New York State Courts Try to Lock Out ICE

By David Jaroslav and Matt O’Brien | April 26, 2019

Open-borders advocates in state governments have been introducing measures over the past few years to keep U.S. Immigration and Customs Enforcement (“ICE”) out of ostensibly “sensitive locations” including schools, hospitals, houses of worship, and, most disconcertingly, courthouses:

In 2018, the California legislature passed a bill that supporters characterized as ensuring that, “undocumented immigrants would not face civil arrest when going to court on another matter.”
Governor Andrew Cuomo of New York signed an executive order claiming to bar ICE from making arrests at state buildings.
Thereafter the New York State Assembly took up the “Protect Our Courts Act,” which attempted to impose criminal penalties on federal immigration officers arresting illegal aliens at New York courthouses.
Illinois considered the “Immigration Safe Zones Act” which would have attempted to prohibit ICE arrests in schools, medical facilities, public libraries, facilities operated by the Illinois Secretary of State and court houses.
Rhode Island proposed the “Rhode Island Values Act,” which sought to bar ICE and Customs and Border Patrol (CBP) from schools, hospitals, places of worship and courthouses without a judicial warrant.

None of the aforementioned efforts were successful. However, on April 17, the New York Unified Court System (“UCS”) jumped into the anti-ICE fray, issuing a directive to “All Uniformed Personnel” that is clearly intended to impede ICE’s ability to arrest suspected illegal aliens inside the Empire State’s courthouses. The directive purports to require that:

Law enforcement personnel intending to make an arrest inside a courthouse notify court officers and “and state their specific law enforcement purpose and the proposed enforcement action to be taken”;
Court officers notify the judge if law enforcement without a New York judicial warrant “is present in the courthouse with the intent of arresting or otherwise taking into custody a party or other participant in a case”;
ICE only make arrests inside state courthouses if they have a judicial arrest warrant or other order signed by a judge, which a UCS judge or attorney must review before the arrest may be made; and
No arrests be made by law enforcement in an actual courtroom except with approval from the judge “under extraordinary circumstances[.]”

If all of these efforts appear to be a preposterous attempt by state governments to undermine federal authority, that’s because they are. As a matter of constitutional law, the regulation of immigration is an entirely federal area of responsibility. Pursuant to the 10th Amendment, state governments lack any authority to dictate to the federal government how it must go about regulating immigration. The Supreme Court of the United States confirmed this principle in 2012 in Arizona v. United States.

And, even if a state government had any residual power to pass supplemental legislation on immigration matters, it wouldn’t be able to legislate how, where, or when ICE can arrest anyone. Under Article VI, Paragraph 2 of the United States Constitution, commonly known as the “Supremacy Clause,” the Immigration and Nationality Act (INA), the governing federal statute, would trump any state statutes. And the INA explicitly grants ICE the authority to arrest immigration violators anywhere in the United States, without a judicial warrant.

ICE arrest warrants are issued by Supervisory Deportation Officers, on the basis of authority delegated by the Secretary of Homeland Security, not by judges. It is important to note that administrative immigration arrest warrants differ fundamentally from judicial criminal arrest warrants: The relevant standard of probable cause is lower than that required in criminal cases. An administrative warrant may be issued on a showing that reasonable legislative standards for effectuating an arrest have been met. In the immigration context, that standard comes from the Immigration and Nationality Act and requires only a showing that there is probable cause to believe that the alien named in the warrant is subject to removal from the United States.

Indeed, federal law doesn’t give federal judges legal authority to issue immigration warrants. Therefore, by requiring a judicial warrant for ICE to arrest someone, the New York Unified Court System directive amounts to telling ICE not to make any arrests inside New York courthouses. But, apart from being a gross infringement upon federal authority, attempting to bar a federal agency from making arrests in a courthouse is illogical. Courthouses are where the judicial business of the United States, including arrests, is conducted. Every day, in every court in the United States, thousands of people are subject to civil arrest for violating all manner of laws and court orders.

Unsurprisingly, supporters of illegal aliens cheered the Unified Court’s directive. Andrew Wachtenheim of the Immigrant Defense Project said it would reduce the “chilling effect” that prevents illegal aliens from reporting crimes and cooperating with local police to solve them.” And Ivan Espinoza-Madrigal of Lawyers for Civil Rights Boston called it a “step in the right direction” that he hoped would “help inspire other jurisdictions” to act similarly. This is a common argument that is also used to defend sanctuary cities. However, extensive research conducted by FAIR has never found any empirical evidence demonstrating that ICE arrests at courthouses deter illegal aliens from appearing before state tribunals (nor has FAIR ever found any empirical evidence showing that illegal aliens in sanctuary cities are more likely to cooperate with local police).

But Natalie Asher, ICE’s Acting Executive Associate Director for Enforcement and Removal Operations said “this policy increases the likelihood that criminal aliens will avoid detection and accountability for their immigration violations at the expense of the safety and security of the general public,” and also pointed out that it “overlooks the basic point that federal law allows for the arrest of removable aliens based on administrative — rather than judicial — warrants[.]”

Underscoring Asher’s point, Dennis Quirk, the president of the New York State Court Officers Association, the union whose members would actually have to enforce the directive, said “ICE … can do whatever they want to do and we have no control over them … A courthouse is a public building, and we can’t stop them from coming in[.]” He called the directive merely “a wish list” to “appease all these progressives.”

UCS spokesman Lucien Chalfen conceded that the directive is nothing but a paper tiger. He stated “that the court system has no immediate mechanism for preventing ICE from arresting people inside courthouses without judicial warrants, other than reporting it after the fact to federal officials. … We certainly would not have our officers interfere in any way” where they could be subjecting themselves to arrest and prosecution for federal crimes.

It now remains to be seen whether the Trump administration will confront the New York UCS directive head-on, by seeking a federal injunction barring its implementation and contesting its constitutionality. Be sure to stay tuned, FAIR will continue to monitor this issue and provide important information to the public.