OPINION: Get ICE Agents Out of Courthouses
Trump’s new enforcement efforts “run afoul of the Constitution,” writes immigration law scholar
By Sarah Sherman-Stokes, Boston University School of Law
Immigration agents are now routinely entering courthouses to arrest victims, witnesses, and defendants alike. Today, Immigration and Customs Enforcement (ICE) agents are engaging in courtroom enforcement tactics that previously would have been considered politically, if not legally, disfavored.
The mobilization of limited federal resources toward the mass apprehension and detention of suspected noncitizens escalated dramatically in early 2017. In the first month of his administration, President Trump issued a lesser noticed executive order, effectively collapsing the previous hierarchy of immigration law enforcement set up by the Obama administration that at least purported to prioritize the apprehension of convicted criminals and terrorists. Dispensing with priorities, this administration is now preying upon all suspected noncitizens, not only in their homes and workplaces, but in courthouses: our temples of justice. Not only are these new enforcement efforts making our communities less safe, but they also run afoul of the Constitution.
ICE acting director Thomas Homan said earlier this year that “the shackles are off” and “no one’s off the table.” This threat is our new reality.
In Texas, a domestic violence survivor was arrested as she sought a restraining order from her abuser. In Michigan, a father seeking custody of his children was detained. In Brooklyn, showing up for a child support hearing is enough to risk arrest by ICE. In Massachusetts, more than two dozen courthouses have been targeted for ICE enforcement actions. Recently, a noncitizen facing a charge of unauthorized operation of a motor vehicle was taken into ICE custody when he appeared to answer this relatively minor charge. Indeed, internal emails between ICE officials explicitly and plainly state that “[c]urrent ICE policy supports enforcement actions at courthouses.”
It is well documented that ICE enforcement actions have a chilling effect on the reporting of crime. In Denver, a city attorney reported that four survivors of domestic violence dropped their cases after seeing video of an ICE agent at a county courthouse. Police chiefs in Los Angeles and Houston have reported that the number of Latinos reporting violent crime, and in particular, sexual assault, has dropped dramatically during 2017 — although the actual commission of these crimes has not declined.
Indeed, court officials, administrators, and judges from Oregon to New Jersey have called on ICE to cease enforcement actions at courthouses, citing threats to public safety. As Paula Carey, chief justice of the Massachusetts Trial Court, noted in a letter to the special agent in charge of ICE for Massachusetts, if ICE isn’t kept out of the courthouse, “the unfortunate result will be that public safety will decrease, communities will become less safe, and perpetrators of domestic violence will feel empowered to abuse their victim with impunity.”
Just as ICE’s courthouse infiltration threatens public safety, an increasing ICE courthouse presence also imperils our sacrosanct system of justice. The First Amendment protects the right “to petition the Government for a redress of grievances.” This is a right that, as the Supreme Court opined 50 years ago, is among “the most precious of liberties” guaranteed by our Constitution. Under the law and Constitution, all persons, including noncitizens, have the right to seek help from the government without fear of punishment or reprisal. But with ICE exhibiting an increasingly routine presence in our courthouses, litigants of all kinds will be deterred from seeking services, exercising their custody rights, and pursuing a timely and fair resolution to their civil and criminal disputes. This right to seek redress without fear will be nothing more than a hollow hope for the noncitizens among us.
ICE must be prohibited from entering courthouses. Cities, counties, and states must stand up to this federal law enforcement bullying, and judges must continue to speak out. Our collective safety — and most precious of liberties — hangs in the balance.
Sarah Sherman-Stokes, a School of Law clinical instructor and associate director of the Immigrants’ Rights and Human Trafficking Program, can be reached at sstokes@bu.edu.
Originally published at www.bu.edu.
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