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NEW BRUNSWICK, NJ—On June 1, Middlesex County's government passed a new policy limiting collaboration with federal imigration agents, but the County's Sheriff was nowhere to be found.
The new policy comes two months after an incident at the County Courthouse in New Brunswick where a man was reportedly handcuffed and turned over to Immigrations and Customs Enforcement (ICE) by officers working under elected Sheriff Mildred "Millie" Scott.
ICE has come under firing for blurring the line between civil and criminal court, arresting victims of crimes and other non-criminal immigrants at courthouses, and for profiling immigrants with tattoos by claiming they are affiliated with "transnational" gangs as an excuse to capture them.
To many involved in the state's criminal justice system, it's a big problem if ICE continues to snatch people up on civil immigration charges inside courthouses, because it makes it less likely that defendants, victims, and witnesses alike will show up to court when they are supposed to.
It all started earlier this year as Middlesex County worked behind the scenes to craft a new policy in the wake of the expansion of ICE's power under President Donald Trump, and a wave of protests pushing back against the questionable federal agency.
But perhaps the most galvanizing incident in the story occurred when ICE agents got help from the county's sworn law enforcement officers to sieze an immigrant in open court, right here in downtown New Brunswick.
On March 31, it looked like Miguel Xicotencatl-Toxqui was going to be home free.
Judge Joseph Rea had just sentenced him to probation after he reached a deal with Middlesex County Prosecutor's Office (MCPO).
For a moment, it seemed like the end of a long ordeal that began when he was the victim of a road rage incident last year.
But, sitting in plainclothes inside the courtroom were armed federal agents who, with the aid and assistance of Middlesex County Sheriff's Officers, subsequently arrested Xicotencatl-Toxqui.
While Xicotencatl-Toxqui was hospitalized following the crime against him, police responded to his reportedly dilapidated apartment in Perth Amboy, where they found two children unattended. The children belonged to his girlfriend, who had gone to the hospital to check on him.
He was then charged by Perth Amboy Police Department with endangering the welfare of a child, a serious charge that put his tenuous status in the country under scrutiny.
But after he relocated to better housing, a public defender helped him reach a plea deal with prosecutors for a much-lower charge that would keep him out of jail and allow him to continue supporting his family.
But ICE agents were already eager to start removal proceedings against Xicotencatl-Toxqui, or perhaps hoping to capture him and persuade him to sign off on his own "self-deportation."
The agents allegedly signed into the courthouse like other state, county, and local law enforcement agents regularly do, which allowed them to bring their weapons into the building.
After Judge Rea sentenced Xicotencatl-Toxqui to probation, it was reportedly Sheriff's Officers that jumped in to handcuff the man, while a female could be heard crying in the background.
Chilling courtroom audio, first released by New Brunswick Today on April 22, appears to indicate that Sheriff's Officers, and not federal agents, were the ones to put the handcuffs on the defendant.
"Alright guys, take him into custody as an INS detainee," an officer can be heard–using the former acronym for the agency that later morphed into ICE–saying on the tape.
The officer appears to hand the man's belonging to a woman who he identifies as the man's girlfriend, before asking her to leave the room.
"Miss, you gotta step outside the courtroom now… I think she needs a minute to re-group."
According to a spokesperson for the NJ Judiciary, the arrest occurred around 2:30pm and it took place in a "holding area" of the courthouse.
According to WNYC immigration reporter Matt Katz, the man's public defender, Lauren Bayer, said she had no idea what was about to happen, and that the incident undercut the trusting relationship between attorney and client.
On May 4, the county's elected Board of Chosen Freeholders vehemently denied any such co-operation with ICE, but just hours later, Katz's report exposed that not only were they wrong to deny what had happened, but also that Sheriff Scott had admitted to at least one subsequent ICE arrest in the courthouse.
"[Scott] told me that, just last week, another immigrant was arrested inside the courthouse," reported Katz. "This is against Middlesex County policy but it never was relevant before because it never happened before Trump."
"Armed, plain-clothed [ICE] officers are attending sentencings… and if immigrants are released on probation for whatever local offense, they can then be immediately arrested by ICE," reported Katz.
Three days prior, Scott had been vague about the incidents during an impromptu interview with New Brunswick Today.
She claimed that her officers "let [ICE] make the arrest" in the March 31 incident, and that the federal agents were only allowed the use of a "security corridor" to escort their prisoner out of the building for safety reasons.
Asked directly if her officers "detained the person," she denied it.
"No, no, no. They let [ICE] make the arrest," said Scott. "We do what we have to do for our records… Once we're finished, they have the right to make their arrest."
"ICE did the arresting… I'm not facilitating an arrest with ICE," Scott claimed.
On May 18, after multiple follow-up requests for a copy of her department's policy on ICE, Scott offered only one sentence: "The policy of the Middlesex County Sheriff’s Office is not to assist ICE Agents in any way in the arrest, restraint, apprehension or removal from the Middlesex County Courthouses."
The controversy had been building up for months, reaching a fever pitch on April 19, when the State's top Judge, Supreme Court Chief Justice Stuart Rabner, asked ICE to stop their practice of courthouse arrests because of its negative impact on the judicial process.
Rabner's letter to Homeland Security Secretary John Kelly specifically mentioned arrests at courthouses in Middlesex and Passaic Counties, and warned the arrests were likely to lead to "serious consequences."
"To ensure the effectiveness of our system of justice, courthouses must be viewed as a safe forum," wrote Rabner. "Enforcement actions by ICE agents inside courthouses would produce the opposite result "
Sources tell New Brunswick Today that the courthouse arrests came in response to the county's reluctance to grant access to the jail, an issue that was playing out behind the scenes until Rabner's letter became public.
