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Edward M. Spiro and Christopher B. Harwood Edward M. Spiro and Christopher B. Harwood

More than 500 years ago, English courts developed a common law privilege protecting against civil arrests of parties and witnesses on courthouse premises and when traveling to or from court. This privilege—which was incorporated into American law in the early years of the republic and has remained a part of the common law since—serves two principal purposes: First, it encourages parties and witnesses to appear at court proceedings, and second, it enables courts to function properly by, for example, avoiding adjournments and other disruptions. Recently, however, the U.S. Immigration and Customs Enforcement agency (ICE), in its implementation of a directive to ICE agents promulgated in January 2018 (the Directive), repeatedly has taken action contrary to this privilege. Indeed, in New York state over the last two years, ICE has increased its courthouse civil arrests of undocumented and other aliens by more than 1700 percent.

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