Homeland Security Secretary Alejandro Mayorkas nudged the country’s courthouses into sanctuaries for illegal immigrants Tuesday, ordering ICE and Border Patrol agents to stop arresting people at the facilities unless national security is at risk or there are overwhelming public safety reasons.
The policy applies to federal, state, local and tribal courts, and to federal immigration courts, which analysts said will dent officers’ ability to carry out deportations of people whom judges have just ordered to be removed from the country.
The change is a major victory for immigrant rights groups that have complained about rising numbers of arrests of illegal immigrants at courts, and some lawyers who said witnesses weren’t showing up for cases because they feared arrest.
The policy is a major reversal for U.S. Immigration and Customs Enforcement, which for years has said courthouses are safe locations that limit chances of violence against officers and in communities.
Indeed, Mr. Mayorkas was the deputy secretary during the Obama years, when courthouse arrests were allowed. In announcing the move, Mr. Mayorkas seemed to suggest his views evolved after watching the Trump administration.
“The expansion of civil immigration arrests at courthouses during the prior administration had a chilling effect on individuals’ willingness to come to court or work cooperatively with law enforcement,” Mr. Mayorkas said in the statement.
The Department of Homeland Security said it is trying to find a “balance” between public access to courts and “legitimate civil immigration enforcement interests.”
Jessica Vaughan, policy studies director at the Center for Immigration Studies, said the way the guidance is written, that balance leans heavily against immigration enforcement and in favor of illegal immigrants.
“This excludes almost every kind of person that ICE is expected to arrest,” she told The Washington Times. “It’s making courthouses a sanctuary for most illegal aliens.”
Preventing ICE officers from making arrests at immigration courts is absurd, she said.
“It’s the equivalent of barring county sheriffs from county courthouses,” Ms. Vaughan said. “ICE enforces the orders of the immigration judges who preside in immigration court. How can they be barred from making arrests there?”
The sanctuary rules were announced amid a flurry of activity at Homeland Security.
President Biden announced that he would nominate Sheriff Ed Gonzalez of Harris County, Texas, as director of ICE. Sheriff Gonzalez is a sanctuary supporter who severed a cooperation agreement with ICE in 2017.
Meanwhile, Mr. Mayorkas announced a delay in implementation of the Real ID deadline for secure identification, pushing the deadline from this October to May 2023. He blamed the COVID-19 pandemic for delaying compliance.
Real ID was implemented after the 2001 terrorist attacks, when some of the hijackers boarded airplanes using valid IDs even though they were in the country illegally. When it is implemented, the law will require a secure ID for federal purposes such as boarding a plane or entering a federal building.
Also Tuesday, Mr. Mayorkas announced an effort to target smuggling organizations that are facilitating the surge of illegal immigrants at the border. Operation Sentinel will try to identify those connected with human smuggling operations, deny them visas to enter the U.S. and freeze assets they have stored in the country.
“We know who you are, and we are coming for you. We will take everything we can from you,” said Troy A. Miller, the acting commissioner at Customs and Border Protection, which will lead the initiative.
Mr. Miller was also part of the courthouse sanctuary policy. He announced that Border Patrol agents will for the first time be subject to a prohibition on making arrests at courts.
The sanctuary policy applies to the area “near” courthouses, too. The guidance defines that as a parking lot or nearby bus stop.
The exceptions seem to be narrowly drawn.
They include a “national security threat,” cases in which there is a risk of imminent death or harm, hot pursuit of a public safety threat, or danger that someone will destroy evidence in a criminal case.
Other arrests are allowed for public safety threats but only if there is no safe alternative location and if a high-level supervisor gives prior approval.
In practice, Ms. Vaughan said, that is rarely going to happen in time to make the arrest.
When arrests are made, agents and officers were told to do it “outside of public view” and not to use public entrances. That could conflict with some jurisdictions that have banned courthouse arrests in non-public areas of their facilities.
The policy applies only to civil immigration arrests. Criminal arrests are not proscribed, but the rules encourage limits there too.
The American Civil Liberties Union called the policy “an important step” but said the national security exception is too broad and the public safety exception would be used to target minorities. The ACLU said even the presence of ICE officers or vehicles near courthouses is a problem, whether or not they are making arrests.
Mr. Mayorkas will receive monthly reports on arrests to monitor compliance. The policy is only temporary, and the secretary will be issuing final rules alongside guidelines on the broader universe of ICE arrests.
ICE has long maintained a list of “sensitive” locations where arrests were discouraged. The list included churches, schools, medical facilities and public rallies. Even during the Obama years, the list did not include courthouses.
During the Trump administration, as more communities adopted sanctuary policies forbidding Homeland Security from making arrests in their prisons and jails, ICE began to use courthouses more often.
They reasoned that if a target couldn’t be picked up from a jail but had a court appearance, they would know when and where the person would be. Beyond that, the person would be screened for weapons upon entering the courthouse, making an arrest safer for the arresting officer and the general public.
Previous ICE directors have said officer safety was a primary concern.
ICE referred questions about the reversal in that officer safety stance to Homeland Security, which did not respond to that particular inquiry from The Times.
During the Trump years, officials and judges from Oregon and Washington to New York and Massachusetts created policies limiting or banning ICE arrests.
In New York, the state attorney general’s office said it could show the chilling effects of the Trump policy by pointing to reductions in calls to immigrant affairs units at the Brooklyn and Nassau County district attorney’s offices.
But the data the state submitted undercut its own case.
The call reduction was from 2016 to 2017, but the Trump memo New York was challenging wasn’t announced until January 2018.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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