Last Tuesday, in response to a Supreme Judicial Court ruling that state and local police and court officers have no legal authority to hold people on civil immigration detainers, Governor Charlie Baker submitted a bill to the Legislature that would grant them such authority.
The governor said his goal is to fill “the statutory gap” identified by the Lunn v. Commonwealth decision, and to “focus our efforts on those who have been convicted of serious crimes.”
In contrast with the “show me your papers” bill proposed by a few Republican legislators and Bristol County Sheriff Thomas Hodgson, the governor’s bill might seem like a reasonable compromise.
Actually, it isn’t.
First of all, think of who actually is affected by the Lunn decision. It’s not people charged with serious crimes: They can still be arrested, prosecuted, and imprisoned. It’s not even people wanted on immigration offenses that are considered crimes, like illegal reentry after deportation; US Immigration & Customs Enforcement can still get a judicial warrant to arrest them.
The only people affected by the Lunn decision are those who, if they are US citizens, would be set free, because they can’t be charged with any crime or because they were granted bail.
As the SJC explained in its well-reasoned decision, holding someone for ICE if they would otherwise go free constitutes a second arrest. While the SJC based its decision on statutory grounds, there is also extensive constitutional support. Arresting someone solely on a civil immigration matter violates the Fourth Amendment, which forbids “unreasonable searches and seizures.”
The governor’s bill purports to set limits on who can be detained. ICE would have to submit a detainer request in writing, accompanied by an administrative warrant. A senior officer would sign off on the detention based on “specific facts” indicating that the person poses a threat to public safety. Holds exceeding 12 hours require a determination by an “appropriate judicial officer” that there is probable cause that the person is subject to immigration detention.
Yet the criteria by which someone can be deemed a “threat” are far too broad: from a suspicion of terrorism, to a conviction for a “violent” felony to a conviction for any felony — and, for that matter, any offense for which the jail sentence was at least 180 days.
That’s a lot of people — and not just undocumented immigrants, but anyone who could be deemed to be a “removable alien.” A green card holder who’s been lawfully here for decades — working hard and raising an American family — but who spent time in jail when he was 18, would meet the governor’s criteria. As we have seen in many cases across the country, “foreign”-looking US citizens who don’t carry their papers can be arrested and easily get caught up in the immigration net as well.
Many police departments across the country — and in Massachusetts — do not honor ICE detainers, for good reasons: Why risk the liability? And why get entangled in the federal deportation machine, when what they need is to build trusting relationships with immigrant communities?
If the governor wants to make our Commonwealth safer, he should support efforts to pass the Safe Communities Act, which reaffirms the ban on civil immigration detentions and upholds due process. It would also keep state and local law enforcement from being co-opted into doing ICE’s job at the expense of state and local taxpayers. And by clearly separating police from immigration, the bill would ensure that immigrants who are now afraid to call 911 feel safe asking for help when they need it.
We know the Trump administration is trying to bully state and local governments to join the mass deportation effort, or face political attacks and denials of funds. But the answer is not to propose unconstitutional legislation or accept the narrative of immigrants as criminals.
We need to fight back, all together, at the State House and in the courts.
Governor Baker has more than 1 million immigrant constituents. He needs to show he’s here for all of us, regardless of where we were born, and take a stand for Massachusetts values and our Constitution.Eva Millona is executive director of the Massachusetts Immigrant and Refugee Advocacy Coalition. Iván Espinoza-Madrigal is executive director of the Lawyers’ Committee for Civil Rights and Economic Justice.