Mixed Reaction to Rabner’s New Rules on Immigrant Courthouse Arrests by ICE

Colleen O'Dea | May 28, 2019 | Immigration
While praising aspects of New Jersey Supreme Court chief justice’s directive, immigrants’ rights organization says it does not go far enough

ICE arrest undocumented
Immigrant advocates have mixed feelings about new rules for New Jersey courts, saying they don’t go far enough to protect immigrants from being arrested inside the state’s courthouses.

State Supreme Court Chief Justice Stuart Rabner issued a directive to court administrators and judges late last week regarding immigrants. He directed court officials to stop collecting information about an individual’s immigration status unless it is necessary. He also provided rules for what he expects to be rare instances in which federal Immigration and Customs Enforcement agents arrest undocumented immigrants.

The immigrants’ rights organization Make the Road New Jersey applauded the rule that limited requests for information on immigration status but contends the order does not go far enough to protect immigrants who are attending court proceedings, possibly as a victim or witness or in a civil case. Advocates stress, and Rabner acknowledged, that courthouses must be safe places so immigrants feel comfortable to go there to resolve or assist in both criminal and civil proceedings.

“This directive is a step in the right direction but leaves the door open for ICE to continue to undermine the integrity of our justice system,” said Sara Cullinane, director of Make the Road New Jersey. “While it is critically important that the courts will limit collection of information on the immigration status of litigants, this policy still permits ICE to conduct warrantless arrests in courthouses, even in non-emergency situations.”

Stuart Rabner, chief justice of the NJ Supreme Court
In his directive dated May 23, Rabner noted that he wrote to then-Secretary of Homeland Security John Kelly in April 2017 asking that courthouses be designated as “sensitive locations” akin to schools, hospitals and houses of worship where ICE only makes arrests in emergency situations, but the department declined. Instead, DHS issued a directive in which it advised that “ICE officers and agents should generally avoid enforcement actions in courthouses, or areas within courthouses that are dedicated to non-criminal … proceedings.”

Rabner wants ‘a neutral and safe forum’

“To ensure the effectiveness of the justice system, courthouses must be viewed by the public, all parties, victims, and witnesses as a neutral and safe forum to resolve disputes,” Rabner wrote in his directive. “The judiciary continues to believe that civil immigration enforcement activities should not take place in courthouses … We anticipate that enforcement efforts by ICE will occur in courthouses only in rare situations. In a recent meeting, ICE’s Field Office Director for Newark, John Tsoukaris, confirmed that ICE will minimize arrests in courthouses.”

A spokesman for the ICE Enforcement and Removals Operations Newark field office issued a statement on the new regulation.

“ICE has always sought to minimize arrests inside courthouses,” according to the statement. “Arrest location determinations are based on case specific circumstances.”

Still, some arrests may occur. State lawmakers were so concerned about arrests occurring around the time Rabner sent his letter to Kelly that an Assembly committee held a hearing on the matter and learned of a number of those actions at New Jersey courthouses.

Nationally, advocates have said courthouse arrests have increased under the Trump administration. Last month, federal prosecutors in Massachusetts charged a state judge and former court officer with obstructing justice when they allegedly helped someone sneak out of the courthouse to avoid ICE agents waiting to arrest him. That prompted prosecutors in two counties there to sue the federal government over these arrests, saying they are making it more difficult to gain convictions of some defendants. New York state court officials recently issued rules that allow law enforcement agents to arrest someone in a courthouse only if they have a federal warrant or order issued by a judge.

The ’chilling impact’ of ICE

Cullinane said Rabner’s directive falls short because it would allow for ICE to show any warrant, including one issued by the agency, not necessarily a federal judge, in order to be allowed to take a person into custody.

Credit: NJTV News
Sara Cullinane of Make the Road New Jersey
“Any arrest ICE conducts in our courthouses threatens our justice system,” she said, adding that the organization’s survey of legal service providers last year found that ICE’s presence in and around the courts “has had a significant chilling impact on immigrants’ access to the justice system and inhibits the administration of justice” throughout the state.

“In New York, the courts require a judicial warrant for ICE to make an arrest inside the courthouse, barring exigent circumstances,” Cullinane added. “We would like the Chief to do the same and to require the courts to track any ICE arrests that happen in the courts.”

In his directive, Rabner issued rules for ICE agents to follow “on the rare occasion” that they seek to make an arrest in or near a courthouse:

  • ICE officials should identify themselves to courthouse security personnel and state their purpose;
  • Courthouse security should ask to see a copy of the warrant authorizing an arrest;
  • Security should notify the assignment judge or other chief administrator of the presence of ICE officials in the courthouse;
  • Except in emergencies, ICE agents should conduct an arrest only after the conclusion of the relevant court event, in a non-public area.
  • “As a reminder, federal law does not allow judges and court staff to shield undocumented persons from immigration enforcement activities,” Rabner wrote. “Judges and court staff may not forcibly resist, impede, or interfere with a law enforcement officer’s performance of official duties.“

    ‘Hiding arrests behind closed doors…’

    He also directed local officials to notify the administrative director “at once” if these procedures are not followed.

    Rabner wrote that the procedures are in line with the directive state Attorney General Gurbir Grewal issued last November that limits the role state and local law enforcement officers should play in assisting ICE agents. Under these rules, members of law enforcement are not to cooperate with most federal agents’ efforts to detain and deport undocumented residents but can cooperate when ICE officials have an arrest warrant issued by a federal judge.

    Cullinane did not agree completely with Rabner’s interpretation of the attorney general’s directive.

    “Directing ICE to make arrests in non-public areas may lead to violations of the state Attorney General’s 2018 Immigrant Trust Directive, which prohibits local, county and state law enforcement from aiding in civil immigration enforcement … or providing ICE with access to property or office space absent a valid judicial warrant or other exigent circumstances,” she said. “Hiding these arrests behind closed doors in “non-public places” doesn’t make them less of an injustice and won’t stem their chilling effect.”

    Advocates praised Rabner for the new rule limiting the collection of information, about which the judiciary plans to provide training for staff, on an immigrant’s status by court officials.

    “In some instances, the judiciary has requested and recorded information about an individual’s immigration status,” wrote Rabner. “Effective today, the judiciary will request and retain information about immigration status only when needed to fulfill a legitimate court purpose. Courts will no longer collect immigration-related data for demographic or other non-specific purposes.”

    As a result, the courts will be changing complaint forms and other forms, both paper and electronic, to reflect the change and capture only that information needed for court purposes. These include criminal matters, issues related to special immigrant juvenile status and child adoptions. In other cases where attorneys believe immigration status is relevant, the attorneys will have to raise the issue. Judges also will retain the authority to ask about an immigrant’s status.

    Cullinane called Rabner “a leading and important voice for protecting immigrant communities’ access to the justice system.” But she added that Make the Road New Jersey members “will continue to urge the courts to take further steps to prohibit all warrantless arrests in the New Jersey courts.”