Commentary: Consider the following--A family is involved in a car accident. A man assists, making sure everyone is safe, but when the police arrive, the kind man has disappeared. Later, the family learns that the man refuses to serve as a witness because he does not have documentation to be in the country, despite living here since his student visa expired 18 years ago. The man has a family to care for, and he fears the same fate as others in his community who have been detained by United States Immigration and Customs Enforcement (ICE) in public spaces such as courthouses.
A woman from Mexico is married to a United States citizen who is abusive. He owns a gun and has threatened her with it, and she believes him when he threatens to kill her. Now, despite her being pregnant, he has beaten her. The emergency room social worker suggested that the woman get a restraining order, but she is afraid of contacting the authorities or going to court for a restraining order because she is afraid of being detained by ICE.
Incidents like these happen every day. Human trafficking victims, domestic violence victims and many other victims, including potential witnesses in civil and criminal cases, are afraid to take the stand or interact with authorities. ICE, with its strategy of detaining immigrants at state courthouses, has created this fear. If this seems wrong, it is because it violates a foundational principle.
An ancient common law protects individuals who have business in a courthouse by making those individuals immune from arrest or from being served with legal process while participating in the judicial process. Indeed, this immunity has been recognized within the constitutional imperative of providing access to the courts. The reason for this rule is to protect our judicial processes and to protect access to justice for all.
The Office of Inspector General of the United States Department of Health and Human Services has written scathing reports about ICE, including its failure to comply with the United States Constitution, human rights and its own policies. Nonprofit organizations and media outlets have documented ICE's abuses. Immigrants rarely file lawsuits to challenge ICE officers' conduct, and I believe this has led ICE to forego adequate training and to skirt the law and constitutional requirements. The inflammatory rhetoric coming from the president of the United States and the cruel policy directions he has pushed have made the situation even worse.
The United States Constitution governs all federal and state action. The Supremacy Clause, Article 6 of the United States Constitution, resolves state and federal laws that conflict in favor of federal law. That does not mean, however, that federal officials can violate state law and individual rights; they must comply with constitutional and state restrictions, except in limited circumstances pertaining to the necessary and proper exercise of their federal duty.
We must limit outrageous ICE activities that defy our constitutional and foundational principles. It would be better for our nation if ICE limited itself or if Congress placed clear limits on ICE enforcement activities. Indeed, a federal judge in Massachusetts recently entered a restraining order preventing ICE from detaining individuals at Massachusetts state courthouses.
Every state has the obligation to govern. This means that states have the sovereign right to operate a judicial system that is open to all persons to resolve disputes. If we fail to make our courts accessible to everyone in the state, we invite violence and self-help solutions that make all of us less safe. Under our federal system, states can protect our communities from ICE's excesses. Therefore, in swearing to uphold the United States Constitution and the Constitution of New Mexico, we have a duty as state officials to do so.