*Immigration and Customs Enforcement January 2018 Courthouse Enforcement Policy and VAWA Confidentiality Protections for Immigrant Crime Victims (January 31, 2018)

January 31, 2018

ICE Courthouse Enforcement Policies and VAWA Confidentiality Protections for Immigrant Crime Victims

Immigration and Customs Enforcement at the U.S. Department of Homeland Security issued a policy  on January 10, 2018 limiting civil immigration enforcement at courthouses.  For advocates, attorneys, law enforcement, prosecutors, judges and court staff, it is important to note that the new policy’s limits and rules regarding immigration enforcement at courthouses are protections that apply to all immigrant and are in addition to the protections provided immigrant crime victims by VAWA Confidentiality.

This ICE Courthouse Enforcement Memo confirms (in footnote 2) that immigrant crime victims and witnesses continue to receive VAWA confidentiality protections against courthouse enforcement that are in addition to the limitations on civil courthouse enforcement set out in the January 10, 2018 memo. (See further discussion below)

Read together with VAWA Confidentiality protections for immigrant victims, the policy will result in  the following: 

  • Under both the ICE Courthouse policy and VAWA Confidentiality, supervisory approval at the high levels of the local ICE offices is needed to approve any civil immigration enforcement action that is to take place at a courthouse in a family court or civil court case (including protection orders, custody, divorce, child support, small claims, landlord tenant, etc.)
    • For victims of domestic violence, sexual assault, human trafficking , stalking, and other U visa listed criminal activities once the victim has filed their immigration case the case will appear in a DHS data base of VAWA condfidentiality protected cases that the supervisors and enforcement officers can access and will have to check as part of the process of approving civil enforcement at a courthouse in a non-criminal case.  (Note VAWA confidentiality protected victims also receive some protection from immigration enforcement in criminal cases). The VAWA confidentiality protected immigration case types that will be flagged for addition protection are:
      • VAWA self-petitions, VAWA cancellation of removal and VAWA suspension of deportation
      • U visas for crime victims
      • T visas for human trafficking victims
      • Battered spouse waivers
      • Work authorization applications filed by abused spouses of A , E(iii), G and H visas. 
  • Since it is clear from research that when victims begin filing for immigration protections and seek help from lawyers, law enforcement and courts, perpetrators are actively involved in trying to get immigrant victim deported by providing “tips” about the victim to immigration enforcement officials. The protections these policies offer victims are strongest once the victim has filed one of the immigration cases listed above.
  • Advocates, attorneys, law enforcement and prosecutors need to screen immigrant victims early and file their VAWA confidentiality protected immigration case as soon as possible so that victims can get the best protections from the policies described in more detail below.
  • Judges and court staff can use the policy described below to set courthouse and courtroom policies and practices that protect access to justice for immigrant crime victims, children and famlies.  The publication Courthouse Immigration Enforcement-Steps Courts Are Taking  provides examples of helpful policies.

What the January 2018 Courthouse Enforcement Policy Does?

  • Immigration and Customs Enforcement – Civil Immigration Enforcement Actions Inside Courthouses
  • Limit Enforcement to Targeted Immigrants: ICE civil immigration enforcement actions at courthouses will be limited to cases in which ICE has received information that leads them to believe that a targeted immigrant is present at a courthouse or other specific location
  • Targeted immigrants are immigrants who —
    • Have criminal convictions
    • Are gang members
    • Are national security risks
    • Pose public safety threats
    • Have been ordered removed (deported)
    • Reentered the United States after having been deported
  • Will not target witnesses or others accompanying a targeted immigrant to court.  The policy states that when a civil immigration enforcement action is conducted at a courthouse against a specific targeted immigrant no immigration enforcement will be conducted against —
    • Family members or friends accompanying that person to court OR
    • Witnesses in court proceedings
    • Exception – when family, friends or witnesses themselves either
      • Pose a threat to public safety OR
      • Interfere with the immigration officer’s enforcement actions
  • Enforcement in non-criminal proceedings including family law and civil cases and courts 
    • Should generally be avoided AND
    • Require supervisor approval by the Field Office Director or the Special Agent in Charge or their designee
  • Policy informs immigration enforcement officers that if civil enforcement takes place a courthouse officers should
    • Conduct enforcement in non-public areas of the courthouse
    • Collaborate with courthouse security staff
    • Use the courthouse’s non-public entrances and exits
    • Limit the amount of time immigration officers spend at courthouses
  • ICE’s Goal of the Policy is to 
    • Minimize the impact of ICE enforcement activities on court proceedings
    • Make substantial efforts to avoid alarming the public

What immigrant crime victims additionally receive from VAWA confidentiality? 

See VAWA Confidentiality: Statutes, Legislative History, and Implementing Policy  (contains quotes and detailed information from VAWA confidentiality statutes, legislative history, regulations, and DHS policies)

See The Three Prongs of VAWA Confidentiality and Courthouse Protections for Immigrant Victims of Domestic Violence, Sexual Assault, Human Trafficking and Other U Visa Criminal Activities (March 3, 2017 and January 31, 2018) (Webinars, training materials, newsletters, tools, statutes, regulations and policies on VAWA confidentiality)

  • Violence Against Women Act (VAWA) confidentiality was designed to:
    • Prevent immigration officials from relying on perpetrator provided information to take immigration enforcement or other harmful actions against immigrant crime victims
    • Limit immigration enforcement at protected locations (including courthouses)
    • Keep information about crime victims’ immigration case files and immigration cases strictly confidential
  • VAWA Confidentiality statutes include additional limitations on courthouse enforcement in both civil and criminal cases for immigrant crime victims.  
    • Federal VAWA confidentiality laws generally prohibit immigration enforcement actions from occurring against immigrant victims of domestic violence, sexual assault, stalking,  human trafficking and other U visa covered criminal activities at courthouses in connection with an appearance by the victim in any of the following types of cases
      • A civil or criminal protection order case
      • A child custody cases
      • Any other civil or criminal case relating to
        • Domestic violence (defined as battering or extreme cruelty which includes child and elder abuse)
        • Sexual Assault
        • Human trafficking
        • Stalking or
        • Involving an immigrant victim inn the process of  applying for T or U visa protections
    • The ICE 2007 ICE policy implementing Violence Against Women Act 2005  protections that is referenced in footnote 2 of the 2018 ICE courthouse enforcement policy states
      • “ICE officers are discouraged from making arrests at these sensitive locations absent clear evidence that the alien is not entitled to victim-based benefits”
      • VAWA confidentiality statutes, ICE and DHS policies require that if an immigration enforcement official conducts any part of an enforcement action against a victim at a protected location including a courthouse, must certify under oath in any notice to appear that they did not rely on information, including “tips” from the perpetrator and that they complied with VAWA confidentiality’s requirements.
    • Immigration officers who violate VAWA confidentiality can be subjected to job sanctions and up to a $5000 fine for each violation

For technical assistance on VAWA confidentiality and help for immigrant crime victims who become subject to immigration enforcement, including at courthouses contact NIWAP at 202-274-4457 or info@niwap.org

**This publication was developed under grant number SJI-20-E-005 from the State Justice Institute. The points of view expressed are those of the authors and do not necessarily represent the official position or policies of the State Justice Institute.