Federal Judge Locks ICE Out of New York State Courthouses

By David Jaroslav | FAIR Take | June 2020

On June 10, New York City federal district Judge Jed Rakoff ordered that Immigration and Customs Enforcement (ICE) could no longer conduct warrantless civil arrests of suspected illegal aliens at New York state courthouses.

ICE has a policy of not conducting operations at “sensitive locations” which include schools, hospitals and places of worship.  However, the agency regards courthouses and jails as ideal places to make an arrest since the environments are controlled and everyone present has typically already been screened for weapons.  This protects the safety not only of ICE personnel but also the arrestees and anyone else nearby.  Moreover, ICE says conducting operations at courthouses are especially necessary in sanctuary jurisdictions like New York City where local jails aren’t accessible to them. 

Last year, ICE was sued by New York Attorney General (AG) Leticia James (D) and Brooklyn District Attorney Eric Gonzalez (D).  They claimed that immigration arrests at state courthouses were “disruptive,” “intimidating,” and “unconscionable.” In addition, they argued that courthouses were protected by a “common-law privilege” against people being arrested in civil rather than criminal matters.

The U.S. Department of Justice (DOJ), representing ICE, countered that federal law enacted by Congress, the Immigration and Nationality Act, authorizes federal agents to make immigration arrests anywhere in the country and that under the Supremacy Clause of the U.S. Constitution that law preempts state law.

DOJ’s argument was insufficient for Judge Rakoff, a Bill Clinton appointee widely regarded as one of the most liberal judges on the federal bench.  Judge Rakoff held that the INA, despite its actual language authorizing arrests anywhere, nonetheless “incorporated” the common-law privilege against courthouse arrests because Congress did not specifically eliminate it.  He further held that ICE adopted its current courthouse arrest policy, as an exception to its “sensitive locations” policy, without formal notice-and-comment rulemaking required by the federal Administrative Procedure Act (APA) and in an “arbitrary and capricious” manner in violation of the APA.

DOJ has not yet indicated whether it plans to appeal Judge Rakoff’s ruling, but that seems likely since it has already appealed a similar ruling by a federal court in Massachusetts.  An appeal would go to the United States Court of Appeals for the Second Circuit, which has issued some recent opinions helpful to immigration enforcement.  DOJ has until August 10, sixty days from Judge Rakoff’s order, to decide whether to appeal.

To read Judge Rakoff’s order in New York v. ICE, click here.