Claire Roncallo, Associate Member, Immigration and Human Rights Law Review
I. Introduction
The United States immigration system promises due process and fair opportunities for immigrants to present their cases before an impartial judge.[1] In practice, however, many immigrants who attend scheduled hearings face the threat of detention or deportation immediately after those proceedings conclude.[2] The practice of carrying out arrests and deportations in and around courthouses creates a paradox: immigrants who comply with the legal system are punished for doing so.[3] The risk of detentions and deportations creates distrust in the justice system, deters lawful participation, and places the United States at odds with its constitutional principles and international human rights obligations.[4]
This Blog examines the problem of courthouse arrests and their impact on immigrant communities. Part II outlines the statutory and policy framework governing Immigration and Customs Enforcement (ICE) operations in and around courthouses, including shifting Department of Homeland Security (DHS) guidance across administrations and recent legal challenges. Part III analyzes the consequences of courthouse arrests, focusing on the climate of fear, barriers to lawful status, and broader effects on communities. Part IV addresses the human rights implications of courthouse arrests and considers why statutory reforms, not temporary policy, are essential to ensure meaningful access to justice.
II. Background
When courthouses double as sites for immigration enforcement, immigrants may conclude the risks of attending outweigh the benefits. The authority for ICE to arrest inside or near immigration courts stems primarily from the Immigration and Nationality Act (INA), which grants broad discretionary power to immigration officers.[5] Multiple federal statutes authorize the arrest and detention of noncitizens deemed removable or present without lawful status.[6] Section 1226 of the INA authorize immigration officers to arrest, detain, and remove noncitizens pending a decision on removal or if they are believed to be unlawfully present.[7] Even broader power is granted in Section 1357 of the INA, which authorizes officers to interrogate and arrest individuals without a judicial warrant if they have reason to believe the person is unlawfully present in the United States or likely to escape before a warrant can be obtained.[8] Although these statutes establish procedures for apprehension and custody, they do not expressly restrict arrests at sensitive locations like courthouses.[9] To fill this gap, DHS has historically issued policy memoranda designating certain places as ‘sensitive locations,’ though these protections have shifted across administrations.[10]
Nevertheless, DHS has provided consistent, decades-long guidance instructing ICE to refrain from performing immigration enforcement in certain areas.[11] A Biden-era policy expanded protections preventing immigration enforcement in sensitive areas such as schools, healthcare facilities, places of worship, places where children gather, social services establishments, disaster and emergency response sites, weddings, funerals, religious ceremonies, parades, demonstrations, and rallies.[12] This policy also applied to the areas in the immediate vicinity of these locations.[13] The policy permitted limited exceptions for allowing enforcement in these protected areas.[14] In a separate memorandum, the Biden Administration provided limited circumstances in which it would be appropriate for immigration enforcements to take place within a courthouse such as if it involves a national security threat, if there is an imminent risk of death, violence or physical harm to any person, if it involves a hot pursuit of an individual who poses a threat to public safety, or if there is an imminent risk of destruction of evidence material to a criminal case.[15]
However, on January 20, 2025, the Trump Administration rescinded the former administration’s policy which was a sharp departure from the decades-long practice of treating courthouses and other sensitive locations as off-limits to immigration enforcement.[16] With this policy pulled back, ICE agents are armed with the power to invade these sensitive places at their personal discretion.[17] This reversal not only disrupts the consistency of prior DHS guidance but also heightens threats to an already vulnerable population. The policy reversal has forced advocates to turn to the courts, arguing that such practices violate constitutional and common law principles.
