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Around the country, ICE is arresting immigrants when they show up to court

The government says it’s safer. Safer for whom?

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The courthouse is supposed to be a place where justice is not only meted out to the perpetrators of crimes but offered as protection to its victims. But around the country, immigrants showing up for their day in court — as defendants, witnesses, or victims seeking redress — are encountering a different face of the law instead: They’re being arrested by Immigration and Customs Enforcement officers seeking to deport them after they leave the courthouse, or even when they’re still within its walls.

In New York City, judges and public defenders have resorted to looking out for people who could be ICE agents — and hastily sending out email alerts to bring immigrants in through another door if they see one. In El Paso, ICE arrested a transgender woman named Irvin Gonzalez as she filed a restraining order against an abusive partner. In California, the state Supreme Court and prosecutors tried to appeal to the Trump administration to stop the arrests — to no avail.

The effect of courthouse arrests being noticed is itself real. Police departments around the country are reporting problems with getting victims and witnesses of crime to come in and testify, and noticing that fewer Latina women are seeking restraining orders from domestic abusers.

Whether the arrests are a big change spurred by newly aggressive Trump policies or a strategy that’s just getting noticed because of the Trump administration’s general attitude toward immigrants, they’re a sign of the kinds of arrests ICE is choosing to prioritize.

The Trump administration has made it clear that it’s going to continue this approach — because, it says, courthouses are the safest place for the ICE agents making the arrests. Their critics argue that this sacrifices the safety of unauthorized immigrants who are crime victims for the sake of ICE agents’ safety.

The debate over arrests at courthouses is really a debate over who gets to be part of the “public” protected in the name of public safety.

The Trump administration — on both immigration and criminal justice — has adopted a “Blue Lives Matter” philosophy to public safety: It is a cardinal principle of this administration that law enforcement officers are noble people doing dangerous work, and that the first goal of public policy should be making sure they get home safely at the end of the day. Tracking down immigrants at courthouses, because it’s guaranteed to be a safe place for an officer to make an arrest, is perfectly in line with that philosophy.

But the consequences of making immigrants feel unwelcome at courthouses are a reminder that there are other members of the public who also may need to be protected — and who might be made vulnerable, even inadvertently, when policymakers’ top priority is the safety of law enforcement officers themselves.

Immigrants could always be arrested at courthouses — but before Trump, it wasn’t a looming threat

Federal Immigration and Customs Enforcement agents have broad power to arrest and detain anyone they suspect of being in the country without authorization. Even when local and state law enforcement agencies have “sanctuary” policies limiting cooperation with the federal government, it doesn’t limit ICE agents’ ability to go in and make arrests themselves.

But there are certain places that ICE has agreed not to go: places like churches and schools, where the mere sight of ICE agents might traumatize whole immigrant communities out of going back and deprive immigrants (and US citizens) of important parts of their lives. ICE has had a policy limiting arrests at “sensitive locations” on the books since 2011; the Trump administration has gotten rid of many of the Obama administration’s policies limiting who ICE agents could arrest and how, but it’s left the “sensitive locations” memo in place.

The Obama administration never considered courthouses a “sensitive location” in an official sense — agents weren’t restricted from making arrests there the same way they were at churches, schools, or hospitals. And courthouses have the key advantage of being a reliable place to find someone you’re looking for, if you know they have business there (like a hearing or a restraining order). In 2012 and 2013, the American Civil Liberties Union documented several ICE arrests outside a courthouse in one county in California — including the arrest of an immigrant at what was supposed to be his own wedding.

But just like seeing an ICE agent outside a school is likely to discourage parents from sending their kids to get an education, seeing one outside a courthouse is likely to discourage crime victims from seeking justice.

ICE officer putting on his SWAT gear Getty Images

So eventually, the Obama administration tried to split the difference.

It told agents only to make arrests at courthouses as a last resort — if they couldn’t apprehend the immigrant they were targeting some other way. And it told agents only to go into courthouses to arrest people who were already “priorities” for deportation for some other reason. By the end of the Obama administration, only a small and well-defined group of immigrants qualified as deportation priorities.

The Trump administration is going after more people, and it’s targeting immigrants any way it can

The Trump administration has been much less apologetic about its use of courthouse arrests. The FAQ on the ICE website about “sensitive locations” no longer mentions the extra restrictions on agents when making courthouse arrests (though it’s not clear whether those have been formally rescinded).

