As 2017 drew to a close, concern mounted over the marked increase in arrests in 2017 of immigrants – documented or not – going to court for a variety of reasons.  This includes people entering courthouses as defendants, survivors of domestic violence, victims of human trafficking, witnesses, unaccompanied minors, and people suffering from mental and physical health conditions.

According to New York’s Office of Court Administration (OCA), the precise number of arrests or attempted arrests by US Immigration and Customs Enforcement (ICE) in courthouses in New York State is difficult to capture (reports range from 50 to nearly 100) but all estimates point to an uptick, particularly in New York City. This trend is consistent with an overall nationwide increase in arrests of immigrants in 2017, including twice as many arrests of people with no criminal records as a year earlier. As the OCA said in a report filed in December:

“ICE agents have arrested people at schools, outside churches and shelters, around hospitals, on their way to their high school prom, at a food pantry, and at a voluntary marriage petition while trying to obtain legal status. ICE’s activity at courthouses has similarly increased in frequency and scope.”

As a result, immigrant victims are afraid to report crimes and witnesses are unwilling to appear in court or cooperate with law enforcement. A survey conducted by the Immigrant Defense Project (“IDP”) reported that that fear of ICE kept 29% of 274 respondents from appearing in court. This included keeping survivors of domestic violence from seeking help from courts, from pursuing an order of protection, and from seeking custody or visitation. In addition, a significant number of respondents said fear of ICE was a deterrent to serving as a complaining witness, or to filing a housing court complaint.

In response, state and city officials, legislators, and judges across the country have called upon the federal government to balance the needs of law enforcement with the necessity to protect immigrants when they seek access to justice through the courts.

New York City has issued a series of public statements of support for undocumented immigrants, proposed legislative action, and held public hearings. Attorney General Eric Schneiderman and Brooklyn District Attorney Eric Gonzalez issued a statement criticizing ICE activities, saying that ICE arrests in New York courthouses have had a “chilling effect felt by victims and witnesses.” New York State Chief Judge Janet DiFiore reportedly met with Homeland Security officials to voice her concerns and to request that courthouses be designated as sensitive locations.

On December 15, NYLAG joined fellow legal service providers, public defenders and elected officials in signing a letter to Chief Judge DiFiore asking that all (ICE) agents be banned from New York’s courthouses:

“The mere threat of ICE agents in the courthouses discourages our clients from coming to court, and prevents us from acting in our clients’ best interests; we cannot legally advise them to stay away, but if they come to court to preserve their rights under the Constitution they risk being arrested and deported…This deprives our clients of due process under the law, effective assistance of counsel, and a genuine right to defend themselves.”