Crisis in the Courts

The Campaign to Get ICE Out of New York State Courts

LEE WANG

It had taken months, but finally Carlos¹ had gotten a measure of justice. That morning, a judge had dismissed all of the charges against him and Carlos clutched a piece of paper proving his innocence.

In Carlos's case, it wasn't just the fabricated charges he was worried about. He also feared being arrested by US Immigration and Customs Enforcement (ICE) in the courthouse. He had read about ICE targeting domestic violence victims in the courts and worried that, because of his undocumented status, something similar could happen to him. For months, he swallowed his fear and made regular court appearances to fight the charges.

When Carlos walked out of the courthouse that morning, it seemed like this one chapter in his abusive relationship was over. Then, a woman in regu­lar clothes whom he had never seen before approached him. “What's your name?” she asked. “What's your name? What's your name?” she repeated in rapid fire. Carlos asked why she was asking and she responded: “You're here illegally, right?” Moments later, two men, also dressed in regular clothes, sur­rounded Carlos, handcuffed him, and hustled him into a car. The three people who accosted him turned out to be a team of plainclothes ICE agents.

Carlos pleaded with the ICE agents to let him go. He explained that he was a domestic violence victim. The ICE agents only made fun of him and used slurs about his sexual orientation. Once he was fingerprinted, Carlos was sent to an immigration jail in another state where ICE locked him in solitary con­finement for ten days.

Carlos is just one of hundreds of immigrants targeted by ICE in New York courthouses since the election of President Donald Trump. Although ICE has targeted immigrants in state courthouses during previous administrations, the number of ICE operations in New York courts has skyrocketed under President Trump. From 2016 to 2017, the Immigrant Defense Project docu­mented a 1,200 percent increase in ICE operations in courts throughout the state. In 2018, ICE operations in the courts jumped another 17 percent com­pared to the previous year.²

In this chapter I recount the dramatic escalation in ICE courthouse arrests in New York and describe how a statewide campaign developed to stop ICE from targeting immigrants in the state's courts. The first two sections describe how the phenomena of ICE courthouse arrests unfolded over the first half of 2017 and finally exploded into public view after ICE targeted victims of human trafficking; the third section looks at the creative tactics that lawyers and other advocates embraced in response to the arrests; the fourth section analyzes ICE's response to the outcry over courthouse enforcement; and the final section looks at the conflict between the court administration and at­torneys over neutrality and civil disobedience.

The Crisis Unfolds

In early 2017, as reports of courthouse arrests started to come in through the Immigrant Defense Project hotline, it was hard to tell that this was a new phe­nomena. On a daily basis, the Immigrant Defense Project's staff was receiving reports of ICE raids all over the state, and ICE's tactics seemed to evolve on a weekly basis. ICE was showing up at people's homes in the predawn hours, pre­tending to be police; sweeping through apartment complexes on Long Island with mobile fingerprint devices; targeting immigrants at Greyhound bus sta­tions; and luring immigrant workers to fake construction sites.

Despite ICE's attempts to cloak its operations, by early March of 2017, the numbers were getting hard to ignore. In the first three months of the year, the Immigrant Defense Project hotline received more reports than we had for all of 2016. ICE wasn't just increasing the number of courthouse arrests; it was also broadening its targets. ICE was going after documented and undocu­mented immigrants alike, sometimes targeting green-card holders who had

been in the United States for forty years. It appeared to make no distinction about the type of criminal charge immigrants were facing, targeting people in court who showed up to resolve traffic tickets or charges for drinking in public. But the arrests didn't focus only on criminal courts. ICE was also en­croaching on special youth courts, which provide alternatives to incarceration and rehabilitation services for young people charged with crimes. For the first time, ICE was also spotted going after parents in family court.⁴

The seemingly random pattern of arrests made it difficult for attorneys to advise their clients. Who was really at risk of being arrested in court? Who needed to be warned? How should they be advised? What could attorneys say and not say about whether it was safe for a client to appear in court? Was there anything attorneys could do to stop the arrests from happening?

As advocates in New York grappled with how to respond, state supreme court justices around the country began to sound warnings about the dangers of ICE's conduct in state courts.

But after this flurry of impassioned letters from chief justices around the country, DHS appeared to harden its stance. Secretary Kelly fired back at California's top judge, accusing her of making “troubling” statements and blaming California's sanctuary policies that limit local cooperation with ICE agents for the courthouse operations”² As more heinous reports of ICE courthouse arrests poured in from around the country—including one tar­geting a transgender domestic violence survivor as she sought a protective order in Texas"—ICE seemed to double down, announcing that neither vic­tims nor witnesses would be exempt from arrests in the courts. As Thomas Homan, who was chief of ICE at the time, told Congress, immigrants should be scared, and they should look over the shoulder, particularly when they went to court.14

When ICE Shows Up in Human Trafficking Court

Up until the summer of 2017, New York's chief judge, Janet DiFiore, remained silent.

