE did not have the aid of counsel. Denver could follow the lead of a growing list of cities, including Austin and Seattle, to ensure that no one is ordered deported by a Denver immigration judge because they were too poor to pay for a lawyer.
There is no magic wand that Denver officials can wave to convince ICE to back down. There is no court decision squarely on point on which the city can rest. But these are not times to passively wait for enlightened leadership in Washington or the law to become ideal. When the law does not protect their clients, good lawyers don’t settle with the law as it currently stands. They push the law’s boundaries toward a competing vision of justice.
As the towering jurist Oliver Wendell Holmes wrote in 1881, “the life of the law has not been logic; it has been experience.” The law’s malleability is among its greatest assets. With their clients’ interests in mind, lawyers push and pull at the law’s limits. In turn, courts decide whether to follow along. In the hands of zealous advocates and skilled judges, the law evolves to meet the needs of the political community it serves.
If Denver’s elected officials want to back up their pro-immigrant rhetoric, it is time to haul ICE into court. Litigation will not always succeed. But it will make ICE think twice about its unfettered policing actions.