Chief Judge Janet DiFiore Chief Judge Janet DiFiore.

As U.S. Immigration and Customs Enforcement agents continue to make arrests at New York state courthouses, the New York City Bar Association has called on Chief Judge Janet DiFiore to step in and issue rules that could keep the courts from being prime destinations for agents to round up immigrants.

In a report released on Wednesday, the city bar said DiFiore should issue rules requiring agents to have judicial, rather than administrative, warrants when making arrests at courthouses; and should require judges and judicial officers to notify ICE targets in their courtrooms if agents are present waiting to make an arrest.

The city bar said DiFiore should also issue administrative rules to limit court officers’ cooperation and assistance with ICE agents, to reduce the number of appearances that potential ICE targets need to appear in court and make information about ICE enforcement activities available for public review.

Since President Donald Trump took office in January 2017, his administration has pursued a zero tolerance policy on immigration, and ICE has been considerably busier with enforcement activities.

According to the Immigrant Defense Project, which tracks enforcement activity in New York state courthouses, there were more than 140 immigration arrests and attempted arrests at courthouses in 2017, compared with 11 in 2016.

So far this year, there have been 69 total arrests and attempted arrests by ICE agents at courthouses across the state, of which 10 arrests and 38 contacts were at courthouses in New York City, said Lucian Chalfen, a spokesman for the Office of Court Administration.

Some of the arrests have prompted public defenders to storm out of courthouses in protest, including the April arrest of a man who was exiting Bronx Criminal Court after a judge threw out his assault charge, one of three ICE arrests that week.  

If the situation intensifies, the city bar warned, defendants and witnesses may stop coming to court altogether, which could create a class of residents who are effectively shut out of the justice system, and which could adversely affect prosecutions and waste judicial resources.    

“Unsurprisingly, lawyers continue to report that their noncitizen clients are fearful of going to court and many are opting to stay away altogether,” the report stated. “Lawyers further report that, if their noncitizen clients are arrested in the courthouse by ICE, it is becoming more common for the arrestees to be transferred to a detention facility out-of-state where they are not able to access counsel. Detention can last for months.”

The city bar argued in its report that the state court system has a common-law privilege to prohibit civil arrests during judicial proceedings that has been in existence for centuries and was established in New York in an 1876 Court of Appeals case. 

With respect to the recommendations, Chalfen noted that while no court system, including New York’s, solely recognizes judicial warrants to allow entry into court facilities, court system officials will review the report and give the recommendations their “due consideration.”

“Our policies regarding court operations are always open to revision should we feel that in doing so we will make them more accessible to the public and efficiently run,” Chalfen said.  

An ICE spokeswoman declined to comment on the report.

Some of the recommendations in the city bar’s report, such as requiring judicial warrants to make arrests at courthouses and reducing the number of court appearances by potential ICE targets, echo suggestions contained in a report issued last year by the Fund for Modern Courts.

In January, after talks with New York state court officials, ICE issued a directive for agents making courthouse arrests to spare friends and family members and to avoid areas of courthouses dedicated to noncriminal proceedings, like Family Courts or Small Claims Courts.

Since then, ICE has mostly gone after defendants with cases in Criminal Court, the city bar report stated, but last year agents arrested immigrants in Family Court, in a Human Trafficking Court and in a domestic violence matter. But, the city bar noted, there have been reports of ICE agents rounding up litigants with no prior criminal record.

But since ICE’s formal policy was issued, the report noted, it “clearly contemplates” arrests in other courts—and, in some upstate courthouses, criminal and noncriminal parts occupy the same building.  

In April, Gov. Andrew Cuomo signed an executive order prohibiting ICE from making arrests in state buildings without a warrant, though the order does not apply to courthouses; court officials have noted previously that it would be illegal to block ICE agents from entering courthouses, as they are public buildings.  

For its part, the OCA has issued protocols requiring law enforcement agents to have warrants to make arrests in courtrooms and that judges must be notified if an arrest is imminent in their courts.

Additionally, law enforcement agents must identify themselves to court officers when entering courthouses, disclose what they’re doing there, and officers must inform a judge.

Dennis Quirk, head of the New York State Court Officers Association, said the protocols from the OCA made the situation easier for court officers—beforehand, ICE agents would show up to courthouses unannounced, not identify themselves to court officers, and pounce on their targets in public areas, sometimes causing scuffles that court officers would have to step in and break up.  

“We would be a lot happier if they just picked people up at home and we didn’t have to deal with them at all,” he said.