The New York Times: “A Game of Cat and Mouse With High Stakes: Deportation”

by Joseph McKeown

The federal government’s current heightened focus on arresting and deporting undocumented immigrants has turned courthouses in New York State and across the country into places where criminal law practitioners “face off” against immigration law enforcers. Although Immigration and Customs Enforcement (ICE) officials are prohibited from making arrests inside courtrooms, they are permitted to do so in hallways and directly outside courthouses. The prevalence of ICE agents, often in plain clothes, making arrests has reportedly made many immigrants afraid to appear in court as defendants or witnesses.  

Eric Gonzalez, the acting Brooklyn district attorney, and Eric T. Schneiderman, state attorney general, said in a press conference earlier this month that ICE should treat courthouses as sensitive locations as they do with hospitals, churches, and schools, where they cannot make arrests. “I don’t want to be playing the cat and mouse game with federal authorities," he tells the New York Times in an interview. “I am asking ICE to reconsider their policy and treat the courthouse with respect.” 

Defense attorneys and judges have sought creative alternatives to assist undocumented immigrants in avoiding these arrests. Bronx Defenders, the Brooklyn Defender Services, and the Legal Aid Society have developed a system to send an internal email alert when ICE agents are present in courthouses so defendants can remain in a restroom or on another floor. Other times when ICE officers are thought to be present, some sympathetic judges have rescheduled a defendant’s appearance or, instead of releasing them of their own recognizance, have decided to incarcerate the defendant at Rikers Island, a move that in the end protects the immigrant from ICE and deportation since the jail does not turn over undocumented immigrants to ICE.

In one case, Judge Toko Serita was informed by court officers that ICE agents were present and looking for several individuals, including a twenty-nine-year-old woman from China who had overstayed her tourist visa. Serita notified defense counsel and the assistant district attorney before deciding to send the defendant to Rikers Island. Consequently, the woman was held in the courtroom jail while she waited to be transported to Rikers Island and, during that time, the woman was able to meet with her attorney. Serita said that she had not sent the woman to Rikers Island to evade the law, but rather to give the woman the opportunity to discuss the matter with her counsel

Other judges are not so sympathetic. In another case, a thirty-eight-year-old undocumented immigrant charged with driving while impaired was recently afraid to show up to his court appearance because ICE officers might be there. (They were, in fact, present at his court date.) Tiffany Gordon, his Legal Aid attorney, was able to reschedule his first court appearance; however, during the second court appearance when ICE officers were present once again, the judge issued a bench warrant compelling the individual to appear. He was waiting in a nearby McDonald’s parking lot. “She wasn’t going to assist us in navigating around it,” Gordon tells the New York Times.

According to the Immigrant Defense Project, a pro-immigrant advocacy group, fifty-three arrests have been made by ICE officers in or around courthouses throughout New York State. Thirty-five of those arrests have been made in or around New York City courthouses. The state’s Office of Court Administration reported that there have been fifty-two instances where ICE officers identified themselves to court officers and ultimately made thirty arrests, twenty-five occurring in New York City. The Immigrant Defense Project said that according to reports from lawyers, some of these recent arrests were the result of offenses including driving without a license, disorderly conduct, or “minor charges” in the juvenile court system.

Advocates of stricter immigration policies believe that ICE’s actions are warranted. Jessica M. Vaughan, director of policy studies for the Center for Immigration Studies, an anti-immigrant group, tells the New York Times in an email that it is New York’s sanctuary policies that “are interfering with ICE’s ability to carry out its legitimate and important mission. They are the ones forcing ICE to resort to courtroom arrests.” Sarah Rodriguez, an ICE spokeswoman, says officers are sent to courthouses because it is safer to detain individuals there than in their home or on the street. She says that “ICE plans to continue arresting individuals in courthouse environments as necessary, based on operational circumstances.” Although there is no hard data to prove that defendants and witnesses are impeding trials by avoiding courthouses, Gonzalez attests that his office’s ability to prosecute cases has nonetheless been affected. “Witnesses are not willing to come forward and cooperate,” he says.

Other states have been dealing with the same issue. Earlier this year, California’s top judicial official requested that the Trump administration stop ICE from “stalking” courthouses in California to make immigration arrests. “Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws,” Tani Cantil-Sakauye, the chief justice of California, wrote in a letter to Jeff Sessions, the attorney general, and John Kelly, then secretary of homeland security. “Enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair. They not only compromise our core value of fairness, but they undermine the judiciary’s ability to provide equal access to justice.” Lawyers and judges elsewhere, including Texas and Colorado, have also reported that immigration agents in courts have affected proceedings. One prosecutor in Colorado reportedly dropped several domestic violence charges after the victims refused to testify in court. 

Lee Wang, a lawyer with the Immigrant Defense Project, notes that ethically lawyers cannot tell their clients not to show up to court dates. Instead, they must be creative. Requesting that a judge, for instance, send a client to Rikers Island is extreme, but often the best choice. “What does it mean that they will be safer in Rikers than being released?” Wang asks the New York Times. “I think it means we’re in an ugly place.”