As the president pushes for mass deportations, U.S. Immigration and Customs Enforcement has a new strategy for arresting immigrants.
First, ICE lawyers terminate people’s cases in immigration court. Then ICE officers arrest them at or just outside the courthouse. As a result, immigrants who may be trying to gain legal status in the United States are instead targeted for rapid removal.
Dozens of these immigration court arrests by masked, plainclothes law enforcement were reported across the country last week, including in Texas, Arizona, Nevada, and New York. Those included a Venezuelan student in the Bronx, who Chalkbeat reports entered the country lawfully, and asylum-seeking men in Las Vegas.
Why We Wrote This
President Donald Trump pledged to deport millions of unauthorized immigrants. A new arrest tactic to advance that goal is ringing due process alarms among immigration attorneys.
ICE officers in at least 22 states have been told to arrest people right after a judge has ordered them to be deported or prosecutors have moved to drop their case, reports The Washington Post, citing internal documents. Immigration attorneys tell the Monitor that several of these dismissals took place at initial hearings, before the merits of cases were heard.
To expand fast-track deportations, the Trump administration is seeking a backdoor to a backlogged system. It can take years for an immigration case to resolve, as there are more than 3.6 million cases pending in immigration court, which is run by the Justice Department. White House officials, including President Donald Trump, have minimized and openly challenged immigrants’ rights to mount a defense against detention and removal. The president instead focuses on security risks that he says these individuals pose.
Immigrant advocates are denouncing what they see as the Trump administration raising barriers to constitutional due process rights provided to immigrants, such as court hearings. Lawyers say they’re fielding concerns from clients of arrest at immigration courts, which may intimidate immigrants from showing up. The emerging enforcement strategy underscores the government’s sweeping crackdown on unauthorized immigrants, including those seeking lawful ways to stay.
Immigration court arrests are part of the administration’s “overall shock-and-awe enforcement strategies,” says Doris Meissner, a senior fellow at the Migration Policy Institute.
“We’ll see whether they’re actually able to sustain operations like that, because they are resource-intensive,” she says. What could complicate enforcement more broadly, she adds, is if showing up to court becomes seen as an “entrapment situation, rather than compliance.”
Expanding who can be arrested – and where
ICE carried out courthouse arrests during the first Trump term, a practice that the agency has renewed. But coordinated arrests specifically at immigration courts emerged as a distinct tactic last week.
“What they’re doing now is very new,” says Paul Hunker, who for two decades served as chief counsel for ICE in Dallas. Legally, in some cases, the government’s actions may be covered by law, he says.
Still, “I think it’s a bad practice,” says Mr. Hunker. “It’s important to allow people to pursue the relief they’re eligible for in immigration court.”
ICE has defended courthouse arrests as a way to reduce safety risks to the public, its personnel, and immigrants themselves. That’s because law enforcement typically screens people entering courthouses for weapons. While some states like Colorado and Oregon prohibit such arrests, ICE has also described them as a workaround to “sanctuary” policies that otherwise limit the agency’s enforcement.
Courthouse arrests are often necessary due to “unwillingness of jurisdictions to cooperate with ICE in the transfer of custody of aliens from their prisons and jails,” says a 2018 directive from the agency. “Border czar” Tom Homan signed the document while serving as a senior ICE official.
Immigrant advocates, meanwhile, have called out the tactic as intimidating – particularly as people show up to court dates assigned by the government. Immigrants whom the government wants to deport are generally entitled to a hearing in immigration court, where they can mount a defense against deportation.
The tactic “has the effect or may even have been designed to create a culture of fear,” says Michael Kagan, director of the Immigration Clinic at the University of Nevada, Las Vegas. “Operations like this are putting people in a position where they will feel trapped, that they can’t access the legal process.”
His clinic is offering representation to six immigrants who, he says, had been seeking asylum ahead of their May 20 arrests at a Las Vegas immigration court. Under U.S. law, people may apply for asylum within their first year of arrival, even if they entered illegally between official ports of entry.
The detained men are from several Latin American countries, says Mr. Kagan, and had their cases dismissed during their first appearance. None had attorneys.
Fast-tracking “expedited removals”
The Department of Homeland Security says most immigrants who illegally entered the U.S. within the past two years are subject to a process called “expedited removal,” a fast-track deportation option.
Former President Joe Biden “ignored this legal fact and chose to release millions of illegal aliens, including violent criminals, into the country with a notice to appear before an immigration judge,” says an emailed statement from a senior DHS spokesperson.
Expedited removal, a provision of U.S. law since 1996, allows the government to deport certain immigrants without guaranteed access to an immigration judge.
Typically, expedited removal has been applied to recent arrivals at the border. And in the early days, such removal was focused on airports, says Ms. Meissner, former commissioner of the Immigration and Naturalization Service.
Not only were resources limited for expedited removal arrests in the U.S. interior, but also those individuals weren’t always prioritized as public safety threats, she says. It also “raised very difficult questions of determining who actually had been here less than two years,” she says.
But the Trump administration now appears to be applying this fast-track option to immigrants beyond recent border arrivals. The move is part of a broader pattern of enforcing rarely used laws to ramp up deportations.
Even in expedited removal, an immigrant may claim fear of deportation – and pass what’s known as a credible fear interview. When they do, they’re supposed to be taken out of expedited removal so they may proceed in immigration court.
Given new fears of arrest, attorneys are thinking through how best to advise their clients about upcoming court dates. They say it’s important to seek guidance from reputable, licensed counsel.
“Our advice to people is to go to court,” says Mr. Kagan in Las Vegas. Because if noncitizens fail to appear at an immigration court date, they’re generally ordered deported in their absence.
“Also consider whether to bring friends or family with you who can observe,” says Mr. Kagan.
Now an immigration attorney himself, Mr. Hunker, formerly of ICE, expects more lawyers to seek an option popularized by the pandemic.
If immigrants are afraid to go in person, he says, “Maybe we can ask the court that we appear via Webex,” a virtual meetings app.
Others are working on case-specific strategies. That includes Sonia Rodriguez, staff attorney at Thrive International in Tacoma, Washington, who witnessed immigration court arrests in Seattle last week.
During past administrations, says Ms. Rodriguez, the government targeted immigrants who were criminals and “the worst of the worst.”
That’s changed, she says. “Everyone’s a priority right now.”