As one of the ICE agents lurked in the back of the courtroom, a reporter named Beth Fertig from the local National Public Radio (NPR) station hap­pened to be in the room. It was pure coincidence that placed the agent and the reporter in the same room. Fertig was shadowing a team of attorneys from the Legal Aid Society for a story when they discovered that a plain­clothes ICE agent was in the room and planning on taking their client, a twenty-nine-year-old woman from China. With the client's family members watching in horror from the wooden benches in the back, the Legal Aid At­torneys scrambled to figure out how to protect their client's rights.¹⁵

Thinking quickly, the attorneys requested that the judge set bail for their client. If bail was set, their client could be taken to Rikers Island, the notorious New York City jail that is now being dismantled after decades of human rights abuses there. Perversely, she would be safer on Rikers than walking freely on the streets?⁶ That was because New York's sanctuary laws prevented the state Department of Corrections from handing most immigrants over to ICE. The judge agreed to set bail, and their client was taken into custody. Losing pa­tience, the ICE agent left. The Legal Aid client was later released from criminal custody and returned to her family. But she was the lucky one. ICE agents had snagged four other immigrants in and around the Queens court that day, in­cluding another woman who was a victim of human trafficking?⁷

By the next morning, the local NPR station was leading with a story head­lined: “Outcry After Immigration Agents Seen at Queens Human Trafficking CourtU⁸ Within hours, it was national news, and calls from reporters and elected officials began flooding in?⁹ The chief judge finally made a public statement, saying she was “greatly concerned” by the arrests.²⁰ And local city council members were so incensed that they called for public hearings?¹

The Legal Aid Society approached the Immigrant Defense Project about organizing a press conference with them, and by the next week we were standing shoulder to shoulder with city council members on the steps of City Hall.

Rapid Response in the Age of Twitter

Unfortunately, the outcry from jurists, advocates, and elected officials did not get ICE to relent. Instead, ICE ratcheted up the arrests, and by November of 2017 the Immigrant Defense Project had documented a 900 percent increase in ICE courthouse operations compared to the previous year.²² By the fall of 2017, arrests became a nearly daily occurrence, and ICE agents appeared to behave more and more brazenly. In one incident, a dozen plainclothes ICE agents swarmed four young undocumented men outside of the Brook­lyn Criminal Court?³ In another, four agents tackled a young man and his six-month-pregnant girlfriend while they were crossing the street. While the young man's girlfriend was bleeding and screaming for help, the ICE agents dragged him into an unmarked car?⁴ Disturbingly, in some cases, court offi­cers appeared to be assisting ICE, physically blocking attorneys while ICE interrogated their clients and giving ICE agents entry into private areas of the court, enabling ICE to secretly take immigrants out of the court?⁵

As news of the arrests spread, it was not just criminal defense practices that were affected. Attorneys working with immigrants in family court and housing court were reporting a broad chilling effect on their clients. One at­torney who worked in the Hudson Valley told us of a woman who had been raped by her abuser in a parking lot but was now too fearful of ICE to seek an order of protection in court?⁶ Other attorneys told us of clients in abusive relationships that were afraid to move forward with custody proceedings, or to seek child support, because of the possibility of ICE being in the court- room?⁷ Longtime housing attorneys were suddenly unable to move forward with cases against landlords because key witnesses, who were undocumented, were too afraid to testify?⁸ Beyond attorneys, there was an entire constel­lation of legal service workers—social workers, parent advocates, and case managers—working with immigrants who were gripped with fear.

As ICE arrests became the new normal in New York's courts, legal services providers struggled to adapt. What could they tell clients who were afraid to go to court? Was there anything they could do to protect clients from ICE? What rights did their clients have when confronted by an ICE agent? What happened if an ICE agent came to one of their offices in a court building? And what would happen to their clients after ICE arrested them? Would their cases even continue?

To try and answer some of these questions, the Immigrant Defense Project started to hold training sessions across New York City with crimi­nal defense and family attorneys. There were a few concrete suggestions we could offer for reducing the risks to clients, but every strategy came with a cost. Attorneys could ask to waive appearances or at least mini­mize the number of appearances a client had to make. This might work in some cases, but it also meant that clients could not participate in special rehabilitative courts—like mental health treatment and drug treatment courts—which required more appearances than regular criminal courts. Attorneys could recommend that clients enter pleas as quickly as possible, but that meant forgoing the chance of negotiating a better offer from a prosecutor and sacrificing the right to go to trial. And, of course, attorneys could seek bail for their clients, like the Legal Aid attorneys did in the case of the human trafficking victim, but that meant their client could spend months behind bars at Rikers.

As we grappled with what to tell clients, we were also looking for new ways of staying up to date on ICE operations in the courts. Email chains with sub­ject headings like “ICE in AP5” or “Beware: ICE sighting in Queens” started to fill our inboxes. The Immigrant Defense Project became a de facto tip line for ICE courthouse sightings. To verify the reports we received, staff attorneys and intake specialists interviewed as many eyewitnesses as we could, speaking with attorneys, family members, friends, and, when possible, the immigrants who were targeted and detained by ICE. But for defense attorneys trying to make quick assessments about the risks that their clients faced on any given day, email chains and tip lines proved too clunky.

