A report released in the past week confirms that the Trump administration policy of arresting undocumented immigrants in and around courthouses is undermining our system of justice.
When federal immigration agents swoop in and arrest undocumented immigrants while they are present in or on their way to court, it doesn’t just hurt those they sweep up, detain and deport.
The report, by Make the Road New Jersey, an immigrant advocacy group based in Elizabeth, found that such arrests, which have risen sharply since Trump took office, have created a chilling effect that is keeping people away from courts and social services.
Witnesses are not showing up to testify at trial, battered spouses are failing to seek or follow through on protective orders against domestic violence, and tenants and employees who are too fearful to file or pursue complaints are forced to tolerate unsafe housing conditions and unfair labor practices.
The report is based on a survey of 59 legal and social services providers who serve immigrants and interact with the courts in 14 of the state’s 21 counties: Atlantic, Bergen, Camden, Cumberland, Essex, Hudson, Hunterdon, Mercer, Middlesex, Monmouth, Morris, Passaic, Somerset and Union.
The lawyers surveyed provide a range of legal services in federal, state and municipal courts in the areas of immigration, criminal defense, family law, bankruptcy and municipal court matters. The non-legal services involved mental health, child advocacy, education, public benefits and help with domestic violence situations.
The climate of fear and the court-avoidance are not isolated occurrences. Make the Road found almost 72% of those surveyed had clients who expressed fear of interacting with the court due to the presence of Immigration and Customs Enforcement (ICE) agents. And 85% of mental health service providers saw an increase in immigrants who sought their services while 60% of family lawyers saw a decrease in immigrants seeking assistance, as did more than 75% of immigration lawyers.
Other disturbing findings that were attributed to the fear of ICE include:
62% had immigrant clients who withdrew or failed to pursue protective orders
72% of clients feared going to court because abusive partners threatened that ICE would be there
Nearly 80% of those who help domestic violence victims reported a decrease in the number of people seeking help
44% of the family court providers reported immigrant clients who withdrew or failed to pursue custody claims, 28 % for visitation claims, 46% for child support claims and 26% for divorce claims
Regarding housing and employment complaints, 56% and 48%, respectively, had worked with immigrants afraid to file them
56% reported they had clients afraid to appear as witnesses in criminal court and 65% for municipal court
Nearly one-third of lawyers had clients who withdrew petitions or complaints in court
More than half had clients who failed to appear in court
Almost three quarters had clients who were afraid to contact the police.
The fears observed are well-grounded given that one-in-five providers reported having clients who were arrested in or around New Jersey courts and 15% said they had observed ICE agents or vehicles at or near courthouses.
New Jersey is not the only place where courthouse arrests are on the upswing.
For instance, in mid-November, an analysis by the Manhattan-based Immigrant Defense Project found that courthouse arrests by ICE had risen 900% from the year before: from 11 in 2016 to 110 this year, with most of them occurring in New York City. At least 15 of those arrested were documented immigrants who held green cards or visas and 20 per cent had no prior criminal history other than being undocumented. .
Shortly after the report, on Nov. 28, public defenders at Brooklyn Criminal Court staged an impromptu protest over an arrest that had just occurred. According to an article in the Village Voice, a man accused of violating a restraining order was asked by the judge to step into the hallway with his lawyer and a Spanish language interpreter, when he was snatched by ICE. The lawyers, who work for the Legal Aid Society stormed out of the building and formed a picket line, demanding an end to such arrests.
There have also been reports of courthouse arrests from many other states including Texas, Oregon, Colorado and Arizona
What makes the situation even worse is that not only are more people being arrested and more of those arrests taking place in and around courthouses but more of those targeted for arrest and deportation have been convicted of no crime.
NYC News Radio reported in October that, based on federal data it had obtained, 44 per cent of undocumented immigrants arrested in New Jersey between January and May of this year had no criminal convictions versus 24 per cent for the same period in 2016. A smaller increase was found in New York, from 17 percent in 2016 to 25 per cent this year.
Judges have been warning about the impact on the courts if even law-abiding immigrants are afraid to show up.
