Thomas A. Balmer 1163 State Street Chief Justice Salem, OR 97 301-2563 Phone: 503.986.5717 Fax: 503.986.5730 \1 f" Oregon Relay Service: 711 Thomas.Balmer@ojd.state.or.us SEPREME QGURT April 6, 2017 Attorney General Jeff Sessions US. Department of Justice 950 Avenue, NW Washington, DC 20530-0001 The Honorable John F. Kelly Secretary of Homeland Security Washington, DC 20528 Dear Attorney General Sessions and Secretary Kelly: On behalf of the Oregon Judicial Department, I write to urge you to direct federal law enforcement agencies, including Immigration and Customs Enforcement (ICE), not to arrest individuals inside or in the immediate vicinity of Oregon?s county courthouses. If you are unwilling to adopt that policy, then at a minimum, I request that you formally expand the de?nition of ?sensitive locations? in the Homeland Security Policy to include these areas. Let me explain. Our courthouses are open to the public, as a matter of tradition and as required by the Oregon Constitution, which provides that ?justice shall be administered openly." ICE agents and other law enforcement of?cers have the same access to the public areas of our courthouses as all members of the public. I fully recognize the scope of the statutory authority of ICE and other federal law enforcement agencies. OJD's policy is scrupulous neutrality just as we will not hinder federal, state, or local law enforcement agencies, including ICE, in the exercise of their enforcement authority, neither can we assist federal (or other) law enforcement in apprehending those who may have violated the law. As you know, the courts strive to be -- and must be -- impartial and neutral forums for the resolution of criminal and other cases. To help the Oregon courts preserve their mandated impartial and neutral role, I respectfully request that you exercise your broad discretion in enforcing federal immigration and criminal laws, and not detain or arrest individuals in or in the immediate vicinity of the Oregon courthouses. Letter to Attorney General Sessions and Secretary Kelly April 6, 2017 Page 2 As I am sure you appreciate, the Oregon courts must be accessible to all members of the public. The safety of individuals and families, the protection of economic and other rights, and the integrity of the criminal justice system all depend on individuals being willing and able to attend court proceedings: a Witness who is subpoenaed to testify in a criminal case; a victim seeking a restraining order against an abusive former spouse; a driver paying a traffic fine; a landlord seeking an eviction or a tenant defending against one; or a small claims court plaintiff in a dispute with a neighbor. The State of Oregon needs to encourage, not discourage, court appearances by parties and witnesses, regardless of their immigration status. However, ICE's increasingly visible practice of arresting or detaining individuals in or near courthouses for possible violations of immigration laws is developing into a strong deterrent to access to the courts for many Oregon residents. A number of our trial courts report that even attendance at scheduled hearings has been adversely affected because parties or witnesses fear the presence of ICE agents. The chilling effect of ICE's actions deters not only undocumented residents, but also those who are uncertain about the implications of their immigration or residency status or are close family, friends, or neighbors of undocumented residents. ICE's actions also deter appearances in court by those who are legal residents or citizens, but who do not want to face the prospect of what they see as hostile questioning based on perceived ethnicity, cases of misidentification, or other intrusive interactions with ICE agents. understand and appreciate the dif?culty of the law enforcement work that you do. I trust that you understand as well the central role that the Oregon courts play in our state's criminal justice system, our efforts to protect children and families, and our daily work to ensure the rule of law for all Oregon residents. ICE's detention or arrest of undocumented residents in and near Oregon's courthouses seriously impedes those efforts. It deters individuals, some undocumented and some not, from coming to court when they should. For that reason, I urge you to adopt a policy of not arresting individuals for alleged immigration violations in or near Oregon's courthouses, or, at a minimum, to formally include courthouses in your definition of "sensitive locations" where ICE will thoroughly review the implications of and alternatives to making such arrests. Letter to Attorney General Sessions and Secretary Kelly April 6, 2017 Page 3 We appreciate the discussions that our judges and staff have had With ICE of?cials in Oregon about their policies and practices, but believe this current and prospective interference with the administration of justice in Oregon calls for policy changes that only you can direct. Thank you for your attention to this serious problem for the Oregon courts. Sincerely, am .W I Thomas A. Balmer Chief Justice cc: Governor Kate Brown Attorney General Ellen Rosenblum Senator Ron Wyden Senator Jeff Merkley Oregon Congressional Delegation Oregon Presiding Judges November 21, 2019 Dear Chief Justice Walters and Chief Justice Fairhurst: We understand that the Oregon Supreme Court has adopted, and the Washington Supreme Court is considering adopting, court rules that would attempt to preclude U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) from making administrative arrests in and around courthouses in your respective states. We urge you both to reconsider this dangerous and unlawful course of action. Cooperation among local, state, and federal law enforcement officers is in the public interest and promotes safe communities. The federal government needs cooperation from state and local law enforcement to identify, temporarily hold, and ultimately deport criminal aliens who present dangers to communities. Your States’ political branches have, we understand, adopted laws and policies that prevent cooperation with federal law enforcement in the area of immigration. Instead of permitting the safe transfer of custody of criminal aliens in a secure environment, these dangerous state laws and policies force federal law enforcement officers to locate and arrest criminal aliens at-large within communities at potentially great peril to the officers and the public. These state laws and policies force state and local officers to release criminal aliens into communities in your States, endangering the public and forcing it to bear the cost of any additional criminal acts they may proceed to commit. These policies have resulted in the release of criminal aliens with convictions for serious and violent offenses, such as domestic violence assaults, firearm offenses, drug trafficking offenses, and violation of protection orders. Although there are too many examples to cite in this letter, we are including as an attachment some instances of released criminal aliens who have gone on to commit even more heinous crimes—including murder—in your communities. Again, these are not isolated cases. There are many more instances of violence that have occurred as a result of the release of violent criminal aliens who returned to your communities and endangered the lives of the citizens of your states. Given the clear public danger posed by these state laws and policies, we urge you not to adopt or enforce court rules that would make the situation worse by purporting to require ICE or CBP to obtain a judicial arrest warrant prior to making an administrative arrest for deportation. Put simply, an administrative arrest warrant is all that Congress requires for authorities to make an arrest of an alien inside the United States for violations of federal immigration laws, Letter to Chief Justice Walters and Chief Justice Fairhurst Page 2 subject to the exceptions speci?cally delineated by Congress in the Immigration and Nationality Act for immigration officers to make warrantless arrests. Administrative arrest warrants while civil in nature are issued based on probable cause, carry the full authority of the United States, and should be honored by any state or local jurisdiction. And such a warrant-based arrest is followed by additional appropriate process in immigration court where custody status and applicable bond are addressed, similar to how a federal or state court would address custody of a criminal suspect. Put simply, the policies you are considering endanger the public and hamper law enforcement by interfering withthat lawful process. While judicial arrest warrants can be obtained in certain cases to effectuate a criminal prosecution of a federal criminal offense such as illegal reentry pursuant to 8 U.S.C. 1326 a readily provable federal criminal offense is not necessary in the civil immigration enforcement context. We will further note that ICE and BP officers are not subject to state rules that purport to restrict ICE and BP from making administrative arrests on property that is otherwise open to the public and other law enforcement officers. Under the Supremacy Clause of the United States Constitution, such rules cannot and will not govern the conduct of federal officers acting pursuant to duly enacted laws passed by Congress when those laws provide the authority to make administrative arrests of removable aliens inside the United States. Regardless of how one views our immigration laws, we should all agree that public safety should be of paramount concern. Court rules that would purport to further restrict the lawful operations of federal law enforcement officials only serve to exacerbate sanctuary laws and policies that continue to place our communities at unacceptable risk. We thus urge you to reconsider these misguided rules. WM, William P. Barr, Chad F. Wolf, Attorney General Acting Secretary US. Department of Justice US. Department of Homeland Security Letter to Chief Justice Walters and Chief Justice Fairhurst Page 3 • First Degree Murder of a 16-Year-Old Teen In October 2019, Rudy Garcia-Hernandez and Carlos Iraheta-Vega were charged with First-Degree Murder in the death of 16-year-old Juan Carlos Con Guzman. Iraheta-Vega claimed membership in the notorious MS-13 gang. It is alleged that these two men contacted the victim on SnapChat and picked him up for a “pre-arranged fight to settle a dispute.” Prosecutors allege the two men had “a plan to torture and kill” the victim, that they “beat the victim with a baseball bat and mercilessly chopped his neck repeatedly with a machete,” and dumped his body in the Green River. Iraheta-Vega is in the U.S. illegally from El Salvador, and was released from the King County jail when local officials did not honor an ICE detainer last year. Officials also did not allow ICE to question Garcia-Hernandez, so his nationality could not be immediately confirmed. https://www.kiro7.com/news/local/ice-criticizes-sanctuary-laws-in-murder-of-federal-wayteen/996519679 • A Seattle Light Rail Rider was Stabbed “Without Provocation” In September 2019, King County prosecutors charged Jesus Sanchez with second-degree assault and possession of methamphetamine in King County Superior Court after he stabbed a stranger on a light-rail train “without provocation.” In 2013, before sanctuary laws and policies took effect, local officials cooperated with ICE and released Sanchez to their custody after his proceedings were complete. Sanchez was not then deportable and was put in an Alternative to Deportation Program. However, by 2017 when sanctuary laws and policies had taken effect, Sanchez had three more convictions – two for domestic violence and one for violating a protection order. Although these are deportable offenses, a detainer was not honored by the county jail and the defendant was released into the community without alerting ICE. https://mynorthwest.com/1538683/dori-ice-repeat-offender-stabbing/ • Released Rapist Returned to Assault Victim In June 2019, Francisco Carranza-Ramirez, 35, a citizen of Mexico, was released from prison following his conviction for the rape of a 32-year-old disabled woman in King County, WA. Carranza-Ramirez had raped the wheelchair-bound victim in her home. He was sentenced to nine months (time served) and at his sentencing hearing (and imminent release) his defense counsel argued against any post-release supervisory probation because he was homeless and planned to board the next flight to Mexico. The judge granted him full release on condition that he register as a sex offender and provide later proof that he had left the country by June 25, 2019. Thus, leniency was predicated on his alienage. No one notified ICE that Carranza-Ramirez was released to return to Mexico. Carranza-Ramirez did not in fact return to Mexico. On June 15, 2019, just two days after he was sentenced and released, he violated a protection order by coming within 1,000 feet of the victim. He later went into the victim’s home, knocked her out of her wheelchair, and attempted to strangle her in front of her three-year-old son. Sheriff’s deputies found the victim on the ground with cuts and bruises and her wheelchair overturned. https://q13fox.com/2019/06/20/rapist-who-attacked-victim-after-jail-release-believed-to-havefled-to-mexico/ Letter to Chief Justice Walters and Chief Justice Fairhurst Page 4 • Criminal Alien Arrested for Murdering, Dismembering Victim after Local Police Fail to Notify ICE of his Release In October 2017, ICE identified Rosalio Ramos-Ramos, at a city jail in Washington State, as an illegally present Honduran citizen with prior criminal convictions and four prior removals from the United States. Ramos-Ramos fought with jail staff and was taken to Harborview Medical Center. ICE lodged a detainer, but after treatment Ramos-Ramos was released without notification to the police department or ICE as the hospital was considered a sensitive location. In January 2018, Ramos-Ramos was arrested again and booked for the second degree murder and the dismemberment of his cousin. https://komonews.com/news/local/police-man-charged-in-tukwila-human-remains-case-was-incountry-illegally • Teen Murdered in Bellevue Park One of four men charged with murdering a teen in Bellevue, Washington’s Goldsmith Park should have been deported the month before the April 2019 murder. Carlos Carillo-Lopez, a native from Guatemala, had multiple run-ins with law enforcement: theft third degree to malicious mischief, drug paraphernalia. Each time, ICE lodged a detainer with the jail and they were ignored. https://mynorthwest.com/1552670/bellevue-murder-ice-suspect-sanctuary/ • County Jail Ignores ICE Detainer, Illegal Alien Suspected of Killing Wife After Release In March 2018, ICE located and lodged a detainer on Martin Gallo-Gallardo, a citizen of Mexico who was unlawfully present in the United States, after locating him in an Oregon county jail. Jail officials did not honor the immigration detainer and released the convicted criminal two days later, without notifying ICE. Following his release, ICE made multiple, unsuccessful attempts to locate and arrest the man. In October 2018, Gallo-Gallardo was arrested again, this time on a felony murder charge for allegedly killing his wife. https://katu.com/news/local/multnomah-county-sheriffs-office-blames-ice-for-not-holdingmurder-suspect-martin-gallo-gallardo-accountable • County Jail Refuses to Honor ICE Detainer of Man Who Sexually Assaulted Dog In February 2019, Fidel Lopez, an illegally present Mexican citizen, was encountered by ICE officials at a local Oregon county jail. ICE lodged an immigration detainer on Lopez the same day for violating immigration laws. In April 2019, Lopez was convicted of multiple charges involving animal abuse. The county jail did not honor the immigration detainer and released him without notice to immigration officials. ICE apprehended Lopez at his residence and served him a notice to appear. He is currently being held at the Northwest Detention Center in Tacoma pending immigration proceedings. https://www.oregonlive.com/news/2019/05/ice-detains-convicted-dog-rapist-for-deportationhearing.html !-\F-n n+-N`7V^n FH7:n f^`H47n + & & + &$ &+ ! + + + #" + + ) + + $ #"+ *+ $( + + $& + & $% # + %& & #$ +'%+ "Sj8P38Wn n n ! !#'" *!n )# n %#! n & n TT8OO.a8 )WI.On Sf]n$W8_I6IREn f6E8_n )WI.On SfWbn 6PIRI_e.aSW_n !1bG.n n,.Oa8W_ n GI8;n f_aI58n n #fa S< m5O8n 6STaISRnS;n"8knL) %n n IjIOn WV8_a_ n A85aIj8n"Sj8P38Wn n n.PnkWIaIREnaSnIRBYnmSfnS;n.nR8kn*RIBWPn)WI.On Sin%fO8n *) % naG.an nG.j8n.6STa86nSfan S;n5m5O8n06naG8nW8._SR_nBWnPmn685I_ISRnaSn6Sn_S n (IR58n .Rf1mn naG8n*RIa86n(a.a8_n PPIEW.aISRn.R6n f_aSP_n RBW58P8Ran nG._n IR5W8._86nIa_n.[8_a_nIRn.R6n.WSfR6n_a.a8n5SfWbGSf_8_ nIR5Of6IREncS_8nIRn#W8ESR n )GS_8n.[8_a_n G.j8n6I_WgUa86n5SfWbnTWS5886IRE_n.R6nST8W.aISR_n.R6nG.j8nG.6n.n5GIOOIREn8=>85anSRnaG8nkIOOIRER8__n S;nIPPIEW.Ra_n.R6nSaG8Wn#W8ESRI.R_naSnT.WbI5IT.a8nIRnJf6I5I.OnTWS5886IRE_ nkG8aG8Wn._n68@R60a_n _a.R6IREneI.O nkId8__8_na8_aIDIRE nSWnjI5aIP_n_88MIREnaG8n5Sf] _nTWSa85aISRnSWnGSO6IREn kWSRE6S8W_n.55SfRa.3O8 n )G8n.6PIRI_aW.aISRnS;nKf_aI58n68T8R6_nSRn_f5GnT.WaI5IT.aISR n/R6n _n .[8_a_nG.j8nIPT.IW86nShn5SfWb_ n.3IOIamnaSn5.XWmnSfanSfWnW8_TSR_I3IOIamnaSnTWSjI68nJf_aI58nBWn.OO n Rn 858P38Wn n.nEWSfTnS;n.6jS5.a8_n._M86nP8naSn.66W8__naGS_8n5SR58Z_n3mn.6STaIREn.n *) %naG.ankSfO6nOIPIan5IjIOn28_a_nIRn5SfWbGSf_8_nf_86n3mnaG8n#W8ESRn5IW5fIan5SfWb_ n naSSMnaG8n TWSTS_.OnfR68Wn.6jI_8P8Ra n5SR=9[86nkIaGn5GI8;nJf_aI58_nIRnSaG8Wn_a.a8_n?5IREn_IPIO1nTWS3O8P_ n .R6 n._nP.RmnS;nmSfnMRSk nE.aG8W86nIRBWQ.aISRnCSPnSfWn5Si_nSRnaG8nR.ah8n06n8la8RanS; n 8RBW58P8Ran.5aISR_nIRnSfWn5SfWbGSf_8_ n n.O_SnW8jI8k86n5SWW8_TSR68R58nCSPnGfR6W86_nS;n #W8ESRI.R_nfWEIREnP8naSnTWSjI68nEW8.a8WnTWSa85aISRnaSnIQPIEW.Ra_nf_IREnSfWn5SfWb_ n !SW8n W858RaOm n nP8ankIaGnW8TW8_8Ra.aIj8_nCSPn n/R6n*RIa86n(a.a8_n 8T.WbP8RanS;n f_aI58naSn6I_5f__n aGS_8n5SR58Z_n06naSn._MnBWn0mnIRBWP.aISRnaG.anaG8mn5SfO6nTWSjI68n.3SfanaG8nW8._SR_nBWnc8n 5SfWaGSf_8n.WW8_a_ n n.O_SnP8ankIaGnSfWn$W8_I6IREn f6E8_naSnE8anaG8IWnaGSfEGa_ n Rnc8nP80aIP8 naG8n_.P8nEWSfTnS;n.6jS5.a8_naG.an._M86nP8naSn.5an.O_SnTW8_8Ra86naG8n*) %n SPPIab88nkIaGn.nTWSTS_.OnBWn.nR8knWgO8nOIPIaIREn5IjIOn.[8_a_nIRn5SfWbGSf_8_ n ._anPSRc nc.an SPPIab88nP8a n8j.Of.a86naG8nTWSTS_.O n06njSa86nSj8WkG8OPIREOmnaSnW85SPP8R6nc8nWgO8 _n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tate Street Salem, OR 97301~2563 Phone: 503.986.5668 Fax: 503.986.5730 Oregon. Relay Service: 711 Martha L. Walters Chief Justice OREGON SUPREME COURT November 14, 2019 (SENT BY EMAIL) Billy J. Williams United States Attorney District of Oregon 1000 SW Third Avenue, Suite 600 Portland, OR 97204 Bill.Williams@usdoj.gov Dear Mr. Williams: As you know, I have been considering for many months a proposal to adopt a court rule that would limit civil arrests in and around state courthouses. Last month, the Oregon Judicial Department's Uniform Trial Court Rules (UTCR) Committee recommended adopting such a rule. Today, I signed Chief Justice Order 19-095, which adopts UTCR 3.190, effective immediately. A copy of that order, with the rule attached, is enclosed with this letter. UTCR 3.190 prohibits civil arrests inside circuit courts and the environs surrounding circuit courts, unless the arrest is made under the authority of a judicial warrant or order. I believe that this rule is necessary because immigration-related arrests in and around our courthouses have disrupted court proceedings and operations and have had a chilling effect on the willingness of immigrants and other Oregonians to participate in judicial proceedings, whether as defendants standing trial, witnesses testifying, or Victims seeking the court?s protection or holding wrongdoers accountable. The administration of justice depends on such participation, and the arrests have impaired our courts' ability to carry out our fundamental responsibility to provide justice for all. I believe, as I know you do, that we must continue our conversation about how best to advance our shared objectives of ensuring due process and promoting a fair and accessible justice system. Sincerely, Enclosure: Chief Justice Order 19-095 In the Matter of Outuof-Cycle Adoption of New Uniform Trial Court Rule 3.190 CHIEF JUSTICE ORDER No. 19-095 ADOPTION OF NEW UNIFORM TRIAL i ORDER APPROVING COURT RULE 3.190 I HEREBY ORDER, pursuant to ORS 1.002 and UTCR 1.020, that: 1. Good cause has been shown and the time limits established by UTCR (3), and (4) are waived for adoption of new UTCR 3.190. 2. New UTCR 3.190, as shown in Attachment A to this order, is adopted effective November 14, 2019. 3. Pursuant to UTCR the UTCR Reporter shall take the steps necessary to post this rule for public comment as soon as practicable and place it on the agenda of the next UTCR Committee meeting. Dated this day of November, 2019. ATTACHMENT A TO CJO NO. 19-095 3.190 CIVIL ARRESTS (1) (2) (3) No person may subject an individual to civil arrest without a judicial warrant orjudicial order when the individual is in a courthouse or within the environs of a courthouse. "Courthouse? means any building or space used by a circuit court of this state. ?Environs of a courthouse? means the vicinity around a courthouse, including all public driveways, sidewalks, and parking areas intended to serve a courthouse. Martha L. Walters 1163 State Street Chief Justice Salem, OR 97301-2563 Phone: 503.986.5668 Fax: 503.986.5730 Oregon Relay Service: 711 OREGON SUPREME COURT October 15, 2019 BMoran@usa.doi.gov gov Brian T. Moran William D. Hyslop United States Attorney United States Attorney Western District of Washington Eastern District of Washington 700 Stewart Street, Suite 5220 PO Box 1494 Seattle, WA 98101 Spokane, WA 99210-1494 Bill.Williams@usdoj . gov Billy J. Williams United States Attorney District of Oregon 1000 SW Third Avenue, Suite 600 Portland, OR 97204 Dear Sirs: Thank you very much for arranging and hosting our meeting last week to discuss our concerns regarding ICE and CBP presence in and around our courthouses. We appreciated your explanations of the constraints under which you must operate, and we appreciate the role that you play in the enforcement of federal law. I hope we were able to convey to you and to the ICE and CBP representatives who were present, how important it is to the administration of justice that all people, regardless of their immigration status, be able to participate in state judicial proceedings. As leaders of our state courts, it is our responsibility to hold wrongdoersn-criminal offenders, domestic violence perpetrators, and those who Violate the civil laws-- accountable. We must protect children from abuse and make sure that appropriate custody orders are entered and enforced. To have an effective judicial system, the victims of wrongdoing must report offenses and come to court to testify. Those who are subjected to domestic Violence must be able to seek restraining orders and parents who have disputes about the best interests of their children must be able to seek the help of our courts. When ICE and CBP agents arrest defendants in and around our courthouses, as we know they have, we are unable to conclude our proceedings and to hold wrongdoers accountable. Those who witness or hear of those arrests are afraid to use the laws and participate in court proceedings of all kinds - not just criminal proceedings. And worst of all, people lose trust and con?dence in our courts as places of justice open to all. The growing lack of trust of courts and law enforcement of?cers by our immigrant communities should be of concern to all of us. At our meeting we advised you that we have been asked to adopt court rules that preclude ICE and CBP agents from making arrests in and around our courthouses without judicial arrest warrants. Be assured that consideration of these rules is not intended to escalate con?ict but to offer protection where necessary to individuals coming to and leaving courthouses. We appreciate your willingness to talk about the needs of law enforcement, but we have not yet heard, from your of?ces or from ICE or CBP, why arrests in and around our courthouses are necessary, Why judicial arrest warrants cannot be obtained, or why the need for those arrests outweighs our critical interest in the administration of justice at our courthouses. As Justice Yu mentioned, it would be helpful to have data on who is being arrested and the degree of ?dangerousness? that you believe they pose and that justi?es the location of the arrests. If there is information that you or ICE or CBP representatives want us to consider, please provide it as soon as possible as our rulemaking processes already are underway. And please know that whatever rules we do or do not adopt, we want to continue our conversations. We all have jobs to do, for and providing our communities with a fuller explanation of our roles and objectives will increase understanding and guard against further division. Sincerely, Ma Farm Ch ef Justice of Washingt Jason Specht From: Sent: To: Cc: Subject: Williams, Bill (USAOR) Friday, August 09, 2019 9:37 AM Jason Specht Martha L. Walters RE: ICE Materials from CCJ Meeting Jason, Many thanks for sending the information. Best, Bill Billy J. Williams U.S. Attorney District of Oregon -----Original Message----From: Jason Specht Sent: Thursday, August 8, 2019 1:49 PM To: Williams, Bill (USAOR) Cc: Martha L. Walters Subject: ICE Materials from CCJ Meeting Mr. Williams, Chief Justice Walters asked me to send you the materials recently circulated to the Conference of Chief Justices' work group on ICE enforcement. Notably, page 2 is a copy of the NY state directive establishing protocols on law enforcement actions within courthouses, including prohibiting ICE arrests within courthouses unless subject to a judicial warrant. Thank you, Jason Jason D. Specht Staff Attorney Oregon Supreme Court 1163 State Street Salem, OR 97301 (503) 986-5176 jason.d.specht@ojd.state.or.us 1 Jason Specht From: Sent: To: Cc: Subject: Attachments: Jason Specht Thursday, August 08, 2019 1:49 PM Bill.Williams@usdoj.gov Martha L. Walters ICE Materials from CCJ Meeting CCJ ICE Materials.pdf