While in person court appearances have been happening on a smaller scale and are ever changing during these times, we write with exciting news regarding the rights and protection of noncitizen client’s when attending court in New York State. On December 15, 2020, the Protect Our Courts Act (POCA), which was passed by the New York State Legislature in July 2020, was signed into law. POCA (S425A/A2176A), which went into effect upon Governor Cuomo’s signature, prohibits Immigration and Customs Enforcement (ICE) officers, absent a judicial warrant, from making civil arrests while an individual is going to, is attending, or is leaving New York State Courts.
As many of you know or have witnessed firsthand, since 2017 there has been an exponential increase in ICE arrests in and around courthouses as ICE increasingly used court appearances to track, monitor, and arrest noncitizens. Along with the many harmful consequences of this tactic, ICE’s increased enforcement at courthouses caused noncitizens to fear attending court even when required or if a victim seeking assistance. ICE arrests at courthouses also often halted criminal court proceedings as defendants were arrested and confined in immigration custody mid case. Thus, to address these and the other harmful results of ICE’s enforcement at courthouses, the New York State Legislature passed the Protect Our Courts Act.
Under POCA an individual attending a court proceeding in which they are a party or potential witness or are a family or household member of a party or potential witness, is protected from civil arrest, including arrests by ICE officers for purposes of immigration enforcement, while going to, remaining at, and returning from, the place of such court proceedings. NYCRL § 28(1). Under the law, “court proceedings” include, (1) any appearance in a court before a judge or justice or judicial magistrate ordered or scheduled by such judge or justice or judicial magistrate, or (2) the filing of papers designed to initiate such an appearance before a judge or justice or judicial magistrate. NYCRL § 28(6)(b). Here, unlike the new rules issued by the New York State Office of Court Administration (OCA) in April of 2019 which only applied to inside court houses and did not include town and village court’s outside the OCA’s jurisdiction, POCA protects individuals coming, attending, and leaving court and covers all New York State courts, including: the New York Supreme Court, Appellate Division; Supreme Court, County Court, Family Court, Surrogates Court, Court of Claims, NYC Criminal Court, NYC Civil Court, Justice Court (including “Town Court” and “Village Court”), Traffic Violations Bureau, and NYC Office of Administrative Trials and Hearings.
While these protections do not apply if the civil arrest is supported by a “judicial warrant or judicial order authorizing such civil arrest,” ICE arrests of noncitizens based on civil violations of federal immigration law most often rely solely on an “administrative warrant”, which is not a judicial warrant or judicial authority, but is a warrant signed by a supervisory ICE officer. See NYCRL § 28(1).
Additionally, POCA provides procedures which law enforcement agencies must follow upon entering a courthouse acting in their official capacity. Under POCA a representative of a law enforcement agency, such as ICE, who enters a courthouse intending to observe an individual or take an individual into custody shall identify themselves to court personnel and state their specific law enforcement purpose and the proposed enforcement action to be taken. NY Judiciary Law § 212(2)(aa)(i)(A). A copy of any warrant or order concerning an intended arrest must be provided to the court and must be promptly reviewed by a judge or court attorney and any information about the proposed enforcement action must be provided to and reviewed by court system personnel, including the judge presiding over any case involving the subject of the action. NY Judiciary Law § 212(2)(aa)(i). Generally, no arrest may be made by the law enforcement agency in a courtroom, absent extraordinary circumstances, and no civil arrests shall be executed inside a New York courthouse, except where pursuant to a judicial warrant or judicial order authorizing the arrest. NY Judiciary Law § 212(2)(aa)(i)(D)&(E).
Finally, POCA provides potential remedies for violations of the new law. NY Judiciary Law § 4-a provides the court with the power to issue appropriate judicial orders to protect this privilege from civil arrests and NYCRL § 28(2) establishes that willful violation of NYCRL § 28(1) or a court order issued pursuant to NY Judiciary Law § 4-a will constitute contempt of court and false imprisonment. Furthermore, under POCA, an individual may bring a civil action for appropriate equitable and declaratory relief if they have reasonable cause to believe a violation of NYCRL § 28(1) or NY Judiciary Law § 4-a occurred or may occur. NYCRL § 28(3)(a). Additionally, the attorney general may bring a civil action on behalf of the people of the state of New York to obtain appropriate equitable and declaratory relief if the attorney general has reasonable cause to believe that a violation of NYCRL § 28(1) or NY Judiciary Law § 4-a occurred or may occur. NYCRL § 28(3)(a).
Therefore, under POCA ICE can no longer arrest noncitizens or their family members on their way to or from court or while attending their court proceedings. However, it is very important to note that POCA does not prevent ICE from surveilling and arresting noncitizens when they are not attending a court appearance, such as at their home or in their communities. You should advise your client’s, when attending court, to carry an appointment notice or other document indicating their court date. Your clients should also be advised that if they are stopped by an ICE officer while on their way to or from court, they should remain silent, not answer any questions or provide any information, ask if they are free to leave, and tell the officer “I am going to attend (or I am leaving) court” but provide no other information about the court proceeding or the reason for their appearance. Finally, if your client is arrested by ICE at the courthouse or coming to or leaving their court appearance, please notify our office immediately and alert the court.
If you wish to learn more about ICE’s history of enforcement at courthouses, the impact of courthouse arrests, or the advocacy leading to the passing of POCA you can visit the Immigrant Defense Project’s page on the ICE Out of Courts Campaign.
Please do not hesitate to reach out to our office with any questions or concerns.