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02.19.20 | Articles, Books & Journals

ICE Confronts the Privilege Against Courthouse Civil Arrests

New York Law Journal

More than 500 years ago, English courts developed a common law privilege, which was incorporated into American law in the early years of the republic, protecting against civil arrests of parties and witnesses on courthouse premises and when traveling to or from court. Recently, the U.S. Immigration and Customs Enforcement agency (ICE) has taken action contrary to this privilege by engaging in courthouse civil arrests of undocumented and other aliens. The State of New York and Kings County District Attorney have brought suit to stop this practice. In this article, we analyze Southern District Judge Jed S. Rakoff’s recent decision denying ICE’s motion to dismiss the lawsuit and concluding that although ICE enjoys broad discretion in enforcing the nation’s immigration laws, its discretion is not unlimited, with one powerful such limit potentially being the common law privilege against courthouse civil arrests.

ICE Confronts the Privilege Against Courthouse Civil Arrests (PDF | 482.75 KB)