Mr. Williams, Chief Justice Walters asked me to send you the materials recently circulated to the Conference of Chief Justices' work group on ICE enforcement. Notably, page 2 is a copy of the NY state directive establishing protocols on law enforcement actions within courthouses, including prohibiting ICE arrests within courthouses unless subject to a judicial warrant. Thank you, Jason Jason D. Specht Staff Attorney Oregon Supreme Court 1163 State Street Salem, OR 97301 (503) 986-5176 jason.d.specht@ojd.state.or.us 1 RELATIONS BETWEEN ICE AND THE STATE COURTS WORK GROUP Monday, July 29, 2019 7:00 AM Annual Meeting - Asheville, North Carolina Roosevelt KL Room ChiefJustice Michael Heavican, Chair Chief Justice Scott Bales Chief Justice Mark S. Cady Chief Justice Janet DiFiore Chief Justice Nathan Hecht Hon. Lawrence K. Marks Chief Justice Stuart Rabner Mr. Jeff Shorba Hon. Eric T. Washington AGENDA 1. Call to Order and Welcome of Members and Guests, ChiefJustice Heavican 2. New York Update, Lawrence Marks, Chief Administrative Judge a. Directive on Courthouse Arrests, No. 1?2019 17/19) (see attachment) 3. Update, Thomas Darr, Court Administrator a. Parker v. Beckley, U.S. District Court, Middle District of b. Temple University Report (see attachment) c. Bar Association Petitions 4. Massachusetts Update, Chief Judge Paula Carey a. U5. v. Shelley Joseph, 19 CR 10141, U.S. District Court of Massachusetts (see attachment) b. Ryan, et al v. U.S. immigration and Customs Enforcement, Civ 19-11003?lT, U.S. District Court of Massachusetts (see attachment) 5. New Jersey Update, Chief Justice Stuart Rabner (see attachment) 6. Presentation and Request from ChiefJustice Martha Walters, Oregon 7. Other Business State of New York Unified Court System Office of the Chief Administrative Judge To: DIRECTIVE All Uniformed Personnel Number: 1-2019 (Rev. from Memo issued 04/03/2619) Subject: Protocol Governing Activities in Courthouses by Law Enforcement Agencies Effective Date: April 17, 2919 It continues to be the policy of the Unified Court System (UCS) to permit law enforcement agencies to act in the pursuit of their of?cial legal duties in New York State courthouses, provided that the conduct in no way disrupts or delays court operations or compromises public safety or court decorum. The following protocol shall apply to representatives of law enforcement agencies who, while acting in their of?cial capacity. enter a New York State courthouse to observe an individual or take an individual into custody but do not have a warrant issued by a judge of the Uni?ed Court System authorizing them to do so: - Upon entry to a courthouse, law enforcement of?cials covered by this protocol shall identify themselves to uniformed UCS uniformed personnel and state their specific law enforcement purpose and the proposed enforcement action to be taken. Uniformed UCS personnel shall immediately transmit this information to an appropriate supervisor. - The uniformed supervisor shall inform thejudge if a law enforcement agent covered by this protocol is present in the courthouse with the intent of arresting or otherwise taking into custody a party or other participant in a case before the judge. Email noti?cation to the Department of Public Safety should be made as soon as possible. - Arrests by agents of US. immigration and Customs Enforcement may be executed inside a New York State courthouse only pursuant to ajudicial warrant orjudicial order authorizing the arrest. A ?judicial warrant" or ?judicial order" is a warrant or orderissued by a federal judge or federal magistrate judge. A UCS judge or court attorneyshall review the warrant or order to con?rm compliance with this requirement prior to any such arrest. - Absent leave of the court under extraordinary circumstances extradition orders)"; no law enforcement action may be taken by a law enforcement agency in a courtroom. - UCS court security personnel-snail tile an Unusual Occurrence Report for each law enforcement action taken in a New York State courthouse by a law enforcement agency covered by this protocol. For purposes of this protocol, ?law enforcement action" shalt include observation of court proceedings by law enforcement agents acting in their of?cial capacity. 3* .4 . UCS court security personnel remain responsible for ensuring publicsafety and decorum in the courthouse at all times. This policy and protocol is subject to modi?cation based on changed circumstances. Michael Magliano, Chief of Departn'?y Revised 04/17/2019 JUSTICE ARRESTS GIAL University Basie}; 851150! of Imv my, a; 73? $3173?: .- k- - f?zatf?mmu 1.: .qW?J-J?uf?? . . 9W329 '44 4. ber so CENTE Fi? Tempk 41? cv'dte?wy 5nd 5% am E5: OF IMMIGRANTS AT COURTHOUSES - .3. THE CHILLING EFFECT OF ICE {3 gawr'fz. Sinks} - 4 wwga?g) 1-39} 9239? 1'5? i A .. r? - i?r??m 2 ?i xiv" ., 45w I: t: gaggimg}: I :52 tech; mf?w. 12% pigafxam wr? H3351 -- 541".? 3 an? i- Max [in ?ag? "#533? . - a M. ti .-..333% 2-3? . . 5.1% h. m; a: . The Social Justice Lawyering Clinic This report was produced by Patrick Gordon Kelley Grady and Shaqueil Stephenson law students in the Social Justice Lawyering Clinic at the Stephen and Sandra Sheller Center for Social Justice at Temple University Beasley School of Law, supervised by Professor Jennifer J. Lee. Students at the clinic work first hand on social justice issues that directly impact local communities, through legal representation, community education, and policy advocacy. - Acknowledgments The authors would like to thank Nadia Hewka at Community Legal Services (CLS) and the ICE Out of Courts Coalition for their guidance throughout this project. There are many others who helped to support this project. Sundrop Carter with the immigration and Citizenship Coalition and Sam Milkes at the Legal Aid Network helped to distribute our survey amongst their membership. Temple Law Professors Sara Jacobson, Sarah Katz, and Jules Epstein provided advice and connected us with the Association of Criminal Defense Lawyers and the Family Law Section of the Bar Association. Others include Caitlin Barry at Charles Widger School of Law at Villanova University, Golnaz Fakhimi from the American Civil Liberties Union of Lisette McCormick, Margaret Ogden, and Leonard Rivera from the lnterbranch Commission for Gender, Racial, and Ethnic Fairness; Katie Roussos, a summer intern with and Nick Kato and Grace Chehoud Vangelo from Temple Law. Len Rieser from the Sheller Center'provided us with invaluable editorial assistance. A special thanks to Lena Graber and the staff at the immigrant Resource Legal Center who generously shared their responses to their Freedom of Information Act request with the US Department of Homeland Security. issued January 2019 Cover designed by Amber Bethune, Temple Law School. Table of Contents Executive Summary . . 1 introduction . 2 Part I: Widespread ICE Presence in Courthouses . 5 A. ICE Arrests 6 8. Courthouse 7 C. Fear of Clients 9 Part II: ICE Enforcement in the Courts ls Legally Problematic . 11 A. Judicial Efficacy and Integrity .. . 11 B. Constitutional Rights to Access Courts 11 C. Title VI 12 D. Tenth Amendment . . . . 13 Part Recommendations .. . . . 14 A. Legal Basis for .. . 14 B. Advocating for Change in 15 Conclusion 18 19 Methodology . 19 Endnotes on" 00000000 no on 21 Executive Summary In Philadelphia, an undocumented immigrant worker was killed in a workplace accident due to the unsafe conditions thatiwent unaddressed by management. His wife and family struggled to fill the void left by his absence. There were witnesses to the accident and a strong case for wrongful death bene?ts. Despite this, his wife and the witnesses to the accident decided not to pursue any claims against the employer because they were all too fear?xl of ICE to appear in court. ~Reported by a Philadelphia Since the election of President Trump, the priorities and tactics surrounding immigration enforcement have changed.2 The categories of immigrants that are a priority for removal have expanded and immigration and Customs Enforcement has told its officers to take action against all undocumented immigrants encountered on duty, regardless of their criminal history.3 lCE?s tactics have also become more varied in that immigrants are being arrested at their homes, on the way to school, or at their workplace.4 In ICE arrests have increased by 34% in fiscal year 2017 as compared to 2016.5 The aggressive targeting of immigrants at the courthouse is one of latest enforcement tactics.5 These arrests are happening nationwide, creating an outcry from judges, prosecutors, and advocacy organizations.7 Because of these enforcement activities at the courthouse, immigrant communities are fearful of going to court, with the result that they are effectively denied access to the courts. Courts too cannot properly adjudicate cases, which undermines the integrity of the judicial system. This report specifically studies the issue of enforcement in courts. We surveyed and interviewed lawyers, legal services organizations, victim services advocates, and community based service providers across We also reviewed written materials obtained and collected by advocacy organizations. A more detailed explanation of our methodology is in the Appendix. We found that the problems related to enforcement at courthouses are widespread across in particular, we found that in (1) ICE is effecting arrests in and around courthouses; (2) courthouse personnel are collaborating with by asking about immigration status, providing information, or assisting with arrests; and (3) immigrants fear going to court because of these enforcement activities. Obstructinglustice I 1 We found instances of arrests or court collaboration in 13 counties across (Figure Unsurprisingly, 11 of these counties correspond to the top 12 counties with the highest number of immigrants in Such arrests occurred on the way to court and inside the courthouse. Court personnel, particularly probation officials, collaborated with at the courthouse. Further, we confirmed that enforcement activities at the courthouse are creating fear in immigrant communities. Seventyeseven percent of respondents who worked on court related matters with immigrants either noted that clients "expressed fear of going to court or chose not to pursue a case because they may be arrested or detained by Figure 1. Counties with incidents of Arrests or Court Coilaboration Allegheny Beaver Berks Bucks Chester Cumberland Delaware Lackawanna Lancaster Lehigh Montgomery Northampton Philadelphia We also analyzed the ways in which enforcement activities at the courthouse, which obstruct access to justice, are legally problematic. The and US Constitutions guarantee that individuals have the right to access the courts under principles of due process, equal protection, and open courts. Under the Tenth Amendment, cannot coerce the states to do its enforcement work. To the extent that court personnel are participating in such enforcement activities, Title VI of the Civil Rights Act of 1964 also prohibits discriminatibn against individuals based on their national origin. The Supreme Court of has both the authority and responsibility to address enforcement at the courthouse. At the end of this Report, we request that the Supreme Court create a special task force to develop model policies for adoption by the courts. We recommend that such policies incorporate the following principles: 0 A protocol that limits enforcement activities at the courthouse 0 Limiting court personnel from using court resources to cooperate with Prohibiting the collection of immigration status information by the courts - Requiring agents to register when entering the court 0 Requiring training ofjudges, administrators, and court personnel The adoption of appropriate policies, therefore, can not only mitigate the chilling effect of arrests at the courthouse but also preserve the independence of the courts from federal interference. 