{"id":516,"date":"2018-03-06T18:28:00","date_gmt":"2018-03-06T23:28:00","guid":{"rendered":"https:\/\/sites.bu.edu\/dome\/?p=516"},"modified":"2018-03-06T18:28:00","modified_gmt":"2018-03-06T23:28:00","slug":"am-i-free-to-go-it-depends-on-who-you-ask","status":"publish","type":"post","link":"https:\/\/sites.bu.edu\/dome\/2018\/03\/06\/am-i-free-to-go-it-depends-on-who-you-ask\/","title":{"rendered":"\u201cAm I Free to Go?\u201d \u2013 It Depends On Who You Ask"},"content":{"rendered":"

Typically, when criminal proceedings against a person in state or local custody have been settled, he or she is free to go. This can occur either after that the individual’s charges have been dismissed, they have posted bail, or their jail sentence has been completed. Yet, for years there has been confusion among states whether exceptions to this process can be made for certain immigrants. The confusion focuses on whether or not state or local law enforcement officials have the authority to detain an immigrant based solely on a request, or detainer, from Immigration and Customs Enforcement (ICE)<\/a>. In other words, is an immigrant free to go once the criminal proceedings have been settled, or do these ICE detainer requests<\/a> carry some legal weight? The answer to that question changes depending on who you ask.<\/p>\n

\"The<\/a>
The Massachusetts State House
Boston, 1787<\/figcaption><\/figure>\n

The Supreme Judicial Court of Massachusetts was recently confronted with this question and on July 24, 2017 it issued a ruling in Commonwealth v. Lunn<\/em><\/a> limiting the ability for state and local law enforcement officials to assist with federal immigration enforcement. To help address the issue, the court proceeded to \u201clook to the long-standing common law of the Commonwealth and to the statutes enacted by our Legislature.\u201d Ultimately, the court concluded that \u201cnothing in the statutes or common law of Massachusetts authorizes court officers to make a civil arrest in these circumstances.\u201d It was this language that presumably opened the door to recent legislation<\/a> that was filed by Governor Baker August 1, 2017.<\/p>\n

According to Governor Baker, this bill \u201cfills the statutory gap identified by the SJC\u201d and \u201cauthorizes, but does not require, state and local law enforcement to honor detention requests from Immigration and Customs Enforcement for aliens who pose a threat to public safety.\u201d It attempts to accomplishes this mission, and avoid running up against the holding in Lunn<\/em>, by narrowing the scope of the legislation. The bill is supposed to establish minimum criteria for an immigrant to be deemed a public safety threat by focusing \u201con those who have been convicted of serious crimes such as murder, rape, domestic violence and narcotics or human trafficking.\u201d Furthermore, any detention in excess of 12 hours that results from compliance with a detainer request or an administrative warrant would be subject to judicial review. On its face, this bill seems to pass muster with the holding in Lunn<\/em> and attempts to strike a healthy balance between public safety and immigrant rights, but there are some serious legal and moral issues that this bill either misguidedly collides with or willfully ignores.\"Q44V7347PFCBRO3Y4EQZK5VDBA\"<\/a><\/p>\n

First and foremost, the bill does not target only people convicted for atrocious crimes, despite claims to that effect. Under the bills current language, an immigrant can be detained by state or local officials for immigration purposes, if he or she \u201chas engaged in or is suspected<\/strong> of terrorism or espionage, or otherwise poses a danger<\/strong> to national security [emphasis added].\u201d These standards clearly fall short of a conviction. It also allows for detention in cases where \u201cthe person has been convicted of an offense of which an element was active participation in a criminal street gang, as defined in 18 U.S.C. \u00a7 521(a)<\/a>.\u201d Unfortunately, the methods that many state and local police officials use to identify gang membership, have come under much scrutiny<\/a> because of their unreliability, lack of transparency, and minimal oversight. In Boston<\/a>, something as simple as the color of an immigrant\u2019s attire, or as ironic as being the victim of an attack by another gang, can lead police to label an immigrant a gang member. Furthermore, the bill states that a person who has been convicted of an aggravated felony, as defined under 8 U.S.C. \u00a7 1101(a)(43)<\/a>, can also be detained. Again, the use of said language can be very misleading and troubling. For the purposes of federal immigration law, Congress has broad latitude to label crimes as aggravated felonies<\/a> and an offense need not be \u201caggravated\u201d or a \u201cfelony\u201d to be considered an aggravated felony (see 8 USC \u00a7 1101(a)(43)<\/a>). As the ACLU of Massachusetts<\/a> and the Massachusetts Immigrant and Refugee Advocacy Coalition<\/a> recently stated in a joint memo<\/a>, \u201cthe premise that any legislation authorizing warrantless detention of immigrants is necessary for public safety is misguided.\u201d Our current laws already provide communities with the necessary tools to take custody of people who pose a danger to public safety and local officials already have procedures for notifying ICE about current detainees.<\/p>\n

Equally important to the determination of whether this is a well-crafted and well thought out piece of legislation, is the constitutional analysis of the bill. Importantly, a footnote in the Lunn<\/em> decision noted that the court \u201cdo[es] not address whether such an arrest, if authorized, would be permissible under the United States Constitution or the Massachusetts Declaration of Rights.\u201d And although the court chose \u201cto defer to the Legislature to establish and carefully define\u201d the authority for court officers to arrest for federal civil immigration offenses, it emphasized in an additional footnote that it expressed \u201cno view on the constitutionality of any such statute.\u201d Governor Baker\u2019s bill tries to take advantage of this unanswered question, but unfortunately it would invite costly and unnecessary litigation about its constitutionality if it passes; litigation that would almost certainly hold ICE detainers as unlawful. First, Article 14 of the Massachusetts Declaration of Rights<\/a> prohibits warrantless arrests for civil infractions. Second, in the case Morales v. Chadbourne<\/em><\/a> the First Circuit court of appeals ruled that detaining a person based solely on an ICE detainer request is a violation of their Fourth Amendment<\/a> right. The court explained that “[t]o hold otherwise would mean that the approximately 17 million foreign-born United States citizens could automatically be subject to detention and deprivation of their liberty rights.”<\/p>\n

Although everyone wants to live in a safe community, this bill promotes the false narrative that immigrants are associated with criminality, while further entangling state and local law enforcement in federal immigration enforcement. In the long run, bills such as this one can be dangerous to the administration of justice and to public safety. Although most people would agree that our federal immigration system is broken, states should be careful to protect the civil rights of all its residents.<\/p>\n

 <\/p>\n

Mario Paredes<\/strong> anticipates graduating from Boston University School of Law in May 2018.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Typically, when criminal proceedings against a person in state or local custody have been settled, he or she is free to go. This can occur either after that the individual’s charges have been dismissed, they have posted bail, or their jail sentence has been completed. Yet, for years there has been confusion among states whether […]<\/p>\n","protected":false},"author":14557,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[10,4,6,5],"tags":[74,70,71,72,73,69],"_links":{"self":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/516"}],"collection":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/users\/14557"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/comments?post=516"}],"version-history":[{"count":5,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/516\/revisions"}],"predecessor-version":[{"id":557,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/posts\/516\/revisions\/557"}],"wp:attachment":[{"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/media?parent=516"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/categories?post=516"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.bu.edu\/dome\/wp-json\/wp\/v2\/tags?post=516"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}