Protected Areas and Courthouse Arrests

Protected Areas Enforcement Actions

The Department of Homeland Security (DHS) issued a memorandum — Guidelines for Enforcement Actions In or Near Protected Areas — instructing officers to refrain from taking enforcement actions at or near locations or protected areas in October 2021. This policy is part of DHS’s effort to avoid restricting people’s access to essential services or engagement in essential activities.

Protected Areas

Protected areas are locations that provide essential services or activities. When determining if a location is a protected area, DHS considers the activities that take place there, the importance of those activities to the well-being of people and the communities of which they are a part and the impact an enforcement action would have on people’s willingness to be in the protected area and receive or engage in the essential services or activities that occur there. It is a determination that requires the exercise of judgment.

Examples of protected areas include, but are not limited to:

• Schools
• Medical or mental healthcare facilities
• Places of worship or religious studies
• Places where children gather
• Social services establishments
• Places where disaster or emergency response/relief is provided
• Places where funerals, graveside ceremonies, rosaries, weddings, or other religious or civil ceremonies or observances occur
• Places where there are ongoing parades, demonstrations, or rallies

Enforcement Actions Within the Scope of the Protected Areas Memorandum

Enforcement actions that are within the scope of this guidance include, but are not limited to, such actions as arrests, civil apprehensions, searches, inspections, seizures, the service of charging documents or subpoenas, interviews and immigration enforcement surveillance.

Exceptions and Limitations on Scope

There might be limited circumstances under which an enforcement action needs to be taken in or near a protected area. The following are some examples of such limited circumstances:

• The enforcement action involves a national security threat
• There is an imminent risk of death, violence, or physical harm to a person
• The enforcement action involves the hot pursuit of an individual who poses a public safety threat
• The enforcement action involves the hot pursuit of a personally observed border crosser
• There is an imminent risk that evidence material to a criminal case will be destroyed
• A safe alternative location — a location deemed safe for DHS personnel, the subject of the enforcement action, and the public — does not exist

The memorandum does not limit ICE’s or employee’s statutory authority, and DHS does not tolerate violations of law in or near a protected area.

Absent exigent circumstances, DHS officers and agents must seek prior approval from their agency’s headquarters or an authorized delegate before taking an enforcement action in or near a protected area. To the fullest extent possible, any enforcement actions in or near a protected area should be taken in a non-public area, outside of public view, and to eliminate or minimize the chance that the enforcement action will prevent people from accessing the protected area.

If DHS officers and agents take enforcement actions that are believed to be in violation of the protected areas policy, a complaint may be filed through one of the following channels:

Courthouses

Courthouses do not fall under ICE policies concerning enforcement actions in or near protected areas. To clarify policy on civil immigration enforcement actions related to courthouses, in April 2021, ICE and CBP jointly issued a memorandum — Civil Immigration Enforcement Actions In or Near Courthouses.

Courthouse Enforcement Actions

The Civil Immigration Enforcement Actions In or Near Courthouses provides ICE and CBP officers with guidance as to when and how civil immigration law enforcement action can be executed in or near a courthouse so as not to unnecessarily impinge upon the core principle of preserving access to justice.

Courthouses

To uphold the rule of law, DHS ensures that courthouses are open to all people — regardless of citizenship. As a result, this memorandum provides guidance on when and how civil immigration law enforcement actions may be executed in or near a courthouse.

This memorandum does not apply to criminal immigration enforcement actions. A courthouse includes any municipal, county, state, federal, tribal, or territorial courthouse, including immigration courts. "Near" the courthouse means in the close vicinity of the courthouse, including the entrance and exit of a courthouse, and in adjoining or related areas such as an adjacent parking lot or transportation point (such as a bus stop right outside a courthouse). It does not include adjacent buildings or houses that are not part of the courthouse or otherwise are not used for court-related business.

When Enforcement Actions May Be Taken

Civil immigration law enforcement actions at courthouses will only be executed in limited circumstances against public safety threats. Namely, civil immigration enforcement actions may be taken in or near courthouses if:

• It involves a national security threat
• There is imminent risk of death, violence, or physical harm to any person
• It involves the pursuit of an individual who poses a threat to public safety
• There is an imminent risk of destruction of evidence material to a criminal case

In the absence of a hot pursuit, a civil immigration enforcement action may be taken in or near a courthouse against individuals who pose threats to public safety if:

• It is necessary to act in or near the courthouse because a safe alternative location does not exist or would be too difficult to achieve the enforcement action at such a location
• The action has been approved in advance by a Field Office Director, Special Agent in Charge, Chief Patrol Agent, or Port Director approval in advance of the enforcement action

As this is but a partial summary, the visitor is recommended to view the policy at the link provided above.