2 The Chilling Effect of iCE?s Arrests Introduction ICE is a law enforcement agency housed in the US Department of Homeland Security (DHS) that is tasked with removing immigrants present in violation of civil immigration laws. Arrests by ICE are ?administrative arrests? for violations of the civil immigration laws.9 in this non-criminal context, issues its own warrants that need not be reviewed by a judicial officer.10 Currently, is engaging in a range of tactics to target immigrants, including arresting immigrants at the courthouse.? in North Carolina, a mother and her son, victims of domestic abuse, were arrested by after appearing at a hearing.12 in detained a man on his wedding day at the behest of the judge presiding over the wedding.13 The Immigration Defense Project reported that courthouse arrests and attempted arrests by ICE in New York increased by 1200% in 2017.14 Because the arrests are often highly publicized, undocumented immigrants are expressing a ?profound fear of going to court,? essentially blocking their access to the courthouse.15 In response to the public outcry over these arrests, issued a?directive in early 2018 clarifying how it would make arrests in courthouses.16 While the directive notes that agents should try to steer clear of civil proceedings and refrain from arresting accompanying ?family members or friends,? much discretion was left in the hands of the ICE agents.? The directive allows arrests to continue in civil courts, such as family courts, when ?operationally necessary.? lt also directs to make arrests in non?public areas of the courthouse ?in collaboration with court security staff.? Such secrecy and collaboration with courthouse personnel do little to appease fears within the immigrant community about their ability to safely access the courts. Rather than declare the courts a ?sensitive? location, like schools, hospitals, and places of worship, where enforcement should not occur, this directive simply reaffirms that will continue to target immigrants at the courthouse.18 To combat this phenomenon of arrests, states and localities are responding. Various judges, attorneys general, and district attorneys from around the country have spoken against the practice (Figure 2).19 As a result, some states and localities have begun to respond. California?s Attorney General has issued guidance and model policies for California courts to address immigration enforcement actions at or near state court facilities.20 Washington?s Attorney General has also suggested that courts adopt best practices to address the issue.21 The Office of Court Administration (OCA) of New York has also issued a protocol for how courthouse personnel should handle enforcement at the courthouses.22 Other courts have similarly delineated policies that seek to prohibit disruption to court business by unless necessary to secure immediate public safety.23 Obstructing Justice I 3 Supreme Court Chief Justice Attorney General California Maine Connecticut Maryland New Jersey New York Oregon Rhode Island Washington Figure 2. State and Local Authorities Responding to ICE Enforcement District Attorney Alameda County, CA Burbank, CA Brooklyn, NY Bronx, NY Denver, CO Hawthorne, CA Long Beach, CA Los Angeles, CA New York, NY San Diego, CA San Francisco, CA Santa Barbara, CA Santa Monica, CA Sonoma County, CA This report explores the issue of ICE enforcement at the courthouses in Part I reports the results of our investigation across after talking and surveying advocates across the state. Part II discusses why ICE enforcement in the courthouses in is legally problematic. Part concludes with recommendations for how can better protect access to justice at its courthouses. 4 I The Chilling Effect of Arrests Part I: Widespread ICE Presence in Courthouses Following national trends, ICE enforcement has grown in The Philadelphia ICE office, which covers Delaware, and West Virginia, surpassed all 23 other regional offices in the country in making more ?at-large? arrests of immigrants without criminal convictions in 2917.25 This figure is particularly striking as is home to the 16th largest undocumented population, with Delaware and West Virginia ranked far behind Enforcement at courthouses in is a significant tactic in arsenal. Afew well publicized instances of ICE arrests at courthouses in were reported in the news, such as the stories about high school sweethearts getting married or a father addressing a messy divorce.? Other stories quickly circulated through word of mouth in immigrant communities.23 Our study was an attempt to more systematically gather these stories from across the state. We did so by surveying lawyers, legal services organizations, victim services advocates, and community?based service providers across Further, we were able to examine recent information about ICE operations at courthouses based on information from the Immigrant Legal Resource Center (ILRC) pursuant to their Freedom of information Act (FOIA) request to OHS. Finally, we collected information from media stories and spoke directly with individuals who work at courthouses across the state. Our study, however, did not easily lend itself to any quantification of data (see Methodology in the Appendix). Our findings reveal that ICE enforcement at the courts is widespread in We found three themes: (1) ICE arrests in and around courthouses; (2) courthouse personnel collaborating with and (3) immigrants who feared going to court. In particular, we found instances of ICE arrests or court collaboration in 13 counties across (Figure 1). Further, those responding to the survey overwhelmingly reported that clients either expressed a fear of going to court or chose not to go to court because of ICE enforcement activities. Obstructing Justice I 5 A. ICE Arrests Our research has uncovered multiple instances of ICE apprehending individuals at courthouses. There have been reports of ICE agents entering courtrooms, apprehending people in courthouse hallways and common areas, and waiting outside courthouses until people arrive or leave. Sometimes agents wait across the street from the building, usually with a photograph of their target. People are being arrested in the area surrounding courthouses. in Bucks County, a community-based organization reported that a Mexican national showed up to Ottsville Magisterial District Court to pay for his ticket and he was ?detained by ICE on his way into the courthouse." His ticket was for driving without a license after being pulled over for an obstructed window. The Bucks County group reported a similar incident of a Guatemalan national being ?apprehended by in the parking lot? after appearing at the New Britain Magisterial District Court. A person who works in the court system in Chester County recounts seeing ICE, in ?unmarked cars? and ?civilian clothing,? arresting individuals on their way into magisterial district courts. in Montgomery County, one attorrfey reported that waits outside of the courthouse with "police photo[s]? and arrests people ?before they go into the building.? Because the immigrants never make it to their court hearing, judges issue ?bench warrants? that are then held against the immigrant during their hearing before the immigration judge. Another community advocate from Montgomery County recounted an incident where she was outside the courthouse and arrested the immigrant she was assisting, even though "the picture they [had] was not the person arrested.? These reports were further confirmed by a news report of multiple incidents at the Montgomery County Courthouse with one observer stating ?[t]he agents are careful about how they?re dressed . . . [tlhey seem inconspicuous when they? re here.?29 Less frequent but even more alarming are times when enters courthouses to arrest people. in Berks County, an attorney reported that her client was arrested after appearing at 3 Protection from Abuse hearing. She stated agents sat through his hearing and arrested and detained him after.? A community advocate in Berks County recounted how an immigrant was arrested when making his child support payments at the courthouse. in Allegheny County, a community-based organization stated that arrests usually take place outside of the courtroom. An advocate from this organization also reported seeing agents or vehicles in or around the Pittsburgh family and criminal courthouses. In Chester County, a person who works with the court system recounted how was waiting to arrest an immigrant in the basement as the sheriff accompanied the immigrant down to the holding cells. in Lehigh County, a court interpreter recounted how an 6 I The Chilling Effect of iCE?s Arrests immigrant who appeared for her criminal hearing was ?shivering outside a courtroom? because ICE had found her, taken her passport, and given her deportation papers. In Northampton County, a person who works with the court system confirms that ICE takes immigrants into custody at the courthouse and that the district attorneys or deputy sheriffs delay individuals from leaving so ICE has time to appear. As further detailed below in the section relating to courthouse personnel, attorneys and community advocates in several counties have also had clients arrested in the courthouse when they appeared for their appointments with probation. In Philadelphia County, lawyers reported having witnessed people being arrested around and inside both the Family Court and the Criminal Justice Center (CIC). One lawyer reported that her clients are regularly ?arrested by ICE on their way to criminal Figure 3. Record of Encounter Excerpt 0-213) court.? . t5th stated :he mlost recent case On 2018? DO Wallace, DO Medinarents, '5 Slatwoski, and SA Mitnick of the Philadelphia At? a diVerSionarV program criminal iarge unit conducted an operation at 1301 Filbert conviction, and no previous criminal Street Philadelphia, PA [address of the ac]. The history) was detained by ICE when he target of the Operation was At went to court to report.? Another lawyer approximately 1330 the above mentioned ofiicers provided us with the ICE record of arrest observed the subject near 13th and Filbert Street . . and identified themselves as immigration. (Form Of 3 Chem on '15 way Of - was positively identified as the target ofthe CJC after having appeared in his DUI case operation through a prior arrest photo. At the time and having received Accelerated of the encounter target confirmed that he was Rehabilitative Disposition (ARD) instead 7 targe" 0f the Operatm The of a conviction (Figure 3).30 The arrest subject was informed he was under arrest by f' Immigration and Customs Enforcement for recor con :rme at he a no 0t er violating the laws of the Immigration and criminal hiStOW except being Naturalization Act and then placed into handcuffs. ?charged with and that the The subject was transported without incident, to charge was ?Still pending.? For his family the Philadelphia Off-ice for processing. history, it detailed that he has a spouse? and children.? WHYY reported on an immigrant, without any sort of criminal record, being nabbed by ICE on his way to family court.31 Another attorney from Philadelphia County reported that she received notification from ICE that her juvenile client, who had been adjudicated delinquent but was doing well in foster care, would be arrested at the child?s next hearing. B. Courthouse Personnel In a related issue is the extent to which court personnel collaborate with ICE to apprehend immigrants while in court or on their way to the courthouse. This issue Obstructing Justice I 7 ranges from probation officers routinely collaborating with ICE to judges asking about immigration status or asking other court personnel or attorneys to contact ICE. Probation officials appear to be regularly collaborating with ICE to arrest immigrants.32 In Philadelphia County, a victim witness advocate witnessed a parole officer ask a client if ?they were in the country legally? and warned the client that ?if {the client] tried any funny business? the officer would call ICE. Other attorneys in Philadelphia confirm that individuals are arrested by ICE when they come for their ?check in? with probation. In Allegheny and Chester Counties, community advocates and attorneys similarly state that people are regularly arrested at probation appointments. FOIA results obtained by ILRC establish that ICE and probation officials in the courts are reaching out to each other. Emails between probation officials in Beaver, Bucks, Chester, Delaware, and Lehigh Counties, and demonstrate how the collaboration Probation Officials Probation (3:11 pm): He has been processed may affirmatively reach out to ICE about and in the ARD Program with me He individuals. In Bucks County, for example, is {ammo} to ram? once per ?forth by . phone. i have not heard from him yet. i can probation would contact upon the attempt to get him to report in person if he sentencing of an individual. In one instance of needs to be taken into custody The address an individual with a DUI, probation stated that we have on file IS . - - on ?running his rap sheet? they noted Let me know howl can assist you further indications that he was a "deportable alien.? Probation contacted ICE offering the with the case officer and see how he wants phone number! home address, to handle it. Appreciate your willingness to place 0f employment, and uncle?s phone assist. i believe that is the address he has as number for apprehension.? too will well so if he isn't picked up I will let you initiate contact with probation officials in the know and we'll 599 iiwe 53? get somathing 2 courts. Apart from providing information worke?j Thank You? about such individuals, probation officers will Probation (3:24 pm): He was just sentenced help coordinate with ICE to come and arrest Univ 3 week ago, so chances are good that 5 such individuals. They might here without suspicion. ican coordinating with ICE to appear at the next ?68? him he has to Sign SUperVileH Papers, regularly scheduled probation appointment atC'JUStiEt me know? or requiring that such individuals come and report ?in person? (Figure 4)_35 Figure 4. E-mail Excerpt between Beaver County Probation and (3:17 pm): Sounds good. I'll touch base Court personnel are