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With the second Trump Administration, U.S. Immigration and Customs Enforcement (ICE) may return as a regular presence in our courthouses to detain non-citizens, hereinafter referred to as immigrants. The Legal Aid Society has prepared this guide to assist lawyers in providing competent, diligent, and constitutionally effective legal representation to their immigrant clients while being careful not to engage in conduct prohibited by the federal harboring statute, 8 U.S.C. § 1324. In addition to this guide, please review these resources:
If you have additional questions or need advice about a specific case or situation, contact an immigration specialist.
Generally speaking, it prohibits taking steps to prevent or inhibit ICE from detecting or detaining a person who may be unlawfully present in the U.S.
Examples include, but are not limited to, alerting immigrants to an impending visit by ICE; moving immigrants to a different location to avoid detection by ICE; and facilitating the use of false identification by an immigrant.
In jurisdictions like New York City where such a local law applies, this step is permissible and warrants consideration. As long as the request is made voluntarily, New York State law requires the court to set bail in a nominal amount at our request even if the charge is not bail qualifying or the prosecutor has not requested bail. See CPL 510.10(5): “with respect to any charge for which bail or remand is not ordered, and for which the court would not or could not otherwise require bail or remand, a defendant may, at any time, request that the court set bail in a nominal amount requested by the defendant in the form [of cash bail]; if the court is satisfied that the request is voluntary, the court shall set such bail in such amount.” Where such a local law applies, a lawyer would be acting competently and diligently in making such a request, because an imminent arrest by ICE would remove your client from the court’s jurisdiction, deprive them of counsel in the criminal case and prevent their return to court to properly resolve the case through trial, a negotiated disposition or otherwise.
To the extent it is permitted by the court, you are allowed to call out your client’s name to determine whether your client is present in court.
You can advise your client that the only person to whom your client should respond in court is yourself.
You can advise your client to sit in another courtroom if it is for a reason unrelated to detection or apprehension by ICE.
Yes. Generally speaking, under the rules of legal ethics, you can advise a client regarding the possible legal consequences of various alternative courses of conduct, including attending or not attending court conferences.
You cannot advise your client to show up in court at times ICE is less likely to be present. However, you can advise your client regarding the normal hours of operation of the court and that the client’s failure to appear earlier in the day may result in a bench warrant being issued if the case happens to be called when the client is not present. You can also advise the client regarding the procedure for vacating a bench warrant and the legal consequences for failure to vacate a bench warrant within 30 days of its issuance. In New York State, you can advise that if your client does not appear for a scheduled court appearance, they are automatically entitled pursuant to CPL 510.50(2) to at least 48 hours to appear before a warrant is issued, as long as there is not “relevant, credible evidence” demonstrating to the court that the failure to appear was “willful.”
No. However, you can advise a client that IF the client returns to a home address or employer location listed on the client’s RAP sheet, the likelihood of apprehension by ICE may increase.
No. Clients may come to the office to receive legal advice, but not to avoid an ICE arrest or detection.
No. However, if ICE is stationed outside the courthouse, you can advise your client that an arrest by ICE may be imminent and counsel as to what the client should do and say if an arrest occurs.
You can ask to have a warrant for a client’s appearance stayed for a number of legitimate reasons: illness of the client, the client’s childcare or work responsibilities, the attorney’s schedule does not permit the lawyer return to the court part later in the day. However, a stay application cannot be made based on ICE appearance in court to arrest your client. In New York State, you can advise that if your client does not appear for a scheduled court appearance, they are automatically entitled pursuant to CPL 510.50(2) to at least 48 hours to appear before a warrant is issued, as long as there is not “relevant, credible evidence” demonstrating to the court that the failure to appear was “willful.”
You can ask to have a client excused at future non-essential court appearances for any legitimate reason that does not involve ICE enforcement.
No.
This is always allowable as matter of convenience for the parties or the court.
The reason for advancing the case should be for the convenience of the parties or the court. Therefore, there should be no occasion for stating there is another reason for doing so.
You can and should advise a client about all of the positives and negatives involved in taking a plea. One positive reason may be to avoid repeated court appearances and exposure to ICE.
In general, it is not advisable to seek a harsher sentence or punishment in order avoid arrest or detection by ICE since that may be used adversely in immigration court. However, in a jurisdiction where, under local law, corrections officers may not turn over the client to ICE absent a judicial warrant, if a client wants more time to consider a proposed disposition and how it will impact his or her immigration case, the attorney should consider whether to ask the presiding judge to set bail in the case to ensure the client’s appearance on any future court date. In such a jurisdiction, if an arrest and detention by ICE will prevent your client from satisfying a condition of the proposed sentence – like completion of a program or community service – then it may be appropriate to negotiate an alternative sentence that might include incarceration.
Attorneys, like any member of the public, are allowed to attend any court hearing that has not been closed, so long as they are not disruptive.
Attorneys should never abandon clients or uncompleted cases in court.
To provide moral support or legal advice, yes. To shield from ICE detection, no.
Yes. This is not harboring.
However, you may not keep your client in the office for an extended period of time if the purpose of waiting is not to meet with the client during this entire period, but rather to avoid the client’s arrest by waiting until the officer leaves the area. Likewise, waiting for the ICE officer to leave the area and then advising that the client may now leave the office is not permissible.
Yes if the officers are identifiable by their uniform or markings on their clothing as ICE officers.
In New York State, photographs are permitted to be taken only with court permission. See New York Court Rule 29.1.
It is not permissible to use social media or other means of communication to notify clients directly that ICE officers are present in the courthouse. Likewise, it is not permissible to post photographs of ICE officers on social media or web sites with an accompanying message that these officers should be avoided.
Although the issue has not, to our knowledge, been addressed by a court, we believe that alerting attorneys and advocates to the presence of ICE officers in a courthouse for the purpose of giving clients legal advice about their rights, obligations, risks, and possible consequences is legally permissible.
The information in this document has been prepared by The Legal Aid Society for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel