James, Gonzalez file lawsuits against ICE

Brooklyn District Attorney, Eric Gonzalez in announcing the lawsuit.

New York Attorney General, Letitia James and Brooklyn District Attorney, Eric Gonzalez, and The Legal Aid Society and the law firm Cleary Gottlieb Steen & Hamilton LLP have filed two separate lawsuits in the United States District Court for the Southern District of New York (SDNY) against the US Immigration and Customs Enforcement (ICE) agency, challenging the legality of the agency’s practice of making civil immigration arrests for Caribbean and other immigrants without a judicial warrant or court order in and around New York State courthouses.

The first lawsuit, filed jointly by James and Gonzalez, makes the case that ICE arrests in and around courthouses impede the administration of justice and adversely impact public safety.

The suit seeks to halt a two-year pattern of civil immigration arrests by federal ICE agents in and around state courts, “which have caused a major disruption to state court operations,” James said.

“By targeting witnesses and victims for arrests, noncitizens and immigrants are deterred from assisting in state and local law enforcement efforts or protecting their own rights in court,” she said. “As a result, valid prosecutions have been abandoned, or never pursued, making communities less safe.”

The second lawsuit, filed by New York’s The Legal Aid Society and Clearly Gottlieb, seeks a permanent injunction, ordering the halt of ICE courthouse enforcement on behalf of an individual plaintiff — a noncitizen domestic violence survivor who needed to appear in court for an order of protection but feared the risk of an ICE arrest coming to a courthouse.

Other plaintiffs include the non-profit groups Make the Road New York, Urban Justice Center, Sanctuary for Families, The Door and the New York Immigration Coalition.

“The administration of justice and public safety are among the most important functions of the state, and I will be relentless in their defense,” James said. “When ICE targets witnesses and victims for arrests, it deters noncitizens and immigrants from assisting in state and local law enforcement efforts or protecting their own rights in court.

“This is a disastrous and dangerous break from previous policy, and that’s why we are fighting to force them to end this practice,” she added.

Gonzalez said that “if there’s one thing I’ve learned in my career as a prosecutor, it’s that law enforcement can’t keep people safe without the participation of the communities we serve.

“Over the past two years, numerous immigrant victims and witnesses have refused to come forward and assist in our prosecutions out of fear that they’ll be arrested in court by immigration agents, forcing my office to dismiss or reduce serious criminal cases,” he said. “The refusal by ICE to treat courthouses as sensitive locations regularly disrupts court operations, creates a chilling effect in immigrant communities and erodes public safety.

“The policy is not only misguided — it exceeds their lawful authority, which is why we are now asking the judiciary to put an end to it,” Gonzalez added. “I’d like to commend Attorney General James for her leadership on this issue, and thank The Legal Aid Society and the advocacy groups for fighting on the front lines against this growing and intractable problem.”

Janet Sabel, chief executive officer and Attorney-In-Chief of The Legal Aid Society, noted that New York State is home to more than 4 million noncitizens who are vulnerable to deportation.

“In order for our judicial system — a pillar of our democracy — to operate effectively, it is fundamental that they have equal access to courts,” she said. “ICE’s courthouse enforcement blatantly violates the constitutional rights of our clients, as well as all immigrant New Yorkers, and we look forward to addressing this injustice in court,” said.

Jonathan I. Blackman, of the Manhattan-based Cleary Gottlieb Steen & Hamilton LLP, said that ICE’s policy of arresting noncitizens at New York State courthouses has “impeded effective access to justice in our communities.

“Immigrants are reluctant to exercise their rights to obtain relief through our judicial system due to justified fears that ICE will arrest them on their way into or out of a courthouse,” he said. “This lawsuit challenges ICE’s unlawful use of its enforcement authority and restores equal access to our courts for all New Yorkers.”

In the lawsuit, James and Gonzalez argue that the ICE Courthouse Civil Arrest Directive implemented in 2018 violates the Administration Procedure Act and the US Constitution.

They say that ICE’s 2018 directive exceeds Congressional authorization in violation of the Administrative Procedure Act because “it violates centuries-old common law privileges against civil arrests in and around courthouses,” adding that ICE’s statutory arrest authority does not extend to the areas protected by “this well-established privilege.

“ICE Courthouse Civil Arrest Directive is arbitrary and capricious and thus violates provisions of the Administrative Procedure Act.,” they say in the lawsuit. “Specifically, the agency failed to consider the deep harm to state judicial proceedings or to justify the marginal benefits of the directive against such harm.”

Additionally, James and Gonzalez argue in the lawsuit that ICE’s 2018 directive infringes on states’ sovereignty, stating that 10th Amendment to the US Constitution grants states “historic, sovereign autonomy to control the operation of their judiciaries and court system.”

The Legal Aid Society and Cleary Gottlieb, with the assistance of the Immigrant Defense Project, bring their lawsuit under New York’s common law privilege of immunity from civil arrest while appearing in court, the Administrative Procedure Act, and the First, Fifth and Sixth provisions of the US Constitution.

The First Amendment gives noncitizens the right to petition the government for a redress of grievances.

“This right to petition includes the right to access state courts and to participate in state court proceedings as a witness, party or complainant,” James and Gonzalez said.

The Fifth Amendment gives noncitizens the right to due process and equal protection, which includes the right to access state courts and to participate in state court proceedings as a witness, party or complainant.

The Sixth Amendment gives noncitizens accused of a crime the right to a speedy and public trial, compulsory process, assistance of counsel, and to be confronted with witnesses against them.

Since President Trump’s inauguration, James and Gonzalez said ICE courthouse arrests have skyrocketed by over 1700 percent in New York, “leading to a widespread chilling effect on noncitizens’ willingness to initiate and participate in the judicial system.”

James and Gonzales said nearly 400 immigrants, including Caribbean nationals — both undocumented and those with legal status — have been arrested while appearing in and around state courts since January 2017, including those accused of a crime; parents appearing in child support matters; survivors of domestic violence, sexual assault, human trafficking, and other crimes; people who are mentally ill or homeless; and LGBTQ+ individuals; among others.

“Moreover, ICE courthouse arrests disrupt court functions, trample the due process rights of the accused, imperil public safety and deter immigrants from reporting crimes,” they said.

“By using the court system to trap immigrants for detention and deportation, ICE is effectively keeping immigrants from ever accessing state courts in the first place and actively interfering with and violating the rights of individuals, associations and organizations across the state,” they added.

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