Despite an ongoing lawsuit and official directives restricting it, new reports show that Immigration and Customs Enforcement agents have continued the practice of arresting migrants at state courthouses. The Immigrant Defense Project, a New York-based nonprofit that pushes for immigrant rights, found that 127 migrants were arrested in or around New York courthouses in 2019. A similar amount of courthouse deportation arrests were reported in 2018 and 2017—a staggering increase from the 11 similar arrests reported in 2016.
However, the Biden Administration limits the power of ICE to arrest. In another reversal of Trump Administration immigration policy, the Department of Homeland Security announced in April 2021 that federal agents would no longer be allowed to arrest people in or near courthouses for most immigration violations.
In a statement announcing the new policy, Homeland Security Secretary Alejandro Mayorkas said that ICE can make arrests at courthouses in cases involving matters of national security or if the person poses a threat to public safety. Agents can also apprehend someone who is the subject of an active pursuit or who authorities suspect may destroy evidence in a criminal case.
In April 2019, Massachusetts prosecutors filed a federal lawsuit aimed at preventing the practice, stating that they were unable to complete cases because witnesses and crime victims were afraid to come to court and that they were worried about the effect of courthouse arrests on the judicial system as a whole. In an interview with The New York Times, the Westchester district attorney said, “I have cases with witnesses who are scared to death about coming forward and participating in these trials now.” Americans have a constitutional right to access the courts and legal system, and critics say that ICE is interfering with this right.
Earlier in April, the New York State Office of Court Administration ruled that ICE agents cannot arrest immigrants inside New York courthouses without judicial warrants or explicit orders to do so. The directive only applies within courthouses, however, and not in the areas outside them. The Immigrant Defense Project’s 2019 study found that ICE agents have effectively bypassed the ban by arresting migrants as they entered or left the courts. Many reports also say that ICE agents violated the directive outright by refusing to identify themselves (as the directive requires), refusing to provide a warrant, and often escorting migrants outside the courts in order to arrest them. In 2019, 47% of ICE courthouse arrests in New York occurred after the April ban.
For years, during the Trump Administration, reports of arrests in courthouses across the USA were persistent and spurred local leaders, including the chief justice of California’s Supreme Court, to speak out and argue that arrests by Immigration and Customs Enforcement would prevent witnesses from appearing at court proceedings.
Under the Biden Administration, immigration arrests at courthouses will be more restricted than they were under President Trump. Immigration and Customs Enforcement agents will no longer be permitted to carry out arrests at courthouses.
According to DHS, arrests in or near courthouses will only be permitted if:
The US is observing a growing number of asylum-seekers turning themselves in at the US/Mexico border in anticipation of the lifting of Title 42. Immigration and Customs Enforcement made more arrests this past fiscal year after dropping to significant lows during the pandemic.
Immigration authorities made over 142,000 arrests between October 2021 and September 30. That’s nearly double the number made the year prior, according to government figures.
For much of Biden’s administration, ICE has largely focused on arresting and deporting people with criminal histories—a sharp contrast to the Trump Administration, which empowered the agency to detain anyone unauthorized to live in the US. This past fiscal year, however, people with criminal histories no longer made up a majority of ICE arrests. Instead, immigrants without any known criminal convictions made up a bulk of the arrests—tripling in size compared to fiscal year 2021. The agency said it was a result of its agents helping Customs and Border Protection officers process migrants during a record surge of apprehensions.
Nearly half of the 2.3 million encounters on the southern border resulted in expulsions under Title 42—the public health rule that essentially allows border agents to bypass normal immigration procedures and rapidly expel migrants without giving them a chance to seek asylum.
Similar to fiscal year 2021, the US reported over a million expulsions this past fiscal year—showing Title 42’s strong foothold on the southern border despite the Biden Administration’s efforts to wind down the restrictions.
In November 2022, the US Supreme Court heard oral arguments about a Biden Administration policy that limits undocumented immigrant arrests to those persons considered a threat to public safety or national security.
A federal judge in Texas ruled that the policy restricting arrests was unlawful, siding with Republican officials in Texas and Louisiana who argued the Biden Administration lacked the authority to declare the order. The court order leaves Immigration and Customs Enforcement (ICE) agents with unclear guidance about whom they can and cannot arrest and deport, which prompted the Biden Administration to appeal the Supreme Court’s decision.
Since January 2021, the Republican-controlled states have filed dozens of lawsuits targeting President Biden’s immigration and border actions.
US Immigration law is complex and highly regulated. Passage Immigration Law is devoted solely to the practice of US Immigration and Nationality Law and assists clients with a wide array of immigration questions and issues. With offices in Portland, Oregon, Los Angeles, California, and Seattle, Washington, Passage Immigration Law can help you throughout the immigration process. Call to schedule an appointment today at (503) 427-8243, or you can schedule a consultation here.
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