Analysis of ICE Directive: "Civil Immigration Enforcement Actions Inside Courthouses"
Introduction
On January 10, 2018, the United States Immigration and Customs Enforcement (ICE) issued Directive Number 11072.1: Civil Immigration Enforcement Actions Inside Courthouses [PDF version]. The Directive is for official ICE use only. The Directive sets forth policies guiding ICE immigration enforcement actions inside federal, state, and local courthouses.
In this article, we will examine the ICE Directive and what it means going forward. Furthermore, we will also examine a related ICE FAQ for the public that addresses the issues in the directive. Please see the following PDF for the FAQ (current as of January 31, 2018) [PDF version].
Purpose of the Directive
ICE explained that the “Directive sets forth [ICE] policy regarding civil immigrant enforcement actions inside federal, state, and local courthouses.” The Directive defines “civil immigration enforcement action” in this context as an “[a]ction taken by an ICE officer or agent to apprehend, arrest, interview, or search an alien in connection with enforcement of administrative immigration violations.”
The Directive notes that “[i]ndividuals entering courthouses are typically screened by law enforcement personnel to search for weapons and other contraband.” For this reason, the Directive explains that “civil immigration enforcement actions taken inside courthouses can reduce safety risks to the public, targeted alien[s], and ICE officers and agents.” However, the directive states that, “when practicable,” civil enforcement actions in courthouses should be conducted discreetly as “to minimize their impact on court proceedings.”
In addition to safety considerations, the Directive states that “law enforcement officials routinely engage in enforcement activity in courthouses throughout the country because many individuals appearing in courthouses for one matter are wanted for unrelated criminal or civil violations.” Accordingly, the Directive takes the position that ICE civil immigration enforcement activities in courthouses “are wholly consistent with longstanding law enforcement practices, nationwide.”
In a final point, the Directive stated that “courthouse arrests are often necessitated by the unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails.” Here, the Directive strongly suggests that civil immigration enforcement activities in courthouses may be used more in jurisdictions that do not cooperate with ICE to transfer custody of aliens wanted for immigration violations from prisons or jails.
Policy Outlined in Directive
The Directive states that ICE civil enforcement actions in courthouses involve actions against specific, targeted aliens. These include actions against “aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed…” ICE officers may undertake such civil immigration enforcement actions in courthouses when they “have information that leads them to believe the targeted aliens are present at that specific location.”
The Directive states that non-targeted aliens encountered during a civil immigration enforcement action in a courthouse will not be subject to civil enforcement action at that time “absent special circumstances, such as where the individual poses a threat to public safety or interferes with ICE enforcement actions.” Aliens encountered while making arrests may include “family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding…” In accord with former Secretary of Homeland Security John Kelly's two immigration enforcement memoranda issued on February 20, 2017 [see article], ICE officers must make enforcement decisions on a case-by-case basis in accord with DHS policy.
The Directive instructs ICE officers and agents to “generally avoid enforcement actions in courthouses, or areas within courthouses that are dedicated to non-criminal (e.g., family court, small claims court) proceedings.” In order to undertake enforcement actions in courthouses or areas within courthouses that are dedicated to non-criminal proceedings, the enforcement action must be operationally necessary and must have the approval of the responsible Field Office Director, Special Agent in Charge, or his or her designee.
The Directive instructs ICE officers and agents to “exercise sound judgment when enforcing federal law and make substantial efforts to avoid unnecessarily alarming the public.” Accordingly, it directs ICE officers and agents to minimize the time spent in courthouses while conducting civil immigration enforcement actions. These policies apply generally to planned ICE civil immigration enforcement actions.
Finally, it is important to note that the above policy applies only to civil immigration enforcement actions in courthouses. It does not impose the same rules on criminal immigration enforcement actions in courthouses. Furthermore, the Directive is not to be construed as prohibiting civil immigration enforcement actions in courthouses.
ICE FAQ
ICE published a FAQ on sensitive location and courthouse arrests to accompany the Directive. Here, we will examine various interesting points in the FAQ which supplement the Directive.
First, the ICE has special policies for civil immigration enforcement actions at “sensitive locations.” Some examples of sensitive locations include schools, medical treatment and health care facilities, places of worship, religious or civil ceremonies or observances, and public demonstrations. The FAQ makes clear that courthouses are not considered “sensitive locations” under ICE policy on the issue.
The FAQ explains that ICE already had established practices for civil immigration enforcement actions inside courthouses. ICE decided to “more formally codify its practices” in light of the “increasing unwillingness of some jurisdictions to cooperate with ICE in the safe and orderly transfer of targeted aliens inside their prisons and jails…”
ICE clarified in the FAQ that it will not make civil immigration arrests in courthouses “indiscriminately.” As we discussed, civil immigration enforcement actions are undertaken in courthouses against specific, targeted aliens where ICE officers and agents have reason to believe that such alien(s) will be present at the courthouse at a specific time. In general, aliens other than the targeted alien will not be subject to civil immigration arrests except where such aliens interfere with ICE enforcement actions or otherwise pose a threat to public safety.
Finally, ICE re-stated that the increase in the number of civil immigration enforcement actions undertaken in courthouses is due to both the increased recalcitrance of localities in cooperating with ICE in facilitating the transfer of aliens into ICE custody and the fact that courthouses generally screen individuals for arms and other contraband.
Conclusion
Regardless of local policies, ICE has authority under federal law to arrest aliens when they have probable cause to believe the aliens are removable. This authority extends to civil immigration enforcement actions in courthouses. Any alien who is arrested by ICE and charged with immigration violations, whether it is a courthouse arrest or otherwise, should consult with an experienced immigration attorney for a case-specific assessment and in order to ensure that his or her rights and interests are protected in immigration proceedings.