ABA Journal


Immigration Law

ACLU asks ICE to stop making ‘abusive arrests’ at courthouse

Oct 28, 2013, 09:55 pm CDT


They should not recognize any "sensitive" safe zones, except as are actually provided for by law. Untold thousands have gone through the proper processes to be present in this country legally, and those who have instead chosen to disrespect the immigration laws are not entitled to feel safe from enforcement anywhere within our borders.

By B. McLeod on 2013 10 28, 10:48 pm CDT

What a ridiculous notion. Would the ACLU extend the same "courtesy" to deadbeat parents, tax evaders, smugglers, and drunken drivers? How about drug dealers, human traffickers, child molesters and serial killers?

For that matter, perhaps Mr. Kaufman could point to text in the Constituion that guarantees the privilege of immunity from arrest durning passage to and from the courthouse for wanted crimnals of any type.

By W.R.T. on 2013 10 28, 11:18 pm CDT

The ACLU is on the wrong side of this.

You should look for law breakers - - and that is what illegal aliens are - - where they can be rounded up with relative efficiency. Hospitals, schools, places of worship and the court house all sound excellent target areas to make the best use of our limited law enforcement dollars.

Round them up and send them back.

By Yankee on 2013 10 28, 11:42 pm CDT

The ACLU: On the side of criminals everywhere

What a mission they have.

By associate on 2013 10 29, 3:26 am CDT

@4- the ACLU in Allegheny County PA just took the side of the local GOP when a municipality was removing GOP signs but not Democrat signs.

As for the racist and xenophobic comments above, illegal immigrants have committed a crime, but we need them. Why they get blamed for the nation's ills is beyond me.

I'm sure you became lawyers only because illegal immigrants have stolen our very best jobs, like picking fruit and cleaning toilets.

By DCW on 2013 10 29, 1:19 pm CDT

Knee jerk calls to round up millions of people can (shamefully) be expected whenever immigration is mentioned, but ICE ought to consider the larger implications of its enforcement policies.

Not sure that creating a strong incentive for tens of millions of people to avoid courthouses is worth the costs this enforcement policy will impose on society, such as making it more difficult for legal residents to enforce their legal rights through the courts, for example, by not being able to call crucial witnesses.

@2 and 4 - This has been covered many times on many threads here already, but illegal aliens are not criminals merely by virtue of their undocumented status. And W.R.T., are you seriously comparing the threat to society posed by your standard illegal/undocumented alien as that caused by child molesters and serial killers? Your arguments are usually more reasoned than that.

By NoleLaw on 2013 10 29, 1:20 pm CDT

I back the ACLU on this. I have talked to dozens of undocumented victims of domestic violence, and would-be petitioners for child support, who are scared off from going to court because they are told by the perpetrators of violence or baby daddies that they will be deported immediately.

When someone uses the threat of deportation in order to further his or her own unlawful conduct, it's time to step in and call the courthouse a safe-zone.

By JR on 2013 10 29, 1:53 pm CDT

For those who are stating that being here without documentation is a crime: It's not. It's actually a civil infraction.

By RecentGrad on 2013 10 29, 2:07 pm CDT

Hey now, JR, stop it. Rational thought on this matter is not allowed. Only visceral, emotional responses.

By NoleLaw on 2013 10 29, 2:08 pm CDT

I am a strong supporter of the ACLU but I'm not with them on this one.

By Hooraytheist on 2013 10 29, 2:08 pm CDT

NoleLaw raised some very good points. It seems that scaring the undocumented away from courthouses only aids and abets those who employ or otherwise profit from the undocumented. So, if you're on the side of those knowingly employ the undocumented, and thereby encourage them to enter this country in search of employment, by all means scare the undocumented away from the courthouse.

By faddking on 2013 10 29, 6:18 pm CDT

@6. NoleLaw,

I will confess to the use of some hyperbole in my post. However I find your argument that any significant number of legitimate causes would be hampered by enforcing the immigration laws at courthouses to be just as farfetched.

PS. Congrats on the win Saturday. Crush Miami.

By W.R.T. on 2013 10 29, 11:07 pm CDT

Let's round up millions of people! Ow!