also involved in asking about immigration status, as well as contacting ICE and assisting ICE. There is the well?publicized story about the Magisterial Districtludge (MDJ) in Cumberland County who called ICE because she believed that the groom appearing in front of her was an undocumented immigrant.36 ICE arrived at the 8 i The Chilling Effect of Arrests courtroom, fingerprinted the immigrant, and determined he was lawfully in the country. In Philadelphia County, an attorney reported that a Court of Common Pleas Judge ?ordered the DA to notify about a defendant.? in Montgomery County, a criminal defense attorney reported that a sheriff at the courthouse helped to detain a man appearing for a DUI proceeding. in Lancaster County, an attorney reported that a MDJ repeatedly asked a defendant about his immigration status during a traffic hearing.37 When the defendant admitted that he was undocumented, the MDJ asked the police officer whether he had notified and ordered that the defendant be taken to Lancaster County Prison on a $750 bond.38 In Chester County, several people who work in the court system confirmed that judges in criminal cases are asking in open court those with ?Spanish surnames? or ?Latinos? about their immigration status. C. Fear of Clients The National immigrant Women?s Advocacy Project in collaboration with the American Civil Liberties Union (ACLU), conducted a national survey to analyze how the fear of arrest and deportation has impacted immigrants? decisions to report crimes and participate in court proceedings.39 Police officers surveyed reported that crimes are becoming more difficult to investigate. Among police officer respondents, 69% said domestic violence was harder to investigate in 2017 compared to 2016 (with similar percentages for investigations of human trafficking and sexual assault Judges too reported an increase in disruption of court cases due to immigrant victims being afraid to come to court.?1 Legal services and victim advocates reported that their offices had filed 40% fewer cases for immigrants in 2017 than in 2016.4?- ln our own survey with lawyers, legal Figure 5. Sheller Center Survey: services agencies, and community based Have Clients Either 5x13? Fear or organizations across we also Chosen Not to Pursue a Case? . found .that fear was the most Widely reported effect of enforcement at courthouses (Figure 5). Seventy-seven percent of respondents who worked on court related matters with immigrants either noted that clients "expressed fear of going to court or chose not to pursue a case because they may be arrested or detained by In Allegheny County, a community-based organization reported that immigrants are "deathly afraid to go to court.? An attorney with a Bucks County client recounted how she ?was afraid to attend a state civil court hearing related to a personal injury case on behalf of her minor (US Citizen) son . . . [sjhe wanted me to go with her in case tried Obstructing Justice I 9 to arrest her.? A community?based organization in Philadelphia reported that ?ioine client?s family member did not appear for the client?s mother?s murder trial out of fear.? Advocates who work with victims across the state reported that victims feared the consequences of seeking protection from abuse in the courts. A domestic violence services agency in Western for example, stated that some immigrant victims ?have expressed fear of filing a protection order (PFA) due to incorrect information their intimate partners have told them about being deported if they go to court." Attorneys recounted how clients have declined to move forward with cases concerning family law or workplace exploitation, or to report human trafficking. Witnesses fear coming to testify in court (Figure 6).44 The issue of fear is Figure 6. Victim Services Agency Story A brother and a cousin witnessed a racially- motivated attack on their relative. Neither of them wanted to come back to court as witnesses after the very first preliminary hearing got continued. Every time agency staff asked the victim why his brother and cousin were not coming to court anymore, his answer was the same: they fear that wiil be there and will pick them up because they are undocumented. particularly problematic for immigrants who are trying to comply with the requirements to resolve their criminal case. As one criminal defense attorney deftly summarized ?unfortunately they either go to court and risk to be picked up by ICE or they may end up with a bench warrant,? concluding ?there is no middle ground here.? Legal services organizations have mostly reported a decline in immigrants seeking their services.45 Community Legal Services in Philadelphia reports ?a 35% drop in undocumented immigrants coming in to get help with wage theft cases.?N5 Philadelphia Legal Assistance has similarly seen ?a significant drop in immigrant domestic violence survivors filing Protection from Abuse orders due to articulated fears regarding presence in courts.?47 in Franklin County, a legal services provider reported that they have generally ?hear[d] from the community that undocumented individuals don?t seek their services from us (or similar agencies/organizations) based on this fear [of going to court].? Finally, organizations have had to figure out how to help immigrants who need to access the courts. Many recounted how they try their best to counsel clients about their fears to encourage them to go to court or that they now will accompany clients to court. One community?based organization explained how they accompanied an immigrant who, despite the risk, was fighting for full custody of his two daughters. Staff, neighbors, and clergy flooded the courthouse. After winning custody at the hearing, they helped to whisk the father away to avoid the agents across the street from the courthouse. Not all immigrants, however, will have access to such extensive support. Many more unfortunately will make the decision on their own that they cannot risk going to court. 10 The Chilling Effect of iCE?s Arrests Part ii: Enforcement in the Courts ls Legally Problematic The presence of ICE in courthouses is problematic. lCE?s activities interfere with the legal rights of immigrants to access the courts and to be free from discrimination. This part explains why the courts should be concerned about the ways in which ICE enforcement disrupts a well-functioning court system. A. Judicial Efficacy and integrity The fair administration of justice requires that all individuals should have access to the courts. Because of iCE?s arrests of immigrants both on the way to and inside the courthouses, many immigrants, whether as plaintiffs, defendants, victims, witnesses, or simply supportive family members, now fear attending court. This chilling effect means that courts are in turn less able to effectively adjudicate cases, because the necessary parties are not present.48 This situation interferes with the fundamental responsibilities and obligations of the courts to vindicate the legal rights of parties. When individuals-m such as witnesses testifying about crimes, defendants complying with the criminal court or probation process, or victims pursuing protection from abusembecome less willing to testify, comply with, or pursue their case in court, the safety of the entire community is placed in jeopardy.49 Further, the judiciary must remain free from any outside influence to ensure fairness in the judicial process. Judicial integrity is the cornerstone ofthe court system. Collaboration by court personnel with interferes with the role of the judiciary and undermines confidence in judicial independence. This problem is made especially acute by the fact that immigrants are being arrested at the courts without any indication that they are a threat to public safety. As the Chief Justice of California?s Supreme Court has stated, these activities ?not only compromise our core value of fairness but they [also] undermine the judiciary?s ability to provide equal access to justice.?50 B. Constitutional Rights to Access Courts Access to the court system is a fundamental right under the First, Fifth, Sixth, and Fourteenth Amendments to the US Constitution. The First Amendment includes the right of immigrants to petition the government to address grievances.51 The Due Process Clauses of the Fifth and Fourteenth Amendments ensure the right and opportunity to be heard by the courts while the Sixth Amendment ensures in all criminal cases that ?the accused shall enjoy the right . . . to be confronted with the witnesses against him.?52 Finally, the Equal Protection Clause mandates that no class of individuals, such as immigrants, be blocked from their ability to exercise their rights in a courtroon'i.53 obstructing Justice 11 Further, the Pennsyivania Constitution?s Remedies Clause specifically states that "[ajll courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.?54 Interpreting this Clause, the Supreme Court has stated that ?it is the constitutional right of every person? who finds it necessary to access the courts for legal protection to do so without ?denial or delay.?55 The Remedies Clause has been invoked for multiple purposes, including to strike down laws that block a wronged person?s access to the courts.56 The Supreme Court has stated that ?it does prevent the Legislature from denying an injured party the right to seek relief from the courts for a legal injury.?57 By analogy, lCE?s arrests of immigrants at the courthouse and courthouse personnel?s collaboration with create "denial or delay? for litigants to access the courts for a remedy. These actions, therefore, are problematic as they could violate the Remedies Clause in the Constitution. I C. Title VI in courthouse personnel are assisting with limiting or blocking immigrants? access to the courts, although such immigrants are using the courts for matters completely unrelated to their immigration status. Courts, however, may not treat individuals differently simply because of the way someone looks or speaks. Title VI states, ?No person in the United States shall, on the ground of . . . national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial courts are required to follow Title Vl because they receive federal funds. The Administrative Office of Courts (AOPC) has already directed courthouse personnel not to use the fact that an individual needs language assistance as a basis for inquiring into the individual?s immigration statusF?9 Targeting individuals based on actual or perceived citizenship or residency for differential treatment, such as inquiring into an individual?s immigration status based on the way they look, can be discriminatory under Title VI.50 When judges or court personnel are taking actions that result in refusing, excluding, or intimidating individuals from court services based on their perceived race or national origin, such actions may constitute direct evidence of discrimination in violation of Title VI.61 12 I The Chilling Effect of iCE?s Arrests D. Tenth Amendment State courts must be free to perform their traditional duties of administering justice without interference from the federal government.62 The federal government is not permitted to enlist local government, against their wishes, to carry out the federal government?s bidding.63 The Tenth Amendment reads, ?