August 28, 2017

Since the beginning of this year, state court officials, primarily from the western part of the United States, have begun reporting that federal Immigration and Customs Enforcement (ICE) agents are being deployed to state courthouses to follow, confront and often arrest undocumented immigrants who appear there in connection with state court proceedings unrelated to immigration status. See U.S. Commission on Civil Rights Expresses Concern with Immigrants’ Access to Justice (April 24, 2017). Recent press reports describe similar incidents in Boston (Maria Cramer, ICE Courthouse Arrests Worry Attorneys, Prosecutors, Boston Globe, June 15, 2017, and New York (Liz Robbins, A Game of Cat and Mouse with High Stakes: Deportation, New York Times, Aug. 3, 2017).

In response to such reports, the National Center for State Courts has begun compiling a database to quantify and characterize such incidents. The Conference of Chief Justices, of which I am now a member, has convened a discussion group, headed by the Chief Justice of Nebraska, to study the issue. In addition, my office and the Administrative Office of the Illinois Courts (AO) have begun monitoring for similar incidents in Illinois.

So far, the AO has received reports of half a dozen ICE enforcement actions in Kankakee and Lake Counties, two of which occurred outside a courtroom and four of which were carried out in the parking lot when the apprehended individuals appeared for traffic court. My office has gotten second-hand reports of two arrests by ICE agents in suburban Cook County, one at the Bridgeview courthouse and the other at the Markham courthouse, and a third arrest at the DuPage County Courthouse involving a father who was finalizing an adoption.

To properly understand what the ICE agents are doing, why they are doing it at state courthouses, and why that is proving problematic, one must be aware that, generally speaking, it is not a crime for a removable alien to remain present in the United States (Arizona v. United States, 567 U.S. 387, 407 (2012)), and the administrative process by which federal authorities seek to remove such individuals from the county “is a civil, not criminal matter” (id. at 396). That is so even when the alleged basis for removal is the commission of a criminal offense. Lunn v. Commonwealth, 2017 WL 3122363, ¶4 (Mass. 2017).

There are numerous reasons why an alien may become subject to civil removal proceedings. Among these are that he or she was inadmissible at the time of entry into the country or has violated the terms or conditions of his or her admission, has committed certain crime while here, has been a drug user or addict, presents certain security or foreign policy risks, has become a public charge or has voted illegally. Again, however, the removal proceedings themselves are civil in nature. When removal proceedings are brought, they are heard and decided by executive branch immigration judges appointed by the United States Attorney General, not by Article III federal judges (id.), and warrants for removal are merely civil administrative documents. They are issued without review by a neutral magistrate, do not meet the requirements necessary to support issuance of warrants in criminal cases, and do not confer authorization for entry into locations where persons have a reasonable expectation of privacy. Federal Law Enforcement Training Center, ICE Administrative Removal Warrants.

Of course, some violations of federal immigration statutes are criminal offenses. For example, it is a crime, punishable as a misdemeanor for the first offense, for an alien to enter the country illegally. It is likewise a crime to make fraudulent statements in connection with registration, knowingly transporting an alien, operating a commercial enterprise for the purpose of evading immigration laws, and illegally entering the country after having been previously removed. Immigration offenses that are regarded as criminal in nature are prosecuted in U.S. District Courts, just like other federal crimes. Lunn v. Commonwealth, 2017 WL 3122363, ¶3. It appears, however, that most immigration-related incidents at state courthouses have involved ICE agents deployed simply to carry out civil removal proceedings, not the enforcement of federal criminal law.

So far this year, ICE agents have made approximately 75,000 arrests, a figure which includes arrests at courthouses. About 19,700 of the arrestees – more than a quarter – have no criminal records. This is more than double the number of persons with no criminal record who were arrested during the same period last year. Maria Sacchetti, U.S. Unlikely to Meet Trump’s Deportation Targets Anytime Soon, Figures Show, Washington Post, Aug. 12, 2017.

Under a policy adopted by the Department of Homeland Security under the prior presidential administration, ICE agents were directed to refrain from pursuing civil removal proceedings “at or focused on sensitive locations” such as schools, hospitals, places of worship, funerals, weddings or during public demonstrations, such as marches, rallies or parades, unless they had prior approval to do so or exigent circumstances were present. Courthouses were not specifically included on this list, and since the new administration has taken office in Washington, ICE agents have increasingly viewed state courthouses as attractive locations for apprehending aliens subject to deportation, particularly in locales which have designated themselves as sanctuaries for undocumented immigrants. The proffered justification for making courthouse arrests is that it is easier and safer to apprehend undocumented individuals there than on the streets. U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests.