In response to this policy change, plaintiffs in multiple suits are seeking to limit ICE’s ability to target immigrants at courthouses.[18] In New York & Gonzales v. U.S. Immigration & Customs Enf’t, plaintiffs argued that courthouse arrests violated constitutional and common law protections because they undermined access to the judicial process.[19] Specifically, they claimed that ICE’s actions infringed on the right to attend court freely, obstructed the administration of justice, and raised separation of powers concerns.[20] However, the court ultimately rejected the plaintiffs’ claims, holding that federal law grants broad discretion to immigration officers and preempts state efforts to restrict federal enforcement actions.[21] As a result, the court declined to prohibit ICE-initiated courthouse arrests, leaving immigrants vulnerable when appearing for hearings.[22]
Beyond domestic law, international human rights standards establish stronger protections for immigrants.[23] Instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the U.N. Basic Principles on the Independence of the Judiciary emphasize that individuals must have safe and meaningful access to courts without fear of retaliation.[24] The inconsistency between these international norms and U.S. enforcement practices highlights the vulnerability that immigrants face in the current legal framework.
III. Discussion
Immigration enforcement at courthouses does more than endanger individuals; it undermines the justice system itself. The following sections examine how courthouse arrests create a climate of fear that deters immigrants from appearing in court, block access to lawful immigration relief, erode public safety by weakening community trust in the legal system, and violate fundamental rights to due process and access to justice recognized under both domestic and international law. Together, these effects reveal that courthouse arrests transform spaces meant for fairness and accountability into sites of fear and exclusion, highlighting the need for statutory reform.
A. Fear as a Barrier to Justice
One of the most immediate impact of courthouse immigration arrests is the climate of fear they create.[25] Immigrants who know or suspect that ICE officers may detain them as soon as they leave court often avoid their hearings altogether.[26] This choice, while understandable, almost guarantees an in-absentia deportation order—a type of removal order with lasting consequences for future immigration relief.[27]
Mechanisms like in-absentia orders create an environment of fear that transform court hearings from an avenue of justice into a trap. Whether an immigrant appears at the courthouse and gets detained or chooses to stay home out of fear, they lose the opportunity for a meaningful day in court, illustrating how courthouse arrests turn the judicial process against the very people it is supposed to protect.[28] By transforming courtrooms from places of justice to places of danger, courthouse arrests make it nearly impossible for immigrants to safely pursue a lawful status.
B. Blocked Pathways to Citizenship
The INA provides several legal pathways to lawful status, including adjustment of status for those with family or employment sponsorship, asylum for individuals fleeing persecution, and cancellation of removal for immigrants who meet strict residency and hardship requirements.[29] But these remedies exist only in theory if applicants cannot safely pursue them. For example, asylum seekers may be statutorily eligible to remain in the United States but nevertheless risk immediate arrest at the courthouse door.[30] The looming threat of arrest upon arrival to the courthouse undermines the integrity of the immigration system. The law offers rights but simultaneously places them out of reach for those who need them most.[31]
For example, in family-based adjustment cases, a U.S. citizen or lawful permanent resident petitions for their immigrant relative to obtain a green card.[32] The immigrant must then attend multiple hearings or interviews to establish the legitimacy of the family relationship and their eligibility to adjust their status under INA § 245.[33] If courthouse arrests remain possible, each mandatory appearance creates an additional point of vulnerability where compliance with the law may lead to detention rather than relief.[34] In practice, this process shows that the right to pursue immigration relief in court exists on paper but remains inaccessible in reality. The consequences extend beyond individual immigrants to the communities around them, where fear of courthouse arrests undermines prosecutions, deters crime reporting, and weakens overall trust in the justice system.[35]
C. Broader Impacts on Communities
The chilling effect of courthouse arrests extends beyond immigration hearings, as fear of ICE’s presence discourages immigrants not only from attending their own court dates, but also from reporting crimes, testifying as witnesses, or seeking protective orders in state courts.[36] Reports describe crime victims and witnesses refusing to testify in state courts because they fear ICE surveillance and arrest.[37] Such fear undermines public safety and strains the relationship between immigrant communities and local institutions like state courts, local police, prosecutors’ offices, and victim service providers.[38] By fostering distrust, ICE courthouse enforcement indirectly harms not only immigrants but also the broader justice system.[39]
Local prosecutors and judges have also raised alarms about these consequences.[40] In jurisdictions where ICE frequently arrests immigrants near courthouses, police officers report increased difficulty in persuading victims of domestic violence, labor exploitation, or human trafficking to come forward.[41] When witnesses fear that a courthouse may double as a trap, crimes go unreported, and offenders remain at large.[42] This chilling effect on victims has been documented nationally and recognized by leading advocacy groups and state officials.[43] The ripple effects of courthouse arrests extend far beyond immigration law, undercutting the functioning of the criminal justice system.