On April 19, Chief Justice Stuart Rabner of the New Jersey Supreme Court wrote to retired General John Kelly, who was then the Secretary of Homeland Security, and thus in charge of ICE, urging that immigration arrests not occur at courthouses and referring to two recent incidents.
“To ensure the effectiveness of our system of justice, courthouses must be viewed as a safe forum,” wrote Rabner. “Enforcement actions by ICE agents inside courthouses would produce the opposite result and effectively deny access to the courts.”
If Rabner received a response, it has not been made public, as Rabner’s letter was.
Any response from ICE would likely have been along the same lines as the one sent to California’s top judge, Chief Justice Tani Cantil-Sakauye, who also urged ICE to steer clear of courthouses when making arrests.
Her March 16 letter to Kelly and his boss, Attorney General Jeff Sessions, lambasted immigration agents for using federal courthouses as “bait,” and a place for “stalking” immigrants who present no risk to public safety. She requested that they refrain from courthouse arrests because they “not only compromise our core value of fairness but they undermine the judiciary’s ability to provide equal access to justice.”
On March 29, Kelly and Sessions defended the practice and took issue with her use of the word “stalking. They characterized the arrests as “predicated on investigation and targeting of specific persons identified as subject to arrest for violating federal law and denied engaging in “sweeps” or “other indiscriminate arrest practices.”
They also blamed California and other states and government entities that barred ICE agents from entering prisons and jails to make arrests, requiring them instead to do so in public places.
In a New York Times editorial on Nov. 26, César Cuauhtémoc García Hernández, an associate professor of law at the University of Denver described two incidents in which ICE made an arrest at a Denver court house earlier this year, both captured on video.
At the first, in April, ICE agents tackled to the ground a man while he screamed and sheriff’s officers ordered passersby to stand back. The man’s lawyer said he was there to deal with a traffic ticket. In the other, the ICE agents can be heard refusing to show a warrant for the arrest, when asked to produce it by the arrested man’s lawyer.
García Hernández calls these courthouse arrests a break from tradition and a “deeply worrisome trend” because they “don’t just derail the lives of the unsuspecting people who are detained, they threaten the very operation of our judicial system.
As he correctly observed, it is not just the undocumented who are adversely impacted. “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.”
García Hernández pointed out that ICE knows its activities can negatively impact “sensitive institutions” and has a longstanding policy, reflected in a 2011 memo, not to engage in enforcement actions—arrests, interviews, searches and surveillance–at such places. Its definition of “sensitive” encompasses schools, hospitals, churches and other religious buildings as well as events such as funerals, weddings and public parades, rallies and protests. .
The memo does not mention courthouses but in cautioning against disruption of normal activities at a sensitive location, it calls for particular care be exercised with “any organization any organization assisting children, pregnant women, victims of crime or abuse, or individuals with significant mental or physical disabilities.”
García Hernández said courthouses should be added to the list, something that Rabner also requested in his letter to Kelly. He also urged state action to insure that courthouses remain accessible and that immigration agents, like others, not be allowed to use them in a way that halts official business.
Make the Road’s report goes even further with a set of specific and well-thought-out recommendations to Rabner and court administrators to address the problem:
Adopt policies prohibiting judiciary employees from assisting in or using court resources to assist civil immigration enforcement except as required by federal law; prohibiting court employees from collecting information about citizenship or immigration status except as required by law; and prohibiting civil arrests in state or municipal courthouses unless they are related to a proceeding in the state court system or are authorized by judicial warrant
Develop a protocol to notify court officials, the affected party and his or her attorney when ICE officers are present in the court room
Devise a system to track and publish data on ICE interactions in courthouses and their impact and
Encourage judges to utilize and expand on existing court rules to waive appearances by parties at risk of immigration detention
In trying to get these changes adopted, Make the Road’s Director Sara Cullinane will have the ear of policy makers. She has been named to the transition team of Governor-elect Phil Murphy, as chair of the Immigration Subcommittee of the Law and Justice Committee.
Founded in 2014, Make the Road New Jersey describes itself as a “community based organization that builds the power of immigrant and working class communities to achieve dignity and respect through legal and support services, civic engagement, transformative education and policy innovation.”