4 days ago
Protesters and journalists are barred from the outside of immigration court. Is it legal?
Activists and journalists gathered outside a federal immigration court in late May to do what they always do.
The activists wanted to help migrants attending hearings know their legal rights, chastise immigration officers and show resistance to deportation efforts. Reporters wanted to bear witness, interview sources and share stories with the world about what was happening.
Usually, assembling outside a court to protest, observe or report would be no problem. But May 21, private security told photojournalists and activists to leave the property. Phoenix police issued the same warning to activists May 28, and said they could get cited for trespassing — a criminal violation.
By early June, a rope was installed to keep the public off the property, and "No Trespassing" signs were installed.
That's because the immigration court isn't in a federal facility — it's in a private office building. Police officers said the landlord of the building had asked for people to leave if they did not have immediate business on the property.
Advocates like Ricardo Reyes, the lead Arizona organizer for Common Defense, a veterans organization that defends migrants, were confused. He wondered: Since the courthouse is taxpayer funded, shouldn't the taxpaying public be given access and allowed to assemble outside?
As of June 3, Phoenix police said the landlord had called three times to complain about trespassers but that no citations were issued.
The effects of the warnings, however, were immediate.
The advocates left the property and moved to a sidewalk along Van Buren Street. It was on the north side of the building, away from the entrance, which made connecting with migrants impossible. Activists continued to walk onto the private plaza, though, particularly when ICE made arrests.
Reporters attending the hearings continued without restriction. But photographers and videographers, who aren't allowed in immigration courtrooms anyway, took to the sidewalk like the activists. Their ability to capture images of individuals entering the building was blocked.
The First Amendment protects the public's right to assemble and the press's ability to report the news. But experts say the legal rights in this circumstance are extremely foggy. The fact the government doesn't own the land brings a host of complications. Plus, the right of the public to access immigration hearings isn't clear cut.
"Right now, it's not all that clear because of the oddity of how this is all managed. Where the government's rights take over versus the landlord's rights, versus the other tenants' rights," Gregg Leslie, executive director of Arizona State University's First Amendment Clinic, said.
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The public's right to be somewhere, called "right of access," depends largely on whether land is public or private, Leslie said. The difficulty in this situation is that the government courtroom is on the third floor of a privately owned building with other tenants.
While the public has a right to public land, that right doesn't exist on private land. But it can get more complex.
"If it's private land owned for public access, there are certain allowances for there being greater public access to it," Leslie said. To that end, Leslie said it was "hard to believe" the plaza outside the building would be treated as private property, considering the public must have permission to walk through it on the way to court.
Lease agreements might spell out how such circumstances should play out, Leslie said. The Arizona Republic requested but has not obtained the lease agreement.
When The Republic called the Phoenix Immigration Court, the operator said she was not authorized to answer the question and hung up on the reporter.
The U.S. Justice Department, the agency that houses immigration courts, directed questions from The Republic about why the court was inside a private building to the General Services Administration.
The GSA, which manages federal government leases, said the government leases private property when "leasing is the only practical answer to meeting Federal space needs." In other words, leases are used when the existing federal property doesn't have space. In Phoenix, the federal buildings are downtown at 1st Avenue and Monroe Street, and 5th Avenue and Washington Street.
The leasing company, Transwestern Real Estate Services, did not respond to questions from The Republic.
Further clouding the public's ability to understand their rights are different interpretations for different parts of the building.
Someone's right to be in the plaza versus the lobby or the third floor all varies depending on whether the space is considered "a traditional public forum," Leslie said. That means an area traditionally open to political speech and debate.
Another challenge to the public's right to assemble or report at immigration court is there is no established First Amendment-based right of access, Leslie said.
A typical federal courtroom is considered an Article III Court, meaning it was established under Article 3 of the U.S. Constitution and is thus subject to the First Amendment.
"There is a right of access to those courts. You have a right to be there. You can be shut out, but (the government) has to overcome your presumption of a right to be there," Leslie said.
But immigration courts, by contrast, are administrative. They're created by law and the same level of protections aren't applied.
"Right after 9/11, there were fights over whether immigration courts had to be open, and two of the federal circuits came out differently, and the U.S. Supreme Court declined to hear it," Leslie said.
That lack of resolution has left the legal community in limbo.
ASU's First Amendment Clinic is currently working on guidance trying to clarify what rights do and do not apply to immigration court.
At the end of May, immigrants in Phoenix were seeing the government dismiss their case, only to turn around and immediately arrest them again — this time using expedited removal. That's a process that allows for deportation without a hearing. Advocates thought migrants deserved a warning, and went to offer help.
"The people that are showing up are showing up in good faith. They have no idea they might get picked up by ICE as soon as their hearing is over, and they're not going to be able ... to have their families waiting for them at home," Reyes from Common Defense said.
His group encouraged migrants to get attorneys, and told them about options such as requesting an extension for their case, or an appeal if their case was dismissed. The group also offered to accompany individuals, some of whom Reyes said were scared.
But none of that was possible, he said, when they were shuffled to the sidewalk away from the building entrance.
Reporters, including those at The Arizona Republic, have attended immigration court hearings intermittently for years as part of ongoing news coverage. The coverage serves myriad purposes, such as showing the public how government is carrying out President Donald Trump's deportation agenda.
The information is meant to equip the public so they can make informed decisions.
Disallowing photo and video reporters on-site has hindered the ability to show everything that's happening there.
Taylor Seely is a First Amendment Reporting Fellow at The Arizona Republic / Do you have a story about the government infringing on your First Amendment rights? Reach her at tseely@ or by phone at 480-476-6116.
Seely's role is funded through a collaboration between the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.
This article originally appeared on Arizona Republic: Reporters, protesters barred from outside of Arizona immigration court
