Background
On the campaign trail, Donald Trump promised voters, “One day, I will launch the largest deportation program of criminals in the history of America.” On his inauguration day, he published a directive for Immigration and Customs and Enforcement (ICE) officers to use their own discretion when conducting immigration arrests. Since then, ICE officers have arrested immigrants in or around courthouses in at least seven different states.
Courthouse arrests are controversial partially because courthouses used to be considered “sensitive locations.” The term originates from a 2011 policy issued by the Department of Homeland Security (DHS) that outlined locations such as schools, hospitals, and places of worship as off-limits to ICE officers unless they seek prior approval and maintain a higher standard of care. This policy was strengthened by a 2021 memorandum that expanded the locations to places where children gather, social service centers, disaster relief locations, and more. However, President Trump’s directive revoked these regulations and again allowed arrests in these places.
The sudden shifts between protected and unprotected status, combined with contested authority of ICE officers to arrest immigrants, has sparked controversy over immigration enforcement in courthouses. Courthouse arrests spiked earlier this year, with 16 arrests occurring in a single week of June. Over a dozen bills introduced in this congressional session and current blocks by state courts are pending review as the legality of courthouse arrests is debated.
Jurisdiction of ICE Arrests in Courthouses
ICE gets its authority to arrest aliens suspected of violating immigration laws primarily through sections 1226 and 1357 in Title 8 of the United States Code. Section 1226 provides that ICE can begin arresting and detaining an alien when they are issued an administrative warrant. Section 1357 states that ICE officers must complete immigration law enforcement training to issue administrative warrants or conduct arrests without a warrant under DHS regulations.
However, some limitations exist regarding where ICE can conduct arrests. For example, state-level laws, such as California’s Immigration Protection Act, prevent ICE from conducting raids in certain workplaces. Additionally, ICE officers cannot conduct arrests in sensitive areas like domestic violence shelters because those arrests could deter people from seeking help and thus violate the Violence Against Women Act.
Opposition to Courthouse Arrests
The legal opposition to courthouse arrests stems from the power judicial and administrative warrants carry, as well as questions of transparency, eroding trust with the judicial system, and the targeting of specific states.
ICE, unlike law enforcement, is an administrative agency whose administrative warrants are not reviewed by a neutral judge or magistrate and thus do not carry the same authority as a judicial arrest warrant. Lower courts have ruled that detaining immigrants without a judicial warrant goes against the Fourth Amendment. Therefore, ICE officers—who solely act through administrative warrants—do not carry legal authority to detain immigrants at courthouses.
That being said, under the Supreme Court decision in INS v. Delgado, ICE officers do not violate the Fourth Amendment’s search and seizure protection since complete privacy is not entitled in public spaces like courthouses. Therefore, ICE presence in the courthouse continues to withstand legal scrutiny.
Critics also argue that fear of potential deportation deters non-citizens from attending court proceedings or cooperating with law enforcement. For example, the ACLU found over 50 percent of judges surveyed said ICE operations disrupted cases and the support of crime survivors. Moreover, translators and victims of crimes are said to be afraid of showing up to court, which compounds the already slow rate of case processing in immigrant communities.
In an effort to protect the identity of ICE officers susceptible to harassment, some courthouse arrests are conducted by plain-clothes officers or officers wearing masks that hide their faces. Critics of this policy, such as former FBI agent Mike German, claim the “reluctance to be identified as engaging in those activities really highlights the illegitimacy of those actions.” Moreover, a few instances of civilians impersonating ICE officers may jeopardize the integrity of ICE arrests against immigrants.
States that have passed laws affording undocumented immigrants better protections, such as New York and California, have been particularly affected by an increased militarized presence for immigration enforcement. Therefore, critics have claimed that unjustly applying these orders to immigrant communities does not reflect an interest in national security but rather specific animosity towards immigrants and Democratic cities or states with sanctuary policies.
Support for Courthouse Arrests
Support for courthouse arrests comes from exceptions for required warrants in conjunction with the President’s duty to promote national security. Other arguments for courthouse arrests include uniformly enforcing the law, deterring other illegal immigrants, and protecting ICE officers.
Section 1357(a)(2) of Title 8 provides exceptions to the requirement for a judicial warrant when someone, from the view of an ICE officer, is entering the U.S. illegally and when the immigration officer has “reason to believe” the person has entered unlawfully and is likely to escape before a warrant is issued. The “reason to believe” criteria required to issue an administrative warrant or even conduct warrantless search and seizures for ICE officers has been interpreted by courts as equivalent to the Fourth Amendment’s probable cause standard. Therefore, the arrests at courthouses remain constitutional if an ICE officer has probable cause.
Proponents of courthouse arrests argue that the president has constitutional authority to promote the national security of the country, which illegal immigrants allegedly violate. The January 31st ICE memo states that the top priorities for deportation are “aliens who pose national security threats, as well as the murderers, rapists, burglars, arsonists, thieves, gang members and other criminals.” Courthouse arrests are framed as necessary interventions to promote public safety by removing criminals expeditiously. Moreover, they point to the backlog of around 877,000 immigration cases in the judicial system, arguing that this necessitates urgent administrative action to bring relief to overburdened courts.
Since the Trump administration enacted the new ICE directives, ICE reports their officers experienced a 413 percent increase in assaults. Advocates say that carrying out arrests in a courthouse is safer for ICE officers because the immigrants have already been screened for weapons. Moreover, it concentrates law enforcement resources since they know where illegal immigrants will be, and it keeps ICE from having a larger presence in immigrant communities.
Conclusion
The current state of courthouse immigration arrests is characterized by a battle to balance executive power, constitutional principles, and public safety. Over 15 bills have been proposed in the 118th and 119th Congressional sessions addressing both perspectives of this issue. Some, like the Protecting Sensitive Locations Act, specify where ICE can conduct arrests. Others, like the Deport Alien Gang Members Act, broaden the number of aliens eligible for removal and expand local law enforcement officers’ authority to perform immigration enforcement. Moreover, standing court orders have been used to protect courthouses from immigration enforcement. However, future prospects of these court orders remain in the air following Trump v. CASA, a Supreme Court case that limited the power of state courts to block national legislation from going into effect. With significant variability in courthouse arrest policies state-to-state, understanding local attitudes and political actions remains critical.
Inside Courthouse Immigration Arrests: Controversy, Legal History, and Implications was first published on The Alliance for Civic Engagement and was republished with permission.
Chloe Durham is an undergraduate student at the University of California, Berkeley, studying Linguistics and Japanese Language
