Federal judges in Boston are often sharply critical of ICE tactics
US District Judge Mark L. Wolf peered down from the bench at the young prosecutor.
In the jury box, Lucimar de Souza sat in jail scrubs. The 49-year-old Brazilian mother of three had been in Suffolk County Jail for more than three months after federal officials detained her for violating a 16-year-old order that she leave the United States.
It was May 8, five days before Mother’s Day, and the lawyer for the Department of Justice, Mary Larakers, was arguing that de Souza should remain in detention because she posed a flight risk. Wolf countered the government had failed to give her sufficient time to contest her detention.
“I hope your mother is still alive and you get to see her on Mother’s Day,” Wolf told Larakers. “But that’s not going to happen for Miss de Souza. That’s what we’re talking about here.”
The office of Immigration and Customs Enforcement released de Souza that night.
Wolf’s sharp rhetoric was not an anomaly. Over the past year, federal judges in the Boston courthouse have been unusually outspoken in criticizing immigration cases, as the Trump administration steps up apprehensions and detentions. The critical judges include two Obama nominees, a Clinton nominee, and Wolf, a Reagan nominee.
In January, Chief US District Judge Patti B. Saris likened a group of Indonesian Christians facing possible deportation by the Trump administration to Jewish refugees trying to escape the Nazis. In April, Judge Indira Talwani rebuked ICE for arresting a Chinese national outside the courtroom after she had been placed on probation for fraud.
“I see no reason for places of redress and justice to become places that people are afraid to show up,” Talwani said, according to Reuters.
In December, Judge Leo T. Sorokin ordered the release of a Yale University-educated Kenyan national who had been detained for nearly a year.
In a biting memorandum, Sorokin blasted the Department of Homeland Security’s “repeated errors,” which he said suggested “negligence, incompetence, or bad faith on the part of the agency.”
The rulings come at a time when immigration attorneys say immigrants like de Souza are being arrested as they seek legal status, then detained for extended periods of time because of mistakes by the government.
On Tuesday, Wolf will hold a much-anticipated hearing during which he is expected to question ICE officials involved in de Souza’s detention.
“This is absolutely uncharted territory, universally keeping all undocumented immigrants” in detention, said Susan Church, a Cambridge immigration attorney. “This administration has taken out every ounce of humanitarianism in its decision-making, and the judges are reacting to that.”
John Mohan, an ICE spokesman, declined to comment on specific comments by judges, citing ongoing litigation.
“We strongly reject any allegation that ICE officers or agents in any way violate federal regulations, engage in inhumane practices, or act in anything other than a professional manner consistent with our mission to enforce federal law and protect the American people,” Mohan said in an e-mail.
In an interview, the US attorney for Massachusetts, Andrew Lelling, said he believes the judges’s comments stem from two factors: their intense dislike of Trump’s immigration policies and ICE’s procedural missteps as it works fast to carry out the administration’s orders to ramp up enforcement.
“You have to have operational plans, you have to figure out how to do all these arrests, and I think that’s been a strain” on ICE, Lelling said. “Sometimes mistakes are made, and I think judges are waiting for that mistake.”
But Lelling, who defended ICE when its officers apprehended the Chinese national, said some judges have tried to broaden the narrow scope of federal jurisdiction over immigration matters.
“Some of our judges are motivated by their personal conclusions that it’s unfair in certain instances to deport somebody, and that’s not law. That’s just their personal feelings,” he said. “I think some of our judges need to be more disciplined in that area.”
Lelling pointed to Saris’s May 2 decision to allow a detained immigrant to marry his fiancee, an American citizen, during a court hearing.
“What happened there is the judge allowing a last-minute ceremony during a federal court hearing so [the immigrant] would have a better chance at avoiding deportation,” Lelling said.
Saris declined to comment. In her order, Saris said she was allowing the marriage because the jail where he was being held would have made him wait five months to marry.
“Prisoners have the right to marry,” Saris had said in the order.
The criticism comes as US District Court in Boston is hearing an increasing number of civil and criminal immigration cases.
From May 15, 2017, to May 15, 2018, there were 80 civil petitions for release by immigrants filed in the federal court, 43 percent more than in the same period from 2016 to 2017, and nearly 200 percent more than in the same period from 2015 to 2016, according to court statistics.
On the criminal side, the number of cases brought in Massachusetts by the US attorney’s office against immigrants who reentered the country illegally was 35 as of May 15, nearly double what it was at the same time last year.
Lelling said that he is prioritizing the cases of undocumented immigrants who have committed other offenses or reentered the country illegally multiple times, which is a felony.
“We look at things on a case-by-case basis,” he said.
The federal public defender’s office said that many of its cases have involved immigrants who, aside from reentering the country illegally, have no criminal record, pay taxes, and have families or businesses.
On a recent Monday, Stellio Sinnis was the public defender on duty when he was handed six cases of people charged with illegal reentry, at least half of whom had no other criminal record. One man was taken into custody in front of his children as he dropped them off at school, Sinnis said.
“I’ve been here since 1992, and I can’t remember anything like that happening,” Miriam Conrad, the chief federal public defender in the state, said of the volume of cases.
Any reprieve that immigrants receive in federal district court is temporary, because the decision to deport ultimately rests with the government or an immigration court, said Muzaffar Chishti, director of the New York office of the Migration Policy Institute, a nonpartisan think that studies immigration and refugee policies worldwide.
But the judges’s words and actions are underscoring a critical debate over the moral implications of Trump’s policies which target immigrants who have been checking in with the government, Chishti said.
“They’re the lowest-hanging fruit. They’re in our system. They’re the easiest to find,” he said. “Is that the right policy?
“That’s a very important discussion for the country to have, which is what, in their way, the judges are saying.”