[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people?? This amendment is the root of many battles between the federal government and state governments, most often when the federal government oversteps its bounds and infringes on those powers that are ?reserved to the States respectively.? in the late 19903, the Supreme Court ?revived the importance of protecting state police power and insuring that it remains free of federal interference.?65 When federal immigration enforcement interferes with the operation of the state court system, there exists a serious federalism problem. There has long been a ??fundamental policy against federal interference with the functioning and administration of state courts, particularly in the context of state criminal prosecutions.?55 immigrants are present at courthouses because they are either compelled to be there pursuant to state or local prosecutions or are seekingjustice from the state judicial system. These systems, which often address issues of public safety and well-being, do not function agents threaten those who seek justice. As Professor George Bach noted, "[t]his affront to federalism is worsened by the reality that ICE presence at state and local courthouses undermines the ability of states to enforce their laws at those courthouses.?67 Further, ICE agents using state courthouses (and state courthouse personnel) to round up undocumented immigrants is ?tantamount to commandeering the state police power to do the bidding of federal law.?68 Using the state?s judicial resources to enforce federal immigration law or interfering with the function of courthouses, therefore, is legally problematic as it disrupts state control over public safety and the integrity of the courts. Obstructing Justice I 13 Part Recommendations The courts must act to protect the rights of immigrants to access courthouses free from interference.69 This part outlines the legal basis for the courts to intervene. it also recommends that the Supreme Court specifically create a special task force comprised of various stakeholders to develop model policies for adoption by the courts. A. Legal Basis for Action In ?every court shall have power to make such rules and orders of court as the interest of justice or the business of the court may require.?0 The courts have previously issued rules that deal with security, public safety, and judicial integrity in the courts. Rule 1954 requires the president judge in each judicial district to establish a court security committee, which makes recommendations on protocols, policies, and procedures to protect the public.71 Rule 110 allows the court to exclude news media ifthe media?s presence would interfere with the rights of the accused to a fair trial.72 Rule 223 allows the court to regulate or exclude ?the public or persons not interested in the proceedings whenever the court deems such regulation or exclusion to be in the interest of the public good, order or morals?? Further, Professor Chris Lasch has argued that the common law privilege against civil arrest provides legal support for the concept that the courts should protect people from being subject to civil arrest by ICE at the courthouse.TM The common law privilege from civil arrest stems from pre-Revolution England, as described by William Blackstone: Suitors, witnesses, and other persons, necessarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their necessary coming and returning. And no arrest can be made in the king?s presence, nor within the verge of his royal palace, nor in any place where the king?s justices are actually sitting.75 While Blackstone?s context is dated, his message is clear: there is a privilege from arrest while people are handling business in court and while they are simply in a court in the vicinity of a judge.76 The American courts construed the privilege to apply to ?any matter pending before a lawful tribunal,? giving the rule a wide breadth to extend to people both on the way to court and leaving court.? In Long v. Ansell, the United States Supreme Court recognized ?the common-law rule that witnesses, suitors, and their attorneys, while in 14 The Chilling Effect of lCE?s Arrests attendance in connection with the conduct of one suit, are immune from service in another.?78 has specifically recognized this common law privilege. In 1803, the Supreme Court in Miles v. M?Cullough brought the common law privilege from civil arrest from England to All people in the court are protected from arrest and service of process both while in court and for a reasonable amount of time to allow them to come and go from court.80 in Cusco v. Strunk Steel 03., however, the Supreme Court declined to exercise immunity from service from a civil lawsuit when it was on a defendant appearing for a criminal case.?31 The court rationalized that ?[t]he criminal defendant has no choice in the matter of attendance. . . [n]o further interest of the court is to be served by insuring immunity from service to a criminal defendant.?82 Other courts have similarly found that immunity is inapplicable when it is not necessary to ensure a person?s ?presence in court.?83 Yet ICE arrests are distinguishable because they do impact whether or not an immigrant will be present in court. Such arrests may not only physically prevent individuals from appearing at court hearings (resulting in the issuance of bench warrants) but also discourage immigrants from using the courts by creating widespread fear. court decisions have firmly established that the common law privilege is about "whether immunity will expedite the business of the courts and insure justice.?84 As our findings show, lCE?s civil arrests disrupt the functioning of the court system in courts have the general authority to invoke the privilege and require, for example, that any arrests be backed byjudicial warrants verifying that the arrest is truly necessary for public safety. A court policy enforcing the common law privilege, therefore, would help to solve this problem by protecting people as they seek justice. In fact, New York has a proposed state law to codify the common law privilege against civil arrest.85 3. Advocating for Change in Here in we respectfully request that the Supreme Court of create a special task force to develop model policies for adoption by the courts. The task force should be comprised of various stakeholders, such as court representatives, defense attorneys, immigration attorneys, prosecutors, interpreters, and community advocates. The task force could consult with the lnterbranch Commission for Gender, Racial, and Ethnic Fairness ("lnterbranch Commission?), the AOPC, and other relevant Supreme Court Committees, Boards, or Advisory Groups. Further, the Supreme Court should request a meeting with the Philadelphia Office to underline the severity of the implications that their statewide presence in courthouses presents.86 Obstructing Justice 15 The Interbranch Commission has already alerted the Supreme Court about critical immigration issues in courthouses. In response, the AOPC issued a Title VI advisory that provided guidance to courts about the potential problem with inquiring into an individual?s federal immigration status.87 The Supreme Court has not issued any further statements, guidance, or policies to address the issue of either ICE arrests at the courthouse or the collaboration of courthouse personnel with ICE enforcement activities. In Philadelphia, the ICE Out of Courts coalition has also been actively advocating with the First Judicial District in Philadelphia County for the development of proposed policies.88 Probation and Parole Department has taken some steps to change practices by limiting or prohibiting contact with and the request for information about immigration status.? The FJD courts, however, have not made comparable changes, although discussions are ongoing.90 Further, can look to several states that are actively discussing or have adopted rules or protocols to address both the issue of ICE enforcement and court collaboration with ICE. In California, the Attorney General has issued proposed guidelines for the courts. This guidance was issued pursuant to California?s law that mandated the AG to publish model court policies that ?limit[] assistance with immigration enforcement to the fullest extent possible consistent with federai and state law.?91 These proposed polices include: (1) protocols for handling appearance at the courts for enforcement activity including notification to the presiding judicial officer and guidelines for responding to different kinds of warrants; (2) prohibiting court personnel from cooperating with ICE in enforcement activities; (3) prohibiting the disclosure of or inquiry about immigration status to the extent permitted by law; and (4) training court personnel about these policies.92 Washington?s Attorney General has similarly made best practice recommendations for the court system."3 In New York, the Office of Courts Administration (OCA) has issued guidance, which includes requiring ICE to identify themselves upon entry to the courthouse (including providing information about whether they have a judicial warrant for arrest) and notification by court staff to the judge about intended enforcement activities.94 In Washington, the Supreme Court adopted a rule of evidence making a party's or witness?s immigration status inadmissible unless immigration status is an essential fact to prove an element of, or a defense to, a criminal offense, or to show bias or prejudice of a witness.95 Some local courts too have created rules to regulate ICE arrests. In New Mexico, Bernalillo County Metropolitan Court has a rule that law enforcement officers "shall not detain, 16 The Chilling Effect of iCE?s Arrests arrest, or question any person? in the courthouse unless it is required by on-site law enforcement, public safety, or a judicial warrant.96 In Washington, the King County Superior Court has adopted a rule to prohibit arrests in the courtrooms unless ?directly ordered by the presiding judicial officer? and discourages any such activity within the courthouse ?unless the public?s safety is at immediate risk."97 We believe that the courts can likewise address the problem of ICE enforcement by developing and adopting policies that set forth specific rules, guidance, or protocols for addressing immigrants at the courthouse. We would recommend that such rules, guidance, or protocols consider the following policy principles: 1. Developing a protocol that limits enforcement activities at the courthouse. Such a policy would require judicial, not administrative warrants for making arrests inside the courthouse unless the arrest is necessary to secure immediate public safety. It would also prohibit from any nonpublic areas of the courthouse. The rule should also formally recognize the common law privilege against civil arrest.98 Limiting court personnel from using court resources to cooperate with ICE. Such a policy would prohibit court personnel, including probation, from assisting in immigration enforcement actions and from providing with access to nonpublic databases. . Prohibiting court personnel from collecting the immigration status information of individuals. Such a policy would include precluding court personnel from inquiring into a person?s immigration status, and would make immigration status inadmissible as an evidentiary matter (with an exception for when immigration status is an essential fact for proving or defending against a criminal offense). Creating a system for requiring law enforcement officers to register when entering the court. Such a policy would include a public registry of all law enforcement officers entering the courthouse for purposes of transparency and oversight. Requiring training of judges, administrators, and court personnel about immigrants and access to the courts. Such trainings should cover the above policies and include topics such as information about nonpublic areas of the courthouse, the difference between administrative and judicial warrants, and Title VI compliance. Obstructing Justice 17 Conclusion A true system of justice must have the public?s confidence. When individuals fear that they will be arrested for a civil immigration violation if they set foot in a courthouse, serious consequences are likely to follow. ~Chief Justice Stuart Rabner of New Jersey99 We have gathered information on arrests, courthouse personnel assisting and the widespread fear that exists within the immigrant community. The collective picture is one of crisis. it people are unable to access the court system, they will be unable to vindicate their rights, as plaintiffs, victims, and criminal defendants. The consequences of this problem reach beyond just the immigrant community and implicate the safety of all communities. There are solutions to this problem. Both legally and as a matter of sound public policy, the Supreme Court must exercise the leadership required to protect the rights of individuals to access the courts, and the obligation of courts to fairly resolve cases. Fortunately, can look to other states and localities for excellent models of policies that help address enforcement at the courthouse. 18 The Chilling Effect of lCE's Arrests Appendix Methodology In order to coiiect information for this report, we used several methods. Starting in August 2018, we reached out to various groups, including private attorneys, government attorneys, legal and social services agencies, and community based organizations. We collected information through a questionnaire resulting in a total of 56 responses (Figure 6) and more than a dozen direct interviews. Further, we relied on other information that had already been collected by third parties, such as Community Legal Services of Philadelphia and the Interbranch Commission. Finally, we relied on the Freedom of Information Act responses obtained from ICE by the Immigrant Legal Resource Center. Figure 6. Questionnaire Name: Organization: Email Address: What services does your organization offer to immigrants? Do you assist or represent victims of crime or violence? Yes or No. Since 2017, have you seen agents or vehicles in or around courthouses? if yes, please specify which courthouses. Have you witnessed any courthouse personnel sheriffs, parole officers, judges, clerks) inquire into the immigration status of anyone at the courthouse or contact for any reason? Yes or No. If yes, please describe in detail. Please describe any incidents you know of where immigrants have been arrested or detained by ICE at a courthouse. Be sure to include as much detaii as you can where the arrest took place, the type of case, the individual's immigration status). Please describe any conversations you have had with immigrants where they expressed fear of going to court or chose not to pursue a case because they may be arrested or detained by ICE. Since 2017, the number of immigrants you have seen coming to you for services has: Increased, decreased, or stayed the same. Please provide us with the contact information of anyone you know who we should talk to about this topic. Any additional thoughts or comments? Obstructing Justice 19 We found that it was impossible to accurately quantify most of the information that we received. While some respondents personally witnessed incidents, others had learned of incidents from clients or other people, creating potential overlap. Further, there is simply no realistic methOd to reach every private attorney, legal and social services organization, or community based organization that would have information about enforcement in Any numerical quantification, therefore, would likely underrepresent the actual problem in the state. Our final results came from 20 different counties across Allegheny, Berks, Bucks, Centre, Chester, Cumberland, Dauphin, Delaware, Erie, Franklin, Lackawanna, Lehigh, Monroe, Montgomery, Northampton, Perry, Philadelphia, Schuylkill, Washington, and York counties. 