By B. McLeod on 2013 10 29, 11:46 pm CDT

@12 W.R.T. I don't think it is farfetched. Police departments (and especially those that police areas with large immigrant communities) routinely speak out about not wanting to be required to enforce immigration laws because of how it impedes their law enforcement work.

The costs are not worth the benefits. People do not risk their lives to illegally enter this country with the goal of testifying in court.

By NoleLaw on 2013 10 30, 1:16 am CDT

The ACLU and others who support this idea don't want to see immigration enforcement anywhere. Choosing "safe zones" is more palatable, and they know that you wear down a system a little bit at a time. As for whether it is a crime or civil infraction, who cares? (It can be a crime, BTW) Either way, they've jumped in front of others who are lawfully attempting to immigrate here. To the person shamelessly playing the xeno card, don't be so juvenile. There are a myriad of legitimate reasons why we should oppose open borders and reduce immigration levels; the solvency of our nation being chief among them. Finally, the argument that victims won't come to court has already been addressed by the U non immigrant status program. Victims of qualifying offenses can apply for this status, keep relatives here with them, and eventually apply for resident alien status. So there goes the "but they won't show up to court" argument.

By NJD on 2013 10 30, 4:33 am CDT

@15 - "There are a myriad of legitimate reasons why we should oppose open borders and reduce immigration levels..." Free market economists would probably disagree with that statement, but it might well be true. It is not at issue in this article. Again, the ability to respond to a witness subpoena without fear of deportation is not what drives people to leave behind their homes and families and to come here illegally.

As far as your point about victims of qualifying offenses, well, that only addresses victims of those qualifying offenses. How about witnesses? How about victims of non-qualifying offenses? How about witnesses in civil actions? ICE's policy at issue here creates no real disincentive for illegal immigration, but creates a strong disincentive for certain people to engage in our justice system (criminal and civil). That in turn imposes costs on all of us, and in certain cases, all but ensures that criminals can go unpunished if they choose the right victims. And faddking raises a fantastic point as well: this policy all but ensures that certain employers will continue to be able to maintain exploitative conditions for undocumented workers, increasing the demand for them in the first place.

By NoleLaw on 2013 10 30, 12:30 pm CDT

Are there any safe zones where we can rob a bank?

Why are we pandering to criminals?

By tim17 on 2013 10 30, 1:29 pm CDT

W.R.T. @ 2: NoleLaw has you refuted on the back end of your parade of horribles. I want to talk about the front end.

The ACLU is doing exactly the opposite of pandering to deadbeat parents, tax evaders, and drunk drivers (and, for that matter, abusive or abused spouses or parents, deadbeat tenants or tenants needing remedies against abusive slumlords, unlicenses drivers and the people involved in accidents with them, etc.) . Many of the people who fall into those categories are undocumented. If they don't come to court for fear of ICE roundups, then there is no way to enforce these laws when they are accused of violating them.

I work in a position to see directly that the majority of undocumented litigants and witnesses do appear in court when ordered, and many do come to court when the law has protections to offer them (such as abused spouses and domestic violence victims). What is the point of enforcing other laws for or against undocumented people if they stop participating in the one institution charged with applying that law? What harm comes upon the society if we can no longer reach the undocumented defendants of misdemeanors and minor civil matters, or can no longer protect the undocumented victims, because their fear of deportation causes them to hide instead of coming to court?

I am not offering any opinion on the larger issue of immigration enforcement. I am in a position, however, to fear the consequences of courthouse roundups to the safety and peace of the communities the courthouses serve.

By plink on 2013 10 30, 3:12 pm CDT

it may be a bit worse than that even; if bad actors know undocuemnted people can't get court access, there is little reason not to cheat, rob, rape, and steal from them. child molestors can strike up relationships with undocumented women, and molest their kids with impunity. just get em deported when you're done with the little guys and they get too old to be sexually appealing. dump em back in central america with no money and no connections.

On the other hand, some undocuemnted women may have an incentive tomake false claims fo dv. I beleive there is a possible path to citizenship for victims of dv.

