Judges Want Courtrooms Off-Limits to ICE

'Gentlemen. You can't fight in here! This is the War Room!'

By Andrew R. Arthur on December 17, 2018

NPR reported last week that a group of former judges (both federal and state) had sent a letter to Acting Director of U.S. Immigration and Customs Enforcement (ICE) Ronald D. Vitiello asking the agency not to make arrests in courthouses. That letter not only represents a lack of understanding of the immigration laws of the United States, but also reflects a certain illogic.

One of the classic scenes in Stanley Kubrick's 1964 film Dr. Strangelove, or: How I Learned to Stop Worrying and Love the Bomb involves a scuffle between General Buck Turgidson (George C. Scott) and Soviet Ambassador Alexei de Sadeski (Peter Bull) in the war room at the Pentagon. This prompts President Merkin Muffley (Peter Sellers) to yell, ironically: "Gentlemen. You can't fight in here. This is the War Room!" With due respect to the 68 (by my count) retired jurists who signed that letter, their point is equally ironic, but much less humorous. It could fairly be summarized: "You can't enforce the law here, this is a court of law!"

That letter begins:

As former state and federal judges, we write to express our concern about Immigration and Customs Enforcement's (ICE) continued reliance on immigration enforcement activities inside courthouses. We know firsthand that for courts to effectively do justice, ensure public safety, and serve their communities, the public must be able to access courthouses safely and without fear of retribution. For many, however, ICE's courthouse arrests have made courts places to avoid.

We welcomed ICE's clarification of its courthouse arrest policy in January, but that policy provides only qualified assurances that ICE will limit arrests to particular individuals or locations and makes clear that ICE officers will continue to operate inside courthouses. Following nearly two years of high profile ICE courthouse activity, only unequivocal guarantees and protections will restore the public's confidence that it can safely pursue justice in our nation's courts.

As you continue your tenure as Acting Director of ICE, we urge you to restore that confidence by adding courthouses to ICE's list of "sensitive locations," thereby assuring officers will refrain from courthouse enforcement activities except in exigent circumstances.

ICE Directive 11072.1 (an amazingly bureaucratic and Kubrick-esque title itself), issued on January 10, 2018, governs "Civil Immigration Enforcement Actions Inside Courthouses". Under paragraph two of that directive, captioned "Policy", then-Acting ICE Director Tom Homan made clear:

ICE civil immigration enforcement actions inside courthouses include actions against specific, targeted aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed, when ICE officers or agents have information that leads them to believe the targeted aliens are present at that specific location.

Aliens encountered during a civil immigration enforcement action inside a courthouse, such as family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding, will not be subject to civil immigration enforcement action, absent special circumstances, such as where the individual poses a threat to public safety or interferes with ICE's enforcement actions.

This is a fairly straightforward, and astoundingly circumscribed, policy statement, showing great restraint on the part of ICE as it relates to which aliens should be targeted inside courthouses. That directive only gets better, or worse, depending upon your perspective. It continues:

ICE officers and agents should generally avoid enforcement actions in courthouses, or areas within courthouses that are dedicated to non-criminal (e.g., family court, small claims court) proceedings. In those instances in which an enforcement action in the above situations is operationally necessary, the approval of the respective Field Office Director (FOD), Special Agent in Charge (SAC), or his or her designee is required.

Civil immigration enforcement actions inside courthouses should, to the extent practicable, continue to take place in non-public areas of the courthouse, be conducted in collaboration with court security staff, and utilize the court building's non-public entrances and exits.

Planned civil immigration enforcement actions inside courthouses will be documented and approved consistent with current operational plans and field operations worksheet procedures. Enforcement and Removal Operations (ERO) and Homeland Security Investigations (HSI) may issue additional procedural guidance on reporting and documentation requirements; such reporting and documentation shall not impose unduly restrictive requirements that operate to hamper or frustrate enforcement efforts.

So, even the circumscribed policy above is more constrained, with ICE placing general limitations upon those portions of courthouses where enforcement actions may be taken. More critically, however, the documentation requirements described and approvals required are indicative of what is known within federal agencies as "death by a thousand paper cuts". The gist of that phrase is that the more approvals that an action requires, and the more documentation that must be completed, the less likely it is that the government employee will actually bother to undertake the endeavor at all.

Even then, it is not enough to satisfy the judges, who state in their letter:

After nearly two years of high-profile ICE courthouse activity, and with arrests continuing, this policy is insufficient to lift the specter of immigration arrests from court appearances. Fine-line distinctions, such as who is a target and which parts of the courthouse ICE will use for enforcement activities, will not restore the public's confidence that it can safely access courts. This is particularly true in communities in our states where family, civil, and criminal courts share the same physical space. Indeed, the chilling effect of courthouse arrests appears enduring — in the first five months of 2018, applications for protective orders in El Paso, Texas, were down 18 percent from the same period in 2016.

