On April 27, 2021, the Biden administration issued new guidance that banned civil immigration enforcement activities at or near courthouses, with a few narrow exceptions. The Department of Homeland Security (DHS) directive to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) essentially extends ICE’s existing “sensitive locations” policy to courthouses, effectively overruling a Trump-era ICE directive issued in 2018 that permitted such enforcement activities.
In issuing the guidance, DHS Secretary Alejandro Mayorkas explained that “[t]he 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.” He stated, “Ensuring that individuals have access to the courts advances the fair administration of justice, promotes safety for crime victims, and helps to guarantee equal protection under the law.”
1. New Courthouse Enforcement Guidance
Under the new courthouse policy guidance, ICE’s and CBP’s authority to execute immigration actions at or near courthouses is formally curtailed. The policy provides that enforcement activities at courthouses can only occur in the following limited circumstances:
- The arrest involves a “national security matter.”
- There is “an imminent risk of death, violence, or physical harm to any person.”
- The arrest involves “hot pursuit of an individual who poses a threat to public safety.”
- Or “there is an imminent risk of destruction of evidence material to a criminal case.”
In addition, ICE and CBP face increased oversight and accountability, as they are required to provide monthly reports to DHS detailing any planned actions at or near courthouses. Finally, like other previous enforcement policies, it requires that ICE and CBP officers to be trained on the guidance.
2. ICE’s 2011 Sensitive Locations Memorandum
The new courthouse policy essentially is an extension of previous policies limiting immigration enforcement at sensitive locations. In 2011, ICE issued its sensitive locations memo, an agency policy of not carrying out arrests, interviews, searches, and immigration surveillance in areas deemed to be “sensitive locations.” The policy explicitly barred immigration enforcement activities in five key locations: schools, hospitals, places of worship (including churches, synagogues, and mosques), any site of a public religious ceremony (such as a wedding or a funeral), and any site of a public demonstration (including marches and protests).
The 2011 memo explained that these areas did not represent an exclusive list of all possible sensitive locations, and that officers conducting activities at additional sensitive locations not included in the list should confer with a supervisor before taking further enforcement action. For immigration enforcement measures that must be taken at or near a sensitive location, the memo required approval from senior agency officials. Finally, all officers were required to be trained on the policies detailed in the memo.
a. Previous Expansions of the 2011 Memorandum
Prior to the issuance of the new courthouse guidance, advocates – including a number of judges – had argued that courthouses should already be considered to fall under the 2011 sensitive locations memo. Even though courthouses were not expressly included in its list of covered locations, these advocates noted that the 2011 memo explicitly stated the purpose of the regulations was to promote public safety by encouraging ICE “to take substantial efforts to avoid unnecessarily alarming local communities.” Because courts play a critical role in protecting the public safety, they argued, it is essential for victims, witnesses, and others to feel secure in accessing the courthouse. However, prior to the issuance of the 2021 courthouse guidance by the Biden administration, there was no consensus that courthouses fell under the 2011 memo, with courthouse enforcement actions continuing.
In February 2021, before issuing the new courthouse guidance, the Biden first announced another extension of the sensitive locations policy – barring ICE and CBP immigration enforcement activities at or near COVID-19 vaccination centers. In so doing, DHS noted that this policy was consistent with the 2011 sensitive locations memo. Although legal status is not required to receive a COVID-19 vaccine, some immigrants have expressed fear of being arrested when obtaining their vaccinations. The administration and the Centers for Disease Control and Prevention (CDC) attempted to quell these concerns by extending the sensitive locations policy to vaccination sites and promising that data collected in the vaccination process will not be released to immigration authorities.
b. Limits of the 2011 Memorandum
While important, the scope of the 2011 sensitive locations memo is limited in practice. Not all enforcement actions in sensitive locations are barred by the 2011 policy — in the event of “exigent circumstances” the memo is inapplicable. Exigent circumstances include national security or terrorism threats, an impending risk of death or injury, public safety threats, or the imminent destruction of criminal evidence. Immigration officers are permitted to conduct non-enforcement activities (such as serving subpoenas or collecting documents) at any sensitive location without prior authorization.
At the same time, the 2011 sensitive locations memo has been repeatedly circumvented. Although the memo has remained in effect continuously for a decade, DHS has strayed from its guidelines on several occasions, particularly during the Trump administration. For example, in 2020, an individual seeking asylum from religious persecution with no criminal background was arrested by ICE on church grounds. In 2017, a man was arrested leaving a church shelter. Also in 2017, an asylum seeker with a brain tumor was forcibly removed from the hospital and detained by ICE.
In addition, the 2011 memo is not enforceable through civil litigation. The memo itself indicates that it should be interpreted as “management guidance” to ICE officers carrying out discretionary law enforcement functions, expressly stating that nothing in the policy creates a private right of action.