By defesnive lawyer on 2013 10 30, 3:57 pm CDT

It ought to be inconvenient to be in any country illegally. One of these inconveniences should be that one is liable to be arrested... anywhere. Period.

By Saffer on 2013 11 01, 12:38 pm CDT

@19 : and let's not get this thread started on how businesses like Smithfield use the law to keep their undocumented workers in line.

By Rowan Morrison on 2013 11 01, 12:40 pm CDT

Constitutional right? For non-citizens? Hmmm.

By LawLOL on 2013 11 01, 1:31 pm CDT

The solution to this problem is simple. Pass Immigration reform and they will be undocumented no more.

By Just-Ice-For-All on 2013 11 01, 2:35 pm CDT

Even the ACLU should have heightened awareness of the irony that the first word in their name is "American." There should be no place that is safe haven to people whom have entered the country illegally. Illegal immigration is not a game, akin to scoring a touchdown (the ability to stay) if they navigate the trek into the country and are able to stay ahead of ICE for a period of time without being caught. There is no goal line, no spiking of the ball. Get caught - no matter how - and they are eminently deportable.

By 7pillars on 2013 11 01, 2:55 pm CDT

@17 -- Yes, there are safe zones for bank robbers and other criminals. When that bank robber, burglar, or petty criminal has information on a more significant criminal, the prosecution will often cut a deal, dropping or reducing charges against the lower level criminal in exchange for testimony about the higher level crime. The same policy should exist for illegal aliens -- when they have information about a more important crime, they ought to be able to come forward and testify without fear that they'll be deported.

Moreover, if an illegal alien testifies against a criminal, we may be able to put that criminal behind bars, which means that it will be more difficult for him to come after you and your family!

By American of African Descent on 2013 11 01, 3:30 pm CDT

The last thing we need is for criminals and tortfeasors to be allowed to break the law in front of people who are afraid of the ICE because they know those people will refuse to report it for fear of being called as a witness and then deported. We already have enough of a non-reporting problem due to "don't snitch," people who aren't aware of what violates the law and don't have access to lawyers, etc.

Even if someone isn't in court as a witness, the right to sue and to defend oneself in court is a constitutional right guaranteed by the equal protection and due process clauses, which apply to all persons.

By Scales on 2013 11 01, 3:37 pm CDT


By Where IS Banksy? on 2013 11 01, 3:53 pm CDT

An arrest of someone who is violating the law is not abusive just because the ACLU claims it is. Don't forget to send the ACLU a Christmas card this year, so it can spend the excessive time it has on its hands opening envelopes instead of filing nonsense lawsuits. The lawsuit itself seems to violate RICO's prohibition against harboring illegal aliens and encouraging them to unlawfully reside in this Country, both of which are felonies.

By Realist on 2013 11 01, 3:59 pm CDT

At the very least, the U nonimmigrant status (U visa) protections should be extended. This visa provides long-term protections for victims who assist prosecution of sexual assault, domestic abuse, human trafficking, and other offenses. However, if not providing a long-term visa, there should at least be temporary witness protection for reporting other things, and not just for direct victims.

I would think that opponents of illegal immigration who are afraid of workers who are willing to work for low wages stealing jobs would WANT things like paying immigrants less than minimum wage to be reported. I would think that opponents of illegal immigration who are worried about financial strains on local hospitals would WANT violent criminals and unsafe working conditions to be reported. Yet there is no explicit protection for unlawfully present migrants who report these tort violations, and there is only protection for those who report violent criminals if they are victims rather than witnesses.

As for those who discuss a safe harbor for bank robbers, the safe harbor is if you rob a bank and people who think they might be deported if they report it are the only witnesses.

By Scales on 2013 11 01, 4:30 pm CDT

I would rather have my witnesses/victims coming to court, instead of not calling the police in the first place, dodging subpoenas, or just disappearing somewhere along the way, than have ICE putting them on the next plane out of the country.

By Vastly Amused on 2013 11 01, 4:35 pm CDT

Once again (as in any aspect of the immigration debate) it seems people are losing their wits in the race to punish "illegals".

