Jurisprudence

ICE Agents Are Using Pennsylvania’s Courthouses as a Stalking Ground. The State Supreme Court Can Stop Them.

A special agent from ICE searches a vehicle heading into Mexico at the Hidalgo border crossing on in Hidalgo, Texas.
A special agent from ICE searches a vehicle heading into Mexico at the Hidalgo border crossing on in Hidalgo, Texas.
Scott Olson/Getty Images

Across the United States, Immigrations and Customs Enforcement officers stalk state courthouses, tracking down undocumented immigrants to arrest, detain, and deport. Since Donald Trump took office, ICE has dramatically escalated courthouse arrests; in New York, for instance, they increased by 1,700 percent between 2016 and 2018. This phenomenon is particularly acute in Pennsylvania: The Philadelphia ICE office is the most aggressive in the country, seizing more undocumented immigrants with no criminal convictions than any other. Courthouse arrests are a key part of its strategy. ICE agents stake out Pennsylvania courts and persuade personnel to reveal the immigration status of plaintiffs, defendants, parolees—anyone with business before a judge. Then they arrest these immigrants, either in the courthouse or just outside it, placing them in detention and thwarting their access to justice.

The Pennsylvania judiciary does not have to be complicit in ICE’s assault on the integrity of its justice system. On Wednesday, the Sheller Center for Social Justice at Temple University Beasley School of Law released a new report detailing the devastating impact of ICE’s tactics on Pennsylvania’s immigrants—and urged the Pennsylvania Supreme Court to halt state courts’ collusion with the agency. Its findings bolsters proposals put forth by the ICE Out of Courts Coalition, a collection of public defenders and immigrant advocates led by Community Legal Services. The Pennsylvania Supreme Court can’t stop ICE from snatching immigrants in their homes, schools, and offices. But it can keep ICE agents out of the courthouses where immigrants have a constitutional right to be.

Unsurprisingly, the Temple report notes that ICE activity in Pennsylvania surged after Trump’s election, partly because the president encouraged officers to target individuals without criminal records. ICE conducted courthouse arrests in at least 13 Pennsylvania counties, most of which have large immigrant populations. Probation officials, meanwhile, regularly collaborate with the agency, telling ICE agents which probationers are undocumented. Some probation officers inform ICE when probationers are scheduled for a check-in—allowing ICE to wait at the courthouse and arrest them when they arrive. Others share probationers’ personal information with ICE so agents can seize them at their homes.

Judges, too, help ICE identify undocumented individuals whose immigration status has nothing to do with their claims before the court. A Cumberland County judge called ICE on a couple seeking to get married because she suspected the groom, who is Hispanic, was undocumented. (He wasn’t, but ICE came to the courtroom and fingerprinted him just to make sure.) A Lancaster County judge pressed a defendant about his immigration status during a traffic hearing; when he acknowledged that he was undocumented, the judge had him jailed and asked a police officer to notify ICE. Chester County judges have asked individuals with “Spanish surnames” about their immigration status in an effort to identify undocumented immigrants to report.

Incidents like these have had a disastrous effect on the legal community’s ability to serve immigrants. A national 2018 study by the American Civil Liberties Union and National Immigrant Women’s Advocacy Project found that crimes against immigrants are increasingly difficult to investigate and prosecute due to victims’ fear of ICE arrest. A majority of police officers said that domestic violence, human trafficking, and sexual assault had all become more difficult to investigate. Fifty-four percent of judges reported that court cases were interrupted due to an immigrant crime survivor’s fear of attending court, a jump from 43 percent in 2016. Legal service and victim advocates filed 40 percent fewer cases for immigrants in 2017 than 2016, noting that undocumented clients stayed in abusive relationships to avoid setting foot in a courthouse to seek protective orders. (ICE has arrested at least one alleged victim of domestic violence seeking a protective order at a courthouse, then lied about the incident in an affidavit.)

These findings align with the Temple study’s survey of legal service agencies in Philadelphia. Seventy-seven percent of respondents said immigrant clients feared going to court or declined to pursue a case because they were worried they’d be arrested by ICE at the courthouse. One immigrant mother was terrified to attend a hearing regarding her injured son because she thought ICE might seize her. Domestic violence service agencies have found that immigrants are frightened to file protective orders against abusive partners because they worry ICE will arrest them in court. Legal service agencies in Philadelphia have seen a precipitous drop in immigrants pursuing wage-theft cases for the same reason.

The impact of courthouse arrests are especially ruinous for individuals with scheduled court hearings. (That includes anyone from a criminal defendant to an individual dealing with a traffic ticket.) When ICE snatches them before they can appear in court, the judge may issue a “bench warrant,” placing their names in a statewide system that will trigger their arrest the next time they interact with law enforcement. Ironically, ICE will use these bench warrants against immigrants in removal proceedings to justify their deportation—even though it is ICE’s fault that the warrants are issued in the first place.

Can ICE, a federal agency, really ambush and arrest immigrants attempting to navigate their state’s justice system? Not necessarily—at least in Pennsylvania. The state constitution contains a guarantee that “all courts shall be open” and “right and justice administered without sale, denial or delay.” As interpreted by the Pennsylvania Supreme Court, this provision grants those with a “legal injury” a right to access the courts. There is no question that ICE’s courthouse arrests create substantial “denial or delay” for immigrants who need access to the justice system. Moreover, ICE’s immigration arrests are generally civil, not criminal, conducted with no judicial warrant. Pennsylvania courts have long recognized a privilege against civil arrests at courthouses, and there’s no clear reason why ICE should be exempt from this principle.

The Temple study’s authors implore the Pennsylvania Supreme Court—which promulgates rules for the state judiciary—to convene a task force to craft a response to ICE’s assault on courthouses. Luckily, the ICE Out of Courts Coalition has already proposed a number of sensible policies for the courts to adopt. Among other things, the coalition has called on the courts to prohibit immigration arrests at courthouses, including their “outlying premises”; to prohibit collusion between ICE and court personnel; and to compel ICE officers to identify themselves upon entering a state courthouse.

In 2018, the Pennsylvania Supreme Court proved it was not afraid to take bold action to safeguard individuals’ rights under the state constitution, striking down a GOP gerrymander despite a relentless assault by Republican lawmakers. Its progressive majority should not back down from a fight with Trump’s deportation machine. The justices do not have to stand idly by as the Pennsylvania judiciary becomes a stalking ground for ICE agents. They have the power to stop ICE’s immigrations arrests at state courthouses. And Pennsylvania’s victimized, vilified immigrants have nowhere else to turn.