Calif. Judge Halts Immigration Arrests In San Diego Courts
Law360 (November 17, 2020, 7:47 PM EST) — A federal judge temporarily barred U.S. Department of Homeland Security officers from conducting courthouse arrests in the Southern District of California, saying the courthouse is a sanctuary that must be free of the “specter of immigration sweeps.”
U.S. District Judge Dana Sabraw granted immigrants’ request for a temporary restraining order Monday. The immigrants were likely to prove that the arrests flew in the face of a common law rule shielding individuals appearing in court from civil seizure and intended to maintain the “sanctity” of the court, he said.
“The court, as the third, independent branch of government, is a sanctuary — a place where parties and witnesses must be free from interference and intimidation to present their claims and defenses,” the judge wrote. “The specter of immigration sweeps at the courthouse cuts decidedly against both of these duties. The reality is that parties and witnesses are deterred from and fear coming to court, and the perception is that the executive is using the court as an enforcement tool to effectuate its immigration goals.”
The order comes as an early win for the group of five immigrants who lobbed allegations that DHS, through U.S. Immigration and Customs Enforcement and the U.S. Border Patrol, had sent federal officers to “nearly every court hearing” in the Southern District for foreigners charged with misdemeanor illegal entry who had been released on bond.
A representative for DHS didn’t immediately respond to requests for comment Tuesday.
Judge Sabraw sided with the immigrants based on their arguments that the Immigration and Nationality Act contained a common law privilege against civil arrests in the courts.
The judge pointed out that the privilege went back to the English court system and became “well-established” in U.S. common law by the time Congress enacted the INA.
Moreover, Judge Sabraw found it was unlikely the INA disturbed that privilege. The immigration statute provides the government with broad authority to arrest immigrants without a warrant and even allows federal officers to enter private property to effect an arrest. But significantly, those sections “are silent” on whether the arrests can occur in courthouses, the judge said.
DHS had alternatively argued that a common law rule against courthouse arrests conflicted with a sovereign power’s ability to affect arrests. In its argument, the agency relied on the First Circuit’s Sept. 1 order allowing ICE to make civil arrests in Massachusetts courthouses.
But Judge Sabraw was unconvinced, saying the privilege against courthouse arrests belonged to the court, not the parties involved.
“The essence of the privilege is the sanctity of the court,” he said, noting that the First Circuit ruling “wholly ignores” this purpose. “The executive may have sovereign power over immigration enforcement, but the executive does not have sovereign power over the court,” Judge Sabraw added.
The restraining order will remain in effect until Nov. 30, according to the order.
The immigrants’ attorney, Jeremy Delicino, told Law360 on Tuesday that he applauded the decision.
“[W]e applaud the judges’ decision to recognize that courthouses are indeed sanctuaries,” he said. “I think the judge’s order recognizes the historical purposes of courtrooms and courthouses as sanctuaries for the American people or for anybody who finds themselves in the United States.”
The immigrants are represented by James Johnson of Johnson Trial Law LLC and solo practitioner Jeremy Delicino.
The government is represented by Katherine Parker of the Office of the U.S. Attorney for the Southern District of California.
The case is Velazquez-Hernandez et al. v. ICE et al., case number 3:20-cv-02060, in the U.S. District Court for the Southern District of California.
–Editing by Stephen Berg.
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