ICE spokespeople maintain that they’re not indiscriminately sweeping up immigrants at courthouses — that, just as they did under Obama, they’re only going after people they’ve already targeted for arrest and deportation. But under Trump, a lot more people are deportation targets.

An executive order signed by President Trump in January instructs agents to consider any unauthorized immigrant who’s suspected of having done anything criminal in the past a “priority” — something that covers any immigrant who’s ever used a fake Social Security Number to get a job, or who’s driven without a license (something that unauthorized immigrants in many states can’t get).

In practice, this has often meant that ICE has arrested and deported people whom it wouldn’t have gone after (and, in many cases, explicitly decided not to go after) in the past. It’s gone after people with decades-old deportation orders or criminal convictions. And it’s often gone after people who are easy to find because they’re showing up for prescheduled appointments with the government — for an annual check-in at ICE offices, an application for a green card, or a court date.

It’s hard to say exactly how big a break ICE is making from its Obama-era activity: Most of the cases that have come to the attention of the press involve immigrants who could have qualified as deportation priorities in, say, 2011, even if they weren’t actually deported then. And it’s possible these types of deportations went relatively unnoticed under Obama but now under Trump are being seen as symbols of a larger crackdown.

Lawyer Tina Nadeau’s client, a Somali asylum seeker in Portland, was arrested by ICE agents when he appeared in court on a DUI charge.
Portland Press Herald via Getty

The Immigrant Defense Project in New York, for example, heard as many reports of courthouse arrests in two months under Trump (February and March) as it had under 2 years of Obama — but it admits that its records of courthouse arrests are self-reported, so they probably aren’t hearing about all the cases in which immigrants are being arrested either now or in the past. And given the increased media attention, it’s possible, even likely, that immigrants understand a single courthouse arrest as part of a pattern — something worth reporting to a legal-defense organization — in 2017 where they might not have done so in the past.

But the Trump administration isn’t responding to criticism of courthouse arrests by claiming it’s doing the same thing that Obama did. It’s responding by defending that courthouse arrests as a good thing — as a way to keep agents safe.

Courthouse arrests are safer for ICE agents — and that’s what matters now

From the Trump administration’s perspective, the fight over arrests at courthouses is part of the administration’s bigger battle against “sanctuary cities” — cities that don’t cooperate with federal immigration agents as fully as they could. “If we were able to have more cooperation of getting criminal aliens through jails and prisons, we wouldn’t need to go into courthouses,” DHS spokesperson David Lapan told a group of reporters in April.

The administration is trying to pressure cities to hold unauthorized immigrants in jails after they’d otherwise be released, so ICE agents can pick them up. “That’s the safest for everyone, both our officers and the communities,” Lapan said.

If local law enforcement releases the immigrant from jail but ICE still wants to arrest him, they have to track him down in the community.

According to a letter written by Attorney General Jeff Sessions and Homeland Security Secretary John Kelly in response to the California Supreme Court’s concerns about courthouse arrests, those arrests are substantially more dangerous “because the alien can more readily access a weapon, resist arrest, or flee.” Lapan raised the risk of “a shootout.” (Vox asked Immigration and Customs Enforcement if there were specific cases in which ICE agents had been endangered while trying to arrest someone at home or in public; the agency declined to provide any examples.)

The alternative, for ICE agents, is to arrest immigrants somewhere they know the immigrants won’t be armed — somewhere like a courthouse, where everyone’s screened for weapons on the way in. It’s “a much safer way of doing it,” Lapan said in April.

It’s a logical argument, if you think the immigrants ICE is targeting at courthouses are armed and dangerous people when they’re out on the street. But it doesn’t look like ICE is trying to limit its courthouse arrests to particularly dangerous immigrants.

Many of the people ICE has arrested at courthouses had prior convictions (including drunk driving and drugs). But it doesn’t logically follow that someone with a prior conviction for drunk driving is going around with a gun.

Indeed, it’s not at all clear that ICE is restricting courthouse arrests to people with any prior criminal records at all. Lapan told reporters that “we only go after criminal aliens” in courthouses — “people who are both in the country unlawfully and have committed crimes.”

