U.S. District Judge Dana Sabraw granted a temporary restraining order this week barring the Department of Homeland Security from making immigration arrests at the federal courthouses in San Diego and El Centro.
The decision stemmed from a complaint filed in October challenging DHS’s practice of attending hearings for people who were charged with misdemeanors for entering the country illegally, but had posted bond and were not in custody prior to the hearing, and arresting those people at the conclusion of each case, regardless of the outcome.
The complaint was filed by attorneys on behalf of several individuals with active illegal entry cases, who “have seen immigration officers waiting in court presumably to arrest him/her at prior court appearances if the case had concluded, and believes that he/she faces likely civil immigration arrest in court following conclusion of the criminal prosecution.”
In ruling against immigration officials, Sabraw wrote that court should be “a sanctuary — a place where parties and witnesses must be free from interference and intimidation to present their claims and defenses.”
“To fulfill its constitutional duties, the court must be open and accessible in reality, and in perception. The specter of immigration sweeps at the courthouse cuts decidedly against both of these duties,” he wrote.
The order will last for 14 days, but could be extended. Later in November, the plaintiffs’ attorneys and the government will meet to attempt to resolve the issue and if no resolution is made, the matter will be heard for a preliminary injunction, which could extend the ban until a final judgment is made in the case.
The practice of arresting people at federal courthouses in this way has been the norm since 2018, the plaintiffs alleged. Border Patrol was making the courthouse arrests without warrants and not only violating the constitutional rights of those they arrested, but creating a “chilling effect” on noncitizen witnesses, the complaint argued.
Before 2017, according to the court order, the federal government would only conduct immigration enforcement actions at or near courthouses against “Priority 1” noncitizens, people who were the highest priority for deportation because they posed “a danger to national security or a risk to public safety.”
Under the Trump administration, that changed.
In January 2018, Immigration and Customs Enforcement, which is also a part of DHS, formalized a directive on immigration enforcement in courthouses. It states that ICE can make civil immigration arrests on courthouse premises for those “with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed.” It also noted that ICE may arrest others, such as undocumented witnesses or family members, in “special circumstances,” though those special circumstances are not clearly defined.
U.S. Customs and Border Protection, which includes Border Patrol, has not issued any such directives, the court order noted.
A 2019 report from the Immigrant Defense Project found that in New York courts, immigration arrests surged by 1,700 percent under the Trump administration. In June, a federal judge in New York ruled that immigration arrests in courthouses in the state were illegal.
California law prohibits civil arrests in state courthouses without a judicial warrant, but Sabraw’s order dealt with arrests in federal courthouses, which wouldn’t fall under the state’s jurisdiction. ICE has also made arrests in Northern California courthouses earlier this year, arguing that California law doesn’t supersede federal law.
Border Patrol’s presence in courts in the Southern District of California, the federal court district that covers San Diego, became particularly notable after the start of Operation Streamline, which set up a separate court calendar and procedures for people charged with illegal entry misdemeanors.
Generally, Border Patrol initially arrests individuals suspected of illegally crossing the border and turns them over to the U.S. Marshals Service for prosecution. But thanks to an effort coordinated by federal defense attorneys and the Bail Project, many of these defendants have been released on bond while they await their court proceedings. Since they were no longer in custody, Border Patrol began attending their court hearings, with the intent of arresting them at the conclusion of their hearings and deport them, according to the court order.
Upon transferring plaintiffs to the U.S. Marshals, DHS could have lodged immigration detainers on these individuals, so they would be sent back to DHS custody once their bond was posted. Immigration detainers are commonly used by immigration enforcement officials when someone without immigration status is in the custody of another law enforcement agency, like a county sheriff. If honored, that person will be transferred directly to ICE if they are released on bond or after they serve their sentence. DHS did not do this in the cases laid out in the complaint.
“Defendants contend a [Temporary Restraining Order] will simply allow Plaintiffs to evade removal from the United States,” Sabraw writes. “But this is a problem of Defendants’ own making and has nothing at all to do with the Court. The Court does not work for, or against, the Executive; rather, it must fulfill a clarion constitutional charge: to guarantee equal and unfettered access to all litigants so they may be heard and adjudged in accordance with the rule of law.”