D. Access to Justice as a Human Right
Courthouse arrests directly undermine international human rights guarantees of fairness and due process.[44] The right to a fair trial, explicitly protected under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), is meaningless if attending court triggers immediate detention.[45] The United States ratified the ICCPR in 1992, signaling its commitment to protect the human rights enumerated in the treaty.[46] International law recognizes that remedies must be “practical and effective, not theoretical or illusory,” yet U.S. immigration enforcement often render protections meaningless.[47]
The fear of attending court and the resulting inaccessibility of legal remedies also expose a gap between constitutional guarantees and actual practice. The Fifth Amendment’s Due Process Clause requires that individuals be given a fair opportunity to present their claims before being deprived of liberty.[48] Due process becomes an empty formality if attending court all but guarantees detention.
Courthouse arrests also undermine the First Amendment right to petition because access to courts is a core avenue for seeking redress.[49] Courts have recognized that courthouse arrests raise serious concerns, including chilling attendance at hearings, deterring witnesses from coming forward, and interfering with efficient administration of justice; however, courts still have not imposed clear limits on ICE enforcement.[50]
Instead, most protections for immigrants have come from shifting policy guidance, such as the decades long DHS policy labeling courts as “sensitive locations.”[51] Because the protections set forth in these policies, such as the designation of courts as “sensitive locations,” are not codified in law, they can be rescinded at any time, leaving immigrants vulnerable to sudden changes in enforcement priorities.[52] The reliance on discretionary policy rather than statutory safeguards highlights the immediate need for legislative reform.
E. Necessary Reforms
Reform is essential to restore integrity to the immigration system. Congress must amend federal law to explicitly prohibit ICE arrests in and around courthouses, ensuring that immigrants can attend hearings without fear of detention. One way to achieve this would be to amend the Immigration and Nationality Act to codify “sensitive locations,” explicitly listing courthouses alongside schools, hospitals, and places of worship. Sections 1226 and 1357 could be modified to clarify that immigration arrests may not occur in or immediately around judicial facilities except in narrowly defined circumstances, such as imminent threats to public safety or when a judicial warrant has been issued. Including this statutory language would limit warrantless arrests in these spaces and provide protection from shirting policy guidance.
In addition to statutory reforms, Congress should create remedies or penalties for violations. For example, evidence obtained through courthouse arrests could be subject to suppression in immigration proceedings, which would be similar to exclusionary rules in criminal law. Congress could also authorize civil remedies or sanctions against officials who conduct enforcement actions in designated sensitive areas without proper authorization. These measures are essential in enforcing accountability and deterrence.
This legislative proposal closely mirrors the Department of Homeland Security’s 2021 guidance under the Biden Administration, which directed ICE to refrain from civil immigration enforcement in or near courthouses except in limited circumstances.[53] Codifying this policy would preserve protections regardless of future political shifts.
Legislative reform is especially urgent because past reliance on DHS policy memoranda has proven unstable.[54] Protections designating “sensitive locations” have shifted across administrations, with the Biden-era expansion rescinded in January 2025.[55] Only statutory safeguards, not temporary policies, can guarantee consistent access to the courts in line with both constitutional and international human rights norms.
III. Conclusion
Detaining and deporting immigrants at courthouses undermines the rule of law, due process, and human dignity. By exploiting the courthouse setting, ICE discourages lawful participation and fosters distrust in the justice system. Until meaningful reforms are enacted, immigrants will remain trapped between deciding to comply with the law or protecting themselves, undermining the credibility of a system meant to protect rights, not punish compliance.