By the fall of 2017, attorneys began using Twitter to warn others of ICE sightings in the courts. Twitter turned out to be the ideal forum for attorneys to share real-time information and documentation on what was happening in the courts. That might sound like a hackneyed observation to the average millennial, but in a court system where many attorneys rely on paper calen­dars to schedule cases, turning to Twitter was a novelty. But desperate times call for creative tactics. In the age of Trump, Twitter became a newly essential tool for lawyers.

Real-time tweets helped attorneys track the movement of ICE agents in and around the courts. This helped attorneys to assess the risks that their clients could face in court, which was critical for accurately advising clients about their options. The tweets also provided the first visual documenta­tion of the arrests because attorneys were occasionally able to snap photos and even videos of agents lurking around the courts. They also helped to capture the scale and complexity of ICE operations. For example, attorneys from Brooklyn Defender Services provided a stream of information about a large-scale sweep that involved nearly a dozen ICE agents in September 2017. The feed from one attorney started with a photo of a man being led into an unmarked black car by a man in a blue tee shirt.

The feed continued with photos of more ICE agents as they waited on the corner outside of the Brooklyn Criminal Court and then moved into the courthouse and sat on benches in the hallway. All told, ICE targeted and ar­rested four young men that day.

The Twitter updates on such courthouse updates quickly evolved into the first substantial source of information available to the mainstream media. Indeed, the tweets from the September 14 ICE operation in Brook­lyn drew so much attention that several news outlets showed up at court to interview ICE. Local media outlets were able to document some of the ICE operation themselves, publishing photos and videos of the plainclothes agents at court.²⁹ The press also experienced firsthand what it was like to interact with ICE agents who acted, in the words of one reporter, like “se­cret police.”³⁰

Not long after, Twitter also became an organizing tool for attorneys who were fed up with ICE snatching away their clients. On November 28, 2017, after a particularly contentious incident where court officers allowed ICE agents to use a restricted area of the court to arrest a thirty-year-old man, dozens of public defenders staged an impromptu walkout.³¹ As word spread of the walk out on social media, attorneys from the Legal Aid Society and Brooklyn Defender Services streamed out of the court. With makeshift signs scrawled on the backs of Manila envelopes, the attorneys picketed outside of the Brooklyn Criminal Court at 120 Schemerhorn Street, shouting “ICE Out of NYC!” and “Shame on You!”

The November 28 walkout turned out to be the first of many. In the next six months, there were walkouts in the Bronx, Queens, and Staten Island. In the Bronx, public defenders stormed out of the Hall of Justice after a team of ICE agents swarmed a twenty-seven-year-old man who had come from the Ivory Coast when he was three years old.³² On Staten Island, public defend­ers protested after ICE agents targeted an undocumented immigrant with no prior criminal history whose criminal case was dismissed just minutes before ICE agents arrested him.³³ Videos of the walkouts quickly spread on social media, bringing new attention to ICE's shadowy operations in New York courts.

Although the walkouts brought attention to the issue, they also created tension with the New York State Office of Court Administration, which supervised operation of the courts. During one walkout in Queens, court administrators reassigned a handful of cases from the Legal Aid Society to private attorneys who act as assigned counsel in the courts. A spokesper­son for the Office of Court Administration accused Legal Aid Attorneys of abandoning their clients and undermining the operation of the courts/⁴ The Legal Aid Society, which said that the public defenders had made sure the court docket was covered during the walkout, described the reassignment as retaliation for attorneys speaking their mind. The conflict over the walkouts was emblematic of a deeper divide between advocates, who believed the court needed to do something to intervene, and the officials who ran the state court system, who insisted that they couldn't take sides.

ICE Refuses to Relent

By the spring of 2018, the crisis in the courts seemed to be at a breaking point. The steady stream of news accounts of ICE targeting domestic violence survi­vors, asylees, Dreamers, and human trafficking victims had led to widespread calls for ICE to add courthouses to its list of “sensitive locations.” ICE had a longstanding “sensitive locations policy,” which discouraged agents from arresting people at hospitals, schools, places of worship, funerals, and pub­lic demonstrations/⁵ ICE could simply add courthouses to that list. Indeed, that had been the central request of half a dozen state chief justices/⁶ the American Bar Association/⁷ and numerous elected officials. Congressional Democrats had even introduced a bill to make courts off-limits for ICE/⁸

Despite all this pressure, ICE refused to relent. Rather than back away from courthouse enforcement, ICE made it in an official policy. At the begin­ning of 2018, ICE published a directive titled “Civil Immigration Enforcement Actions Inside Courthouses.’^⁹ It was the agency's first formal acknowledge­ment that it had a policy for targeting immigrants in and around courthouses. The directive also spelled out the justification for the practice, in surprisingly blunt terms, blaming local sanctuary policies for the arrests. As the policy noted, “[C]ourthouse arrests are often necessitated by the unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from prisons to jails.” Because cities like New York had stopped holding and trans­ferring immigrants from its local jails to ICE (a practice that numerous fed­eral courts have ruled is unconstitutional), ICE reasoned that it had no choice but to raid the city's courts for “criminals and fugitives” who could be carry­ing “weapons and other contraband.”⁴⁰

