Mass. High Court To Consider Local Authorities' Role In ICE Detainer Requests

A case before the state's highest court Tuesday could determine just how much local law enforcement are legally allowed to cooperate with federal immigration agents.

The case, Commonwealth vs. Lunn, asks the Supreme Judicial Court (SJC) to decide whether local law enforcement are authorized to detain a person solely at the request of U.S. Immigration and Customs Enforcement (ICE).

An ICE detainer is a request to hold a person in custody whose criminal proceedings have been settled, meaning the charges have been dismissed, they've posted bail, or their jail sentence has been completed. A detainer gives ICE up to two days to look into a person's immigration status and potentially pursue deportation.

In Sreynuon Lunn's case, larceny charges against him were dropped by a district judge. ICE, however, had issued a detainer requesting the court hold Lunn, even though his criminal charges were cleared and he was otherwise free to go. The judge ordered Lunn detained and he was taken into ICE custody.

And this is where the constitutionality of ICE detainers comes into play.

"We're just trying to understand from our perspective as police chiefs, police officers, what can we quote-unquote honor and what can we not honor," said Chelsea Police Chief Brian Kyes.

Kyes is following the hearing before the SJC and hoping the court will hand down clarification when it comes to the role of local law enforcement in fulfilling ICE detainers.

"Right now there's just so much confusion," Kyes said. "It's a very complicated process and we don't want to be put in a position where we're picking and choosing which ones we deem appropriate and which ones are not. We just want a straight answer."

An ICE detainer is not the same thing as an arrest warrant, which requires proof of probable cause and sign-off from a judge, legally empowering police to detain a person. ICE detainers, on the contrary, are voluntary requests coming directly from ICE.

On its website, ICE argues that when local police or courts decline to hold someone on a detainer, the safety of the community is jeopardized.

U.S. Attorney General Jeff Sessions, the nation's top law enforcement officer, says the use of detainers is a common practice.

"It's just a fundamental principle of law enforcement, that if you have a person arrested and another jurisdiction has a charge, then they file a detainer and when you finish with the prisoner, you turn them over to the next jurisdiction for their adjudication," he said.

And that's the way it works with criminal cases. But immigration law is civil in nature, which means different rules apply.

"Our law enforcement and our courts are entitled to some guidance about whether or not the act of honoring a detainer is legal."

Attorney Emma Winger

One of the lawyers arguing on behalf of Lunn, Emma Winger, says the federal government's public safety logic is also problematic.

"By their nature, detainers only apply to folks who would otherwise be released by the court, and so I don't think that declining a detainer raises new public safety concerns," Winger said.

Winger said this case isn't about who ICE can and cannot deport. Instead, Winger is arguing that when local police and courts honor detainers — holding someone for civil immigration reasons at the request of ICE — they are actually violating a person's constitutional liberties.

She said this is especially relevant given the new enforcement priorities from President Trump.

"We know that ICE is now going to be issuing many more detainers, and detainers not just for people with criminal convictions or criminal records, but anybody that they think is deportable," Winger said. "And so our law enforcement and our courts are entitled to some guidance about whether or not the act of honoring a detainer is legal."

The ACLU of Massachusetts filed a brief in this case, arguing that it's unconstitutional for local authorities to hold someone based solely on an ICE detainer.

The group's legal director, Matthew Segal, says holding someone without oversight from an independent judge can lead to mistakes.

"There have been numerous instances all over the country where people have been arrested on these detainers who shouldn't have been, including United States citizens," Segal said.

Jacinta González is one of those U.S. citizens. She's also an immigrant rights advocate living in Phoenix. She says that she was held in custody last year on an ICE detainer when she refused to answer questions from immigration agents. Eventually, ICE confirmed she was a citizen and told her to leave the office.

"Because [ICE agents] don't have any probable cause, your last name, the color of your skin, your accent is sufficient to place one of these [detainers] against you, basically taking away your freedom, basically taking away your ability to get out of jail," González said.

The decision by the SJC could have national implications. There are similar cases across the country looking at the constitutionality of local police and courts enforcing ICE detainers.

Attorney General Maura Healey's office is arguing on behalf of the state and the Suffolk County sheriff, both parties to the Lunn lawsuit.

In a statement, Healey's office said ICE detainers are voluntary under state law, and courts and police may not detain people based solely on a request from ICE.

The statement added: "There are many ways in which state and local enforcement agencies can and do work with the federal government to protect against individuals who pose a risk to public safety."