According to the Department of Homeland Security (DHS), courthouses could be areas for potential immigration enforcement, further jeopardizing the ability of undocumented immigrants who are victims of or witnesses to crimes to use the legal system.
The Washington Post reports that yesterday (April 4), at a briefing for reporters, DHS spokesperson David Lapan confirmed the authority of Immigration and Customs Enforcement (ICE) agents to conduct enforcement activities at and near courthouses for a range of reasons. “I can’t give a blanket statement that says every witness and victim is somehow untouchable,” Lapan reportedly said.
The presence of ICE agents at courthouses can have a chilling effect on undocumented immigrants who seek to use the judicial system. That's the message California Chief Justice Tani G. Cantil-Sakauye sent Attorney General Jeff Sessions and DHS Secretary John Kelly on March 16. Cantil-Sakauye wrote in part:
Our courts are the main point of contact for millions of the most vulnerable Californians in times of anxiety, stress and crises in their lives. Crime victims, victims of sexual abuse and domestic violence, witnesses to crimes who are aiding law enforcement, limited-English speakers, unrepresented litigants, and children and families all come to our courts seeking justice and due process of law. … But enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair. They not only compromise our core value of fairness but they undermine the judiciary’s ability to provide equal access to justice. I respectfully request that you refrain from this sort of enforcement in California's courthouses.
These concerns were echoed by advocates around the nation after reports that ICE detained a transgender victim of violence seeking a protective order at an El Paso, Texas, courthouse. Archi Pyati, chief of policy and programs at the Tahirih Justice Center, noted that ICE activity at courthouses will have far-reaching impact:
All victims and witnesses of crime, including those who work with victims of domestic abuse, human trafficking and sexual violence, need to be able to access our criminal and civil legal system in order to seek protection and justice. This includes undocumented immigrants. Arrests by Immigration and Customs Enforcement (ICE) of victims and witnesses at courthouses has a serious chilling effect that will prevent immigrant cooperation with law enforcement. This is discriminatory and inhumane.
In their March 29 response to Cantil-Sakauye, Sessions and Kelly defended ICE enforcement actions and placed the blame on states and cities that have declared themselves sanctuaries.
Some jurisdictions, including the State of California and many of its largest counties and cities, have enacted statues and ordinances designed to specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication with ICE, and denying requests by ICE officers and agents to enter prisons and jails to make arrests. … As a result, ICE officers and agents are required to locate and arrest these aliens in public places, rather than in secure jail facilities…
This response echoes President Donald Trump’s January 27 executive order on immigration and DHS’ subsequent implementation guidance, which effectively provided ICE with broad authority to conduct immigration enforcement. It also goes hand in hand with Sessions' announcement that states that do not cooperate or communicate with ICE will not receive DOJ grants.
DHS and DOJ officials may also be signaling their departure from the "sensitive locations" guidance, which was issued by the Obama Administration in November 2014. This policy limits ICE arrests at and near sensitive locations such as schools, places of worship and hospitals unless there are exigent circumstances or prior approval from various levels of ICE leadership. Though courthouses do not fall in the policy's itemized list of sensitive locations, DHS has publicly stated that it would take the Obama guidance into consideration when contemplating courthouse enforcement.