The new ICE policy also purported to limit the scope of courthouse opera­tions in a couple of key ways: First, it would focus on “specific targeted aliens” such as those with “criminal convictions, gang members, or those presenting a national security or public safety threat”; second, arrests at “non-criminal court” proceedings would be “generally avoid[ed]" unless they were deemed “operationally necessary.” New York's Office of Court Administration ap­peared to accept these limitations as meaningful changes on the part of ICE/¹ Indeed, even the chief justice of California, who had spoken out first against ICE's practice, described the policy as a “good starts²

However, advocates were skeptical. The new directive was filled with loopholes so big that they seemed to create no meaningful limits on what ICE could and could not do. While the policy mentioned “specific, targeted aliens,” it also left this list of targets open-ended, making it possible for ICE to go after a much wider range of immigrants. The purported limit on arrests in noncriminal courts was similarly slippery. When was an arrest “operationally necessary”? The document provided no definition or guidance on what this meant.

As problematic as ICE's new policy was, it sparked some tough conversa­tions within advocacy circles. After a year of relentless ICE arrests, any limit to ICE's operations seemed like a positive. A statewide coalition formed that included many legal service providers that primarily worked in noncriminal courts. For this group, could this policy be progress? At the next ICE Out of Courts coalition meeting, we decided to raise this issue with the group. While more than forty people from organizations around the city and state squeezed into an office lunchroom that doubled as our conference space, we gingerly broached the subject.

What I assumed would be controversial turned out to be a surprising point of agreement. Advocates of all stripes agreed that ICE's pledge to act “dis­creetly” in the courts was a hollow promise and that the policy provided no meaningful protection to immigrants, whether in civil or criminal courts. Some attorneys raised principled objections, noting that the constitutional right to access courts applied to all immigrants, regardless of which type of court they needed to attend. Others raised more practical concerns. One at­torney pointed out that the policy did not account for the fact that many fam­ily courts were housed in the same building or complex as criminal courts. ICE would still be present in the courts, even if just a hundred yards away. This was unlikely to boost immigrants' trust of the courts. Others who repre­sented immigrant victims also emphasized that their clients were often defen­dants too, who were ensnared in the criminal justice system for many reasons. A case in point: the women that ICE targeted in the human trafficking court in Queens were victims of human trafficking but were also charged criminally for prostitution-related offenses.

By the end of the meeting, the coalition of advocates agreed that, as a basic principle, the group would reject ICE's new policy as an acceptable response to the crisis in the courts. The coalition would fight for the rights of all im­migrants to access the courts, regardless of whether they were charged with a crime or seeking protection from the court. It was a pivotal moment for the campaign.

Neutrality and Civil Disobedience in the Age of Trump

With ICE digging in its heels, advocates in New York were increasingly con­vinced that the state needed to intervene. The state legislature was considering a bill that would make it unlawful for ICE to execute arrests in and around courthouses, but it was idling in Albany.⁴³ In the absence of legislative action, the Immigrant Defense Project and other organizations asked the chief judge of New York's courts to enact court rules that would limit ICE's operations. Specifically, the coalition proposed that the chief judge require ICE to present a judicial warrant from a federal judge before executing a civil arrest in court and proposed that she give explicit instructions to court staff and officers not to assist ICE agents.44

After months of meetings with advocates, it was clear that the courts were uncomfortable about being pulled into what they perceived as a political fight. When asked what the judiciary planned to do to stop ICE arrests in human trafficking courts, the chief administrative judge of New York's courts, Lawrence Marks, told a panel of New York legislators that his hands were tied. “We can't take a position about immigration policies in Washington whether they're good or bad. Individual people can take a position on that but, insti­tutionally, we have to be neutral.’^⁵

While the Office of Court Administration adhered to its middle ground, the perception of the courts in immigrant communities was shifting. Advo­cates struggled to get immigrants to seek child support or orders of protec­tion, and district attorneys reported that cases were falling apart because witnesses were terrified to come to court.⁴⁶ Surveys of law enforcement and legal service providers revealed that ICE's presence in the courts kept immigrants from seeking protection from the courts. In Los Angeles, San Francisco, and San Diego, law enforcement has reported drops in domes­tic violence reporting from Latinx communities; Houston also reported a 16 percent decrease in domestic violence reporting from its Latinx community. In a letter addressed to the acting director of ICE, close to seventy retired judges observed that ICE's presence interferes with the work of the courts. They wrote: “[W]e 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.”'¹⁷

The Office of Court Administration's insistence on neutrality was in grow­ing tension with the position that many attorneys took as vocal critics of ICE's presence in the courts. This conflict was put into sharp relief during the attor­ney walkout from the Queens Criminal Court on April 10, 2018?⁸ The walkout in Queens was part of a series of walkouts led by public defenders frustrated and angry about ICE's untrammeled ability to snatch their clients from the courts. When the Office of Court Administrations responded to the protest by reassigning cases at arraignments from defender offices such as the Legal Aid Society, to private attorneys, a spokesperson explained that this was in response to attorneys' “abandonment of cases’^ Public defenders who walked out that day dispute the notion that they left their clients in the lurch during the walkout.⁵⁰ The walkout occurred during the court's lunch break.⁵¹ How­ever, at the root of the dispute was not a factual question about timing but in­stead more fundamental questions about ethics and professional responsibility.