[1] Erica Bryant, What Does “Due Process” Mean for Immigrants and Why Is It Important?, Vera Inst. of Just. (June 4, 2025), https://www.vera.org/news/what-does-due-process-mean-for-immigrants-and-why-is-it-important [https://perma.cc/YW82-46UJ].
[2] Statement of the DHS Spokesperson on Directives Expanding Law Enforcement and Ending Abuse, U.S. Dep’t of Homeland Sec. (Jan. 21, 2025), https://www.dhs.gov/news/2025/01/21/statement-dhs-spokesperson-directives-expanding-law-enforcement-and-ending-abuse [https://perma.cc/P6PZ-95EK] [hereinafter Statement of the DHS Spokesperson].
[3] Freezing Out Justice: How Immigration Arrests at Courthouses Are Undermining the Justice System, ACLU, (2018), https://www.aclu.org/publications/freezing-out-justice [https://perma.cc/BLN3-FVHT].
[4] Id.
[5] 8 U.S.C. §§ 1226, 1357 (2018).
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] John Morton, Memorandum No. 10029.2: Enforcement Actions at or Focused on Sensitive Locations, U.S. Immigration & Customs Enf’t (Oct. 24, 2011), https://www.ice.gov/doclib/ero-outreach/pdf/10029.2-policy.pdf [perma.cc/Y6AH-Y4EP].
[11] Id.
[12] Secretary Mayorkas Issues New Guidance on Enforcement Actions in or Near Protected Areas, U.S. Dep’t of Homeland Sec. (Oct. 27, 2021), https://www.dhs.gov/archive/news/2021/10/27/secretary-mayorkas-issues-new-guidance-enforcement-action-protected-areas [https://perma.cc/MV54-NBLF].
[13] Id.
[14] Id.
[15] Tae Johnson, Civil Immigration Enforcement Actions in or near Courthouses, U.S. Customs & Border Prot. (Apr. 27, 2021), https://www.cbp.gov/sites/default/files/assets/documents/2021-Apr/Enforcement-Actions-in-Courthouses-04-26-21.pdf [https://perma.cc/H9V3-CMEW].
[16] Statement of the DHS Spokesperson, supra note 2.
[17] Id.
[18] New York & Gonzales v. U.S. Immigration & Customs Enf’t, 431 F. Supp. 3d 377 (S.D.N.Y. 2019); Complaint, Washington v. U.S. Dep’t of Homeland Sec., No. 2:19-cv-02043 (W.D. Wash. Dec. 17, 2019); Legal Orgs Sue Trump Admin Over Unlawful Policy of Arresting People Who Attend Mandated Court Hearings, ACLU (Aug. 1, 2025), https://www.aclu.org/press-releases/legal-orgs-sue-trump-admin-over-unlawful-policy-of-arresting-people-who-attend-mandated-court-hearings [https://perma.cc/T6KQ-JZAT]; Singleton Schreiber Files Class Action to Stop ICE Courthouse Arrests of Asylum Seekers in San Diego, Singleton Schreiber (Sept. 5, 2025), https://www.singletonschreiber.com/newsroom/pressreleases/singleton-schreiber-files-class-action-to-stop-ice-courthouse-arrests-of-asylum-seekers-in-san-diego [https://perma.cc/RBU7-VWZJ].
[19] New York & Gonzalez, 431 F. Supp. 3d at 377.
[20] Id. at 382.
[21] Id. at 392.
[22] Id. at 393.
[23] Basic Principles on the Independence of the Judiciary, ¶¶ 5–6, U.N. Doc. A/CONF.121/22/Rev.1 (1985)
[24] International Covenant on Civil and Political Rights art. 14, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; Basic Principles on the Independence of the Judiciary, supra note 23.
[25] ACLU, supra note 3.
[26] Id.