Andrew Lichtenstein/Corbis via Getty

But the letter sent by Attorney General Sessions and Secretary Kelly doesn’t put any such limits on agents: It says that ICE agents are targeting anyone who’s “violated federal law,” including immigration law (without any requirement that they have been convicted of anything) and presents any immigrant being targeted by ICE as a risk to “readily access a weapon.” And some reports indicate that immigrants are being picked up by ICE after their court arraignments — before they’ve been convicted of a crime at all.

Conflating “unauthorized immigrants” with “violent criminals” is part of the DNA of this administration; it’s been a staple of Trump’s rhetoric from the beginning of his presidential campaign. Secretary Kelly and other administration officials have maintained that they’re focusing on the sort of people the president once called “bad hombres” — criminals who are a danger to public safety — but at the same time, they’ve maintained that nearly every unauthorized immigrant should be a priority for deportation.

Targeting immigrants in courthouses because they might be armed and violent the rest of the time is one more way to smudge the distinction between being here in the country without authorization and being a public threat.

Who is “public safety” for?

The Trump administration stresses that avoiding “shootouts” is safer for everyone — including the immigrants being arrested, as well as other people who might be in the vicinity — not just ICE agents. But that doesn’t necessarily mean that courthouse arrests are the best option for public safety.

The question is whether the benefit of avoiding a shootout outweighs the risk of people failing to report crimes, testify against criminal defendants, or take action against abusers.

The upside is hypothetical. The risk — that the chilling effect of courthouse arrests will suppress immigrants from seeking justice — shows disturbing signs of being very real.

The line between criminal threats and criminal victims isn’t always as bright as you might think. A witness to a crime might be someone who committed a crime herself in the past, or who was once ordered deported. A survivor of domestic violence might have once been arrested herself after a domestic dispute, as police officers tried to sort out who was at fault.

And the federal government can’t control exactly who finds out about courtroom arrests, and how they respond to them. They can’t guarantee that people who ICE wasn’t already planning to arrest — who might not be on their radars at all — don’t change their behavior to mold to their fears.

Several cities (including LA, Denver, and Austin) have reported that immigrants have become less likely to report domestic abuse in recent months; in LA, reports of sexual assault dropped 20 percent among Latinas, while reporting rates didn’t change among other residents.

Lapan stressed to reporters that it’s too soon to tell whether these patterns are the result of the Trump administration’s activities or due to some other factor — which is fair, even though law enforcement officials around the country have been warning for years that aggressive immigration enforcement chills crime reporting among immigrants. But it’s not just a correlation. There’s some evidence of causation as well.

El Paso attorney Lucila Flores Camarena told the Los Angeles Times that in the weeks after Gonzalez was arrested seeking her restraining order, several other women withdrew their requests for orders against their own abusers — and some of them told Flores Camarena that they were giving up because they worried they’d be arrested like Gonzalez was.

Gonzalez had several prior criminal convictions, and that may well have been why ICE targeted her, and why they chose to arrest her in the courthouse. But that doesn’t mean that other domestic violence survivors who qualify as “priorities” for deportation aren’t at risk if they step into a courthouse, or that any unauthorized immigrant should assume there’s no chance she’d be a priority for deportation.

Thinking about “public safety” holistically means understanding people as both potential perpetrators and potential victims of crime, and trying to balance the risks of both. The alternative — seeing people only as potential perpetrators — leads to policies that will definitely be safer for ICE agents, but not necessarily safer for anyone else.

Border Patrol agents, like ICE agents, have been key allies of the new administration.
Mark Wilson/Getty

This is the Blue Lives Matter concept of public safety: that law-enforcement officers’ chief job is to protect themselves, and that they shouldn’t have to adhere to any policies that might make that harder. It’s part of the philosophy of law enforcement that the Trump administration has wholeheartedly embraced on both immigration and criminal justice.

But it’s not the only way to think of “public safety.” Another way would be to define “public safety” as allowing broad access to justice for crime victims, and doing whatever is needed to serve that goal. That model wouldn’t necessarily lead to arresting immigrants at courthouses — it might be too concerned with the chilling effects.

The Trump administration may not have explicitly chosen the first option over the second. But that’s the option that its policies are leading to. And its defense of courthouse arrests shows it’s unlikely to change its mind.