I don't care who they are, if there are serious practical concerns over criminals getting away with violent crime because immigrants are deterred from coming forward (either as the perp, victim, or witness), then we should do something about it, including keeping ICE at bay.

This notion of risking letting people continue to roam our streets and prey on others so we can round up others for working low wage, hard labor jobs on the wrong side of the line? That's getting our priorities mixed up.

By Rowan Morrison on 2013 11 01, 4:36 pm CDT

This is why organized crime in this country has always thrived in immigrant communities. When people are more afraid of law enforcement then they are of criminals they balance of power effects everyone. If I am injured I don't care if the criminal is or is not documented.......but the proposition that I am somehow patriotic by freeing the perpetrator rather than like an undocumented person testify as a witness is ludicrous.

As for some of the ever so dramatic comments about murders and rapists......the ACLU is in know way suggesting they cannot be pick-up from police custody. How many wanted murders and rapists do you represent who show up for traffic citations?

By Fresnojake on 2013 11 01, 4:57 pm CDT

But its the LAW! Which administration and its apologists are slinging that bull! Track down the illegals and deport 'em. Its the law.....oh, by the way so is the 700 mile fence on the border- Congress fund it!...Its the law.
ACLU is going too far...Obama is not in his third term.

By large weasel on 2013 11 01, 6:06 pm CDT

God bless the ACLU.

By Tom Youngjohn on 2013 11 01, 9:03 pm CDT

And this is another reason why the ACLU is an embarrassment to the legal profession.

By Timothy Belt on 2013 11 01, 10:05 pm CDT

A number of years ago (pre-law school), my grandmother's home was broken into in broad daylight. She arrived home just as the burglar escaped out the back and saw him. In addition, a roofer working across the street also saw him. Unfortunately, my grandmother had a stroke before the burglar could be brought to trial, and the roofer was illegally in the country and fled town rather than testify for fear of being deported. The burglar was released without ever standing trial.

So, which would you rather have - an illegal immigrant or a burglar? The ACLU is on the right side of this one.

By Anon on 2013 11 02, 12:09 am CDT

Maybe this is a stupid question but.......why is this an issue? Is ICE standing at the doors of the courthouse inspecting papers? Are they picking up felons (who should be deported) at arraignments? Or are the responding to reports from defense attorneys regarding undocumented witnesses/victims?

Really the question is if the ACLU is objecting to an effective method if enforcing our immigration law or are they objecting to the abuse is our legal system for ulterior motives?

By Fresnojake on 2013 11 02, 12:16 am CDT

Wow, No. 36. So you are positing that because of one (1) anecdote in which an illegal who was a key witness fled (but was not deported), we should just not enforce the immigration laws.

By B. McLeod on 2013 11 02, 12:22 am CDT

@37 - That are good questions. The linked ACLU provides some examples of arrests made by ICE, but it is not clear if it is a complete list or not. Also, the chilling effects of such arrests probably implicate all of the policy concerns that have been raised with respect to arresting illegals who appear in court for whatever reason. It doesn't seem like there is anything more nefarious going on, such as ICE intervening at the request of litigants. That would be shocking.

By NoleLaw on 2013 11 02, 12:29 am CDT

Latino American here: I'm B. with McCloud and W.R.T.!
Why on earth should illegal aliens anywhere on our soil be immune from the enforcement of our immigration laws, the most generous immigration laws in the world? My parents followed US immigration law when they entered the USA - why are today's bumper crop of illegals so special that they are above the law?
The current "Immigration Crisis" is a SHAM, manufactured by both political parties, beginning with the now infamous "Reagan Amnesty" of 1987! The Republicans, and their pals in the Chamber of Commerce, the Fortune 500, and the Wall Street Banksters, get lots of cheap, docile non-union labor at low wages, so they can dump their American workers! (These guys also bring 125,000 foreign workers a month on "work visas" to further withhold employment from Americans!) The Democrats get a huge pool of low-information voters, bribed by expensive social services, who will vote Democratic! Who pays? The American worker and taxpayer! (Fortunately for Republicans and Democrats alike is the fact that tens of millions of Americans are brain-dead, and too concerned with Honey Boo-boo and the Kardashians to worry about trivial issues like democracy, economic survival in a post-industrial age, or love of country! "Like dude, that stuff is, like Uh, so HEAVY, ya know...?)