Rabner's letter argued that courthouses deserve the same treatment as schools, hospitals, and houses of worship.
In 2011, ICE adopted policy #10029.2, which governs enforcement actions in those "sensitive locations," as well as at funerals, weddings, and other types of ceremonies, marches, rallies, or parades.
But Rabner's letter had effectively upped the ante, and the following morning, agents were observed harassing and initmidating community members in New Brunswick, as they made at least a half-dozen arrests in the Hub City.
In typical “secret police” fashion, the modern-day Gestapo refused to say who they arrested or why they arrested them.
New Brunswick Today’s Carlos Ramirez was the first to report on the April 20 actions taken by HSI, short for Homeland Security Investigations, a part of ICE that has been increasingly visible in New Jersey this year.
According to the Home News Tribune, one of the ICE arrests that day was made after a driver was pulled over near the intersection of Townsend and French Streets.
Both the driver and a passenger were fingerprinted, and the passenger was detained according to the report, which cited Teresa Vivar, a leader in the city's Mexican-American community.
The article also referenced arrests at Powers Street, Joyce Kilmer Avenue, Sandford Street, and in the area of Redmond Street & Lee Avenue, where it says four men were detained.
The agency has increasingly been targeting immigrants who have not committed any crimes, including those who have been regularly checking in with the agency in good faith.
As we reported, the leader of a Rutgers-based organization for undocumented college students was asked to check in at ICE's Newark headquarters on May 9.
She survived the meeting, thanks in part to over 100 supporters who gathered outside. But, four Indonesian men who came to New Jersey twenty years ago and have no criminal record, were not as lucky when they went to their annual check-in at the same building, and were quickly either jailed or deported.
More than two months after the courthouse arrest in New Brunswick, county officials still appear to be clueless about what happened back in Judge Rea's courtroom on that fateful day in March.
After the news broke about the direct involvement of Sheriff's Officers in the arrest of Xicotencatl-Toxqui, the county changed its story to one of uncertainty.
"I don't know of any incidents… where a Sheriff's Officer actually handcuffed anyone on behalf of ICE. If it did, it's against the policy and we would have to make sure that that's corrected," said Thomas Kelso, the powerful attorney for the County Freeholders, at a public meeting.
That was on May 18. Two weeks later, Kelso still could not provide clear answers to a diligent questioner at the board's next public meeting.
"When this incident has been brought up… the action itself has been quickly passed over by the Board of Freeholders, which as led me to conclude—possibly inaccurately—that you don't believe it happened," Highland Park resident Jessica Hundson.
"Why hasn't this incident been further investigated?" she asked, garnering applause.
"I can't state to you specifically whether or not the incident had acutally occurred," Kelso said. "We have had discussions with the Sheriff to get to the bottom of the incident that occurred."
Because Sheriff Scott has not attended any public Freeholder meetings since January, the only information available is what she has told to New Brunswick Today and WNYC, statements that don't seem to add up given the other facts available.
"My concern is that, in order to really accurately report back to you, there needs to be, you know, an interview with the Sheriff's Officers and what actually took place," said Kelso.
"But this was March 31, so why hasn't that happened?" interjected Hundson.
"I can't answer your question as to why it's not concluded, but we have requested that it be done and interviews to occur," responded Kelso, blaming the incident at least partly on "the state of flux" that the county's policy has been in.
Now that they have adopted a formal policy, officials said that officers in the Sheriff's Department or the county jail will soon get proper training on what to do when ICE makes requests for assistance.
Under the policy, the county will honor ICE's requests to detain some individuals for up to 48 hours, but only if the person in question has already been convicted of first-degree or second-degree criminal offenses, or those for whom a federal judge has already signed a "final order of removal/deportation."
But the policy is silent on what specifically would occur if there is another repeat of the March 31 situation, as it bars Sheriff's Officers from assisting any ICE representative in detaining someone unless there is a crime in progress or "assistance is in the immediate interest of public safety."
Still, the new policy was hailed by several immigrants rights advocates as an improvement over the prior version, which was never formally adopted but supposedly went into effect in 2014.
Advocates said the biggest problem with the policy is it still allowed ICE access to the jail, where their agents regularly visit to interrogate inmates who do not have the right to have an attorney present.
"I'm extremely concerned that ICE has had seemingly unlimited access to the jail, and that they are routinely in the jail 2-3 times per week," said Ellen Whitt, an advocate who has been pressing the county to step up their resistance of ICE's requests.
Whitt told the Freeholders that, if inmates, refuse to sign their own self-deportation papers, the agents threaten that they will keep returning "over and over until they do."
"This can be extremely threatening when you are held with no attorney present, and are pressed for information that could impact you and your family for the rest of your lives," said Whitt.
Under the new policy, ICE will continue to have access to "interview" inmates, but the inmates will first be provided with a "fact sheet" about their rights, including their right to remain silent.
As for the March 31 incident, the Freeholders said they could not promise that it would not be repeated, even with the new policy enacted.
"We're not going to be there 24×7 with every Sheriff's Officer. We would not support them doing that, but we are not there every minute of the day," said Freeholder Director Ronald Rios.
"If something happens, then they will be dealt accordingly."
Asked by New Brunswick Today if, at the very least, the facts of what happened in the controversial arrest would be investigated and presented at the Freeholders' next meeting, scheduled for June 15, the board declined to make that promise.
"We can't give you that assurance," responded Kelso. "Because if there's a process by which someone is being disciplined, if protocol wasn't followed, we wouldn't be able to release that to you."
"So, if they broke the policies, you can't tell us?" this reporter followed up.
"Not if there's a pending disciplinary matter. You know that," responded Kelso.
"Is there a pending disciplinary matter?"
"I don't know. We can't answer that question."