Immigration courts in our country are set up to determine whether an immigrant has any relief from deportation. But of what use is the system if immigration agents can raid a courtroom and snatch an immigrant even as his matter is being heard before the judge?
That is what is happening in downtown Los Angeles. Members of the Los Angeles County Bar Association Immigration Section, of which I am the incoming chair, report that agents of Immigration and Customs Enforcement are detaining clients when they appear for their court hearings.

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Immigration officials should immediately cease from arresting immigrants in or around the courthouse.

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Here’s what happened on May 11. Attorney Mario Acosta was appearing in court with his client, a 44-year-old native of Mexico. The client’s wife and three children are U.S. citizens, and Acosta was trying to see if he was eligible for a green card through his marriage. The case had been plodding along in court for the past six years. (Yes, six years.) The big obstacle was the fact that the client had been ordered deported once before, in 1988, and had not applied for readmission to the United States.

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Exactly at 1 p.m., when his hearing was set to begin, three immigration agents entered the courtroom and arrested the man in front of the judge and the client’s traumatized wife, daughter and 75-year-old mother-in-law. The client was taken into custody. Acosta frantically tried to help him. 

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The immigration judge granted Acosta’s emergency request for a stay of deportation preventing the agents from deporting the client. Acosta began making calls and faxing officials to inform them that the man was in removal proceedings and had been granted a stay of deportation. When told of the judge’s stay order, an immigration officer reportedly told the client, “I don’t give a damn.” Indeed, two days later, the client called Acosta from Mexico, to report that he had been deported that morning.

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Unfortunately, this was not an isolated incident. After Acosta informed his colleagues about what had happened, another attorney shared his story. On May 4, attorney Gregory Olive was representing a 41-year-old Salvadoran woman at her hearing in downtown Los Angeles. Like Acosta’s client, the woman had a previous deportation order and had returned to the U.S. illegally. Olive had applied for hardship relief for the woman, called cancellation of removal, based on the hardship to her U.S. citizen mother and daughter. He also wanted the court to consider whether she was eligible for temporary protected status, an option available to some Salvadoran nationals.

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While they were waiting for the hearing to begin, a security guard entered the courtroom and asked the woman to step outside. Once outside, three immigration agents handcuffed and arrested her. Fortunately for this client, she has not been deported. She remains in custody, and will have a bond hearing before another judge on June 4.

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The legal issue is whether Immigration and Customs Enforcement can reinstate a prior deportation order, even while the case is currently being heard by an immigration judge – effectively overruling the judge’s jurisdiction to hear the case. The law is clear that the agency cannot do this.

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“I think the courts have been clear that until the IJ terminates the case, DHS does not have jurisdiction to reinstate the removal,” Olive said. “ICE however, does not always obey the law.”

Immigration and Customs Enforcement spokeswoman Virginia Kice acknowledged that in recent weeks agents in Los Angeles have taken “a small number” of previously deported aliens into custody at their immigration hearings. She defended the agency’s authority to reinstate a deportation order, and said all of the immigrants who have been detained at their court hearings had criminal records.

“The use of reinstatement enables the nation’s immigration judges to focus on the cases of those aliens who have not had their “day in court,” she said.

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Immigration and Customs Enforcement is part of the Department of Homeland Security. Case law on reinstatement has fluctuated wildly over the past few years. Just a few years ago, the 9th Circuit ruled that only the immigration judge could reinstate a prior deportation. During that period, a lucky few who had prior deportation orders were allowed to apply for hardship waivers in court, and some eventually received their green cards. But in 2007, the 9th Circuit en banc reversed itself in Morales v. Ashcroft, holding that Homeland Security officers can issue reinstatement orders too.

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Still, once the immigration judge has the case, immigration officers should not be able to step in and reinstate the prior deportation until the judge terminates the case and jurisdiction no longer vests with the court.

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“If ICE believes that reinstatement of removal is proper, it must file a motion to terminate and wait for the immigration judge to make a decision on that motion, and it must wait for the appeal of that decision to be resolved as well,” said Los Angeles attorney Stacy Tolchin. “ICE is acting entirely contrary to law and without regard for the authority of the Department of Justice, which runs the immigration courts.”

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But Kice said the agency’s position was that immigrants who “willfully ignore the immigration judge’s decision or willfully re-enter the United States after being previously removed in violation of law, must understand there are consequences for those actions.”

The immigration courts are run by a separate federal agency, the Executive Office for Immigration Review, under the auspices of the Justice Department. So when immigration officials arrest an immigrant in court, under the nose of the presiding judge, Immigration and Customs Enforcement is effectively thumbing its nose at the authority of the judicial agency.

“My own view is that ICE should have no authority to arrest any (immigrant) in or near the courtroom without the approval of the judge or adherence to EOIR procedures,” retired Immigration Judge Bruce Einhorn said. “ICE does not and should not run a separate agency’s facility, period.”

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(Einhorn has applied for the position of chief judge for the Executive Office of Immigration Review.)

In Acosta’s case, his client paid a bond of $2,000 so that he could litigate his case without being in detention. So what of the bond? Why hold a bond hearing or pay for a bond if Immigration and Customs Enforcement can simply snatch up and deport him at any time?
“If ICE is making individual determinations to revoke bond, I don’t know of a policy to allow it,” Einhorn said.

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The most chilling effect of this policy is on the immigrants themselves.

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Courthouses must be off-limits to immigration agents. Period. Arresting immigrants in or around the courthouse sends the absolute wrong message to the immigrant community. It tells them that the court system is not a safe place for them, and that if you play by the rules, you will be dealt a worse hand than if you duck and hide.

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“What do I tell the client?” asked Acosta. “Don’t show up, because chances are Immigration is going to arrest you at your hearing in front of your family and deport you that same day? It’s a horrible Catch-22.”

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Or, as Daniel Sharp, legal director of the Central American Resource Center, said: “If DHS refuses to respect the law even when people have counsel, do unrepresented immigrants really stand a chance?”