The Commonwealth of Massachusetts Committee for Public Counsel Services Immigration Impact Unit 21 McGrath Highway, Somerville, MA 02143 ANTHONY J. BENEDETTI CHIEF COUNSEL TEL: 617-623-0591 FAX: 617-623-0936 WENDY S. WAYNE DIRECTOR Practice Advisory on Challenging the Enforcement of ICE Detainers November 2015 I. Summary This advisory is intended to assist defense counsel in bringing legal challenges to the enforcement of ICE detainers against their clients; i.e. to prevent local law enforcement from holding a client based solely on an ICE detainer. Following an introduction discussing the nature of ICE detainers and successful challenges to the enforcement of ICE detainers nationally and within Massachusetts (pp. 1-6), this advisory explores the proper venue to challenge the enforcement of ICE detainers (pp. 6-8) and outlines substantive legal arguments that might be used to prevent local law enforcement from complying with a detention request from ICE (pp. 8-11). If defense counsel believes challenging the enforcement of an ICE detainer would benefit a client in a case on which counsel has been appointed, defense counsel should contact his or her supervisor within the public or private division of CPCS to discuss the possibility of pursuing such a challenge within his or her role as appointed counsel. II. Introduction 1 It is by now well-established that criminal dispositions often lead directly to severe immigration consequences. At the center of this criminal-immigration pipeline is the ICE detainer. 2 As will be explained at length below (Part I.a), an ICE detainer is not a judicially 1 For additional information and further updates on this topic counsel may visit the webpages of the Immigrant Legal Resource Center (http://www.ilrc.org/policy-advocacy/immigrationenforcement) and the National Immigrant Justice Center (https://www.immigrantjustice.org/detainers). 2 In November 2014, the Department of Homeland Security released a memorandum announcing that it would decrease the use of detainers in favor of a request for notification ; asking that local authorities merely notify immigration authorities when a person of interest is released. www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities_0.pdf.
issued warrant but instead is merely a document signed by a rank-in-file immigration officer requesting cooperation from state law enforcement authorities. Compliance by state authorities is purely voluntary. And yet this sheet of paper often has devastating consequences for our clients leading to unnecessary pre-trial detention, impeding a client from returning to court to face the charges against him, and facilitating the client s ultimate removal from the United States. This advisory lays out legal challenges to the enforcement of ICE detainers (Part II.b), on the grounds that states lack arrest authority to hold persons for purely civil immigration violations, that detention violates both the Fourth Amendment and art. 14 because it is unsupported by a neutral determination of probable cause of a criminal violation, and that a lack of notice or meaningful opportunity to challenge the detainer constitutes a procedural due process violation under the Fourteenth Amendment and art. 12. The Immigration Impact Unit (IIU) hopes that defense counsel, armed with this advisory, will be in the position to attack the pervasive, but unconstitutional, Massachusetts practice of holding persons solely for the purposes of federal civil immigration enforcement. This advisory focuses only on defendants with pending criminal charges who face return to custody solely based on an ICE detainer. It does not address those defendants with detainers lodged against them who are serving sentences after their criminal cases have been resolved. 3 a. What is an ICE detainer? The ICE detainer has become a familiar tool of immigration enforcement. Immigration and Customs Enforcement (ICE) is the enforcement arm of the Department of Homeland Security (DHS). ICE uses detainers as a means to take our clients from state custody into immigration custody if ICE suspects the client is subject to removal. A detainer is a form (DHS Form I-247 or I-247D 4 ) that is completed by an ICE officer requesting that a state custodian (police department, local sheriff s office, court officer, Massachusetts Department of Corrections, etc.) hold a client for up to 48 hours, not including holidays or weekends, after the client would otherwise be released from state custody. In short, the detainer requests that state authorities hold a client after the detention is no longer authorized by state criminal proceedings. The purpose of the detainer is to allow ICE to come to the state facility and take custody of the client. Copies of both types of detainer form are attached to this advisory. Nevertheless, detainers remain an integral part of immigration enforcement, especially in Massachusetts. 3 Defendants who are serving sentences following the resolution of their criminal case face a number of unique issues that are beyond the scope of this advisory, including questions regarding the consequences of the presence of an ICE detainer on the conditions of their confinement and whether a habeas action might be brought while the defendant is still serving a sentence but facing continued detention on an ICE detainer once the sentence is completed. 4 As part of the November 2014 initiative, DHS has created the new detainer form I-247D. It s unclear whether ICE is using this new form consistently. 2
