Can NY stop ICE from arresting immigrants at federal courthouses?

Federal immigration authorities’ recent incursions into courtrooms have inflamed safety concerns in New York, but current state law only bans civil immigration arrests in state courthouses. Some state lawmakers want to ban U.S. Immigration and Customs Enforcement agents from arresting immigrants in federal buildings, but even if the most ambitious plan to do so makes it off the governor’s desk, the federal government would likely argue that such a law violated the U.S. Constitution.

ICE arrests in court

In recent weeks, U.S. Immigration and Customs Enforcement agents have arrested numerous undocumented immigrants who appeared for court hearings, as part of an aggressive new strategy to deport people more quickly and without due process. In many cases, the government has actually asked judges to dismiss people’s existing immigration and asylum cases, just so that it can re-arrest them outside the courthouse and then place them into “expedited removal,” a process that allows ICE to spirit them out of the country without needing to wait for a judge’s ruling.

In New York City, ICE agents arrested a Bronx high schooler who was in court for a routine immigration hearing last week and then staked out federal buildings in Manhattan on Wednesday and Thursday to arrest at least a dozen more immigrants who showed up for scheduled court hearings. Rep. Dan Goldman, whose district office at 290 Broadway is located in the same building as immigration court, witnessed a number of the arrests on Thursday morning. Hours later, at a press conference outside the building, he condemned the Trump administration.

“The Department of Homeland Security has implemented, over the last week, a coordinated effort to do an end-run around our legal system in order to remove nonviolent, non-criminal immigrants trying to come into this country through a lawful pathway of immigration proceedings,” he said.

The New York congressman said it appeared to be a coordinated effort across federal agencies.

Goldman compared the masked ICE agents making arrests inside a federal building to the secret police in Nazi Germany and the Soviet Union.

“This is Gestapo-like behavior, where plainclothes officers wearing masks are terrorizing immigrants who are doing the right thing by going to court, following up on their immigration proceedings, and trying to come into this country lawfully,” he said.

Goldman said he witnessed the arrests of several immigrants who came to court without legal representation for what were routine asylum case court proceedings. He said he confronted the agents and asked why they were covering their faces. “One person told me, because it's cold. I asked him if he would testify to that under oath, and he walked away and wouldn't respond,” Goldman said. 

Goldman, who is a former federal prosecutor, said he asked the same question to another agent. “Another person admitted that they're wearing masks so that they are not caught on video,” he said. “If what you are doing is legitimate, is lawful, is totally above board, why do you need to cover your face?” 

Goldman said he thinks these tactics are designed to spread more fear among immigrants. “Ultimately, what this comes down to is not anything having to do with the border. It is not anything having to do with our immigration system. It is simply an effort by the Trump administration to remove as many foreigners as possible,” he said.

Gov. Kathy Hochul also spoke out against the arrests. “Leave our families alone,” she told reporters at an unrelated press conference on Thursday. “Let our students get the education, especially those who are trying to follow the law, presenting themselves at an immigration center, following the rules (for) what they have to do to be able to have asylum.”

Protect Our Courts

The Protect Our Courts Act, passed in 2020 after being sponsored by state Sen. Brad Hoylman-Sigal and Assembly Member Michaelle Solages, does provide some cover for immigrants and undocumented New Yorkers as they interact with the judicial system. The law prevents federal immigration authorities from making civil arrests in and around New York state courthouses – unless they have a judicial warrant signed by a judge, which is much tougher to obtain than the administrative warrants that ICE agents usually use.

However, the law lacks a strong enforcement mechanism. In March, after an earlier wave of arrests at court, Hoylman-Sigal and Solages sent a letter calling on state Attorney General Letitia James and Chief Administrative Judge Joseph Zayas to ensure the Protect Our Court Act is enforced. 

An even bigger issue is that the current law only applies to state courthouses, not the federal courthouses where immigration cases and asylum hearings take place.

While lawmakers and immigrant advocates are currently considering a number of bills meant to help protect undocumented New Yorkers from ICE, it does not seem that any of them would actually stop federal immigration authorities from arresting people inside federal courthouses.

The New York For All Act, sponsored by State Sen. Andrew Gounardes and Assembly Member Karines Reyes, would largely prohibit any collaboration between state and local officials and federal immigration authorities. It wouldn’t affect federal personnel staffing a federal courthouse. 

The Dignity for Immigrants in New York State Act, sponsored by state Sen. Jose Serrano, would prohibit the detention of New Yorkers for the sole offense of being an undocumented immigrant. It only applies to state and local law enforcement, not federal immigration agents. 

The Access to Representation Act would ensure that anyone in immigration court is represented by an attorney – but would not prevent ICE agents from arresting them right outside the courtroom. 

Assembly Member Catalina Cruz has introduced a package of immigration bills, including one that would prohibit ICE arrests at schools. But none of the bills would apply to arrests at federal courthouses.

Hoylman-Sigal is currently working with Assembly Member Micah Lasher to strengthen the Protect Our Courts Act and expand immigrant protections, but that has yet to materialize into actual legislation. Hoylman-Sigal’s office said bills are still being crafted in collaboration with Solages and Lasher, but it’s not clear if the bills will be introduced before session ends. 

“I believe there's time, is there political courage? I'm not sure,” Solages said. “But we have to get that courage, because I don't want to be out of session, and then all of a sudden, there is a will to act.”

State laws vs. ICE

If New York state did pass a new law explicitly barring ICE from making civil immigration arrests in federal courthouses, it might not pass legal muster. 

Camille Mackler, the executive director of Immigrant ARC, a statewide network of legal services providers, said that the interplay between federal and state immigration law makes it so that any remedies are better off on the back end of the enforcement process. 

“There are things like the Protect Our Courts Act, and other kinds of ways in which cities and states can protect their resources from being used for immigration enforcement, but they can't interfere with immigration enforcement,” Mackler said. 

State and federal lawmakers in New York are also hesitant to say there’s a legislative silver bullet to prevent the arrests, but they appear willing to try. 

“Generally, federal law applies to federal property, but I certainly support my colleagues in city and state government initiating creative ways to ensure immigrants following proper procedures are not getting swept up by masked secret agents,” Goldman told City & State on Friday. “Ultimately, the only sure way to stop this cruel and unjust attack on immigrants following the rules is for Congress and the Trump administration to put an end to it, either by legislation or (the U.S. Department of Homeland Security) reversing its policy.”

Mackler agrees that the ultimate solution could be political rather than legislative, pointing to the importance of electing members of Congress and ultimately a president who will prohibit ICE from making arrests at sensitive locations like federal courthouses.

“Get better people to Congress who understand this, that can pass better laws (and elect) people who are less aggressive to the White House,” Mackler said. “Those kinds of solutions, and then give the people better protections. But I mean, the federal government is within its right to operate.” 

In the meantime, though, Solages said she would like to see the Protect Our Courts Act cover all courthouses in New York, from the local to the federal level, even if doing so puts the state on dubious legal footing. 

"I think that we should do whatever is possible, because at the end of the day, the federal government's coming after us, and so if they have an issue with the law, they could sue us,” Solages told City & State. “But I think it's more so a message to our immigrant communities that we respect them, we value them and we will protect them.”