Attorneys have started to question where their fundamental obligations lie, not only as members of the bar but also as public citizens with moral obliga­tions. As key players in a court system that federal immigration officers have publicly identified as a hunting ground for immigrants, how were attorneys expected to responsibly serve their clients and their individual consciences?5²

The professional codes of conduct that govern the bar are one source of guidance, but these rules provide no easy answers. A lawyer has overlapping responsibilities as a representative of their client's interest, as an officer of the court, and as a public citizen with a “special responsibility for the quality of justice.”53 But when ICE comes to arrest a client in court, these roles can di­rectly conflict. For example, if an attorney spots ICE agents outside of a court­room and discovers that they are there to apprehend her client, what should she do? As a zealous advocate for her client, the attorney has a duty to inform her client of the risks of attending court. But as an officer of the court, the attorney cannot ethically tell their clients not to come to a court-mandated appearance. She also has a “duty to uphold legal process.”⁵⁴

Compounding these dueling professional obligations is the potential threat of federal criminal prosecution for “harboring” a noncitizen. Under 8 U.S.C. §1324(a), it is a federal crime to knowingly conceal or shield a noncitizen who is unlawfully present in the United States from detection by immigration authorities. Before the appointment of Attorney General Sessions, harboring was seldom prosecuted, and there are many potential defenses to such a pros­ecution for attorneys/" But the professional rules forbid “even minor viola­tions of law.” Wherever attorneys land on this question, one thing is clear: the threat of this type of prosecution is not just bluster. In April 2019, a federal grand jury indicted a sitting Massachusetts state court judge and a state court officer for obstruction of justice for allegedly helping an undocumented im­migrant avoid detection by ICE agents in the courthouse/⁶

What is a conscientious lawyer to do? The rules recognize that a lawyer's professional duties should be informed by “personal conscience,” but they do not squarely answer whether civil disobedience is legally ethical in a situation where a client faces not only arrest but permanent exile from her family.

In the current moment, the codes of conduct may simply be insufficient. Showing obedience to the law is a difficult proposition at a time when the executive branch of the US government adopts policies that use courts as hunting grounds, tears away children from parents, denies refuge to survivors of persecution and violence, and bans entry based on religious belief. When the norms of human decency and fairness are routinely violated, attorneys may do better to look to the rich tradition of civil disobedience than to the professional rules.

In one of the most famous meditations on the duty to disobey unjust laws, Letterfrom a Birmingham Jail, Martin Luther King Jr. wrote that when a man breaks a law that “conscience tell him is unjust” and “willingly accepts the penalty” this is “in reality expressing the highest respect for law.” For Mohan­das Gandhi, an attorney trained in the English common law system, lawyers had a special obligation to engage in civil disobedience:

Lawyers are the persons most able to appreciate the dangers of bad legislation. It must be with them a sacred duty by committing civil breach to prevent a criminal breach. Lawyers should be guardians of law and liberty and as such are interested in keeping the statute book of the country “pure and undefiled."5⁷

Following this belief, during his noncooperation campaign of 1920, Gandhi called on India's lawyers to cease practicing and boycott the colonial court system.⁵⁸ The goal of the campaign was not only to challenge the legitimacy of the British colonial government but also to encourage the independence and moral growth of attorneys themselves/⁹

Gandhi's philosophy is an inspiring model for the current moment, not only because it speaks with moral clarity about the necessity of resistance to injustice but also because it considers the individual grappling with how to be a responsible lawyer and ethical human being.

One reason so many attorneys took part in the 2018 walkouts may be that they needed this transformation—an opportunity to express their outrage and to acknowledge the trauma that they are (or were) seeing and experienc­ing. I recently spoke with an attorney who told me she feels very apprehensive about going to court after seeing many of her clients taken away by ICE. She can't shake the image of two young children gripping their mother's hands as they watched ICE agents handcuffing their father in court. Another attorney described watching an arrest that looked like a “rendition” with a swarm of agents grabbing her client from the sidewalk outside of a court and hustling him into a car without saying a word about who they were or what they were doing. Watching ICE snatch people away day after day without being able to do anything to stop it is deeply affecting. Walking out of a court in protest may not change that reality today or tomorrow, but it does create an opportu­nity for attorneys to transform their experiences and give voice to what they have witnessed.

Conclusion

On April 17, 2019, the New York state judiciary made a surprise announce­ment. The chief administrative judge of the state's court system, Lawrence Marks, issued a one-page directive prohibiting arrests by ICE in any New York state courthouse without a federal judicial warrant of court order.⁶⁰ It was the first directive of its kind in the country and quickly become a model for other state judiciaries/¹ He credited a “comprehensive and well-documented report” put together by advocates in the ICE Out of Courts coalition for per­suading the state judiciary to adopt the new policy/²

Two months later, federal district court judge Indira Talwani in Massa­chusetts issued a preliminary injunction prohibiting ICE from making civil immigration arrests in and around the state's courts/³ The order, which ap­plies to Massachusetts state courts, prohibits ICE from arresting individu­als attending Massachusetts courthouses not only while they are inside of a courthouse but also while they are going to or leaving a courthouse as well. It was the first time that the federal courts weighed in on the legality of ICE's courthouse arrest policy, and it was a decisive statement for the need to limit ICE’s unbridled approach to enforcement.

