NJ COURTS PROVIDE ICE SHIELD

I was really happy to see last week that the New Jersey courts were taking concrete action to protect people from the harsh immigration policies of the Trump Administration.

Administrative Directive 07-19, released on May 23, states the view of the judiciary “that civil immigration enforcement activities should not take place in courthouses” and that “courthouses must be viewed by the public, all parties, victims, and witnesses as a neutral and safe forum to resolve disputes.”

The directive, from New Jersey Supreme Court Chief Justice Stuart Rabner, is expressly intended to align court policy with that of the state Attorney General’s Office, as announced in its own directive last November, which bars law enforcement officers at all levels from inquiring into immigration status, detaining or arresting people solely on that basis. They also cannot enter into or renew what are known as Section 287(g) agreements with federal authorities, under which state and local officers are deputized to enforce federal immigration laws, unless the Attorney General gives written approval or the agreement is necessary to respond to threats arising from a declared state or national emergency.

The court directive seeks out certain procedures to minimize the impact of civil enforcement actions carried out by Immigration and Customs Enforcement (ICE) personnel at or near a courthouse.

The new protocol requires ICE officers to identify themselves to courthouse security personnel (sheriff’s officers or local police who are all subject to the Attorney General directive) and state the purpose of their visit. The security personnel should ask to see a copy of the arrest warrant and also notify their respective Assignment Judge, Municipal Court Judge, Municipal Court Director or designee of the ICE presence.

The directive further specifies that, absent an emergency, arrests should only occur after the conclusion of the court proceeding or event and in a non-public area.

In addition to these restrictions, the directive states that beginning May 23, the courts will collect information about the immigration status of litigants “only when needed to fulfill a legitimate court purpose.” They will no longer ask for such information solely for “demographic or other non-specific purposes.”

To facilitate that new policy, the judiciary is revising certain forms, including criminal complaint forms, so that they ask only for information needed for court purposes.

The directive does point out that immigration status will still be sought when needed for such reasons as resolving criminal matters and processing child adoptions. Judges “retain discretionary authority to ask about immigration status” and lawyers may raise relevant issues that relate to it.

The Administrative Office of the Courts (AOC) is to provide guidance and training to ensure compliance with the new procedures.

The directive expressly supersedes an earlier one on the subject, issued 12 years ago, Directive 11-07, which stablished a protocol for how court officers who set bail are notified about an arrestee’s immigration status. That notification was to be done through the same criminal complaint forms that are being revised under the new directive to no longer seek information on immigration status.

The 2007 directive further provided that if the court became aware during an indictable criminal or drunk driving case that the defendant might be an undocumented immigrant, even if not indicated in the complaint, it was to inform the prosecutor, “who then may inform ICE.” Where bail is set over the phone, law enforcement officers who have “reason to believe” an arrestee “may not be lawfully present in the United States” are likewise supposed to orally inform the judge in addition to entering that information in the paperwork. The new directive eliminates those duties to inform.

The fact that the new directive came from the top–from Chief Justice Rabner–in contrast to the one from 2007, which bore the name of Judge Philip Carchman, then the Presiding Judge of the Appellate Division, would seem to indicate how seriously the judiciary is taking the situation. Most administrative directives bear the name of the court’s Administrative Director, currently Judge Glenn Grant Jr.

This is not Rabner’s first attempt to rein in ICE.

As Directive 07-19 discusses, in April 2017, he wrote to John Kelly, a retired general then serving as Secretary of Homeland Security and thus in charge of ICE, urging that immigration arrests not occur at courthouses. Rabner requested that courthouses be designated as “sensitive locations,” like schools, hospitals, and churches. ICE has a longstanding policy of not engaging in enforcement actions at such places.

Several other state Supreme Court Justices made the same request but the Department of Homeland Security declined.

Instead, in January 2018, it issued its own new Directive, No. 11072.1, which says enforcement actions in courthouses or areas within courthouses that are dedicated to non-criminal (e.g., family court, small claims court) proceedings, should generally be avoided and when “operationally necessary,” require approval from the respective Field Office Director, Special Agent in Charge or his or her designee. To the extent practicable, such actions are to be conducted “discreetly “to minimize their impact on court proceedings” and done in non-public areas and in collaboration with court security staff, and utilize the court building’s non-public entrances and exits.

Further, the directive says ICE will take a hands-off policy regarding other “aliens” they might encounter during an enforcement action, including family or friends of the arrestee or witnesses in court proceedings. They are not to be arrested, “absent special circumstances,” such as where the individual poses a threat to public safety or interferes with ICE’s enforcement actions.”

Last fall’s New Jersey AG Directive 2018-6, captioned the “Immigrant Trust Directive,” was, according to an accompanying press release, meant to “draw a clear line between the responsibility of New Jersey’s 36,000 law enforcement officers to enforce state criminal laws and the responsibility of federal immigration authorities to enforce federal civil immigration law.” It applies to all state, county and local law enforcement agencies, including police, prosecutors, county detectives, sheriff’s officers, and correction officers, and was designed “to strengthen trust between New Jersey law enforcement officers and the state’s diverse immigrant communities” so that immigrants will feel safe reporting crimes.

The need to repair such trust was evidenced by a report released in December 2017 by Make the Road New Jersey an immigrant advocacy group based in Elizabeth.

Entitled ICE in the Courts: The Impact of Immigration Enforcement on Access to Justice in the Garden State, the report found courthouse arrests by ICE have created a chilling effect that is undermining justice by keeping people away from courts and social services.

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, it painted a picture of witnesses not showing up to testify at trial, battered spouses failing to seek or follow through on protective orders against domestic violence, and tenants and employees too fearful to file or pursue complaints are forced to tolerate unsafe housing conditions and unfair labor practices.  For more on the report and the issue of courthouse arrests by ICE, see my prior post on the subject.

On top of prohibiting law enforcement officers asking about immigration status, or detaining or arresting people solely on the basis of it, the AG Directive forbids state officers from participating in arrests and other enforcement operations by ICE, providing ICE with access to state or local resources such as offices or databases and interviewing people arrested on criminal charges unless they are informed of their right to a lawyer, among other things. Those proscriptions, however, do not apply in emergency circumstances. Officers remain free to participate with federal authorities in joint task forces so long as the primary purpose is not related to civil immigration enforcement. And police officers may still ask for proof of identity while making an arrest or “when legally justified during an investigative stop or detention.”

An article by New Jersey Spotlight on May 28 described the reaction of immigrant advocates to the court directive as “mixed” with Make the Road New Jersey applauding the court’s move but saying it does not go far enough to protect immigrants who attend court proceedings.