Annual Meeting

Courthouses should not be used for routine immigration arrests, ABA House says in resolution

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Corrected: On Tuesday, the ABA House of Delegates voted to urge U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection to treat courthouses as sensitive locations and to only conduct such arrests there “upon a showing of exigent circumstances and with prior approval of a designated supervisory official.”

The House of Delegates also urged Congress to codify into law guidelines like those issued in a 2011 memo (PDF) by the ICE director. The memo advised that immigration enforcement actions should only be undertaken in “sensitive locations” if there was prior approval or exigent circumstances. These sensitive locations included schools, hospitals, houses of worship, public demonstrations and public religious ceremonies, such as weddings and funerals.

In February, an incident in Texas sparked controversy when a woman who was reportedly at a courthouse to obtain a protective order had been arrested by ICE agents.

The chief justice of the California Supreme Court, Tani Cantil-Sakauye, was one of the people to have expressed concern about such actions.

“Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws,” she wrote in a March letter to Attorney General Jeff Sessions and then-Homeland Security Secretary John Kelly. “I am concerned about the impact on public trust and confidence in our state court system if the public feels that our state institutions are being used to facilitate other goals and objectives, no matter how expedient they may be.”

The Criminal Justice Section, Section of Litigation and Commission on Immigration and the Massachusetts Bar Association had introduced Resolution 10C.

Robert Harnais, immediate-past president of the Massachusetts Bar Association, rose to tell the delegates about a woman he knows who was the victim of domestic violence. One of her two young children called the police to report his mother was being strangled. She appeared multiple times in court during the prosecution of her attacker, but during one visit to the courthouse, she found out that ICE was in the building looking for her. She hid in the bathroom and later was able to sneak out of the building, but the case against her attacker was dismissed because she did not appear in the courtroom.

Harnais said that she should not have had to sneak away while her attacker “walked proudly” out the front door. “This woman should never have had to leave that courthouse,” Harnais said. “This woman has nowhere to turn to.”

Wendy Wayne, a member of the Commission on Immigration, said she has advised hundreds of lawyers on immigration matters over the past 15 years. “A common question I get daily now is: ‘Will my client be arrested if she goes to court?’”

Wayne says that victims, witnesses and criminal defendants are all at risk at local courthouses now. She called upon delegates to pass the resolution.

Robert Juceam rose to represent the American Immigration Lawyers Association in support of the resolution

“In immigration, let’s remember: Persons not in status may have committed no crime, they’re just not in status,” Juceam said. “They are persons under the Constitution.”

He decried ICE agents waiting in courthouses listening for “foreign-sounding language in the hallway” or looking for names on court registers that seem like they could belong to immigrants.

“What happens is, people are afraid,” Juceam said. “And I’ll tell you, they’re afraid not necessarily for themselves.”

Juceam warned that family members and friends of immigrants might also be afraid of being asked questions under oath that could expose their loved ones to immigration enforcement agents. He asked that delegates support making courthouses safe places for all.

Jose Feliciano, a delegate at-large and a member of the ABA Fund for Justice and Education, was the last to rise in support of Resolution 10C. He told the audience about a phone call he’d received from a priest at La Sagrada Familia Church in Cleveland. The priest told him that an ICE van had begun loitering a block away from his church, waiting for services to let out. When word spread in the parish, people were too afraid to come to mass.

“That’s just not right, and I think that we live in a better America than that,” Feliciano said.

The resolution was overwhelmingly approved by a voice vote.

Corrected Aug. 16 to correctly state that Robert Harnais is immediate-past president of the Massachusetts Bar Association; corrected Sept. 4 to correctly state the names of U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection.

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