One shared trait of both of these victories is that they were born of creative coalition-building. Over two years, the New York State ICE Out of Courts coalition built itself into a statewide organization that included public de­fenders, advocates for victims of gender-based violence, civil rights advocates, immigration attorneys, and labor organizers. In Massachusetts, the plaintiffs that won the injunction from Judge Talwani included the Committee for Public Counsel Services, which serves as the statewide public defender; the Middlesex County District Attorney; the Suffolk County District Attorney; and the Chelsea Collaborative, a group representing noncitizens who are fear­ful of going to court as victims, witnesses, and supporters.

A key strength of these coalitions is their ability to provide a 360-degree view of how ICE’s brazen enforcement tactics undermine the court system as a whole. In her decision, Judge Talwani describes the breadth of the damage that ICE's courthouse arrest policy imposes on the courts:

Plaintiffs have made an unrebutted showing that each day that the threat of ICE civil arrests looms over Massachusetts courthouses impairs the [District At­torneys’] and [Committee for Public Counsel Services’s] ability to successfully perform their functions within the judicial system, and Chelsea Collaborative's members’ ability to enforce legal rights, and that absent an injunction, some state criminal and civil cases may well go unprosecuted for lack of victim or witness participation.⁶⁴

However, while the New York State directive and the federal injunction in Massachusetts provide a foothold in the struggle against ICE’s courthouse arrests, the fight is far from over. The directive, which has already become a model for other states,⁶⁵ has significantly limited ICE courthouse operations in New York, but it has not stopped them entirely. Despite the directive, ICE continues to remain a visible threat outside of courthouses in New York— even targeting a pregnant mother after an appearance in the Queens Criminal Court.66 Due to limits in the state judiciary’s control over town and village courts, the directive also does not protect immigrants in smaller courts out­side of New York City, putting residents in more rural areas at risk?⁷

As the crisis in the courts continues, it has given rise to a newly creative style of lawyering. Unable to protect their clients from ICE inside the court­room, attorneys are looking to innovative forms of advocacy—taking to the streets and to social media to plead their case. It has also challenged attorneys to consider their professional and ethical obligations to clients—and to fun­damental fairness.

The crisis in the courts has also raised a host of questions about the role of the judiciary and the relationship between state and federal governments. The federal government's aggressive immigration policy continues to encroach on the courts, undermining the courts' operations and the fundamental rights that the judiciary is built to protect. In the face of this intrusion from ICE, state judiciaries may no longer have the option of staying on the sidelines. When ICE effectively shuts down access to justice, it may fall on the state judiciaries to find a way to keep the courthouse doors open.

NOTES

The author was formerly a Senior Staff Attorney at the Immigrant Defense Project where she helped to coordinate a statewide campaign to get ICE out of New York State Courts. She now directs a program at the Brooklyn Community Bail Fund that focuses on freeing immigrants from detention. The views expressed in this chapter are her own.

1 I have used a pseudonym to protect the individual's confidentiality.

2 See The Courthouse Trap: How ICE Enforcement Impacted New Yorks Courts in 2018, The Immigrant Defense Project (Jan. 2019), www.immigrantde- fenseproject.org/wp-content/uploads/TheCourthouseTrap.pdf.

3 For a fuller description of ICE raids documented across New York State, see Ryan Devereaux, ICE Has Conducted Hundreds of Raids in New York Since Trump Came to Power. Here’s What Those Operations Look Like., The Intercept (July 23, 2018), www.theintercept.com.

4 Courthouse arrest reports are on file with author.

5 Letter from Tani Cantil-Sakauye, C.J. of Cal. Sup. Ct., to Jeff Sessions, Att'y Gen., and John F. Kelly, Sec'y of Homeland Sec. (Mar. 16, 2017), www.newsroom.courts. ca.gov.

6 Letter from Tani G. Cantil-Sakauye, C.J. of California, to Jeff Sessions, Att'y Gen., and John F. Kelly, Sec'y of Homeland Security, March 16, 2017, https://newsroom. courts.ca.gov/news/chief-justice-cantil-sakauye-objects-to-immigration- enforcement-tactics-at-california-courthouses.

7 Letter from Chase T. Rogers, C.J. of Conn. Sup. Ct., to Jeff Sessions, Att'y Gen. and John F. Kelly, Sec'y of Homeland Sec. (May 15, 2017), www.ncsc.org.

8 Letter from Stuart Rabner, C.J. of N.J. Sup. Ct., to Jeff Sessions, Att'y Gen., and John F. Kelly, Sec'y of Homeland Sec. (Apr. 19, 2017), www.ncsc.org.

9 Letter from Thomas A. Balmer, C.J. of the Or. Sup. Ct., to Jeff Sessions, Att'y Gen., and John F. Kelly, Sec'y of Homeland Sec. (Apr. 6, 2017), www.ncsc.org.