ICE derives its authority to issue detainers from federal regulation. 8 C.F.R. 287.7 reads: (a) Detainers in general. Detainers are issued pursuant to sections 236 and 287 of the Act and this chapter 1. Any authorized immigration officer may at any time issue a Form I-247, Immigration Detainer-Notice of Action, to any other Federal, State, or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.... (d) Temporary detention at Department request. Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department. There are several important things to know about a detainer: A detainer is NOT a true warrant issued by an independent magistrate supported by a finding of probable cause. Instead, it is a single form completed by a rank-in-file ICE officer. See 8 C.F.R. 287.7(b) (authorizing all deportation officers and immigration enforcement agents, among others, to issue detainers). A detainer is NOT an order. It is a request. While there has been some confusion on this topic, due in part to older versions of the detainer form that suggested the detainer functioned as an order, DHS takes the position that compliance with ICE detainers is voluntary. Galarza v. Szalczyk, 745 F.3d 634, 641-42 (3d Cir. 2014) ( Since at least 1994, and perhaps as early as 1988, ICE (and its precursor INS) have consistently construed detainers as requests rather than mandatory orders. ); DHS Answer to Amended Complaint at 24, Jiminez Moreno v. Napolitano, No. 11-05452 (N.D. Ill. May 13, 2013) (denying that 8 C.F.R. 287.7 imposes any obligation on local law enforcement authorities and confirming that a detainer is a request for assistance), available at http://www.immigrantjustice.org/court_cases/detainer-class-action-litigation-jimenezmoreno-et-al-v-napolitano-et-al. 3
Moreover, the only federal court of appeals to directly consider the issue has similarly held that ICE detainers are not orders. Galarza v. Szalczyk, 745 F.3d at 639-42. The Third Circuit in Galarza further held that were ICE detainers mandatory, it would raise serious concerns under the Tenth Amendment, which limits the power of the federal government to command state officers. Id. at 643-45. U.S. district courts have followed suit. Morales v. Chadbourne, 996 F. Supp. 2d 19 (D.R.I. 2014); Miranda-Olivares v. Clackamas County, No. 12-02317, 2014 U.S. Dist. LEXIS 50340 (D. Or. Apr. 11, 2014); see also Buquer v. City of Indianapolis, 797 F. Supp. 2d 905 (S.D. Ind. 2011). A detainer RARELY gives any information regarding the factual basis for the detainer. In other words, most detainers do not include any information to support ICE s assertion that the client may be subject to removal. The older ICE detainer form, Form I-247, has a number of boxes to be checked off by the completing ICE officer. The first option for an ICE officer is a box indicating that ICE has determined that there is reason to believe the individual is an alien subject to removal from the United States. Below this box are multiple sub-options, including boxes indicating that the person has a prior felony conviction or specific misdemeanor convictions. These sub-boxes, however, do not correspond with the grounds for removal listed at 8 U.S.C. 1182 and 8 U.S.C. 1227. Instead, they are meant to reflect the various removal priorities of DHS (assuming the person is actually subject to removal). Frequently these sub-boxes are not checked off. Generally, the ICE detainer Form I-247 does not provide any details regarding the specific basis for the detainer, making verification extremely difficult. The new ICE detainer form, Form I-247D, includes several boxes intended to support a finding of probable cause that the subject is a removable alien. Similarly, none of these boxes provide the specific removal ground to support issuance of a detainer. Importantly, as discussed above, these forms are completed by rank-in-file ICE officers and there is no neutral arbiter determining whether or not to issue the detainer. b. Successful Challenges to ICE Detainers Around the Country Across the country, advocates have been winning battles to end enforcement of ICE detainers. This work is being done through direct advocacy with local law enforcement agencies, state legislation, and litigation. For a helpful overview of policies limiting detainers, see the map available from the Immigrant Legal Resource Center (click on each locality to learn the source of the detainer policy): http://www.ilrc.org/enforcement Notably, advocates have been winning this battle in courts. Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015): Affirming the denial of ICE motion to dismiss for qualified immunity, finding that it was clearly established... that immigration stops and arrests were subject to the same Fourth Amendment requirements 4