With the growing reports of ICE-initiated encounters at state courthouses has come mounting criticism by state court authorities. In March, the Chief Justice of the California Supreme Court wrote to the Attorney General of the United States and the head of the Department of Homeland Security condemning the practice and warning of the adverse effects it will have on the administration of justice by the courts of her state. Shortly thereafter, a similar letter was sent to the head of the Department of Homeland Security by the Chief Justice of the Supreme Court of the State of Washington. The Chief Justices of Oregon, New Jersey and Connecticut have now followed suit with letters of their own. At the end of July, a broad-based coalition of civil rights groups, immigrant rights organizations, bar associations, and social service agencies who represent immigrants and their families as they interact with the justice system in Illinois requested that I take similar action.

Critics of the courthouse encounters and arrests raise numerous objections to the practice, focusing on its adverse effects on many of society’s most vulnerable members, its detrimental impact on the ability of state courts to deliver justice, and the harm it does to public safety. Faced with the threat of arrest by ICE agents and then deportation, it is argued, victims of domestic abuse may be deterred from seeking protection against or redress from their abusers. Individuals with civil claims and those seeking help with child custody or other family issues, housing or public benefits may abandon their legal claims, resort to self help or simply be left with no help at all. Courts may be forced to postpone hearings and prosecutors may have to drop prosecutions if witnesses, fearing apprehension by immigration agents, refuse to appear at hearings or for trial. Attorneys will not be able to properly defend their clients if witnesses are too scared to appear and testify. Crimes may go unreported. Criminals may go unpunished. Victims may be left defenseless. As a result, what is sometimes touted as a public safety measure may, in the end, place the public in peril.

Courthouse arrests by ICE agents may jeopardize the ability of attorneys to represent their clients and conduct prosecutions in another, more immediate way as well. Illinois law now expressly provides that “[n]o person shall be prohibited from receiving a license [to practice law] solely because he or she is not a citizen of the United States.” 705 ILCS 205/2 (West 2016), and no citizenship requirement is imposed by the rules of the Illinois Supreme Court governing admission to the bar. Non-citizens who meet the requirements for licensure set by our court and who are admitted to the bar may therefore represent clients in court. Under current federal policy, however, their status as lawyers would confer no special protection. They would be subject to courthouse arrest to the same extent and on the same terms as any other non-citizen. It is therefore entirely possible that duly-licensed attorneys will be subject to arrest by ICE agents as soon as they step foot into the courthouse to represent their clients or conduct criminal trials on behalf of the People of Illinois.  

Disruption of state court proceedings by ICE agents not only threatens the rights and interests of the participants in state legal proceedings, it also raises fundamental questions regarding the boundaries of state and federal sovereignty. There is no question that the federal government has broad authority to regulate immigration matters and that, under the Supremacy Clause (U.S. Const., Art. VI), federal law preempts any conflicting state or local law. Arizona v. United States, 567 U.S. at 394-95, 399. It is equally clear, however, that under the Tenth Amendment (U.S. Const., amend. X) the states retain substantial sovereign authority which the federal government is obliged to respect. Gregory v. Ashcroft, 501 U.S. 452, 457-58 (1991). This federalist structure of dual sovereignty has been recognized as preserving to the people of our nation numerous advantages, including assuring “a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society” and providing “a check on abuses of government power,” reducing “the risk of tyranny and abuse” by the federal government against the states or vice versa. Id. at 458-59.

The federal government can no more interfere with a state or local government’s independent sphere of authority than a state or local government can interfere with the powers delegated to the federal government. See Printz v. United States, 521 U.S. 898, 920-21 (1997). Among the core matters of state and local concern are public safety, health and welfare. See Hillsborough County, Fla. V. Automated Medical Laboratories, 471 U.S. 707, 715-16 (1985); People v. Chicago Magnet Wire Corp., 126 Ill.2d 356, 367 (1989). To the extent that ICE’s civil enforcement encounters impede the ability of individuals to access the courts of our state to obtain recourse in matters related to safety, health and welfare, it can be argued that those encounters infringe on the powers reserved to the states and threaten state sovereignty. To the extent that the encounters or the prospect of such encounters impede the prompt and complete resolution of cases pending in state court by discouraging parties or witnesses (or even counsel) from attending court hearings, it can likewise be argued that they directly threaten the ability of the state to exercise its judicial authority. Rather than showing respect for the integrity and function of state courts, as principles of federalism require (see Signature Properties Int'l Ltd. P'ship v. City of Edmond, 310 F.3d 1258, 1269 (10th Cir. 2002)), the courthouse encounters by ICE agents would appear to evince indifference.

