When A Day in Court is a Trap for Immigrants


Attorneys from our Bronx CDP and Immigration Law Unit spoke with the New Yorker about proliferating ICE courthouse arrests and the chilling effect they have on clients and other immigrants.




The New Yorker | "When a Day in Court is a Trap for Immigrants" 
By Steve Coll
November 8, 2017

On March 29th, in Pontiac, Michigan, Sergio Perez appeared in a county courtroom to seek sole custody of his son and two daughters, who were between eleven and seventeen years old. The children lived with Sergio’s estranged wife, Rose, and, he told me recently, he was concerned about them. His wife had taken out a yearlong protective order against her boyfriend in 2015, but, as far as Sergio knew, they now lived together. (Rose and the boyfriend could not be reached.) Perez said that he paid the rent on the house where his children and Rose lived, he told me, although he had fallen thousands of dollars behind on child support. (He said that he spent other money on the children directly, for example, for their clothes.) Perez ran a small contracting business near Pontiac, installing carpets. He said that he wanted “to see my daughters do well, with modern lives.” He was “never rich at all,” but he was “working fourteen, sixteen hours a day,” he told me. “I was working three customers a day.”

Rose and the three children are all United States citizens, but Perez was undocumented. He had grown up in Guadalajara, Mexico, and crossed into the United States, without authorization, when he was nineteen. During the next twenty-one years, he and his attorney, Bethany McAllister, told me, he had moved back and forth to Mexico, and he had been deported several times before. But otherwise he had never been arrested or convicted of a crime, and had received only one ticket, for driving on an expired license. Amid the anti-immigrant fever created by the Trump Administration, he feared that pressing the custody case might lead to someone informing on him to Immigration and Customs Enforcement, or ice, in order to have him arrested and deported to Mexico. Perez decided to go to family court anyway. He said that he wanted to show his children that “no matter how hard or difficult it might be, you have to do what you have to do, no matter what.”

In the courtroom on March 29th, he heard his name called out, and entered a side room. There were men in plain clothes; one identified himself as Anthony. “I’ve been looking for you,” he said, as Perez recalled. The man pulled out a badge. “We’re with ice.” The agents arrested Perez right there, transported him to a jail in Dearborn, and then later transferred him to a detention center in Louisiana. McAllister, Perez’s attorney, urged the ice field office in Michigan to reëxamine his case and to stay his deportation, in the interests of his children. Two attorneys from the Michigan chapter of the American Civil Liberties Union, Michael Steinberg and Juan Caballero, also wrote to ice, noting, “This practice of obstructing non-citizens’ access to courts endangers public safety and has a chilling effect on families seeking protections from the court.” Their efforts didn’t work. ice deported Perez to Mexico City.

When I caught up with Perez recently by telephone, he was back in Guadalajara, where he was working as a waiter and a translator. He remained worried about his children, he said. He had promised McAllister that he would not cross the U.S. border again without authorization, so he was trying to find some legal way forward. “I want to go back and change my daughters’ lives,” and also his son’s, he said.

One of the most disturbing aspects of “interior enforcement” of the immigration laws—meaning arrests and detentions carried out far from the American border, typically by ice agents—is that the actions can pollute the administration of justice and undermine the rights that the Constitution affords all criminal defendants, whether they are U.S. citizens or not. Because immigration-removal proceedings are generally carried out under civil laws, they are exempt from many procedures mandated in criminal cases. For example, the warrants that ice uses to arrest unauthorized immigrants like Perez aren’t reviewed by a judge; they’re just written up by ice office supervisors. Immigrant detainees don’t have a constitutional right to a lawyer. Fourth Amendment protections against unreasonable search and seizure don’t always apply when ice agents investigate a target for arrest, because the cases typically don’t involve a criminal prosecution. This troubling and confusing inheritance of immigration policing has now been made worse by the Trump Administration’s expansion of arrest operations in American courthouses.

The Immigrant Defense Project, an advocacy group based in New York City, said that it had received reports of eighty-four arrests and attempted arrests in courthouses in New York this year through September, more than six hundred per cent more reports than they had received last year, including fifty-one arrests in or around New York City courthouses. Most often, ice agents target criminal defendants who may be deportable, but they have also arrested people in New York family court, juvenile court, and specialized courts devoted to the prevention of human trafficking.

According to an Immigrant Defense investigation, in April, in Suffolk County Family Court, ice arrested a Pakistani-born father who had appeared on “a visitation matter.” The father was the primary custodian of two children who were United States citizens. He himself had come to the United States as a five-year-old child, “when his family fled political persecution in Pakistan.” In June, in Queens, ice officers followed a woman who had appeared in Human Trafficking Intervention Court. The agents arrested the woman as she walked to the subway. On September 27th, ice agents arrested a victim of alleged domestic violence as he left Queens County Criminal Court.

Wendy Wayne, who directs the Immigration Impact Unit at the Massachusetts public defender’s office, told me that the surge of courthouse immigration arrests across the country, including in Massachusetts, “has a tremendously negative impact,” because “defendants are being arrested before they resolve their criminal cases and witnesses and victims are not coming to court.” During the first six months of this year, Latinos in Los Angeles, San Diego, and San Francisco reported fewer cases of domestic violence than during the same period the year before. Advocates believe that the decline reflects less a drop in the crime rate than a rising fear among undocumented victims and witnesses that, if they seek justice, they will be deported.

Some courthouse administrators, judges, and even prosecutors, such as the acting Brooklyn District Attorney, Eric Gonzales, have tried to persuade ice to back off. Earlier this year, Tani G. Cantil-Sakauye, the California Chief Justice, wrote in a letter to Attorney General Jeff Sessions and the former Homeland Security Secretary John Kelly, now the White House chief of staff, that “courthouses serve as a vital forum for ensuring access to justice and protecting public safety.” She accused ice of “stalking courthouses.” Sessions and Kelly wrote in reply that, because sanctuary policies enacted by cities and jurisdictions in states such as California “prohibit or hinder” ice from enforcing immigration laws, they had no choice but to carry out operations in courts. They reaffirmed their policy.

