State’s top court to weigh whether local authorities must detain immigrants for ICE

Members of the Supreme Judicial Court in 2016.
Members of the Supreme Judicial Court in 2016. Jonathan Wiggs/Globe Staff/File

The Massachusetts Supreme Judicial Court could decide whether local law enforcement agencies can detain someone at the request of federal immigration authorities — a timely and contentious political question as the Trump administration doubles down on demands that municipalities do more to assist in the enforcement of immigration laws, or risk losing federal funds.

The state’s highest court on Tuesday will hear the case of Streynuon Lunn, a Thai national who was detained in February by a state court officer at the request of immigration officials, even though his criminal case had been dismissed.

Lunn’s lawyers have questioned whether the courts or any law enforcement officers can lawfully detain a person who would otherwise be freed but for an immigration detainer, which is a request to hold someone for up to 48 hours to answer to an immigration violation, a civil offense.


The lawyers argued that no one can be detained for that long under Massachusetts law without a judicial warrant or probable cause that a crime has occurred — requirements that Immigration and Customs Enforcement’s detainers lack.

The court is being asked to decide both whether law enforcement officers are required to honor the federal detainer requests, and whether it is lawful for them to do so. A decision could potentially affect hundreds of ICE detainers issued to local law enforcement agencies each year.

Lunn, 32, has since been transferred to federal custody, so the outcome of the case will no longer affect him. But legal analysts said the court’s decision could dictate how local agencies respond to immigration detainers going forward, at a time when the Trump administration has vowed to ramp up deportations and has threatened to cut federal funding to municipalities that do not cooperate.

The administration’s threats have prompted Massachusetts cities and towns opposed to Trump’s policies to lash back, with many declaring themselves “sanctuary cities” that will play no role in enforcing federal immigration laws.


Tuesday’s court hearing, according to legal observers, would be the first time that a state’s highest court has reviewed the legality of detaining someone solely because of a request from ICE.

“The timing is certainly ripe . . . since ICE has promised to increase the use of detainers significantly, and therefore guidance from our highest court as to their legality is especially important right now,” said Emma C. Winger, one of the lawyers for Lunn.

She said ICE’s use of detainers has “increased dramatically over the past decade.” The practice was challenged in Massachusetts only “after it became commonplace for Massachusetts law enforcement officers to honor these requests.”

In defending the federal government’s practice of asking local authorities to hold immigrants who are wanted for immigration violations, the Department of Justice agreed that immigration detainers are only requests for local authorities to voluntarily assist federal officials, and that municipalities cannot be forced to honor them.

But government lawyers also argue that state law does not prevent local law enforcement agencies from honoring detainers if they choose to cooperate with federal authorities.

In their filing with the Supreme Judicial Court, the government’s lawyers argue that concerns about whether someone can be detained without a criminal warrant — one of the argument’s raised in Lunn’s case — are misplaced, because immigration violations are civil offenses. The standards for detaining noncitizens who face deportation, they argue, are lower than what is required in a criminal case. The fact that someone has a detainer for immigration violations would be sufficient to hold them under state law, the government lawyers argued.


“ICE only issues detainers when there is probable cause to arrest an individual on the basis that he is a removable alien,” the lawyers wrote. “And this understanding comports with, and is reflected by, the long history of immigration detainers being sent to state and local law enforcement agencies.”

Attorney General Maura Healey, whose office responded in the case on behalf of the state and the Suffolk County Sheriff’s Department, argued that no law enforcement agency can be forced to comply with an ICE detainer. Healey also argued that it would be unlawful under state law for a court or law enforcement agency to detain someone without a warrant or probable cause that the person has committed a crime.

In most cases, according to Healey’s review of data from 2003 to 2015, ICE issued detainers for people with no criminal convictions. Thirty percent were for individuals whose most serious conviction was for crimes classified as property crimes or misdemeanors.

Healey’s court filing suggests there are ways that federal and state agencies can work together when a person poses a risk to public safety, such as with better information-sharing on a defendant’s case.

But, she added: “It is up to state and local agencies to determine what is in the best interest of their jurisdictions, including the importance of maintaining the trust and cooperation of immigrant communities.”


Officials in municipalities that have adopted “sanctuary city” policies say that police should not play a role in enforcing immigration laws. It would be more important, they say, for police to build trust with immigrant communities — so they could assist in reporting crimes, for instance — than for people to fear being deported.

But supporters of Trump’s policies say local governments have an obligation to assist their federal counterparts.

“If Immigration and Customs Enforcement says they have an interest in detaining somebody, we should be required to,” said Bristol County’s sheriff, Thomas Hodgson. “This is all about keeping people safe, that’s what this boils down to.”

In its own court filing, the American Civil Liberties Union of Massachusetts suggested that the high court could use its authority to set guidelines for lower courts and court officers to follow in deciding whether to honor an immigration detainer. That way, the ACLU said, state authorities could avoid any discriminatory targeting of immigrants from certain countries or ethnic groups, an allegation the organization has made against the Trump administration.

However, the ACLU still argued that it would be unlawful for local officials to honor detainer requests that have no accompanying warrants or allegations that a crime has occurred.

“Some of this dispute about ICE detainers has been characterized as a political dispute,” said Matt Segal, the ACLU Massachusetts’ legal director. “But what the federal government is really asking for is the state to change or violate its own Constitution. The government has asked officers in the state of Massachusetts to do things they really don’t have the power to do.”


Milton J. Valencia can be reached at milton.valencia@globe.com. Follow him on Twitter @miltonvalencia.