Late last week, Chief Justice Stuart Rabner of the New Jersey Supreme Court urged in a letter to Secretary of Homeland Security John Kelly that courthouses be added to the list of "sensitive locations." A sensitive location, according to ICE and CBP policies, is a place where immigration agents are generally supposed to avoid while carrying out enforcement operations. Recognized locations currently include:
•· Schools (including pre-schools, primary schools, secondary schools, post-secondary schools up to and including colleges and universities, and other institutions of learning such as vocational or trade schools)
•· Churches, synagogues, mosques or other institutions of worship
•· The site of a funeral, wedding, or other public religious ceremony, and
•· A site during the occurrence of a public demonstration, such as a march, rally or parade
Absent exigent circumstances, prior supervisory approval, or an exception to the general rule, ICE officers are ordinarily prohibited from carrying out certain actions at sensitive locations. These actions include:
•· Surveillance (for purposes of immigration enforcement)
However, there are still a range of activities that ICE officers are permitted to carry out, even in these locations. Current policy provides that agents may still obtain records and documents from officials or employees; providing notice to officials or employees; serving subpoenas; engaging in SEVP compliance and certification; or participating in official functions or community meetings.
Noticeably absent from the list of sensitive locations, though, are courthouses, where undocumented immigrants-whether as victims, witnesses, plaintiffs, or defendants-must go to in order to satisfy civic obligations; comply with judicial obligations; or seek justice. Unfortunately, there is a lot of anecdotal reports of ICE agents appearing at municipal and superior courts in New Jersey to apprehend individuals. Generally speaking, absent egregious circumstances, most of these apprehensions or arrests are technically legal. Under Immigration and Nationality Act 287(a)(2), agents are vested with the authority to detain and arrest an individual if they have reason to believe that the person is here in the US in violation of the immigration law and likely to flee before a warrant can be obtained. Note that this is without a warrant. In most courthouse pick-up cases, at least according to ICE, people who are being arrested directly at or after court are the focus of "targeted enforcement," in other words, they have already been singled out for some reason. In that context, immigration agents will ordinarily have a warrant for that person's arrest. In some cases, that person may already have an outstanding order of removal and be a fugitive; in other cases, the person might be charged with or already convicted of a crime that makes them an enforcement priority. This is not to say that raids are not happening or going on. But it is important to distinguish between targeted enforcement and random, indiscriminate rounding up.
The problem, though, as Chief Justice Rabner, so astutely points out is that apprehensions at courthouses interfere with the effectiveness of the justice system by inducing a chilling effect on the undocumented population's ability to be a part of and interact with it.
Justice Rabner's letter should be read to be appreciated. His perspective on the matter is realistic, rational, and measured. While it is true that the rule of law must be respected, there are more sensible ways to enforce it than by spreading alarm and panic throughout the immigrant community by showing up at courthouses.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.