Boston’s Trust Act — designed to reassure immigrants that city police would not help deport them — has a loophole that was used to turn over nine men to federal immigration officials, city records show.
The nine men turned over to Immigration and Customs Enforcement in 2015 had serious criminal histories, according to police, making their detention less of a public issue. But advocates worry that the same loophole could be used to detain and deport any immigrant for so much as a traffic violation — putting undocumented families at risk if President-elect Donald Trump follows through on his promise to expand deportations.
Boston’s version of the 2014 Trust Act was intended by city councilors to keep police out of the business of deporting immigrants. Councilors said the measure would ensure that immigrants see city police as people they can turn to for help — and not as a threat.
The newly discovered loophole in Boston’s Trust Act involves a technical matter of timing: The act specifically forbids police from detaining immigrants for ICE after a judge has ordered them released. But police said the act does not ban turning over immigrants to ICE while they are still trying to make bail.
That was what happened in the case of the nine men, police said; they were turned over before a judge ordered them released.
The nine included including an Algerian man with a felony conviction for swinging a hammer at a South Boston bar owner; a Dominican man who returned to the United States illegally after being deported four times and is now in federal prison; and a citizen of Vietnam with assault convictions who has more recently been the scourge of Macy’s in Downtown Crossing, pilfering hundreds of dollars in watches, clothing, and hats from the store.
“We don’t claim to be the immigration police,” said Boston police Lieutenant Michael McCarthy, explaining the decision. “We operate within the parameters of the ordinance.”
But advocates for immigrants said the Trust Act intended for police to turn over immigrants to ICE only if the federal agency wanted them for another crime. Deportation proceedings are civil.
Josh Zakim, the city councilor who sponsored the Trust Act, said he is considering amending the measure to address the loophole.
“I don’t think it’s the job of the Boston Police Department to enforce federal immigration policy,” Zakim said in a recent interview. “If that is occurring, we need to reexamine it to make sure this Trust Act is as strong as it needs to be to protect our immigrants in the city of Boston.”
Critics of the Trust Act say that Boston’s advocates are going too far on undocumented immigrants’ behalf, and preventing ICE from picking up criminals.
Jessica Vaughan, director of policy studies for the Center for Immigration Studies, said requiring a criminal warrant from ICE to deport someone is “like demanding that ICE produce a blue-and-pink-striped unicorn on a silver platter.”
“They know it doesn’t exist,” said Vaughan, who favors limits on immigration. “It’s to provide some cover to them, and allow them to pretend it’s about constitutional rights for detainees when it’s in fact about making it more difficult for ICE to do its job.”
Advocates say nothing in Boston’s Trust Act blocks federal immigration agents from detaining immigrants once they are arrested locally. And, advocates note, it is easy enough for federal immigration officials to step in because a national fingerprint-sharing program alerts ICE when state or local police arrest and book someone.
“ICE has resources and it can pick up the people that it prioritizes,” said Laura Rótolo, staff counsel for the American Civil Liberties Union of Massachusetts.
Trust Acts vary widely by cities and towns, and some are more restrictive than others.
Somerville, for instance, will turn over immigrants who are sex offenders or have serious criminal records, but Boston and Lawrence detain immigrants for ICE only if they have a criminal warrant for their arrest — which rarely happens because deportation cases are civil.
Boston’s reluctance to get involved in deporting immigrants has irritated Trump. On the campaign trail, Trump threatened to strip federal funding from Boston and more than 200 other US cities and towns that refuse to detain immigrants for ICE. Trump often cited the fatal shooting of a San Francisco woman last year allegedly by a Mexican national who was released by the county sheriff before immigration agents could pick him up.
An ICE spokesman had no comment on Boston’s Trust Act. Because immigration records are secret, it is unclear what happened after immigration officials detained the nine men.
Boston police said the number of immigrants the police turned over to ICE in 2016 is not yet available.