Federal Immigration Intrusions into State Courthouses Challenge State Judge Ethics
Federal Legislation Is Needed
The immigration enforcement approach of the Trump Administration has shifted from one that prioritizes removal of persons convicted of serious crimes to one that exempts no groups of removal persons. Illustrative of this shift in approach is the 2018 policy authorizing arrests of noncitizen immigrants in and around courthouses. This policy allows arrests for “specific, targeted alines with criminal convictions.” Despite this directive to prioritize enforcement resources, these courthouse arrests have “impacted all noncitizens, documented or not, and may include ‘defendants, victims of human trafficking, targets of domestic violence, witnesses, unaccompanied minors and those suffering from [poor] mental health and severe medical disabilities.'” Incidents of arrests of undocumented immigrants who show up for unrelated court appearances have been reported in Massachusetts, Michigan, Arizona, Colorado, Maine, New Jersey, New York, Oregon and Texas. In response, several communities, including Newton, Mass., have declared themselves sanctuary cities that would not help Immigration and Customs Enforcement (“ICE”) round up undocumented residents. Tensions exist between these sanctuary policies, the legal and ethical principle of equal access to justice and federal law that plainly runs contrary to those values.
United States v. Joseph is illustrative of how this 2018 policy generates substantial constitutional and ethical conflicts for both immigrant communities and judges. On April 25, 2019, Judge Shelley Richmond Joseph was indicted in Newton, Massachusetts for allegedly preventing federal immigration agents from arresting an undocumented immigrant, Jose Medina Perez, when she had him escorted through the backdoor of the courthouse, instead of the front, as the ICE agents had anticipated. Having the agent wait outside the courtroom went against the policy of the Department of Homeland Security; however, it was perfectly in line with Massachusetts’ policy. A 2017 memo from the Massachusetts Trial Court instructed court employees, including judges, not to help or hinder federal agents to detain immigrants based on civil immigration violations.
Judge Joseph was operating in a legal system that supports conflicting federal laws – including both the fundamental constitutional right of access to courts (see JESSE H. CHOPPER, ET AL. CONSTITUTIONAL LAW: CASES, COMMENTS AND QUESTIONS 1641 (West Academic Publishing, 13th ed. 2019)), as well as immigration policies that permit federal agents to block such access. At the same time, the pertinent state policy instructed her not to help federal agents detain immigrants based on civil immigration violations. Since no precedent existed on the issue, Judge Joseph was not on notice whether a judge could be criminally prosecuted, under an obstruction of justice statute, for making the constitutionally-protected decision whether to help enforce federal immigration law or for deciding how to manage her courtroom. She therefore had to interpret the law in accordance with her ethical values. Both general ethical standards and the Model Code speak to the judicial obligation to promote equal access to justice (see, e.g., MODEL RULES OF PROF’L CONDUCT pmbl (2018)). Judge Joseph therefore made a justified and logical decision to interpret the law in a way that protected Medina-Perez’ right to be heard.
Ultimately, when federal and state law conflict, judges are bound to interpret the law in accordance with their ethical obligations. This puts judges in the position of having to weigh their ethical responsibilities against requirements of federal law a particularly precarious circumstance, which necessitates a federal legislative remedy.
Lillian Gaines, J.D. Georgetown University Law Center (expected May 2021)