ICE Quietly Rolls Back Rules for Courthouse Immigration Arrests, Escalating Conflict with States

Photo-Illustration: Wired Staff; Erik McGregor/Getty Images

In a subtle yet significant policy shift, Immigration and Customs Enforcement (ICE) has rescinded guidance that previously advised its agents to consider state and local laws when conducting civil immigration arrests in and around courthouses. This quiet change, documented in a recently issued memorandum, signals a potential escalation in enforcement tactics and is poised to reignite legal and political battles over the scope of federal immigration authority within local jurisdictions.

Courthouse arrests have long been a contentious issue. Critics argue that conducting immigration enforcement in judicial settings disrupts the legal process, instills fear in immigrant communities, and prevents individuals, including victims and witnesses of crimes, from accessing justice. Proponents, on the other hand, maintain that courthouses are public places where law enforcement should be permitted to apprehend individuals who are in the country illegally.

The new guidance, issued by ICE's current acting director, Todd Lyons, on May 27, removes language present in an earlier interim policy that required agents to ensure their courthouse enforcement actions were "not precluded by laws imposed by the jurisdiction in which enforcement actions will take place." This seemingly technical adjustment has profound implications, effectively granting individual agents greater autonomy and discretion to conduct arrests without the explicit requirement to navigate or defer to local legal restrictions.

A Shift Back Towards Aggressive Enforcement

The rescinded language was part of interim guidance issued in January by Caleb Vitello, Lyons' predecessor as acting director. While even Vitello's guidance represented a departure from stricter limitations imposed by the Biden administration in 2021, it still retained a nod to the importance of considering local legal landscapes. The removal of this clause under Lyons marks a further step back towards the more aggressive enforcement posture seen during the Trump administration, which actively pursued arrests in sensitive locations, including courthouses.

During Trump's first term, ICE courthouse arrests reportedly spiked, becoming a visible and often controversial aspect of the administration's broader effort to increase deportations. In 2018, ICE issued guidance specifically directing agents to arrest migrants at local courthouses, a policy that drew widespread condemnation from legal professionals, civil rights advocates, and state and local officials.

In response to the chilling effect these arrests had on the justice system, the Biden administration issued new guidance in April 2021 that significantly limited ICE and Customs and Border Protection (CBP) civil enforcement actions in or near courthouses, as well as other sensitive locations like schools, hospitals, and places of worship. That guidance stated that enforcement actions at courthouses should generally be avoided unless they involved national security matters, imminent threats to public safety, or the risk of destruction of evidence material to a criminal case, and required high-level supervisory approval for exceptions.

The interim guidance issued by Vitello in January, while less restrictive than the 2021 Biden policy, still included the clause about respecting local laws. Lyons' May 27 memo eliminates this specific consideration, leaving agents to potentially operate in direct conflict with state or local statutes designed to protect individuals accessing the courts.

The Legal Vacuum and Agent Discretion

According to experts like Anthony Enriquez, vice president at RFK Human Rights, the removal of the requirement to consider local laws shifts a complex legal burden onto individual ICE agents. "The old policy required ICE to consult with a legal adviser to determine whether making an arrest at or near a courthouse might violate a nonfederal law. The new policy eliminates that requirement," Enriquez stated. "Now, these frequently complex legal questions fall to the judgment of a line officer untrained in local laws."

While federal policy guidance is not legally binding in the same way as statutes or regulations, it dictates the operational procedures that ICE agents are expected to follow. By removing the directive to consider local laws, the agency is effectively signaling that adherence to state or municipal restrictions on courthouse enforcement is no longer a mandated part of their operational planning or execution.

Emma Winger, deputy legal director at the American Immigration Council, views the policy change as part of a broader effort to expand ICE's reach without regard for state-level limitations. "It is certainly yet another effort to unleash and expand ICE's enforcement operations without regard to state law," Winger commented.

ICE spokesperson Mike Alvarez referred inquiries about the policy change to the May 27 memorandum itself and declined to clarify whether the agency would continue to consider local courthouse policies or security protocols during enforcement actions. This lack of clarity further fuels concerns among advocates and local officials about the potential for increased friction and disruption.

Courthouses as Sensitive Locations: State and Local Protections

Many states and localities have enacted laws or policies designating courthouses as "sensitive locations" where civil immigration enforcement should be restricted. These measures are often based on the principle that everyone, regardless of immigration status, should feel safe and uninhibited in accessing the judicial system, whether as a party to a case, a witness, a victim, or simply accompanying someone to court.