and that detention authorized by an immigration detainer would require more than just reasonable suspicion. Morales did not decide liability of local law enforcement and assumes ICE must have probable cause of removability to issue a detainer. People ex rel. Swenson v. Ponte, 994 N.Y.S.2d 841 (N.Y. Sup. Ct. 2014): State court granting habeas and finding that the New York Department of Correction has no authority to detain a person based solely on civil immigration enforcement. Miranda-Olivares v. Clackamas County, No. 12-02317, 2014 U.S. Dist. LEXIS 50340 (D. Or. Apr. 11, 2014): Granting summary judgment to plaintiff finding she was held without probable cause in violation of the Fourth Amendment when she declined to post bail after being told by local authorities that if she posted bail in her criminal case she would be sent to ICE on a detainer. o In response, sheriffs offices throughout Oregon and beyond (including Colorado) announced they would not be complying with detainer requests. Julia Preston, Sheriffs Limit Detention of Immigrants, N.Y. Times, Apr. 18, 2014, available at http://www.nytimes.com/2014/04/19/us/politics/sheriffs-limit-detention-ofimmigrants.html. o See also, Cindy Carmaco, More jails refuse to hold inmates for federal immigration authorities, L.A. Times, Oct. 4, 2014, available at http://www.latimes.com/nation/immigration/la-na-ff-immigration-holds- 20141005-story.html?utm_source=AILA+Mailing&utm_campaign=9f28b3c815- AILA8_10_6_14&utm_medium=email&utm_term=0_3c0e619096-9f28b3c815-290734285 Villars v. Kubiatowski, No. 12-4586, 2014 U.S. Dist. LEXIS 61697 (N.D. Ill. May 5, 2014): Denying motion to dismiss from state law enforcement authorities because plaintiff had stated a claim under the Fourth Amendment, where detainer itself did not provide state officers with arrest authority for immigration violations and the detainer was unsupported by probable cause of criminal activity. c. Detainer Challenges in Massachusetts The Massachusetts Trust Act Coalition (http://matrustact.org/) and others have been engaged in advocacy with local government agencies and at the state level to stop enforcement of ICE detainers. The Massachusetts Trust Act, S. 1135 and H-1613, would significantly limit the circumstances in which ICE detainers could be enforced in Massachusetts. The cities of Somerville, Boston, and Lawrence have limited the enforcement of ICE detainers. Yadires Nova-Salcedo, Lawrence City Counsel Approves Trust Act, CBS Boston, Aug. 27, 2015, available at http://boston.cbslocal.com/2015/08/27/lawrence-city-council-approves-trust-act/; Oliver Ortega, City Counsel Oks measure limiting immigration holds, Boston Globe, Aug. 20, 2014, available at http://www.bostonglobe.com/metro/2014/08/20/boston-city-councilapproves-ordinance-limiting-immigration-holds/8e1mvyhu1ap1rifr7akkik/story.html; Evan Allen, Somerville ends participation in Secure Communities, Boston Globe, May 21, 2014, available at http://www.bostonglobe.com/metro/2014/05/21/somerville-mayor-joseph- 5
curtatone-ends-city-participation-federal-secure-communitiesprogram/amdy0znpdk5b7ysnbsrjeo/story.html. In addition, the Massachusetts Executive Office of Public Safety (EOPS) sent a notice to all Massachusetts sheriffs regarding the potential liability risks of honoring ICE detainer requests. Sharman Sacchetti, Questions surround memo sent to Mass. sheriffs about ICE detainers, MyFoxBoston, Sept. 4, 2014, available at http://www.myfoxboston.com/story/26441946/questions-surround-memo-sent-to-masssheriffs-about-ice-detainers#.vaha1z_kxra.email. III. What Can You Do to Challenge Enforcement of Your Client s ICE Detainer? NOTE: Below are novel, largely untested arguments for challenging detainer enforcement. These strategies do not guarantee success and would benefit from feedback and experience. Similarly, there may be other, perhaps more effective, arguments that are not addressed in this advisory. The IIU would like to hear how these ideas work in practice and invites any suggestions and comments. a. Venue to Bring Challenges Before turning to the legal arguments that may be used to challenge detainers, discussed in detail below, it is necessary to determine whether and how such challenges can be made in the course of a pending criminal case. As is reflected above, most of the legal challenges brought regarding ICE enforcement have been civil suits for damages brought after an ICE detainer has already been enforced. There may, however, be remedies that can be pursued to prevent enforcement