Photo: ICE via Wikimedia Commons

The Office of Court Administration, which oversees New York state courts, is considering making a rule that would prohibit federal immigration officers from arresting undocumented immigrants in state courthouses without a warrant signed by a federal judge.

Chief Administrative Judge Lawrence Marks told state lawmakers at a hearing in Albany on Tuesday that while court officials do no support banning officers with U.S. Immigration and Customs Enforcement from entering state courthouses, they may consider the warrant requirement to add an additional layer of protection for immigrants.

“They would come in with a warrant signed by a [federal] judge,” Marks said during an interview after his testimony. “We've been asked to require that and it's something we've considered. We haven't taken that step yet, but it's something we've considered.”

The rule would be similar to a bill currently being considered in the state Legislature, which would block those officers from arresting an undocumented immigrant in a state courthouse without a judicial warrant. An administrative warrant from ICE would not be enough to permit an arrest under the legislation.

The bill is sponsored by Assemblywoman Michaelle Solages, D-Nassau, and State Sen. Brad Hoylman, who raised the issue with Marks at the hearing. Marks was in Albany to testify on the Unified Court System's budget proposal, which is requesting a 2 percent increase in state funds.

“This has been an ongoing problem for several years now,” Marks said of ICE officers in state courts. “We are concerned about the impact it may have on people being likely to return to court. Courts can't do the business that they're obligated to do unless people come to them.”

But there's little the Office of Court Administration can do to prevent those arrests, Marks said. They have chosen not to prohibit ICE officers from entering state courthouses, citing constitutional concerns over public access to those buildings, regardless of affiliation.

“Courthouses are open buildings and, absent some extreme circumstance or someone gets into a fight in a courthouse, courthouses are open to everyone,” Marks said. “We don't ban people from coming into courthouses.”

Federal immigration officers are currently not required to have a judicial warrant to make an arrest in a state courthouse, but they do have to follow a certain procedure implemented by court officials. For one, they are not allowed to make an arrest in the actual courtroom where an immigrant is scheduled to appear, but they may make an arrest within the building itself.

When officers from ICE show up at a state courthouse, they're asked to tell the court officers at the entrance of the building why they're there. Those court officers then notify the judge presiding over the immigrant's case. The judge has discretion on whether to notify the attorneys in the courtroom that immigration officers have arrived to make an arrest.

The new rule, if considered by OCA, would still allow those officers to make an arrest in a state courthouse, but they would have to have a warrant signed by a judge to do it.

The change would be important for advocates who have pushed for tighter restrictions on access to state courthouses for officers with ICE, but it will also do nothing to curb the number of arrests happening just steps away from those buildings. Marks said that, in recent months, the number of arrests by ICE happening inside state courthouses has dropped, which may indicate more arrests happening after an individual has left the property.

“The trend over the last six to eight months is that there have been very, very few arrests in the courthouses, which may be—but we don't know for sure—because they're arresting people outside of the courthouses,” Marks said.

But that is very much the opposite trend from what's happened in state courts since early 2017, according to a report released this week from the Immigrant Defense Project, an immigration advocacy group. The report claimed there was a 1700 percent increase in documented reports of either sightings of or arrests by ICE officers in state courts from 2016 through the end of last year.

“This report shows that ICE is expanding surveillance and arrests in courthouses across the state, creating a crisis for immigrants who need access to the courts,” said IDP Executive Director Alisa Wellek. “We cannot allow ICE to turn New York's courts into traps for immigrants.”

Marks acknowledged that there's been an uptick in arrests by federal immigration officers in state courthouses since the beginning of the Trump administration, even though the frequency of those arrests has been lower in recent months.

“ICE has made appearances in the state courthouses for a number of years, but it's accelerated since 2016 with the new administration in Washington,” Marks said.

Before they decide whether or not to require a judicial warrant for immigration-related arrests in state courthouses, Marks said he and Chief Judge Janet DiFiore first have to view the issue from an impartial standpoint. The courts, Marks said, are an independent branch of government from Gov. Andrew Cuomo and the leaders of the Legislature, all of which support limiting the reach of ICE in state buildings, including courthouses.

“It's a very, very difficult question for us,” Marks said. “We're the court system, we have to be neutral around the Legislature and the governor.”

State lawmakers could choose to deal with the issue legislatively, taking court officials out of the decision-making process on the issue. The bill was first introduced last year, but is more likely to pass this year after Democrats took majority control of the state Senate, giving them power over both houses of the Legislature. Solages said she's confident in the bill's chances.

“We want to make sure we protect the judicial system for all individuals, all New Yorkers, regardless of their immigration status,” Solages said. “I'm confident we can get this done by passing it through both houses.”

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