State Attorney General Letitia James, center, is joined by Brooklyn District Attorney Eric Gonzalez, center right, as she speaks during a news conference on Wednesday, Sept. 25, in New York. Photo: Mary Altaffer/AP

Two lawsuits were filed Wednesday against U.S. Immigration and Customs Enforcement by the New York Attorney General's Office and the Legal Aid Society, both of which allege that the federal officials are acting unlawfully by allowing ICE agents to arrest undocumented immigrants in and around state courthouses in New York.

The practice has become increasingly common in recent years, the lawsuits said, despite efforts by state officials in New York to prevent those arrests from taking place.

The state has attributed the uptick to a directive from ICE in early 2018 that allowed its agents to conduct civil immigration arrests in or near state courthouses, despite decades of common law that generally precludes officers from detaining individuals in and around those locations.

"ICE enforcement actions at courthouses in New York State have skyrocketed since the Directive was issued," the state's lawsuit said. "The regularity of ICE's public and aggressive enforcement activities in and around courthouses has significantly chilled participation in New York State courts."

New York Attorney General Letitia James said in a statement that those arrests have impaired the state's justice system by deterring undocumented immigrants from appearing in court, either for their own purposes or on behalf of others.

"When ICE targets witnesses and victims for arrests, it deters noncitizens and immigrants from assisting in state and local law enforcement efforts or protecting their own rights in court," James said. "This is a disastrous and dangerous break from previous policy and that's why we are fighting to force them to end this practice."

New York is challenging the directive, and the practice of detaining undocumented immigrants at state courthouses, under the federal Administrative Procedure Act and the U.S. Constitution.

The state's attorneys argued that the directive from ICE had to be measured against the common-law principle against civil arrests during, or outside, a court proceeding in New York. That's been recognized for centuries, they said, and could only be usurped by Congress.

"Since the Founding era, American courts have likewise recognized the importance of the privilege in helping ensure that courts function properly," the lawsuit said.

Attorneys for the state also wrote that the directive violated the APA's measure of being arbitrary and capricious because it failed to account for the harm done to state judicial proceedings by facilitating courthouse arrests.

The prevalence of those arrests has jumped significantly in recent years, according to data analyzed by the Immigrant Defense Project, an advocacy and legal services group. They documented a massive 1,736% increase in ICE courthouse enforcement in and around state courts in New York from 2016 to 2018.

New York's lawsuit argued that those arrests have hindered the operations of state courts and the individuals that use them.

Immigrants who fear being detained by ICE have routinely failed to show up to court appearances, they claimed, which inhibits proceedings and has a tangible cost to the state court system.

"These disruptions significantly impair the ability of New York courts to perform routine functions." the lawsuit said. "And in all events, adjournments only add to the backlog of cases that UCS seeks to combat."

The state Office of Court Administration recognized that problem earlier this year and acted with its own directive to address the issue. That directive, published in April, was written to prevent ICE officers from making arrests in state courthouses without a judicial warrant.

But, despite those efforts from state court officials, federal immigration officers have continued to detain undocumented immigrants at state courts, the suit said.

"These arrests have significantly interfered with New York State courts' functioning and have hindered criminal prosecutions, in turn jeopardizing public safety," the lawsuit said.

They included several examples of instances when those arrests have interfered with the work of the judiciary and had the potential to put others at risk.

In one instance described in court papers, for example, ICE agents approached an immigrant who was entering Yonkers City Court in July. When the immigrant went to open the door to the courthouse, one of the agents stopped the door with his foot, breaking the glass on the door. They then made the arrest.

New York state is also challenging the directive from ICE under the 10th Amendment to the U.S. Constitution, according to the lawsuit. That section of federal law allows the state to control the operations of its own court system, which the lawsuit said was impaired by the directive allowing the arrests.

"The Courthouse Civil Arrest Directive impermissibly interferes with New York's right to form its own government by interfering with state court operations and impeding criminal prosecutions in violation of the Tenth Amendment," the lawsuit said.

The Legal Aid Society, in a separate, but coordinated, lawsuit filed Wednesday, focused its arguments on the alleged constitutional violations of the federal government's practice of arresting undocumented immigrants in and around state courthouses.

They argued that those litigants are lawfully guaranteed unfettered access to the justice system under the constitution, regardless of their immigration status.

"ICE's conduct—including its adoption of a policy that deliberately makes civil immigration arrests of state court participants—violates the many constitutional protections that relate to access to courts and justice, as well as the New York common law immunity for civil arrest afforded to court participants," attorneys from Legal Aid wrote.

Law firm Cleary Gottlieb Steen & Hamilton is also involved in the lawsuit from Legal Aid.

They're representing a handful of nonprofit organizations and an undocumented immigrant, acting under a pseudonym, who said he hasn't sought judicial intervention against an abusive former partner because he's afraid he'll be arrested by federal immigration officers while appearing at court.

Their plaintiff, Legal Aid argued, is just one of many immigrants with the same conflict. Undocumented immigrants in New York are faced with a choice of either risking deportation to seek judicial intervention in the state's courts or foregoing access to the justice system.

That struggle is far from limited to matters of domestic relations law, they said. Immigrants also fear using the state court system to resolve other matters of civil law, like housing and family issues, due to the risk posed by ICE, they said.

It also concerns criminal proceedings, where immigrants have been known to avoid scheduled court appearances out of fear that federal immigration officers will be waiting for them at some point during the proceeding.

"ICE's presence in New York's courts has created a chilling effect on the willingness of these individuals to attend their own court appearances and pursue robust defenses of their cases, contrary to their own legal interests and the efficiency interests of the courts," the lawsuit said.

The same is true for undocumented immigrants who may be a witness to a crime, or were a victim themselves, the lawsuit said. 

District attorneys in New York City have said publicly, on more than one occasion, that they've experienced challenges in prosecuting a case because either the victim or a witness was afraid of being arrested by ICE. That's impeded their ability as law enforcement officers, they've said.

That point was also highlighted in the lawsuit from New York, on which Brooklyn District Attorney Eric Gonzalez is also a plaintiff.

"If victims and witnesses to serious crimes don't come forward and cooperate, we have no cases and we will not be safe," Gonzalez said.

Representatives for ICE did not immediately respond to either legal challenge Wednesday afternoon.

READ MORE:

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