During the Obama Administration, ice, through policies derived from executive orders, prevented agents from performing operations in “sensitive locations,” including houses of worship, schools, and hospitals, except in extraordinary circumstances. The Trump Administration has continued that policy, to date. Courthouses weren’t on the “sensitive locations” list, but arrests were very rare. That is what changed under Trump, Sessions, and Kelly.

Khaalid H. Walls, an ice spokesperson, acknowledged in a statement to me that the agency continues to make arrests at courthouses, but that these generally take place “only after investigating officers have exhausted other options.” He said that many of the targeted people “have prior criminal convictions, pending charges,” and/or pose “threats to public safety.” He added that “every effort is made to take the person into custody in a secure area, out of public view, but that is not always possible.” (Last August, the American Bar Association passed a resolution urging Congress to pass a law expanding the “sensitive location” policy to include courts. There are bills pending, but their chances are doubtful.)

Yet ice’s defense of its policy on public-safety grounds cannot account for the arrests in venues like family court. And the public defenders and other defense lawyers I spoke with said that they saw the courthouse arrests as largely arbitrary. They weren’t certain how ice identified targets for arrest from court dockets, especially nonpublic dockets, such as those in juvenile or family court. ice has access to many national-security and federal databases, and it may be running software to identify matches between names on court dockets and deportable individuals in its own databases. Or ice field officers may be doing that work by hand. (Walls declined to comment.) From the actual arrests, it is hard to discern a pattern. “I think, in my most cynical moments, that maybe that’s the point—that it is random, to cultivate this widespread fear that nobody is safe,” Casey Dalporto, a staff attorney at the Legal Aid Society in the Bronx, who specializes in immigration law, said.

With a colleague of Dalporto’s, William Woods, I walked around the Bronx criminal courthouse on a recent weekday morning, looking for indications that ice agents were present. The courthouse is a glass-fronted behemoth just down East 161st Street from Yankee Stadium. Woods said that one difficulty in protecting clients from the surge is that ice officers often pop up in a courtroom suddenly, dressed in plain clothes, and act before defense attorneys can reach the scene to advise their clients or advocate for alternatives to immediate arrest. Legal Aid and other public defenders are working on developing a rapid-response communications system that would allow lawyers to quickly sort out false ice sightings in courthouses, which are becoming more commonplace amid the spreading fear, and to zero in on accurate sightings, in order to more quickly mobilize lawyers.

Before he became a supervising attorney a few years ago, Woods, a lanky man who grew up in Mount Vernon, handled as many as a hundred and thirty criminal cases at a time in the Bronx system. In the course of more than six years, he recalled, ice turned up at the courthouse to detain one of his clients perhaps twice. Now his lawyers are regularly distracted by the appearance of ice officers. In August, Woods was called to a courtroom where a Legal Aid client was “looking at ice custody and probably deportation.” The lawyers asked the judge to set bail at a thousand dollars, which they advised their client not to post. The judge agreed—he was upset with ice, too. “Talk about up is down and down is up—you have defense attorneys asking to have their clients put into jail,” for their own protection, Woods told me.

“Even victims of crime are not going to turn up because of ice’spresence,” he said. “Court is already a scary place, especially if it’s your first time in the system. You add onto that, ‘I might not go back to my family tonight’ . . . It injects something into the criminal-justice system” that was not previously a factor.

In New York City, some of the defense lawyers I spoke with expressed frustration with the state’s Office of Court Administration, which is directed on a day-to-day basis by Chief Administrative Judge Lawrence K. Marks. They argued that Marks has not been forceful enough with ice, and that agents have violated courthouse rules, such as requirements that they identify themselves to administrators.

Lucian Chalfen, a spokesman for Marks, told me that the number of arrests or attempted arrests that ice has carried out in city courthouses this year, numbering in the dozens, was a tiny fraction of the more than a million and a half total appearances in criminal courts so far. The court administrator is meant to be a neutral party, responsive to law enforcement and also to judges and defense lawyers. In private, Marks has conveyed to ice and other federal officials “serious concerns about ice activity at certain locations, such as Family Court and Human Trafficking Court.”

It seems unsatisfying to draw fine distinctions about access to justice. The ideas behind rights and the rule of law presume universality. Yet if ice’s courthouse operations spared fathers seeking custody and visibly prioritized, say, convicted felons who could not otherwise be apprehended safely, the agency might not have called so much attention to itself. The reality seems to be that ice is operating in courthouses in an unrestrained way because it is internalizing a sense of impunity, its expansive policies encouraged by Sessions and Kelly, and viscerally backed by Donald Trump’s nativist rhetoric and policies.

I asked Sergio Perez how he processed, from Guadalajara, what had happened to him and his children. He emphasized his own responsibility. He and his estranged wife had applied for legal status a decade ago, but the paperwork never advanced. He said he was “one hundred per cent sure” that ice was going to arrest him when he went to court, but he went anyway, to try to get the kids out of the home they were in. “I don’t hate the system,” he told me. “I don’t think there are racist people in your country, to be honest. I was working all the time with customers. Everyone treated me with respect. The American people, the white people, whatever you want to call them, they looked at me as a hardworking person.” He added, “I believe in God, you know. I believe that to win something, you have to lose something.”

A previous version of this piece misstated that ice agents arrested Sergio Perez.

Alejandra Ibarra Chaoul, a postgraduate researcher at Columbia University’s Graduate School of Journalism, contributed reporting for this story.