10 Letter from Mary Fairhurst, C.J. of the Wash. Sup. Ct., to John F. Kelly, Sec'y of Homeland Sec. (Mar. 22, 2017), www.ncsc.org.

The C.J. of R.I. also publicly endorsed a call for ICE to designate courts as a “sensitive location” in statement to the R.I. Bar Ass'n. See www.courts.ri.gov. Letter from Jeff Sessions, Att'y Gen., and John F, Kelly, Sec'y of Homeland Sec., to the Honorable Cantil-Sakauye, C.J. of the Cal. Sup. Ct. (Mar. 29, 2017), www. nytimes.com.

Marty Schladen, ICE Detains Alleged Domestic Violence Victim, El Paso Times (Feb. 15, 2017), www.elpasotimes.com.

Elise Foley, ICE Director to All Undocumented Immigrants: “You Need To Be Worried,” HuffPost (June 13, 2017), www.huffingtonpost.com.

Liz Robbins, A Game of Cat and Mouse With High Stakes: Deportation, N.Y. Times (Aug. 3, 2017).

Sonja Sharp, The Lawyers Trying to Get Their Clients Sent to Jail, Vice (July 4, 2017), www.vice.com.

Beth Fertig, Outcry After Immigration Agents Seen at Queens Human Trafficking Court, WNYC (June 16, 2017), www.wnyc.org.

Id.

For an example of the reaction from elected officials, see Beth Fertig, New York Democrats Tell ICE to Stay Away From Human Trafficking Courts, WNYC (June 16, 2017), www.wnyc.org.

Id.

Corinne Ramey, Immigrant Advocates Want, Wall St. J. (June 29, 2017), www. wsj.com.

See Stephen Rex Brown, Courthouse Arrests of Immigrants by ICE Agents Have Risen 900% in New York This Year: Immigrant Defense Project, N.Y. Daily News (Nov. 15, 2017), www.nydailynews.com.

Noah Hurowitz, Immigration Agents Target Brooklyn Criminal Court, Lawyers Say, DNA Info (Sept. 14, 2017), www.dnainfo.com.

Courthouse arrest report on file with author.

Felipe De La Hoz & Emma Whitford, Court Officers Are Aiding in Immigration Arrests Say Lawyers, The Village Voice (Nov. 16, 2017), www.villagevoice. com.

Att'y affidavit on file with author.

Att'y affidavit on file with author.

Att'y affidavit on file with author.

A video posted by Andrew Paul Joyce, a reporter for The Mic, shows plainclothes ICE agents exiting the Brooklyn Crim. Ct. and leaving in an unmarked car. https://twitter.com/AndrewPaulJoyce/status/908350791022465024?ref_src=twsrc% 5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E908350791022465024& ref_url=http%3A%2F%2Fgothamist.com%2F2017%2F09%2F14%2Fice_court- house_arrests_brooklyn.php.

One reporter provided a firsthand account of his encounter with plainclothes ICE agents in a courtroom hallway who denied that they were immigration enforce­ment agents. See Leon Neyfakh, Secret Police: ICE Agents Dressed in Plainclothes Staked Out a Courthouse in Brooklyn and Refused to Identify Themselves, Slate (Sept. 14, 2017), www.slate.com.

Noah Hurowitz & Felipe De La Hoz, Legal Aid Lawyers Stage Walkout After Yet Another ICE Court Arrest, The Village Voice (Nov. 28, 2017), www. villagevoice.com.

Gwynne Hogan, Public Defenders Walk Out of Bronx Courthouse After College Student Detained, WNYC (Feb. 8, 2018), www.wnyc.org.

Chelsia Rose Marcius, Elizabeth Elizalde & Rich Schapiro, Lawyers Protest as ICE Agents Detain Defendant at Staten Island Courthouse After Sweeping Raid, N.Y. Daily News (Apr. 24, 2018), www.nydailynews.com.

Liz Robbins, Lawyers Walk Out to Protest ICE, and Court Objects, N.Y. Times (Apr. 11, 2018), www.nytimes.com

See Letter from Director John Morton on Enforcement Actions at or Focused on Sensitive Locations (Oct. 24, 2011), U.S. Immigration and Customs Enforcement, www.ice.gov. For an excellent discussion of the origins of the “sensitive locations” policy, see Sarah Rogerson, Sovereign Resistance to Federal Immigration Enforcement in State Courthouses, Geo. Immigr. L.J. (Fall 2018).

See notes 3-7

In August 2017, the A.B.A.'s House of Del. passed resolution 10C, calling on ICE to add courthouses to its list of “sensitive locations.” See ABA Urges Congress Add Courthouses to ‘Sensitive Locations’ to ICE Guidelines, www.americanbar.org.

Rep. Espaillat (D-NY) introduced H.R. 1815, a bill that would amend the Immigration and National Act to forbid immigration arrests at courthouses and other sensitive locations. Sen. Blumenthal (D-CT) introduced a similar bill in the Senate, S. 845.

U.S. I.C.E., Directive 11072.1: Civil Immigration Enforcement Actions Inside Courthouses (Jan. 10, 2018), www.ice.gov.

