Boston Federal Judge Says Law Limits When Immigrants Can Be Arrested

A federal judge in Boston on Monday invoked the Declaration of Independence in a formal order to release two Brazilian nationals who had entered the United States illegally.

"This country was born with a declaration of universal human rights," Judge Mark Wolf wrote to begin his 62-page opinion, "proclaiming that: 'all men are created equal, that they are endowed by their Creator with certain unalienable rights,' and that 'among these' is 'Liberty.' "

U.S. Immigration and Customs Enforcement had already released the two Brazilians, Lucimar De Souza and Eduardo Junqueira, after Wolf allowed them to appear in court demanding that ICE justify their continued detention.

Both had been arrested earlier this year at interviews with immigration officials to determine if their respective marriages to U.S. citizens were legitimate.

But in his lengthy order to release them, Wolf argued that ICE failed to follow its procedures and to provide De Souza and Junqueira with due process.

Wolf wrote that his reading of federal law finds that ICE can detain people in the country unlawfully only within 90 days of a formal order to remove them from the country. In recent years, ICE has kept detainees, including De Souza and Junqueira, for 90 days or more, even when formal orders for their removal from the country occurred years ago.

The opinion does not carry the force of law, but it could influence other cases and guide ICE in future arrests.

“The decision really confirms that ICE has an obligation to follow the law, that ICE had been systemically violating that obligation,” said Adriana Lafaille, an attorney for the American Civil Liberties Union of Massachusetts, which is representing De Souza.

"The language in this decision clearly requires ICE to, in my opinion, revisit their approach to detaining people years after the fact, to detaining people who pose no flight risk and have numerous ties to the community and who are clearly not dangerous people at all," said Jeffrey Rubin, one of Junqueira's attorneys.

Last month, Wolf held two unusual days of hearings at Boston federal court, where he summoned immigration officials to testify.

In his order, Wolf did not address whether the arrests of immigrants at marriage interviews is legal.

He said that concern may soon be addressed in a class-action suit filed by the ACLU. Wolf will also decide that case.

A spokeswoman for the U.S. Department of Justice says it is still reviewing the order. A spokesman for ICE says it too is reviewing the decision.