A day after the Office of Court Administration created a new rule to limit Immigration and Customs Enforcement arrests in New York courthouses, three ICE agents showed up to an undocumented man’s criminal court hearing in an attempt to arrest him.
Carlos Duque was arrested for driving with a false license in Pelham Manor, New York earlier this month and has been in Westchester County Jail since. During his arrest, Duque says, the Pelham Manor police officer called ICE to let the agency he was being arrested. Duque had been removed from the country previously, and a day after last Wednesday’s rule change, three men showed up an hour into his court hearing at the Pelham Town Court, in Pelham, New York.
The new OCA rule forbids ICE agents from arresting immigrants in New York courthouses without a warrant signed by a judge or a court order. The guidelines are aimed at preventing ICE agents from entering courthouses with only an ICE-produced document or without any warrants at all. Advocates say the agency’s presence creates a chilling effect, dissuading immigrants from participating in the justice system. But the court where Duque had his hearing belongs to the town and village system, which sees millions of cases per year — and does not fall under the new rule, according to the OCA.
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Duque’s daughter Christina – which is not her real name – was sitting in the room watching the proceedings after traveling five hours from her college upstate to watch. “Immigration is here,” he mouthed to his family in Spanish.
The three agents sat in the courthouse while Duque and his family began to panic. Duque had most recently been arrested because he was driving a van he bought but hadn’t yet registered, he said. He was also using another person’s driver’s license as his own due to his undocumented status.
Duque had several misdemeanor charges from about a decade ago, he said. Back then, he had been jailed in Westchester, was transferred to jails around the East Coast, and was eventually flown to El Paso, where a judge gave him a bond totaling over $10,000. “Way too much,” Duque said. “At that point, I was just tired. I accepted my deportation order thinking that after ten years it expires and you can come back.”
Ten years later, Duque did make his way back to Westchester County.
“I just wanted to work and support my family, like any normal person,” Duque said.
He started working as a handyman around Westchester and helped take care of Christina’s brother, who has autism and is nonverbal.
“He’s a very hardworking guy,” Christina said. “He loves helping people.”
At his hearing, Duque said he overheard the judge saying that ICE was in the courthouse and “really wanted him.” The court gave him the option to plead down to a lesser misdemeanor, and Duque said he wanted another week in jail to consider it. That was mostly to spend more time with his wife before he is likely detained, he said.
According to Harvey Loeb, the deputy chief counsel of the Legal Aid Society of Westchester, which is representing Duque, the case was adjourned so they could discuss the ramifications of him pleading guilty.
“We don’t want our clients to be seized by ICE,” Loeb said. “If [an attorney] is able to work out a favorable disposition for a client, that’s all for nought if the client is placed into ICE custody.”
A representative for Westchester District Attorney Anthony Scarpino, Jr. said the office can’t comment on a “federal matter.” Still, in a recent report on courthouse arrests issued by the Immigrant Defense Project, Scarpino joined other DAs from around the state decrying how ICE’s presence hurts court turnout.
“When ICE uses our local courthouses to make civil immigration arrests, both immigrants who are victims of or witnesses to domestic violence, scams, wage theft or violent crimes are now fearful that coming to court may lead to arrest by ICE,” he wrote in the statement.
When the ICE agents showed up at Pelham courthouse on Thursday, they presented themselves to the Criminal Court Clerk Patricia Tobin. She said ICE agents showed her identification and told her they were there to arrest Duque if he was released without needing to post bond.
“On his rap sheet, it says ‘deported alien,’” Tobin said.
Tobin did not recall whether ICE showed her a warrant but said that, despite the OCA’s directive, there was nothing she could do. “[The court] is a public place. I cannot keep them from coming in.”
ICE provided a statement to Documented, which said the agency lodged a detainer for Duque with the Westchester County Jail on April 3, and noted that he had been previously removed twice.
According to OCA spokesperson Lucian Chalfen, Pelham Court is not subject to the new directive as it is a Town and Village court and not a part of the Unified Court System. “Only New York State courts that are secured by Unified Court System court officers are subject to our directive,” he said. According to the Town of Pelham’s website, court security is overseen by the Town Constables, who did not respond to a request for comment by time of publication.
There are close to 1,300 Town and Village courts in New York State that see roughly 2 million cases per year. These courts handle the prosecution of misdemeanors and violations committed within a town’s boundaries, as well as some preliminary hearings in felony cases and vehicle and traffic law misdemeanors.
Jessica Young, Make the Road’s Westchester Supervising Attorney, said the OCA’s directive was a “humongous step” in preventing ICE from carrying out arrests in courthouses. Yet she stressed that every court needed similar protections.
“Every court is important,” Young said. “Every court where a person is compelled to appear at to defend themselves or to seek criminal justice, they need to feel protected and feel free to go to those court dates without being afraid of ICE detention.”
Still, Sarah Rogerson, director of the Immigration Law Clinic at Albany Law School, says there’s room for improvement.
“What this says to me is that in Pelham, they’re not concerned about due process or the rule of law in their courthouses,” Rogerson said. “More importantly, they’re not concerned about protecting victims.”
Advocates continue to push for the Protect Our Courts Act in the state legislature, which would go further than the OCA directive. The bill would make it illegal for ICE to arrest immigrants in all New York state courthouses — including people entering or leaving the buildings — without a judicial warrant. It will also empower the attorney general to pursue legal action if ICE violates those rules.
Duque is currently counting the days until his next court appearance in Pelham on Thursday. His plan is to bide his time now and fight to stay in the U.S. if he’s detained.
“I made this country my home,” he said. “I would go to war for this country. I would die for this country.”
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