U.S. I.C.E., FAQ on Sensitive Locations and Courthouse Arrests (last updated Sept. 25, 2018), www.ice.gov.

N.Y.S. Assembly & Senate, Joint Budget Hearing on Public Protection (Jan 30, 2018).

New ICE Directive Formalizes Policy of Making Courthouse Arrests, KQED (Jan.31, 2018), www.kqed.org.

See S.425A, Protect Our Courts Act, 2019-20 Leg. (NY 2019).

Additional information on judicial rules and policies regulating the conduct of immigration agents in and around courthouses is available in the Immigrant Defense Project's “ICE Out of Courts Model Toolkit,” available at www.immi- grantdefenseproject.org. The full text of the judicial rules proposed by the ICE Out of Courts Coalition to the N.Y. Off. of Ct. Admin. is below:

1) Expenditure of Resources to Assist with Immigration Law Enforcement Activities:

Employees of the Unified Court System shall not:

i) Expend resources to assist with federal immigration enforcement activities in the course of their employment, in any courthouse of the New York State Unified Court System except to the extent they are described in Section (2).

ii) Inquire into the immigration status of any individual within any court­house of the Unified Court System unless such information about a person's immigration status is necessary for the determination of program, service or benefit eligibility or the provision of services.

iii) Provide any information to immigration enforcement officers regarding persons appearing before the court, except information regarding citizenship or immigration status, as required by 8 U.S.C. § 1373, and then only if known.

2) Civil arrests without judicial warrants: Civil arrests may only be executed within a courthouse of the Unified Court System when accompanied by a judicial warrant or judicial order authorizing them to take into custody the person who is the subject of such warrant. “Judicial warrant” is defined as a warrant issued by a magistrate sitting in the judicial branch of local, state, or federal government. “Judicial order” is defined as an order issued by a magistrate sitting in the judicial branch of local, state, or federal government.

N.Y.S. Assembly & Senate, Joint Budget Hearing on Public Protection (Jan. 30, 2018).

Eric Gonzalez & Judy Harris Kluger, How ICE Harms the Justice System: The Feds’ Aggressive Tactics in Our Courthouses Are Emboldening Violent Criminals, N.Y. Daily News (Aug. 2, 2018), www.nydailynews.com.

See Retired Judges Call on ICE To Halt Immigration Arrests, Brennan Center for Justice (Dec. 12, 2018), www.brennancenter.org.

Liz Robbins, Lawyers Walk Out to Protest ICE, and Court Objects, N.Y. Times (Apr. 11, 2018).

Beth Ferttig, New York Courts Act Against Lawyers Protesting Immigration Agents, WNYC (Apr. 10), 2018, www.wnyc.org.

Id.

Id.

See A.B.A., Model R. of Prof. Conduct: Preamble, Section 1(Aug. 15, 2018) (“A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”).

Id.

Id. at Preamble para 5.

Before President Trump appointed Jeff Sessions to run the Justice Department, this was a seldom used provision, but during Sessions's tenure he identified harboring prosecutions as a priority for United States Attorneys. See U.S. Dep't of Justice, Attorney General Jeff Sessions Announces the Department of Justice's Renewed Commitment to Criminal Immigration Enforcement (Apr. 11, 2017). This has prompted concerns among the bar that attorneys could face prosecution for helping clients to avoid ICE. While this threat remains unfulfilled, the U.S. Attorney’s office in Massachusetts is reportedly investigating a state jurist and other court staff for their alleged roles in helping an immigrant who was appearing in court to avoid ICE. See Andrea Estes & Maria Cramer, Ice Agent Was in Courthouse. Did Judge and Others Help Man Flee? Bos. Globe (Dec. 2, 2018).

Maria Cramer, Andrea Estes & Matt Stout, Mass. Judge Faces Federal Charges Over Defendant’s Evasion of ICE, Bos. Globe (Apr. 26, 2019).

John Leubsdorf, Gandhi’s Legal Ethics, 51 Rutgers L. Rev. 923. 928 (1999). Id. at 929.

Id.

See Colby Hamilton, New Rules Limit ICEs Arrest Ability in New York State Courts, N.Y. L.J. (Apr. 17, 2019).

Nicholas Pugliese, New Rules Seek to Limit ICE Arrests in N.J. Courthouses, WHYY (May 24, 2019), https://whyy.org.

Id.

Danny McDonald, Federal Judge Halts Immigration Arrests in Massachusetts Courts While Lawsuit Plays Out, Bos. Globe (June 20, 2019).

Marian Ryan v. U.S. Immigration and Customs Enforcement, No. 19-11003-IT, Memorandum & Order Granting Plaintiffs’ Motion for Preliminary Injunction (D. Mass filed June 20, 2019).

Nicholas Pugliese, New Rules Seek to Limit ICE arrests in N.J. Courthouses, WHYY (May 24, 2019), https://whyy.org.

Monsy Alvarado, A Pregnant Mother of Two Is One Step Closer to Deportation, USA Today (June 25, 2019), www.usatoday.com.

Christina Goldbaum, When Paying a Traffic Ticket Can End in Deportation, N.Y. Times (June 30, 2019).