Concerns over the negative effects of ICE enforcement actions on access to state judicial services may have particular resonance in Illinois, where our state constitution enshrines the philosophy that every person, not just citizens, “shall obtain justice by law, freely, completely, and promptly” (Ill. Const. 1970, art. I, §12) and guarantees to all persons, not just citizens, that they shall not be “deprived of life, liberty or property without due process of law nor be denied the equal protection of the law” (Ill. Const. 1970, art. I, §2). Moreover, some Illinois communities, most notably Chicago, have a long history of opposing attempts by the federal government to engage local authorities in the enforcement of federal laws perceived as encroaching on the human rights of their residents. See e.g., Chicago Common Council Resolution of Oct. 21, 1850, declaring the Fugitive Slave Act of 1850 to be unconstitutional, condemning its supporters as traitors, and prohibiting city police from assisting the arrest of any fugitive slave (Mousin, A Clear View from the Prairie: Harold Washington and the People of Illinois Respond to Federal Encroachment of Human Rights, 29 S.I.U. L.J. 285, 299-300 (2005), and Executive Order 85-1, issued by Mayor Harold Washington on March 7, 1985, which stressed that “all residents of the City of Chicago, regardless of nationality or citizenship, shall have fair and equal access to municipal benefits, opportunities and services,” and specified that “[n]o agent or agency shall request information about or otherwise investigate or assist in the investigation of the citizenship or residency status of any person unless such inquiry or investigation is required by statute, ordinance, federal regulation or court decision” (id. at 294-95).

Chicago mayors who succeeded Mayor Washington issued orders similar to Executive Order 85-1. Id. at 298. The policy was ultimately codified as the “Welcoming City Ordinance” and is intended to promote public safety by ensuring (1) that no city resident or visitor, regardless of immigration status, is afraid to cooperate with law enforcement, report criminal activity to the police, testify as a witness in court, or seek help as a victim of crime; and (2) that police officers focus on criminal activity occurring in Chicago instead of federal civil immigration infractions. See Chicago Code, §2-173.

I note, moreover, that just this week, Senate Bill 31, known as the Illinois TRUST Act, was signed into law by the Governor.  After recognizing that Illinois law “does not currently grant State or local law enforcement the authority to enforce federal civil immigration laws,” this new legislation expressly prohibits such enforcement by state or local authorities, specifying in section 15 that “[a] law enforcement agency or law enforcement official shall not detain or continue to detain any individual solely on the basis of any immigration detainer or non-judicial immigration warrant” and that “[a] law enforcement agency or law enforcement official shall not stop, arrest, search, detain, or continue to detain a person solely based on an individual’s citizenship or immigration status.”

The Department of Homeland Security and the U.S. Attorney General have indicated that state and local jurisdictions which refuse to honor ICE detainer requests or have enacted statutes or ordinances perceived as hindering ICE immigration enforcement efforts can expect to see the agency making more frequent arrests at their courthouses. U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests; Sessions and Kelley, Letter to Chief Justice Cantil-Sakauye, March 29, 2017. Whether that will hold true for Illinois remains to be seen. While Chicago has been most strident in testing the limits of federal immigration enforcement efforts, both historically and recently (see Complaint for Injunctive and Declaratory Relief, City of Chicago v. Sessions, No. 1:17-cv-5720 (N.D. Ill. 2017)), the majority of the ICE courthouse arrests reported to my office and the AO have taken place outside of the city. In any case, we will continue to monitor these various developments to determine whether some action by the full court is necessary in order to preserve the integrity of our judicial system and insure that those needing access to judicial services will be able to obtain them freely, completely and promptly. In the meantime, if you or members of your court staff become aware of ICE enforcement encounters at your respective courthouses, I would appreciate it if you would report those incidents to Steve Miller in my office or Todd Schroeder at the Administrative Office of the Illinois Courts. Please include the date, the courthouse, whether the encounter was inside or outside the courthouse and inside or outside the courtroom itself, the reason the person with whom the encounter took place was at the courthouse, and whether that person was able to complete his or her court business.