Dear Chief Judge: Protect Access to Justice for Immigrant New Yorkers by Barring ICE from our Courts

Today, LGBT Bar NY joined the following letter asking New York’s Chief Judge to implement policies that would meaningfully guarantee access to justice for immigrant New Yorkers.

Dear Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks:

We write as a coalition of legal service providers, good governance groups, and advocacy organizations to thank you for all that you have done to raise concerns with the Department of Homeland Security (DHS) about the impact of U.S. Immigration and Customs Enforcement (ICE) arrests on our State courts and to discuss how best to ensure that all New Yorkers are able to access the courts.

From press accounts1, we understand that input from the National Conference of Chief Justices helped to prompt the publication of ICE Directive Number 11072.1.2 We appreciate your leadership and your strong advocacy in seeking to have DHS designate courthouses as sensitive locations. We are heartened by your commitment to ensuring that the New York State court system is accessible to all.

Respectfully, we request an in-person meeting to discuss the Directive and our ongoing concerns about ICE enforcement operations in our State courts. We believe that the recommendations previously requested by numerous groups, including those that would clarify court policies and procedures, are needed now more than ever. We believe that it is imperative for the court system and the stakeholders to collaborate on pragmatic and practical means of cooperation to strengthen the role of state courts, ensure efficiencies and standards, promote equal access and to diminish the opportunities of unfair and improper actions by ICE. The essential power of state courts to manage their courthouses should not be undermined.

For those of us across the state who represent immigrants, monitor ICE actions and believe in the importance of efficiency, standards, public safety and the rights of all who use the courts, we know the Directive falls far short of meaningfully addressing the havoc that ICE enforcement actions continue to wreak on our justice system. It also fails to address the profound sense of fear that ICE’s operations have lodged in our immigrant communities.

Our concern is that ICE’s policy guidance offers no safeguards against the unconstitutional, indiscriminate and disruptive practices that we have seen thus far. Instead, the Directive “formally codif[ies]” the agency’s practices and puts into writing what we have observed over more than a year of monitoring ICE conduct in New York’s courts: ICE targets people without regard for who they are or why they are in court.3 One day it is a trafficking victim appearing to face prostitution-related charges4 and the next it is a college student who came to the U.S. at the age of three and has no prior criminal history.5 Tomorrow, it may well be a DACA recipient appearing in traffic court.6

The current federal administration has instructed ICE agents to exercise their authority to enforce immigration law to the “greatest extent practicable.”7 This means that anyone who is in the country without authorization is a potential target. As ICE Director Thomas Homan put it, if you’re undocumented, “you should look over your shoulder.”8 Even those with legal authorization who have contributed to their communities for decades and raised generations of U.S. citizens may be targets based on involvement with the criminal justice system or untested allegations of dangerousness.

ICE’s policy on courthouse arrests is built on a deeply troubling premise, namely, that some members of our community deserve access to justice through the courts while others do not. As legal professionals who serve and represent litigants across a broad array of courts, we strongly believe that the immigrants we work with will only be safe when all of our State courts are safe. It is a bedrock principle of our judicial system that access to justice cannot be selective. Our courts must be equally open to noncitizens and citizens; to individuals seeking protection from the courts and those exercising their constitutional rights to defend themselves against criminal charges. Our democracy requires this, and our Constitution demands it.

We again commend you for your continued attention to these difficult issues and look forward to further discussion.

Sincerely,

LGBT Bar NY