District attorneys and public defenders filed a lawsuit Monday April 29, 2019 to prohibit Immigration and Customs Enforcement (ICE) agents from entering into state courthouses to enforce detainers.

What’s an ICE Detainer?

The United States Department of Homeland Security allows ICE the ability to issue a detainer, which is an immigration hold request to federal, state, and local law enforcement agencies who currently have an alien arrested on criminal charges in their custody. The detainer asks law enforcement agencies to notify ICE before releasing the alien, and to additionally detain the individual up to 48 hours in order for ICE to determine whether or not they wish to take the alien into federal custody.  ICE uses detainers for those aliens they have probable cause to believe should be deported from the U.S.

Why did MA DA’s and Public Defender’s File the Lawsuit?

CNN reported that for the first time in Massachusetts history, district attorneys and public defenders have joined as plaintiffs to challenge a threat to the state’s justice system.  This threat was brought to the forefront largely in part due to the case against Judge Shelley Joseph.  Judge Joseph, a Massachusetts state court judge, was federally indicted on April 25, 2019 on charges stemming from an April, 2018 incident in her courtroom involving an illegal immigrant, Jose Medina-Perez.  The indictment alleges that Joseph, along with a court officer, helped Medina-Perez, a twice-deported criminal defendant, elude a detainer and ICE authorities by escorting him out of the courthouse through a rear exit.  Notably, an ICE agent was present at the courthouse, waiting in the lobby for Medina-Perez to exit the courtroom in order to execute the detainer.

How Far is ICE’s Reach?

Unless there are extreme circumstances, ICE will not enforce any action, detainer or otherwise, at locations determined to be sensitive.  Therefore, ICE agents will not make an arrest at schools, hospitals, places of worship, during religious or civil ceremonies, or at public demonstrations.  The Trump Administration has resisted requests to add courthouses to the list of sensitive locations, as they are looked at as a safe place to conduct enforcement actions because the individuals are screened for weapons and contraband prior to entering the courthouse.

The Neverending Battle Between State and Federal Law Enforcement Agencies

Allowing ICE to make arrests for individuals attending State Court proceedings, deprives noncitizen access to courts and the ability to appear in court without fear of being detained.  Based on the Massachusetts Supreme Judicial Court’s decision in Lunn v. Commonwealth, Massachusetts law provides no authority for Massachusetts court officers to arrest and hold an individual solely on the basis of a Federal civil immigration detainer, beyond the time that the individual would otherwise be entitled to be released from State custody.  Based upon the holding in Lunn, it would seem as though Judge Joseph’s attorney’s affirmations that his client is entirely innocent may in fact be true.  Why should state court law enforcement officers and judicial officials be required to hold a person in custody longer than necessary to conduct their state related matters?  State tax payers would foot the bill for housing and feeding, and state personnel resources would be drained by having additional persons in state facilities. DHS ICE knows when a target is appearing for court, however they could easily effectuate an arrest that does not coincide with a state criminal proceeding and does not occur at a state courthouse.

Consider also the potential for a chilling effect on immigrants appearing at court hearings when potentially facing an arrest and deportation by ICE.  Entire communities will be affected.  Criminal defendants will certainly begin to not appear, but the ramifications relating to the potential for no-show witnesses and lack of participation for civil matters is a slippery slope.

The charges against Judge Joseph are politically motived and are an attempt to interfere with a State judiciary proceeding.  The charges in the federal indictment should be dismissed.  The Massachusetts Supreme Judicial Court should reinstate Judge Joseph to the bench immediately.