3. Prior Courthouse Enforcement Policies
The Obama administration omitted courthouses from the 2011 sensitive locations memo, but placed separate limits on courthouse enforcement in 2014, issuing ICE guidance limiting courthouse enforcement actions to “Priority 1 aliens,” who pose a risk to national security or public safety.
These limits were removed in 2017, with the issuance of Executive Order 13768 in the early days of the Trump administration. That order, along with accompanying DHS guidance, stated that no “class or category of aliens” were to be “exempt[ed] or exclude[d]” from enforcement activities and directed DHS to target “all deportable aliens.”
Following the issuance of this Trump-era guidance, some areas experienced large increases in immigration enforcement at courthouses. In New York, courthouse arrests by ICE increased by 900% from 2016 to 2017, with many of those arrested having no prior criminal convictions and/or low-level offenses. At the time, ICE maintained that courthouse arrests only occurred after other alternatives were exhausted, a contention disputed by advocates who asserted that courthouse actions were commonly used as a “first resort.”
Subsequently, in 2018, the Trump administration announced a new enforcement policy formalizing the ICE enforcement activities in federal, state, and local courthouses. This directive asserted that civil immigration enforcement actions in courthouses “can reduce safety risks to the public, targeted alien(s), and ICE officers and agents.” According to the policy, enforcement activities would primarily focus on individuals suspected of criminal activity, with enforcement actions disfavored when targets appeared for non-criminal proceedings. The 2018 directive stated that immigration actions could be executed at or near courthouses only against “specific, targeted aliens.” However, in practice, ICE used this authority extensively, often with negative repercussions.
Proponents of immigration enforcement activities at courthouses argue that is a safe and reliable way for immigration authorities to locate and arrest targeted immigration offenders. Because courthouses require security screening, courthouse arrests ensure that the targets of enforcement are unarmed.
Proponents further note that unlike standard judicial warrants, ICE administrative warrants do not permit officers to enter the homes of immigration offenders without consent. Accordingly, immigration authorities often have to find individuals out in the community. Given this, courthouses are reliable targets – ICE officers can be certain that an individual would show up at a predetermined time and location, without having to worry about attempting to track them down or obtain consent to enter a private home.
Critics are quick to note that courthouse arrests undermine access to justice and – more generally – community trust. With fears of deportation driving sharp decreases in reports of sexual assault and domestic violence by Latinos in 2017, to fears of deportation, victims and witnesses were already less likely to cooperate with law enforcement. These trends were only exacerbated by ramped-up courthouse enforcement activities.
Policies permitting immigration enforcement at courthouses may make it difficult for police departments to prosecute crimes. Because witnesses and victims may fear being arrested, they may avoid appearing in court, even those who have much to lose by missing a court date. For example, a mother and her minor son who had filed an application for a protective order against the mother’s abusive partner were arrested at a courthouse. That case was particularly troubling because the mother’s partner allegedly tipped off officers to the victims’ immigration status. Such cases are likely to deter victims of domestic violence from seeking justice.
In addition, courthouse arrests can directly undermine access to justice, with suspects being arrested and removed on immigration charges shortly before scheduled criminal hearings. By arresting individuals before they were able to defend themselves in court, the courthouse enforcement has led to uncontested criminal convictions. In turn, those convictions can lead to additional negative immigration consequences, including subsequently barring the impacted individuals from obtaining lawful status in the future.
4. Proposals to Further Limit Enforcement at Courthouses
While the new 2021 policy limiting immigration enforcement at courthouses increases access to justice, there are ongoing concerns that the exceptions are too broad. Advocates worry that the mere presence of immigration officers at courthouses, even when not engaging in enforcement actions, can discourage undocumented immigrants from seeking legal protection.
Additionally, there is pressure on the Biden administration to support legislation codifying the restrictions contained in the new courthouse guidance and the 2011 sensitive locations memorandum. Because the sensitive locations guidance (including the new courthouse policy) is merely agency guidance, future administrations are free to modify or repeal it.
Enacting legislation limiting immigration enforcement at courthouses and other sensitive locations would provide additional certainty, particularly if the legislation included consequences for violations. For example, a bill introduced in the House earlier this year, the Protecting Sensitive Locations Act, would codify the locations mentioned in the 2011 sensitive locations memo, as well as courthouses and public assistance or unemployment offices. That bill would also include consequences for violations, providing for the deletion of wrongfully-obtained information and the termination of pending proceedings resulting from improper enforcement activities at sensitive locations.
The National Immigration Forum would like to thank Rebekah Rosenberg, policy intern, for her extensive contributions to this explainer.