The ICE Courthouse Arrest Controversy Continues to Swirl

By Dan Cadman on May 1, 2018

Many readers will be aware that there is a simmering controversy over the practice by Immigration and Customs Enforcement (ICE) agents of taking deportable aliens into custody at courthouses after their appearances there, usually because they have been charged with a crime.

The agents have been forced to undertake this course of action because the logical place to effect custody of the aliens—city or county jails and detention centers—have been placed out of bounds by state and local officials in sanctuary jurisdictions who are determined to do everything they can to obstruct uniform national enforcement of immigration laws, even to the extent of sheltering criminals, astounding and nonsensical as that is on its face.

In Massachusetts, alien advocacy groups have leveraged an obscure common law to petition the Massachusetts Supreme Judicial Court to enjoin ICE agents from effecting arrests in state courthouses. The common law doctrine apparently protects from arrest individuals who come before the courts on a civil matter. The leverage in this case took the form of a petition by a variety of aliens who range from a battered spouse who "fears arrest" from ICE (presumably because she is illegally in the United States) if she goes to court to renew a restraining order against her abusive husband, to a witness/victim who he fears will be reported by his attacker for being in the U.S. illegally, to a Guatemalan woman illegally in the U.S. who wishes to seek child support from her delinquent (ex?) spouse.

What apparently isn't contained in the petition, of course, is the ICE policy against removing witnesses to a judicial controversy while it is ongoing. Also missing from the petition is any reference to the citizenship and immigration status of the abusive husband, physical attacker, or delinquent father. Care to venture any guesses?

It's also interesting to note that the petition is focused solely on ICE. No request that the writ of protection be issued concurrently against any and all federal agents, such as the FBI or DEA or Secret Service or Marshals Service; nor on state or local police or sheriff's offices. Curious, no? One suspects that lawyers for these cherry-picked petitioners know that would be a step too far.

Fortunately so far, no such enjoining "writ of protection" has been issued, although if it is, one hopes that the Department of Justice (DOJ) would immediately file a complaint in U.S. District Court to have that writ enjoined at the federal level.

Even so, the controversy about ICE courthouse arrests swirls on, with virtually every mainstream media outlet sidestepping any discussion of the reason ICE has been forced to such tactics, since to examine that issue is to force them to consider the consequences that derive from obstreperous state and local officials determined to impede immigration enforcement at every step.

I blogged recently about public defenders in New York City staging a "strike" to object to the practice of courthouse arrests, which led one ICE agent to emotionally complain to a radio station that she was a staunch liberal and Democrat who deplored the practice (even though she apparently doesn't actually belong to the division in ICE responsible for such arrests, and even though other agents were furious with management for not initiating disciplinary action for her unsanctioned, emotive, and ill-informed rant).

Ironically, the public defenders' walk-out in New York City reached the point where they, in turn, were accused in some quarters of having caused injury to their clients' cases by failing to appear for various hearings, etc., because they were too busy on the picket line to attend to business.

Despite the walk-out, the chief judge of New York City's court system has declined to direct such injunctive action, noting (appropriately) that courthouses are public spaces. This apparently infuriated New York's reliably progressive governor, Andrew Cuomo, who has now issued a proclamation prohibiting ICE agents from entering any state buildings unless armed with a judicial warrant. This was accompanied by a "cease-and-desist letter" threatening a lawsuit should ICE violate his directive.

In fact, Cuomo has gone so far as to declare such arrests "illegal", which shows how little he knows about the workings of U.S. immigration law which, as I have noted with some regularity, don't actually provide for judicial warrants in most removal matters. Section 236(a) of the Immigration and Nationality Act (INA), 8 U.S.C.Section 1226(a), specifically provides that "On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." What is more, Section 287(a) of the INA, 8 U.S.C.Section 1357(a), additionally provides for warrantless arrests.

It seems to me self-evident that a state governor, in fact any state or local authority, has strayed beyond his boundaries when he substitutes his judgment for that of the Congress in determining what lawful means may be used in taking aliens into custody on deportation or exclusion charges.

Once upon a time immigration law was presumed to hold supremacy over state laws and executive orders such as Cuomo's, given the fact that it derives from a power specifically delegated to the federal government by the Article I, Section 8, Clause 4 of the Constitution. These days, you would hardly know it given the progressive-activist bent of many jurists. But one hopes that DOJ will seek a permanent injunction against his executive order, even though it will likely have to be dragged through months and months of litigation and appeal, possibly to the Supreme Court if necessary.

Meantime, back in Massachusetts, ICE agents apparently irritated a Barack Obama appointee to the federal bench when they took into custody an alien who had just been sentenced to probation for visa fraud. According to Law360 (partially behind a paywall), Judge Indira Talwani excoriated ICE, and the U.S. Attorney's Office which supported the action—

U.S. District Judge Indira Talwani said in court that having immigration agents waiting around her courtroom to arrest a defendant was concerning, upsetting, unprecedented and could scare off immigrant witnesses and victims from courthouses.
"I am upset at the notion that ICE thinks a courtroom is a place to go and pick up people," the judge said on Wednesday. She later added, "I see no reason for places of redress and justice to become places that people are afraid to show up."

One wonders, first, why the good judge thinks it is somehow inappropriate to take custody of convicted alien fraudsters in a courtroom when they get off with a slap on the wrist such as probation. One is also left to wonder, would Judge Talwani express such reservations if DEA agents waited quietly during a sentencing hearing so that they might take into custody an individual wanted in a separate criminal probe into, for example, unlawful diversion of prescription opioids? Probably not.

Such is the state of immigration enforcement today. But it is heartening to see that DOJ under Attorney General Jeff Sessions is standing behind ICE agents as they pursue their increasingly difficult jobs. It's a refreshing change.