20 The Chilling Effect of lCE?s Arrests Endnotes 1 Community Legal Services (CLS), Impact of Presence in Courts (2018) (on file with authors). 2 On January 25, 2017, President Trump signed an executive order stating that would now also target those who had solely been charged, rather than convicted, with any criminal offense. Exec. Order No. 13,768 (Jan. 25, 2017). 3 John Kelly, Secretary of DHS, Memo on Enforcement of the Immigration Laws to Serve the National Interest (Feb. 17, 2017); Matthew T. Aibence, Executive Associate Director, ICE, Memo on Implementing the President?s Border Security and interior Immigration Enforcement Policies (Feb. 21, 2017). 4 See, Tanvi Misra, Lessons from New York?s Immigration Raids, CITY LAB (Jul. 23, 2018), 5 Kristin Biaiik, ICE arrests Went Up in 2017, With Biggest Increases in Florida, Northern Texas, Oklahoma, Pew Research Center (Feb. 8, 2018), oklahoma/. 5 Arrests at the courthouse did occur under the Obama Administration but were supposed to be limited to immigrants who had been convicted of specific crimes or suspected of ?terrorism or espionage." See, v. DHS, ILRC (Jul. 24, 2018), department-homeland-security (last visited Jan. 19, 2019) (emaii from ERO Taskings to Field Office Directors and Deputy Field Office Directors re Reminder: Enforcement Actions at or Near Courthouses (Oct. 21, 2015)). 7 See infra note 19. 8 U.S. Immigrant Population by State and County, Migration Policy institute, county (last visited Dec. 11, 2018) (select and ?(Total)" under Country/Region of Origin from the drop down menu). 9 8 C.F.R. Fiscal Year 2017 ICE Enforcement Removal Operations Report, U.S. ICE (last visited Dec. 29, 2018). 1? 8 C.F.R. 11 The Obama Administration also engaged in courthouse arrests but their priorities were more limited. Message from John Gurule, Assistant Director for Field Operations, ICE to Fieid Office Directors and Deputy Field Office Directors entitled Reminder: Enforcement Actions At or Near Courthouses (Oct. 21, 2015), available at Immigrant Legal Resource Center v. Department of Homeland Security 183 (Jul. 24, 2018), 12 Kaelyn Forde, ?Where Can Anyone Seek Justice??: Experts Warn ICE Courthouse Arrests May Mean Witnesses, Victims Won?t Show Up, ABC NEWS (Jul. 27, 2018), 13 Chantal Da Silva, Judge Calls ICE to Arrest Couples on their Wedding Day, NEWSWEEK (Apr. 20, 2018), 1? ICE Out of Courts, IMMIGRATION DEFENSE PROJECT (last visited Dec. 11, 2018), lice?courts]. 15 ICE in NYS Courts: Legal Service and Advocates Survey, IMMIGRATION DEFENSE PROIECT (last visited Dec. 11, 2018), final-l.pdf. 15 ICE Directive No. 11072.1, Civil Immigration Enforcement Actions Inside Courthouses (Jan. 10, 2018). 17 Id. obstructing Justice I 21 18 Compare id. with John Morton, ICE Director, Memo on Enforcement Actions at or Focused on Sensitive Locations (Oct. 24, 2011). 19 Letter from Tani Cantil?Sakauye, Chief Justice of Cal. Supreme Court, to John Kelly, Secretary of Homeland Security, 8! Jeff Sessions, Attorney General of the US. (Mar. 16, 2017); Letter from Stuart Rabner, Chief Justice of NJ. Supreme Court, to John Kelly, Secretary of Homeland Security (Apr. 19, 2017); Letter from Chase T. Rogers, Chiefiustice of Ct. Supreme Court, to Hon. Jefferson Sessions lli, Attorney General of the US. Hon. John Kelly, Secretary of Homeland Security (May, 15, 2017); Letter from Thomas A Balmer, Chief Justice of Or. Supreme Court, to John Kelly, Secretary of Homeland Security, Jeff Sessions, Attorney General of the US. (Apr. 6, 2017); Letter from Mary E. Fairhurst, Chief Justice of Wash. Supreme Court, to John Kelly, Secretary of Homeland Security (Mar. 22, 2017); News Advisory from R.l. Judiciary, Court Must Remain Open and Accessible to All, Chief Justice Tells Lawyers, Judges (Jun. 16, 2017); Letter from Janet T. Mills, Attorney General of Me., to Richard W. Murphy, Acting US. Attorney for the State of Me., John Kelly, Secretary of Homeland Security (Apr. 10, 2017); Azi Paybarah, Law Enforcement; Court O?icials Differ on Impact of ICE Courthouse Arrests, POLITICO (Aug. 3, 2017) (noting critique by Attorney General of N.Y.), arrests?113781; Letter from Brian E. Frosh, Attorney General of Md., to John Kelly, Secretary of Homeland Security et al. (Mar. 2, 2017) Erin Durkin, City Plead with ICE to Stop Arresting Immigrants at NYC Courthouses: ?It Jeopardizes Public Safety,? NY Drumr NEWS (Feb. 14, 2018) (noting critique by the Manhattan, Brooklyn, and Bronx D.A.s), Letter from Office of the City Attorney, City of Los Angeles et al., to Jeffrey Sessions, Attorney General of the US. 82. John Kelly, Secretary of Homeland Security (Apr. 4, 2017) (including coauthors from various counties and cities in California); Letter from Michael 8. Hancock, Mayor of Denver, et al., to Jeffrey D. Acting Field Office Director, (Apr. 6, 2017) (including requests from Denver D.A.). See generally Improving Relationships with ICE, NATIONAL CENTER FOR STATE COURTS, lCE/lCE.aspx (last visited Jan. 1, 2019); Immigrant Defense Project, Statements from Chiefjustices, Governors, Prosecutors, Attorney Generals, and Bar Associations, JMMIGRANT DEFENSE PROJECT, (last visited Jan 1., 2019). XAVIER BECERRA, ATTORNEY GENERAL, SECURING EQUAL ACCESS TO JUSTICE FOR ALL: GUIDANCE AND MODEL POLICIES To ASSIST SUPERIOR COURTS IN RESPONDING TO (Oct. 2018). 21 WASHINGTON STATE OFFICE OF THE ATTORNEY GENERAL BOB FERGUSON, GUIDANCE CONCERNING ENFORCEMENT 29-30 (2017). 22 Michael Magliano, Chief of UCS Department of Public Safety, Memo on Policy and Protocol Governing Activities in Courthouses by Law Enforcement Agencies (Apr. 26, 2017); New York City Bar, Recommendations Regarding Federal Immigration Enforcement in New York State Courthouses (Jul. 2018) (describing May 2018 instructions issued by OCA). 23 Bernalillo County, N.M., Courthouse Access Policy (Sept. 25, 2018); King County, Washington, Superior Court Policy (undated). 2? Bialik, supra note 5. 25 Deborah Sontag and Dale Russakof, In It?s Open Season on Undocumented Immigrants, PROPUBLICA (Apr. 12, 2018), 2?5 Id. 22 The Chilling Effect of Arrests 27 Da Silva, supra note 13; Bobby Allyn, in Philly Halls of Justice, Feds Seizing More immigrants with N0 Criminal Past, WHYY (Dec. 20, 2017), immigra nts-no-criminal?pastl. 28 See AMERICAN LIBERTIES UNION (ACLU), FREEZING How ARRESTS AT COURTHOUSES ARE UNDERMINING THE JUSTICE SYSTEM 2 (2018). 29 Brian Hickey, ICE Arrests at Montgomery County Courts Spark Fears of Chilling E?ect on Crime Victims, Witnesses, VOICE (Mar. 15, 2018), phillyvoice. com/ice- arrests? montco- courthouses- 3? Form l-213 .. Record of Deportable-lnadmissibie Alien (Jul. 2018) (on file with authors). 3? Allyn, supra note 27. 32 has had an interest in arresting individuals who are on probation and parole from the Obama Administration to today. See, v. DHS, (Jul. 24, 2018), (last visited Jan. 19, 2019) (email from ERO Taskings to Field Office Directors, Deputy Field Office Directors, and Local Probation and Parole Points of Contact re Probation and Parole Teleconference (Apr. 14, 2016)). 33 Such collaboration also occurs with Probation in Montgomery County, which is under the Corrections Department Corrections, MONTGOMERY Counrv //montcopa. org/862/Corrections (last visited Dec. 11,2018). 3? Response to Freedom of information Act Request (2018) (on file with authors). 351d. 35 Da Silva, supra note 13. 37 interbranch Commission on Gender, Racial and Ethnic Fairness, Memo on Reports of State Court judicial Officers? Assumption of iurisdiction Over immigration Issues and the impact of the Presence of Immigration Enforcement Agents in Courthouses on Litigants? Constitutional Rights 2 (Apr. 5, 2018), available at (last visited Jan. 18, 2019). 38 id. 39 ACLU,vsupra note 28421d. ?3 This analysis does not include those who failed to respond to the question or wrote 4? CLS, supra note 1. 45 in contrast, one of our survey respondents from a legal services organization felt the opposite ?(gleneraliy we've had clients who are more willing to come forward/file a complaint despite increased risks. . . [w]e have not seen a decrease in clients' willingness to pursue claims.? ?5 CLS, supra note 1. 47 Id. ?3 Letter from Community Legal Services, to Sheila Woods?Skipper, President Judge, First Judicial District (Sept. 6, 2018). ?9 ACLU, supra note 28, at 2. 5? Letter from Chief Justice Tani Cantil?Sakauye, supra note 19. 51 Michael Wishnie, immigrants and the Right to Petition, 78 N.Y.U. L. REV. 667, 684 (2003). 52 US. Const. amend. Vi; XIV. 53 New York City Bar, supra note 22, at 7 n. 28 (citing Bounds v. Smith, 430 US. 817, 828 (1977) (requiring prison authorities to provide prisoners with adequate law libraries and to assist them in Obstructingiustice I 23 preparing court papers); Boddie v. Conn., 401 U.S. 371, 377 (1971) (court filing fee could not prevent indigent couple from filing for divorce?. 5? Pa. Const. art. 1, 11. 55 Masioff v. Port Authority of Allegheny Cty., 531 Pa. 416, 424 (1992). 55 Id. at 425; see also ieropoli v. Corp., 577 Pa. 138, 155-56 (2004). 57 Maslofi, 531 Pa. at. 425. While it is problematic to extinguish a cause of action that has already accrued, entire causes of action can be abolished, especially when an administrative mechanism for recovery is supplied. 58 42 U.S.C. 59 Administrative Office of the Pa. Courts (AOPC), Advisory Re: Title VI of the Civil Rights Act (2018) (providing an exception for when immigration status is relevant to the matter before the court or agency) 501d. 51 US. DEPARTMENT OF CIVIL DIVISION, TITLE VI LEGAL MANUAL 6. ?32 Younger v. Harris, 401 US. 37, 44 (1971). 53 See, Printz v. United States, 521 US. 898, 925 (1997);. New York v. United States, 505 US. 144, 178 (1992). 5? US. Const. amend. X. 55 George Bach, Federalism and the State Police Power: Why Immigration and Customs Enforcement Must Stay Away from State Courthouses, 54 L. REV. 323, 328 (2018). 55 New York City Bar, supra note 22, at 13 n. 60 (citing Younger v. Harris, 401 US. 37, 46 (1971)). See also Gregory v. Ashcroft, 501 U.S. 452, 460 that the decision about qualifications of state judges ?is a decision of the most fundamental sort of a sovereign entity?). 57 Bach, supra note 65, 331. 53 Id. 59 Pa. Const. art V, 10(c) (?The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts . . 7? 42 Pa. (25.4.. 323. 71 201 Pa. Code Rule 1954. 72 234 Pa. Code Rule 110. See also Rule 2.8 of the Rules for Magisterial District judges (Mills) allows judges to exclude public broadcasting in the courtroom or in the areas immediately adjacent to the courtroom. 73 231 Pa. Code Rule 223. 7? See generally Chris Lasch, A Common Law Privilege to Protect State and Local Courts During the Crimmigrotion Crisis, YALE Ll. FORUM 410 (Oct. 24, 2017). Professor Chris Lasch has advocated for reviving the privilege against civil arrest given lCE?s enforcement in and around courthouses around the country. The privilege is not used today as it was in the past because we no longer start civil lawsuits through arrest. Massachusetts Supreme .iudicial Court, however, has recently denied a petition requesting the privilege against civil arrest for immigration arrests. Alanna Durkin Richer, Mass. High Court Judge Denies Bid to Block Courthouse Immigration Arrests, WBUR (Sept. 21, 2018), arrests. 75 Lasch, supra note 74, at 423. 75 Id. 77 Id. at 425. 73 Long v. Ansell, 293 U.S. 76, 83 (1934). 79 Miles v. M?Culiough, 1 Sim. 77 (Pa. 1803). 8" Baxter v. Conroy, 26 Pa. D. 430 (C.P. Phila. 1917); see also Hayes v. Shields, 2 Yeates 222 (Pa. 1797). 24 I The Chilling Effect of lCE's Arrests 81 Crusco v. Strunk Steel Co., 365 Pa. 326, 327?328 (1950). 82 id. at 329. 33 Gekoski v. Starer, 223 Pa. Super. 560, 564 (1973). Another factor appears to be whether service of the civil suit is "a cause of action arising out of the same transaction.? Id. at 563. With arrests, the civil immigration violation that forms the basis of the arrest is entirely unrelated to reason why an immigrant may be in court. 