Let's break down that paragraph. First, there is the language that is used. The phrase "the specter of immigration arrests" is itself weighted, and suggests, although does not prove, the political bent of the individual who actually drafted that missive (known in government parlance as "the person who has the pen"). There are many different nouns that one could use to describe the prospect that an alien unlawfully present in the United States could face arrest ("possibility" or "prospect" come to mind), but the person with the pen decided to use perhaps the scariest of all: "specter".

Why do I say this? Merriam–Webster defines the word "specter" as follows:

  1. : a visible disembodied spirit : GHOST
  2. : something that haunts or perturbs the mind : PHANTASM
    // the specter of hunger

Even the definition is kind of scary. The use of the word in this context reminds me of a scene in season six, episode nine of "The Simpsons". In that episode, Homer is falsely accused of harassment on a tabloid TV show called "Rock Bottom", but is cleared as a result of Groundskeeper Willie's snooping. When the show then turns on Groundskeeper Willie, the following exchange occurs:

Homer: That man is sick!

Marge: Groundskeeper Willie saved you, Homer.

Homer: But listen to the music! He's evil!

Closing the loop, the verbiage in the judges' letter suggests that immigration enforcement itself is, well, evil.

As for the line "[f]ine-line distinctions such as who is a target and which parts of the courthouse ICE will use for enforcement activities, will not restore the public's confidence that it can safely access courts," not only is this proposition inaccurate, it also shows a certain condescending attitude toward aliens who would potentially be going to court, and the prosecutors who would be seeking their assistance.

As an initial matter, the distinctions in the directive are hardly "fine-line". Rather, the directive uses an axe rather than a scalpel to carve out who would, and would not, be targeted by ICE within courthouses, and where such targeting would occur.

Second, if any alien were concerned about being arrested by ICE for going to court either as a witness or as a spectator, ICE Directive Number 11072.1 is posted by the agency right online for them to read. That 68 former federal and state judges are unaware of this fact, or of the fact that most individuals in the United States, citizens as well as aliens, have access to the internet, is somewhat deflating. Moreover, if, as the Supreme Court held in Federal Crop Ins. Corp v. Merrill every farmer who insures his crops is expected to read the Federal Register (a point that Justice Jackson unsuccessfully criticized), it is only reasonable to presume that aliens with a vested interest in not being arrested would know what ICE's rules on the issue are.

I, for one, check the U.S. Customs and Border Protection (CBP) website before taking foreign trips so that I know what I can bring back with me (and I was an immigration judge for eight years and congressional counsel for six), to avoid any surprises. Aliens who are wanted by ICE, who would be in for an even bigger surprise, would logically do the same.

Third, as a person who has attempted to alleviate the fears of witnesses appearing in court, I can assure you that I would reference that directive in support of my cause. The failure of lawyers to do so is hardly the fault of ICE.

Fourth, there may be many reasons why the number of applications for protective orders in one city in the United States would be down by 18 percent during two very different periods of time two years apart. Correlation does not imply causation, a fact that every judge understands. Had this been true in every city the United States, the logic might be slightly stronger. As is, it might simply be a statistical anomaly.

That letter further states:

Surveys of law enforcement and legal service providers confirm that ICE's reliance on immigration arrests in courthouses instills fear in clients and deters them from seeking justice in a court building. Affidavits detail persons "terrified" to request orders protecting them from violence or enforcing child support, to serve as witnesses, and to defend themselves.

Across the country, this fear has meant valid law enforcement prosecutions are abandoned, or never pursued. Denver's City Attorney dropped several domestic violence cases when victims declined to cooperate with prosecutors out of fear they would encounter ICE officers. Data from Los Angeles, San Francisco, and San Diego shows a disproportionate decrease in the number of domestic violence complaints from Latino communities in 2017, and Houston saw a 16 percent decline in domestic violence reports in 2017 from its growing Hispanic population. Widespread reluctance to report crime both shields existing incidents from prosecution and can lead crime rates to increase.

I have addressed similar issues in the past, but take no offense that those 68 former federal and state judges (and whoever had the pen on that letter) fail to follow my work. Specifically, in a May 26, 2017, post, I talked about the availability of U visas in the context of a politically charged statement by the (elected Democratic) Maryland state's attorney:

The Wednesday, May 24, Baltimore Sun online edition ran a story that shocked the conscience of even its most jaded readers. Although it was a complicated narrative of obstruction and deceit, it was also amply summed up by its headline: "Baltimore attorney arrested for allegedly offering rape victim $3K to not testify, saying Trump will deport her."

According to the Sun, a Baltimore defense attorney and his interpreter told the husband of an alleged rape victim "about the 'current environment for immigrants in this country' and offered $3,000 cash if she did not show up to court, which would force prosecutors to drop the case."

Referring to "an indictment by the Maryland attorney general's office", the Sun reports that the interpreter told the husband: "You know how things are with Trump's laws now; someone goes to court, and boom, they get taken away." The lawyer also reportedly suggested that the husband of the victim "beat up his client" instead of going to court.