By John Smith on 2013 11 02, 6:09 pm CDT

McLeod-- any fool can see YOUR ancestors were born here... not. (No, there were no immigration laws then.)

These idiotic immigration laws are malum prohibitum, NOT malun in se. And the energy people have on this topic bears ZERO relationship[ to the reality of the role these BAD BAD people really play in our so perfect society/economy.


By ECS on 2013 11 02, 6:36 pm CDT

Several generations of my ancestors were born here.

No. 40 makes an excellent point, in that continuing to turn a blind eye to the current swarm of illegals is a slap in the face for those immigrants who went to the time and trouble to comply with the laws.

Further, if the scofflaws were forced into legitimate immigration channels, thousands of our unemployed young colleagues could be put to work full time as immigration attorneys. The ABA should be pushing for this.

By B. McLeod on 2013 11 02, 8:46 pm CDT

"Several generations of my ancestors were born here.". And your point is? And BTW the "swarms" are way down.

And my ancestors (all but the Cherokee ones) ) came before these laws, too. So the one set of immigrants steals a land and commits genocide and they are saints. Another group comes to avoid crushing poverty ad they are evil. Brilliant reasoning.

By ECS on 2013 11 03, 4:27 pm CST

"Wow, No. 36. So you are positing that because of one (1) anecdote in which an illegal who was a key witness fled (but was not deported), we should just not enforce the immigration laws."

Against whom should illegal immigration laws be enforced in court? Should we deter people from visiting their relatives' trials? From appearing as witnesses for plaintiffs in civil cases brought against those who engage in the unfair labor practices that restrictions against illegal immigration are designed to prevent? Should we create a deportation risk for those who exercise their 14th amendment right to sue those who they have evidence broke the law against them (thus preventing them from being free targets for lawbreakers)? For defense witnesses who may be helping to protect people against unfair accusations? For witnesses to alleged misdemeanors (which may have been committed by habitual criminals who also commit felonies)? For witnesses to felonies?

The only people who go to court and don't work there who I can see the ICE having a legitimate reason to go after are defendants. But if it's a criminal defendant, they'll probably be reported by the state authorities if convicted anyway. Even going after civil defendants would essentially create a free blackmail opportunity for anyone who wanted to sue someone and force them to settle for fear of being haled into court and deported.

By Scales on 2013 11 03, 6:44 pm CST

The "deportation risk" stems from their unlawful presence, not from their involvement in or presence for a court case.

By B. McLeod on 2013 11 03, 7:33 pm CST

To sum up the arguments so far:

Side A: Deport all illegals. Illegals should be arrested wherever they are encountered and deportation proceedings initiated, no matter the circumstances.

Side B: But in the context of the justice system, such a policy could significantly hinder the administration of civil and criminal justice, including (and mainly) for parties that have a legal right to be here. Also, such a policy makes it almost certain that anyone who employs undocumented workers will be extremely unlikely to get caught, which in turn makes employing undocumented workers more profitable, which in its turn creates more employment opportunities for undocumented workers.

Side A: But they are illegals. Deport them.

It is clear Side A does not want undocumented immigrants here. However, Side A has not advanced any policy arguments as to whether the benefits of the courthouse round-up policy outweigh its costs. Can't say the lack of consideration of policy implications is surprising, as sentiments such as "round them up and send them back" are derived from emotion, not logic.

By NoleLaw on 2013 11 03, 10:59 pm CST

@46, sweet

By Tom Youngjohn on 2013 11 03, 11:04 pm CST

Simply typical NoleLaw distortion. There is no "courthouse roundup policy." There is simply no "couthouse safe zone" as the ACLU would have it. People who are subject to deportation under national law are so subject wherever the law permits. Hence, presence at the courthouse is a neutral factor. The impact on any hearing is no different than if ICE caught up with the illegals at any other place. Wherever they are caught, and once they are deported, they will be unavailable for the hearing. A more sensible way to resolve the alleged issue would be for the courts to allow remote testimony via Skype from the deportee's home country, or "trial depositions" before they are shipped out.

