BU Law Students’ Amicus Examines Constitutionality of Immigration Detainers
The Criminal Law Clinical Program could impact the way Mass. law enforcement agencies respond to federal requests to hold suspected undocumented immigrants.
Students in Boston University School of Law’s Criminal Law Clinical Program may help prevent immigrants from being detained by Massachusetts state and local authorities at the request of US Immigration and Customs Enforcement (ICE).
Elizabeth Hennessey-Severson, Vidhi Bamzai, Natalia Mercado Violand, and Travis Lynch (all ’18) wrote an amicus brief this semester for Commonwealth v. Lunn, a case argued in the Massachusetts Supreme Judicial Court (SJC).
The case will decide whether local law enforcement agencies are authorized to detain a person solely at the request of ICE. An ICE detainer—written requests by ICE to hold individuals—calls for a person be held in custody for up to 48 hours, even if the individual’s charges have been dropped, bail has been paid, or jail sentence has been completed. ICE then has those two days to pick up the individual, detain them, and begin proceedings to deport the individual.
“The 48-hour hold opens people to this world of federal detention,” Hennessey-Severson says. “If ICE wants to find a person on their own, they have every right to do that. We’re arguing that it’s unconstitutional for Massachusetts to comply with the request to hold someone.”
Amicus curiae educate the court on areas of the law in a case that need further clarification. Often, courts will reach out to attorneys in the field or educators well-versed in a specific area of the law. When the court put out the call for amicus briefs, Clinical Associate Professor in the Criminal Law Clinical Program Karen Pita Loor selected the four students and supervised them throughout the process of writing the amicus brief for the SJC. She says the case is the first of its kind.
“The question the court wants to answer is whether state or local law enforcement have the authority or should arrest an individual because of an ICE detainer,” she says. “It’s the first time that question is really being addressed.”
The students’ amicus brief argues two main points: That Massachusetts’ government officials violate a criminal defendant’s presumptive right to release when they voluntarily comply with ICE detainers, and that the decision to enforce ICE detainer requests violates an individual’s right to effective counsel under the Sixth Amendment.
What makes ICE different?
ICE is unique because its agents often do not abide by the same legal safeguards and protocols as local law enforcement while arresting a suspect. There is no requirement that an ICE detainer be supported by probable cause, unlike in the circumstances of an arrest warrant. In addition, an ICE agent issues an ICE detainer, unlike a criminal arrest warrant which must be approved by a neutral judge or magistrate. An ICE agent can issue a detainer simply when he or she wants to investigate whether an individual is deportable—this does not amount to probable cause of a crime or deportability. The new administration’s executive orders on immigration and the numbers demonstrate that ICE is increasing immigration enforcement. From January to mid-March, ICE has arrested 21,362 immigrants across the country compared to 16,104 during the same period last year, according to The Washington Post. Arrests of immigrants with no criminal records have nearly doubled.
States can offer some protections to undocumented immigrants by enacting policies that prevent local law enforcement from enforcing ICE detainers, but ICE agents have full jurisdiction in detaining immigrants themselves. Many cities have been working to provide programs—such as the New York Immigrant Family Unity Project (NYIFUP)—that safeguard immigrants. But these protections do not stop ICE from continuing to detain immigrants on their own.
“Even though there are some protective measures that can be taken, there is no way that the state or local government can prevent ICE from coming into the city and essentially arresting people. However, local and state law enforcement do not and should not facilitate these arrests,” Pita Loor says.
In the amicus brief, the students argue that for Massachusetts law enforcement to hold onto individuals for ICE or essentially arrest them because of an ICE detainer—even when the defendant’s case has been dismissed or charges have been dropped—is a violation of a criminal defendants’ presumptive right to release.
Once ICE detains an individual, it becomes increasingly difficult to help them in any criminal matter. Detainees are held in a federal detention center with limited access to criminal counsel. On the immigration matter, people have no right to appointed counsel and are often left to fend for themselves in complicated immigration matters. The students assert that the decision to enforce an ICE detainer violates a person’s right to effective counsel under the Sixth Amendment because individuals detained by ICE are often held in federal detention centers without access to a criminal defense attorney to defend them in the criminal matter.
“The detainers themselves have no probable cause, judge, or anything,” Hennessey-Severson says. “There’s just an immigration officer, of any rank, filling out a form that says they believe the person is removable. The whole system doesn’t adhere to the procedural safeguards that are in place for constituting an arrest.”
The importance of constitutional rights
“The Constitution doesn’t just protect citizens,” says Mercado Violand. “It protects everyone within the United States borders. I think some people don’t realize that. They think that just because someone is undocumented that they aren’t granted the same safeguards as everyone else.”
The students say they gained a better understanding of constitutional rights throughout the two-week process of researching and writing the brief. The decision in the case has the potential to change Massachusetts law and, ultimately, whether or not the Constitution will apply to all individuals equally.
“Personally, I’ve never worked so hard on anything,” Hennessey-Severson says. “This kind of work is important to me because I walk the Earth with so many privileges that I could learn a new one every day if I put my mind to it. I don’t believe that anything about my status should mean that I am more entitled than anybody else.”
While the public awaits an official decision by the SJC, some Massachusetts government officials will continue enforcing ICE detainers, while others choose to limit their cooperation with ICE and protect immigrants in their community. In any event, federal immigration authorities show no sign of slowing enforcement. The Criminal Law Clinic students are hopeful that the case decision may soon change how immigrants are detained.
“I think in this day and age it’s especially important for attorneys to work and protect communities of color, immigrant communities, and indigent populations,” Bamzai says. “It’s up to lawyers and those involved in the judiciary element of this country to make sure that the Constitution is enforced and that it is enforced equally across the board.”
Reported by Greg Yang (CAS’17)
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