As disturbing as the story itself was, the response from Maryland Attorney General Brian Frosh was not much better. Specifically, Frosh told the Sun: "If you're an immigrant, you live in a climate of fear at this point, and these folks were trying to capitalize on that."

I used that column to inform Frosh (the chief law enforcement officer of the state of Maryland) and those similarly situated about the availability of U-visas:

Under section 101(a)(15)(U) of the Immigration and Nationality Act (INA), nonimmigrant U visas are available to aliens who have been the victims in the United States of:

[R]ape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; stalking; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; fraud in foreign labor contracting (as defined in section 1351 of title 18, United States Code); or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

There is a petition process for U visas, and requirements that must be met for eligibility, including that the alien victim "has been helpful, is being helpful, or is likely to be helpful" to federal, state, or local law enforcement, prosecutors, or judges, but that would appear to have been true in this case and is true in most criminal cases where conviction relies on the testimony of the victim. In addition, the alien victim must show that he or she "has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity," but again, this is true for the victim of most if not all of the qualifying crimes. Finally, and importantly, a U visa is available to the spouse and children of an alien victim.

There is a cap of 10,000 visas annually for alien victims, but as U.S. Citizenship and Immigration Services (USCIS) notes:

If the cap is reached before all U nonimmigrant petitions have been adjudicated, USCIS will create a waiting list for any eligible principal or derivative petitioners that are awaiting a final decision and a U visa. Petitioners placed on the waiting list will be granted deferred action or parole and are eligible to apply for work authorization while waiting for additional U visas to become available.

It goes without saying that there is significant disagreement in the United States today about how the government should treat aliens who are living in the United States illegally. There is less disagreement, however, when it comes to aliens who are victims of crime.

Obviously, however, information about this valuable tool has failed to make its way around the United States. Which is a little odd, given the fact that USCIS has information about those visas posted prominently on its website:

It can't get much clearer than that. It is particularly odd that the eight (by my count) federal judges on that list were apparently unaware of that form of relief, especially given the fact that it has been on the books for 18 years.

It is difficult to think of a better way to get a victim-witness who lacks immigration status to come to court than to offer an actual visa that provides employment authorization. For some reason, they apparently don't. But that is their fault, not ICE's.

That letter continues:

Immigration arrests have also made it more difficult for courts to remain orderly places of business. ICE's courthouse activities have led to physical altercations involving court employees, court staff burdened by ICE requests to facilitate arrests, and disputes between court administration and legal service providers. The environment created by these incidents, in addition to the delays and rescheduling that result when fear prevents parties from appearing in court, only makes it more difficult for judges and court staff to do their jobs.

Accepting that proposition as true, it is unclear how immigration enforcement would differ from law enforcement generally. Rather, those 68 judges have apparently made a determination that immigration enforcement is not an important law-enforcement activity. If that is their position, they should run for Congress and change the laws. Moreover, it is not entirely clear what "physical altercations involving court employees" constitutes, but I sincerely hope that it does not involve attempts by court employees to prevent immigration-enforcement actions.

Finally, and most shockingly, is the following:

We understand that ICE favors courthouse arrests because it considers courts to be safe environments where officers are confident they can operate without danger. But it is exactly that sense of safety that we as judges tried to foster for anyone seeking access to justice, and that we believe ICE's courthouse activities put at risk.

Put differently, those judges appear to discount (or disregard) the very real dangers both to ICE officers and the public at large of immigration enforcement outside of "safe environments". I detailed those dangers in May 2017 post. Additionally, they fail to identify the reason why ICE must turn to courthouse arrests at all: the prevalence of sanctuary policies that prevent local police from assisting ICE in the apprehension of criminal aliens, a fact that I also noted in that post.

One concluding point. That letter states:

Together, we have presided over thousands of cases in trial and appellate courts. We know that judges simply cannot do their jobs — and our justice system cannot function effectively — if victims, defendants, witnesses, and family members do not feel secure in accessing the courthouse. We recognize that ICE officers have duties to perform, but this sense of security requires that courts remain open to all and, just as important, that courts appear open to all.

I agree completely with the first sentence. The concluding clause, however, is a canard. I would presume that those 68 judges walk through the front doors of their courts every day, but that clause suggests that this is in error. If courts were truly "open to all", there would be no magnetometers, no bag checks, and no wanding of belt buckles and watches. Because as a society we want to have a sense of safety in our courthouses, we actually screen the people who walk into them. Nor are courts truly open to wanted criminals, absconders, and those who pose a danger to the court or to the individuals therein. As an immigration judge, every time we had training, there would be a specific section on court safety, and on steps that judges could take to protect themselves (but often didn't take, such as staying off social media).

If these judges don't like immigration enforcement, they should simply say so. Cloaking their disdain for the immigration laws, and for those who enforce them, in lofty language and statistics does a disservice to the cause of justice. Take it from me — I presided over thousands of cases, too.