34 Id. at 563 (citing Crusco, 365 Pa. at 328). 35 Protect Our Courts Act, (NY. 2018) (same as 5.08925). 8? WASHINGTON STATE or THE ATTORNEY GENERAL, supra note 21, at 29. 37 AOPC, supra note 59. 83 Getting ICE Out of Courts, Community Legal Services, ice-out-courts (last visited Jan. 16, 2019) (select attachments that include proposed policies for FJD). 39 Conversation with Nadia Hewka, Senior Attorney, Community Legal Services (Jan. 4, 2018). 9? Id. 91 California Values Act, 5.3. 54 (Cal. 2017). 92 BECERRA, supra note 20. 93 STATE OFFICE or THE ATTORNEY GENERAL, supra note 21, at 29?30. 9? New York City Bar, supra note 22, at 16. 95 Wash. R. Evid. 413. 95 Bernaliilo Cty., N.M., Metropolitan Court, Courthouse Access Policy (Sept. 25, 2018). 97 WASHINGTON STATE or THE ATTORNEY GENERAL, supra note 21, at 29 (quoting King Cty., Wash, Superior Ct. Policy on immigration Enforcement in Courtrooms). 93 The Courts have ?power to issue, under its judicial seal, every lawful writ and process necessary or suitable for the exercise of its jurisdiction.? 42 Pa. C.S.A. 323. 99 Letter from ChiefJustice Stuart Rabner, supra note 19. Photo Credit 5): lCE.XChecl Monday, July 08, 2019 2:21 PM Martha L. Walters; Jason Specht Stephen Manning; Leland Baxter-Neal; Mat dos Santos; Katherine McDowell (katherine@mrglaw.com) Petition for CJO re ICE Courthouse Activity Ryan v ICE Order Granting PI (00808470xAC78D).pdf; November 29 2018 FOIA request.pdf; ICE Response to Requester (No Records).pdf Subject: Attachments: Follow up Flagged Follow Up Flag: Flag Status:                                                                                                                                                                                                                                  Ongoing ICE Arrests                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   Three weeks later                                                                                   ICE had refused his requests to speak with his attorney or  inform the court that he was being arrested.                                                   ICE FOIA Request re Washington County Circuit Court Arrests                                                                                                                                                                       1                                                                                                                                           Massachusetts Injunction                                                                                                                      Enactment of HB 2932 and HB 3201                                                                                                                                                                                                                                                                                                                                                                                                        This electronic mail transmission contains information from the law firm of Stoll Berne that may be confidential or privileged. If you are not the intended recipient, any disclosure, copying, distribution or use of this information is prohibited. If you believe that you have received this message in error, please notify the sender by telephone at (503) 227-1600 or by electronic mail and delete the message without copying or disclosing it. Thank you. 2                                                                                                                                          Nadia Dahab ndahab@stollberne.com                                                                                                                                                                                          Jason Specht From: Sent: To: Cc: Subject: Nadia Dahab uesday, July 09, 2019 2:22 PM Martha L. Walters; Jason Specht Stephen Manning; Leland Baxter-Neal; Mat dos Santos; Katherine McDowell (katherine@mrglaw.com) FW: ICE arrest at Marion County Court Annex - D II charge no plea yet Follow Up Flag: Flag Status: Follow up Flagged                                                                  Nadia Dahab ndahab@stollberne.com       From   ent   o    ubject      On Beha f Of                                                               Three plainclothes officers who identified themselves as DHS employees just handcuffed a person in the waiting area of the Marion County Court Annex. His attorney asked for a warrant. The officers asked if he was an immigration attorney. When the attorney said no, they said they would not talk to him and escorted the person out to an unmarked vehicle. This individual was charged with DUII but had not entered a plea and his case had just been set over at the first out of custody appearance. aron effers Deputy ublic Defender ublic Defender of arion ounty, Inc. 1 ommercial St. S , Ste. 2 0 Salem, 7301 h 503- 0-0521 503- 0-0522 a effers@pdmarion.org                                                                                                                                    1                                                                                                                    Jason Specht From: Sent: To: Cc: Subject: Nadia Dahab hursday, July 18, 2019 12:4 PM Martha L. Walters; Jason Specht Leland Baxter-Neal; Katherine McDowell; Mat dos Santos (MdosSantos@aclu-or.org); Stephen Manning ICE arrest this morning at Clatsop County Circuit Court Follow Up Flag: Flag Status: Follow up Flagged                                                                                                                                                                                                          Nadia Dahab ndahab@stollberne.com       From   ent   o    ubject                     ummary       Account                                                                                                                                                                                                                                                                                                                                                                                                                              1                                                                                                                                                                                                                                                                 2                         Jason Specht From: Sent: To: Cc: Subject: Nadia Dahab hursday, July 18, 2019 1:02 PM Martha L. Walters; Jason Specht Stephen Manning; Leland Baxter-Neal; Katherine McDowell; Mat dos Santos (MdosSantos@acluor.org) ICE arrest this week at Multnomah County Justice Center Follow Up Flag: Flag Status: Follow up Flagged                                                                                                                                               Nadia Dahab ndahab@stollberne.com     From   ent   o                                         ubject     Hi eland, I hope this message finds you well. We have a case and wanted to keep you in the loop about it for your records or input. esterday, we received a call from a family member that IC detained aime Mendo a Chave at the ustice Center Courthouse This is a high profile case His record is that he has a hit and run and killed the women. IC used force to detain aime Medo a Chave and one of his daughters y o got involved and was hit by the IC officer. They didn t show any badges or show a warrant for arresting MC. lease let us know if you any uestions Cordially, 1   (she, her, hers) for the delay, I am a volunteer and may take longer to respond Jason Specht From: Sent: To: Cc: Subject: Williams, Bill (USAOR) Wednesday, July 24, 2019 5:26 PM Jason Specht Martha L. Walters Re: Recent ICE Activity in Oregon Mr. Specht,     Thank you for forwarding the information.    Respectfully,  Bill  Billy J. Williams  United States Attorney   District of Oregon     On Jul 24, 2019, at 5:01 PM, Jason Specht  wrote:  Mr. Williams,    Following up on Chief Justice Walters’ offer to send you recent reports of ICE activity in Oregon courthouses, please see the four attached emails. The emails note nine arrests in four different courthouses.     Thank you,    Jason D. Specht  Staff Attorney Oregon Supreme Court 1163 State Street Salem, OR 97301 (503) 986-5176 jason.d.specht@ojd.state.or.us           1 1163 State Street Salem, OR 97301-2563 Phone: 503.986.5668 Fax: 503.986.5730 Oregon Relay Service: 711. Martha L. Walters Chief Justice OREGON SUPREME COURT June 17,2019 Bryan S. Wilcox Acting Field Of?ce Director ICE Enforcement Removal Operations 12500 Tukwila Int'l Boulevard, 4th Floor Seattle, WA, 98168 Re: ICE Enforcement Activities in State Courthouses Dear Mr. Wilcox: In April 2017, Thomas Balmer, my predecessor as Chief Justice of the Oregon Supreme Court sent a letter to the United States Attorney General and the Secretary of Homeland Security. In the letter, he raised concerns about Immigration and Customs Enforcement (ICE) agents arresting individuals in and around Oregon state courthouses. Justice Balmer explained that many members of our communities worry about contact with ICE agents and choose not to come to court. That is true not only for peeple facing deportation, but also people unsure about their own immigration status and people who fear being misidenti?ed as deportable by ICE agents. By discouraging people from coming to court when they should, practice of arresting people at courthouses impairs the administration of justice, which depends on people participating in court proceedings whether as defendants standing trial, witnesses testifying, or victims seeking protection. In light of those concerns, he asked that ICE either completely stop arresting people at courthouse or at least designate courthouses as "sensitive locations," like churches and schools. In January 2018, ICE issued a policy directive on courthouse arrests in January 2018. That directive states that ICE enforcement activities in courthouses generally should be limited to targeted individuals, should not involve action against family or friends with the targeted individual, and should avoid areas of the courthouse dedicated to non~criminal activities. The directive also states that ICE agents should make every effort to limit their time in courthouses and avoid unnecessarily alarming the public. I appreciate ICE's efforts to provide limits on its enforcement activities, but the courthouse arrests that ICE is continuing to make are continuing to have an adverse effect on the administration of justice. Our judges continue to receive reports that ICE's courthouse enforcement practices are affecting community members' willingness to participate in judicial proceedings, including applying for restraining orders and responding to eviction notices. Even when ICE agents comply with the directive issued in 2018, ICE arrests often create the type of public alarm that the directive seeks to avoid. For example, ICE agents are usually in plain clothes, do not always identify themselves during arrests, and have refused to produce a warrant or other document authorizing the detention, when requested. An arrest made under those circumstances understandably leads to confusion and uncertainty. In one case, when arrested someone just outside a courtroom where criminal proceedings were taking place, the commotion was so loud that the trial judge had to order security to investigate, leaving the courtroom unsecured. In another incident where ICE arrested someone inside a courthouse, an attorney representing that individual asked to see the judicial or administrative warrant authorizing the arrest. Unfortunately, the agents refused, resulting in additional commotion and fear. ICE agents also have made numerous investigatory contacts with people in and around the courthouses who are not the targeted individuals. One court employee observed ICE agents stopping numerous people leaving a courtroom Where a targeted individual was expected. And, in another case, ICE agents mistakenly accused the wrong person of being the targeted individual and aggressively questioned that person until the agents con?rmed the mistake by comparing a photograph of the person stopped and the targeted individual. In those cases, even though ICE agents were looking for a targeted individual, they exposed numerous other people based on their race and ethnicity to tactics that aroused their fear. I am concerned that current enforcement activities in our state courthouses are continuing to negatively impact our communities, and I would like to meet with you to discuss further measures that could be instituted to ensure that Oregonians have access to justice. I will be happy to arrange a meeting at your convenience. Thank you for listening. Sincerely, Math/L. Walters Chie. Justice cc: Bill Williams, via email Lisa Norris?Lampe, Via email Jason Specht, via email