Opinion: ‘And Justice For All’ Means Barring ICE from NYS Courthouses

As a public defender office that represents people in both criminal and immigration cases, The Bronx Defenders has had a front row seat to the ways in which Immigration and Customs Enforcement (ICE) uses our criminal legal system to feed their deportation agenda. When non-citizens are arrested by ICE, a Kafkaesque cycle of due process denials sets into motion. Plain-clothed ICE officers lurk in the shadows of court hallways to surveil them, and then use excessive force to arrest them, without judicial arrest warrants. ICE agents ignore our attempts to invoke our clients’ rights and refuse to let defenders communicate with our clients. We then watch, helplessly, as ICE whisks our clients away in unmarked vehicles. At their bond hearing in immigration court, where the presumption of innocent until proven guilty is inverted and mere allegations are routinely held against our clients as a sign of “danger”, bond may likely  be denied and our clients will face months, if not years, in immigration detention because of those very charges they were not allowed to fight in criminal court.

Non-citizen residents are seeing their Fifth and Sixth Amendment rights trampled upon, including due process and equal access to justice, and New York lawmakers who fail to fix this problem are complicit.

Take the example of Mr. X (Mr. X’s name has been changed to protect his anonymity). As his attorney, I once explained to  Mr. X that ICE may try to detain him at his next criminal court appearance, at which point the phone line went silent. I could feel Mr. X holding his breath. Mr. X had lived in the United States for almost half of his life. His children were born and raised here. He had never been arrested before the incident in question. Exhaling, he asked whether, if the criminal charges were to be dismissed, ICE would let him go. Untangling the knots of the phone cord, I clarified that, regardless of the outcome of his open criminal case, he would still be at risk of detention and deportation simply because he’s undocumented. Mr. X thanked me and hung up.

A minute later the phone rang. It was Mr. X again. This time he was speaking with urgency, with a slew of new questions. He wanted to know the likelihood that ICE would be in court the next day, how long he would be separated from his family if he were detained, when he might be deported. I didn’t have definitive answers for his questions. We agreed to meet in person at court the next morning.

Many immigrants like Mr. X are terrified to appear in New York State criminal court houses—and with reason. Under the Trump administration, there has been a 1700 percent increase in ICE courthouse arrests and attempted arrests across New York State. ICE arrests at courthouses promote not only fear and distrust in the criminal justice system but also eviscerate due process and fair access to justice for non-citizen residents.

The “Protect Our Courts Act,” sponsored by Assemblywoman Michaelle Solages and Senator Brad Hoylman, is one way New York state can counterbalance these devastating consequences, and we have one day left in NY’s legislative session to help protect our non-citizen community members.
Thomas R. Decker, field office director for Enforcement and Removal Operations (ERO) New York, boasts that ICE’s priority is “to target and arrest criminal aliens to remove them off the streets in the interest of public safety” as part of its  “secure communities” program. But it’s clear that the people being targeted under recent initiatives do not fall within the narrative of posing a threat to public safety. In fact, the people that have seen the highest rate of increase for ‘secure communities’ target of removals are people charged with low-level offenses, particularly traffic violations. In the name of public safety and national interest, an astonishing 258,085 people–a 13 percent increase since fiscal year 2017–were forcibly removed and returned, including at the border, in fiscal year 2018. By targeting immigrants with unresolved criminal cases who should benefit from the presumption of innocence, this administration is making a dangerous, overt demonstration that any immigrant can be classified as a public risk. There is another name for this kind of policy in practice: xenophobia.

In my own work as an immigration attorney, I’ve observed that many of our non-citizen clients end up with criminal convictions because they’d rather accept a guilty plea than assert their innocence—even if they have a strong trial case—in order to avoid risk of ICE detention. Clients who elect to hastily resolve their cases with a plea often accept unfavorable dispositions which, in turn, can have adverse immigration consequences, including disqualification from future immigration relief.

In a victorious step forward, on April 17, 2019 the New York State Office of Court Administration issued a directive prohibiting ICE from arresting non-citizens inside of New York courthouses unless made pursuant to judicial warrants or judicial orders. Despite this significant step, the “Protect Our Courts Act” legislation is still vital because the directive does not preclude ICE from conducting warrantless arrests of immigrants outside of, en route to, or departing New York courthouses. Since the directive was issued, there have been at least eight reports of courthouse and courthouse-adjacent arrests in New York, including in all five boroughs of NYC.

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In 2011 the Department of Homeland Security (DHS) issued a memorandum prohibiting, with exceptions, ICE enforcement at designated sensitive locations, namely schools, hospitals, places of worship, funerals, weddings, and public demonstrations. The logic behind this policy is sound: the threat of ICE presence discourages people from availing themselves of systems of education and health, and ultimately harm communities. Although courthouses are not on DHS’s sensitive locations list, they should be. The key rule that applies to participants in the judicial system—that you must show up—is pitted against our clients’ interest in avoiding family separation and the threat of permanent banishment from the United States.

This is ultimately bad public policy, as it encourages a two-tiered system of justice and erodes the judicial system. Non-citizens who are too afraid to assert their innocence in NY courthouses face bench warrants if they fail to appear that lead to court backlog. If DHS will not treat courthouses as sensitive locations, NY legislators must pass the “Protect Our Courts Act.” To view ICE arrests in courthouses as anything other than a violation of due process and human dignity is to be motivated by a political agenda and an anti-immigrant stance.

The day after I advised Mr. X on the phone, I arrived at Bronx Hall of Justice at 9:30 am for our appointment. Before entering the courthouse I instinctively scanned 161st Street, looking for unmarked ICE vehicles. With no sign of Mr. X outside of court, I made my way to the 5th floor corridor with walls made of glass rising over slick floors that squeak and click when walked on. After an hour, I called Mr. X. No answer. I left a voicemail. Less than a minute later I texted him, “Where are you?” and “Are you on your way to court?” And, with some hesitation: “I’m worried.” I waited for his shoes to echo down the hallway, but Mr. X never showed up to his court appearance that day. I haven’t heard from him since.

Brigitte Hamadey is an immigration attorney at Bronx Defenders.