For example, New York State law explicitly bars federal immigration authorities from making civil arrests in and around state courthouses without a judicial warrant. States like Colorado have similar protections in place. These laws reflect a determination by state legislatures and local governments to maintain the integrity and accessibility of their court systems, free from the chilling effect of immigration enforcement.

ICE agents have historically used various methods to identify individuals for arrest at courthouses, including reviewing public court dockets to find scheduled appearances of individuals with immigration cases or prior deportation orders. The removal of the requirement to consider local laws could embolden agents to pursue such tactics more aggressively, even in jurisdictions with explicit prohibitions.

Recent Incidents and Legal Challenges

The policy change occurs amidst a backdrop of increased ICE activity and public confrontations. In recent weeks, ICE agents have conducted high-profile arrests of immigrants attending routine court hearings in various locations. Last month, ICE agents arrested at least a dozen immigrants arriving at New York City courthouses for scheduled hearings, including a Bronx high school student.

This specific arrest in New York City, despite the state's protective law, highlights the potential conflict arising from the federal policy shift. In response, the City of New York filed a lawsuit on June 3 against Lyons, DHS, and Kristi Noem (reportedly involved in setting deportation targets), seeking the student's release and challenging the legality of such arrests in state courthouses without warrants.

The lawsuit argues that ICE's actions violate New York State law and disrupt the functioning of the state's judicial system. It represents a direct legal challenge to the federal government's assertion of authority in a domain where states believe they have the right to regulate activity to ensure access to justice.

Beyond courthouses, recent ICE operations have also sparked public protests and heated confrontations. In Minneapolis, hundreds protested an ICE operation. In San Diego, a confrontation outside a restaurant involved agents deploying flash-bang-type devices and drew public criticism, with bystanders questioning the agents' tactics and use of masks to conceal their identities. Lyons defended his agents' actions and criticized "sanctuary jurisdictions" that he believes impede federal enforcement.

The Political Context and Sanctuary Jurisdictions

The policy shift and increased enforcement activity are occurring within a highly charged political environment surrounding immigration. Former President Trump has called for a massive deportation campaign, and reports suggest that political appointees like Stephen Miller and Kristi Noem have pressured ICE to significantly increase deportation rates, reportedly setting a target of 3,000 deportations per day.

Adding to the tension, DHS recently published a list of so-called "sanctuary jurisdictions," accusing dozens of cities and counties of not complying with federal immigration law. This move was widely seen as an attempt to pressure municipalities that have adopted policies limiting their cooperation with federal immigration enforcement. Following protests from local governments, DHS later removed the list from its website, but the action underscored the federal government's intent to challenge local autonomy on immigration matters.

Critics argue that the policy memorandum change is a direct attack on state and local laws that provide crucial protections in sensitive locations. "This policy memorandum change is another attack from the Trump administration against state and local laws that enact across-the-board limits on civil arrests in sensitive locations like schools, churches, hospitals, and courthouses," said Anthony Enriquez.

Implications for Justice and State Sovereignty

The potential consequences of this policy change are far-reaching. By removing the requirement to consider local laws, ICE increases the likelihood of arrests occurring in state courthouses, potentially violating state statutes and creating legal chaos. This could lead to an increase in legal challenges from states and cities seeking to defend their sovereignty and the integrity of their judicial systems.

More importantly, the policy change threatens to exacerbate the "chilling effect" on immigrant communities. If immigrants fear arrest when appearing in court, they may be less likely to report crimes, seek protective orders, pursue civil claims, or participate in criminal proceedings as witnesses or victims. This undermines public safety and the fundamental principle of equal access to justice for all residents, regardless of immigration status.

As Enriquez warns, "In the future, we should expect to see legal challenges to the federal government's encroachment on state sovereignty. And in the meantime, we should also expect less justice in our local and state courts."

The quiet rescission of this guidance by ICE represents a significant operational shift that prioritizes federal enforcement goals over consideration for state and local legal frameworks and the functioning of local justice systems. It sets the stage for renewed conflict between federal immigration authorities and jurisdictions seeking to protect their residents and maintain the accessibility of their courts.

The outcome of potential legal challenges and the practical impact on courthouse operations and immigrant communities across the country will be closely watched as ICE agents operate under this revised, less restrictive guidance.