U.S. Immigration and Customs Enforcement. Photo: LM Otero/AP

The Trump administration, in a new court filing, defended its policy of arresting undocumented immigrants in and around state courthouses in New York, saying that federal immigration law gives them exclusive authority to make those arrests, regardless of location. 

Lawyers from the U.S. Attorney's Office for the Southern District of New York made that claim in a new effort to toss litigation brought by New York Attorney General Letitia James on the issue.

"Because the federal government has exclusive authority over immigration, it has regulatory authority over all aliens within the United States," they wrote. "Congress thus has the power to create a system that permits arrests of aliens notwithstanding the status of federal or state court proceedings."

James and Brooklyn District Attorney Eric Gonzalez claimed in a lawsuit against the Trump administration last month that its policy of arresting undocumented immigrants in and around state courthouses is both unconstitutional and was unlawfully promulgated. 

That legal challenge is based on claims that, in the past few years, the Trump administration has drastically ramped up its arrests of undocumented immigrants at state courthouses. 

A data analysis by the Immigrant Defense Project, an advocacy and legal services group, showed a 1,736% increase in ICE courthouse enforcement in and around state courthouses in New York from 2016 to 2018.

Attorneys for New York state claimed in their suit that those arrests are the direct result of a directive issued last year by U.S. Immigration and Customs Enforcement, which allowed agents to conduct civil immigration arrests in state courthouses. 

The lawsuit from New York and Gonzalez argued that those arrests are unlawful under a centuries-old common-law privilege against civil arrests during, or outside, a court proceeding in New York. They also claimed the arrests have hindered state court operations.

The Trump administration rebuked the state's claims about common-law privilege in their motion to throw out the lawsuit, saying that federal law promulgated by Congress superseded the centuries-old understanding. 

"Congress established a comprehensive system of immigration laws which dictate when and where immigration arrests are lawful, including at courthouses, thereby displacing any privilege," the Trump administration wrote. 

They pointed specifically to the Immigration and Nationality Act, which they said gives the federal government broad authority to decide where its agents may arrest undocumented immigrants, and under what circumstances. 

In this case, they argued, there's nothing in federal law that would prevent ICE from making a civil arrest for purposes of deportation in or around a state courthouse in New York. While a common-law understanding may prevent other arrests, that's not the case in matters involving immigration, they argued.

"The INA's broad language thus grants ICE the discretion to determine the location of a civil enforcement action against an alien present in the United States," the Trump administration wrote.

But even if the Trump administration's arguments about the legality of the arrests isn't persuasive, attorneys for the DOJ wrote that neither New York state nor Gonzalez have standing to challenge the directive from ICE.

Instead, they wrote, immigrants already have a mechanism to challenge the nature of their arrest, be it at a courthouse or elsewhere. Neither James nor Gonzalez are directly affected by the directive, or even the arrests, they wrote.

"The INA provides a process, led by immigration courts, for addressing arrest and detention issues, and also provides individual aliens with a means to challenge their arrest and the initiation of removal proceedings, including a means to challenge the propriety of their arrest under the statute," attorneys for the Trump administration wrote.

"Nothing in these provisions governs Plaintiffs' conduct or actions in any way, is targeted towards Plaintiffs, or creates any entitlement or interest that Plaintiffs may invoke," they later wrote.

James and Gonzalez argued in their lawsuit that, aside from the questionable legality of the courthouses arrests, the increase in enforcement has hindered access to justice for immigrants in New York and disturbed operations at the state's courts.

"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 in September. "This is a disastrous and dangerous break from previous policy and that's why we are fighting to force them to end this practice."

They've claimed that the increased presence of ICE at state courthouses has created a chilling effect, in that immigrants are now less likely to pursue civil litigation against, say, their landlord, or agree to testify in a criminal proceeding.

That's taken the administration of the judiciary out of the state's hands, the lawsuit argued. Attorneys for the Trump administration responded to that point in their filing by saying their directive hasn't provided any information that they didn't already know before.

"The Directive does not implicate the Tenth Amendment—it does not order state courts or District Attorneys to identify witnesses that will be appearing, much less make them available for arrest," they wrote.

The Trump administration also argued that, regardless of how the state wants its court system to operate, the federal government has exclusive authority over immigration proceedings, including when and where to make an arrest for deportation.

The lawsuit from New York and Gonzalez is separate from a different challenge to the courthouse arrests from the Legal Aid Society and a coalition of immigrant rights groups. That litigation is ongoing.

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