By B. McLeod on 2013 11 03, 11:21 pm CST

If I wanted to be snarky, I would respond with "simply typical B.McLeod sidestep." But let's set that aside for a second.

"People who are subject to deportation under national law are so subject wherever the law permits."

Fantastic tautology, so you won't get any disagreement from me. To the extent you are suggesting that the law provides for arrest and deportation of all or almost all illegals almost without regard to where they are encountered, including at courthouses, I don't know the law, but I can assume for the sake of argument that you are correct. Assuming that is a fair summation of deportation law, ICE is not scouring all cities rounding up every undocumented immigrant they come across. Policy decisions are made as to when and how to enforce the law with the means that are assigned for enforcement. As part of that prioritization, apparently a courthouse round-up policy has been adopted, at least at the ICE office with responsibilities for Kern and Santa Clara counties.

It's a perfectly valid question to ask if the enforcement policy of that ICE office causes more harm than good. If you want to call it enforcement strategy instead of policy, suit yourself, but the criticisms of ICE's approach that have been raised here have not been addressed by anyone who seriously supports deportations, and it seems to me that is because a strict view of the matter is based more on an emotional response than rational thought about immigration.

I don't think that deposition via Skype would do much as far as securing relevant testimony. Aside from the difficulty of compelling appearances (are you emailing unenforceable subpoenas?), all witnesses that never came forward in the first place because they knew they risked deportation as a consequence are automatically excluded from your solution.

By NoleLaw on 2013 11 04, 1:22 am CST

Not much there in the first three paragraphs. So far as, "apparently a courthouse round-up policy has been adopted, at least at the ICE office with responsibilities for Kern and Santa Clara counties," that is just your supposition/speculation.

With respect to the concluding red herring, if you are trying to specially protect witnesses who may never come forward if they risk deportation, specially protecting them only at the courthouse will be insufficent for that purpose. I think you are a short step from arguing that ICE should administratively grant immunity from deportation to anyone who might be or claims to be a witness is a case. That is probably not in the agency's power, and would open a door so wide it would amount to suspension of all deportations.

The far better solution to the alleged problem would be simply to hold captured illegals who are identified as potential witnesses long enough for a trial deposition to be taken. There's no subpoena problem there, and it works irrespective of where the illegals were captured. record the testimony and ship them out. Problem solved.

By B. McLeod on 2013 11 04, 1:56 am CST

How about the same rule for everybody. Lets say that Process Servers can't show up where they know the recipient will be at a certain time because that is also "sensitive".

By SlipKid on 2013 11 04, 4:02 pm CST

It is not simply about enforcing immigration law: What ICE is doing, seemingly sytematically, is picking up persons, of whom they suspect they might be here illegally, at the courthouse before their trial or other appearance. They thereby intentionally cause the suspect to take a default judgement, forfeit their bond, commit contempt of court, or obstruct the punishment of a criminal for lack of testimony.

By W.Buchmaier on 2013 11 04, 6:34 pm CST

As the story notes: "Immigration agents avoid looking for suspects at "sensitive locations" including hospitals, schools and places of worship." That is, ICE already chooses not to be effective by not looking at certain places. Given that's already the situation, the argument that courts should be included is not so stupid, you want witnesses to show up, etc.

Now that said, while I think immigration violations are generally merely malum prohibition rather than malum in se (i.e. I don't think illegal aliens are necessarily morally bad people), I'd be in favor of more effective enforcement - which starts with severely criminalizing and penalizing the US employers, including responsible individuals including management working in corporations, not just fining the corporations, and going after everyone hiring people to work around their house while being willfully blind, etc. to attack the demand (and economic forces would then help reduce the "supply" of illegal immigrants).

But as it is I find the hypocrisy of people who e.g. want people deported generally while hiring (sorry for the stereotype) landscapers or nannies or construction workers to work for cash around their homes, disgusting. I blame the employers, much more than the (illegal) workers.

By df on 2013 11 04, 6:49 pm CST

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