[27] 8 C.F.R. § 1003.26 (2025). Immigration judges issue in-absentia orders when an individual fails to appear at a scheduled immigration hearing, despite having received proper notice. In these cases, if the government is able to prove that this individual is indeed removable from the United States, the judge will order them removed from the United States in their absence without the ability for direct appeal. After receiving an in-absentia order, the individual can attempt to reopen their case by filing a motion within 180 days in hopes of rescinding the order if the failure to appear was due to exceptional circumstances.
[28] New York & Gonzalez, 431 F. Supp. 3d at 377.
[29] Id.
[30] Court Orders 19-Year-Old Asylum Seeker Released After ICE Unlawfully Arrested Him at Immigration Hearing, Robert F. Kennedy Human Rights (July 17, 2025), https://rfkhumanrights.org/press/court-orders-19-year-old-asylum-seeker-released-after-ice-unlawfully-arrested-him-at-immigration-hearing/ [https://perma.cc/V6HL-FD86].
[31] Bryant, supra note 1.
[32]USCIS Policy Manual, vol. 6, pt. B, ch. 5, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/policy-manual/volume-6-part-b-chapter-5 [https://perma.cc/8TY8-86X2] (last updated Aug. 23, 2023).
[33] Id.
[34] Am. Immigr. Council, supra note 23.
[35] ACLU, supra note 3.
[36] Angela Irvine, Mitzia Martinez, Crystal Farmer et al., The Chilling Effect of ICE Courthouse Arrests: How Immigration and Customs Enforcement (ICE) Raids Deter Immigrants from Attending Child Welfare, Domestic Violence, Adult Criminal, and Youth Court Hearings, Immigrant Def. Project (Oct. 2019), https://www.immigrantdefenseproject.org/wp-content/uploads/ice.report.exec_summ.5nov2019.pdf [https://perma.cc/44KK-KUKM].
[37] ACLU, supra note 3.
[38] Id.
[39] Id.
[40] ACLU, supra note 3.
[41] Safeguarding the Integrity of Our Courts: The Impact of ICE Courthouse Operations on Immigrant New Yorkers, Immigrant Def. Project (2019), https://www.immigrantdefenseproject.org/wp-content/uploads/Safeguarding-the-Integrity-of-Our-Courts-Two-Pager.pdf [https://perma.cc/NG2Q-XNKJ].
[42] ACLU, supra note 3.
[43] See ACLU, supra note 3; Attorney General James Files Brief Opposing ICE Courthouse Arrests, Office of the N.Y. State Att’y Gen. (Aug. 25, 2025), https://ag.ny.gov/press-release/2025/attorney-general-james-files-brief-opposing-ice-courthouse-arrests [https://perma.cc/43DG-EXQG].
[44] See ICCPR, supra note 24.
[45] Id.
[46] Jimmy Carter, U.S. Finally Ratifies Human Rights Covenant, Carter Center (June 28, 1992), https://www.cartercenter.org/news/documents/doc1369.html [https://perma.cc/N9WY-DB4X].
[47] See ACLU, supra note 3.
[48] Bryant, supra note 1; Zadvydas v. Davis, 533 U.S. 678, 693 (2001); Margy O’Herron, The Immigration Court System, Explained, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/immigration-court-system-explained [https://perma.cc/9BAA-T22E]; U.S. Ct. of Appeals for the Ninth Cir., Due Process Rights in Removal Proceedings (2017), https://cdn.ca9.uscourts.gov/datastore/uploads/immigration/immig_west/E.pdf [https://perma.cc/L3LQ-WX57].
[49] See Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972).
[50] State of N.Y. & Eric Gonzalez, 431 F. Supp. 3d at 390.
[51] See Morton, supra note 10; Statement of the DHS Spokesperson, supra note 2.
[52] Statement of the DHS Spokesperson, supra note 2.
[53] See Johnson, supra note 15.
[54] Morton, supra note 10.
[55] Statement of the DHS Spokesperson, supra note 2.
