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DHS issues new guidance on civil enforcement actions and arrests in or near state courthouses

May 5, 2021

On April 27, 2021, the Secretary of Homeland Security ordered the issuance of new guidance to the U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) regarding civil enforcement actions and arrests in or near state courthouses. The new memorandum, which addresses only civil enforcement actions and not criminal, rescinds a 2018 document on the same subject.

The new 2021 guidance provides that a civil immigration enforcement action may be taken in or near a courthouse only in certain limited instances, including the following:

  1. it involves a national security matter
  2. there is an imminent risk of death, violence, or physical harm to any person
  3. it involves hot pursuit of an individual who poses a threat to public safety, or
  4. there is an imminent risk of destruction of evidence material to a criminal case.

The interim guidance also makes clear that civil immigration enforcement is permitted against public safety threats in the absence of hot pursuit where necessary and with prior approval.

Additionally, the memo directs ICE and CBP supervisors to ensure that all employees are trained annually on this policy and requires ICE and CBP to provide a monthly report to DHS Secretary Alejandro N. Mayorkas, and to the DHS Office for Civil Rights and Civil Liberties upon request, detailing all planned or executed civil immigration enforcement actions in or near courthouses, including the basis under this policy for each enforcement action.

The subject of civil arrests at or in courthouses is the focus of the National Center's Improving Relationships with ICE Resource Center. The Center was developed to assist efforts by the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) to provide its members with background information and resources regarding the relationship between state courts and the U.S. Customs and Immigration Enforcement agency (ICE).

To share how you or your court is handling ICE enforcement in or near your courthouse follow the National Center for State Courts on FacebookTwitterInstagram, or Pinterest and share your experiences.