of the detainer often preferable for a client who will likely be deported if sent to ICE custody. i. State Habeas Action People ex rel. Swenson v Ponte, 994 N.Y.S.2d 841 (N.Y. Sup. Ct. 2014), discussed above, provides an example of a successful state habeas challenging local enforcement of a detainer. A common problem with a habeas action to challenge detention on an ICE detainer, however, is that an individual habeas will be mooted too quickly when the forty-eight hour window closes and ICE takes custody of the client. The decision in Miranda-Olivares v. Clackamas County, No. 12-02317, 2014 U.S. Dist. LEXIS 50340, at *5-7, 26-33 (D. Or. Apr. 11, 2014) raises the possibility of a state habeas action where the client remains held in state custody on bail despite her ability to post the bail, because state authorities have informed her that if she posts bail she will not be released but will instead be sent to ICE custody. In Miranda-Olivares, the plaintiff brought suit against the county for holding her on an ICE detainer in violation of her Fourth Amendment rights. Ms. Miranda-Olivares was released by the criminal court on $500 bail, but was told repeatedly by county jail officials that if she posted bail she would not be released, but instead would be sent to ICE custody. The record was clear that Ms. Miranda-Olivares had the resources to post the bail, but did not post bail 6
because she was assured by county officials that she would not be released if she posted the bail. After her criminal case was resolved she was held for less than 48 hours and then transferred to ICE custody. The district court found that the period after the court released her on bail constituted a new seizure for constitutional purposes, because in fact she was being held on the ICE detainer. This new seizure violated Ms. Miranda-Olivares Fourth Amendment right, because she was held without probable cause of either a criminal or an immigration violation. To bring a state habeas challenging detention on an ICE detainer while a client remains in ICE custody, advocates should create a record that establishes: (1) client was released on bail by the criminal court, (2) client had the resources to pay bail, (3) client was informed by state custodian that posting bail would not lead to release but instead to further detention and ultimately transfer to ICE custody, and (4) client consequently did not post bail. Advocates may then argue that client is, in effect, being held solely on an ICE detainer. As the court stated in Miranda-Olivares, it would elevate form over substance to ignore that the presence of the ICE detainer effectively led to a new seizure. Id. at *32. ii. Challenge Brought to State Criminal Court Judge It is not clear whether a criminal trial court judge has the authority to order the custodian (court officers, sheriff, DOC, etc.) to ignore the ICE detainer request. The basic argument for authority, even where the criminal case has been resolved and the defendant is about to return to custody based only on an ICE detainer, may turn on the court s inherent judicial authority to perform core functions necessary for the proper administration of justice. See Campatelli v. Chief Justice, 468 Mass. 455, 476-77 (2014); First Justice of the Bristol Div. of the Juvenile Court Dep't v. Clerk-Magistrate of the Bristol Div. of the Juvenile Court Dep't, 438 Mass. 387, 396-398 (2003). The argument is perhaps more powerful when the client is physically present in the courthouse and therefore it is the court officers who would be enforcing the detainer (either by holding the client for ICE to appear in court or by holding the client for the sheriff based solely on an ICE detainer). See First Justice, 438 Mass. at 397-98; Chief Administrative Justice of Trial Court v. Labor Relations Com., 404 Mass. 53, 57 (1989) ( The power of the judiciary to control its own proceedings, the conduct of participants, the actions of officers of the court and the environment of the court is a power absolutely necessary for a court to function effectively and do its job of administering justice. (quoting State v. LaFrance, 124 N.H. 171, 179-180 (1983))). Under this theory, the trial judge has the authority to order his court officers not to unlawfully detain a defendant after the court has ordered the defendant s release either on his own recognizance, or after the defendant has posted bail, or following the resolution of the criminal case. The strongest argument for jurisdiction may come when you are representing a client who does not post bail because she has been assured that she will not be released but instead sent to ICE custody thus meeting the requirements discussed above at Part II.a.i. In such a case, a client s continued pre-trial detention as a result of an ICE detainer more directly impacts the criminal proceeding over which the trial judge has jurisdiction. See Barker v. Wingo, 407 7
U.S. 514, 532-33 (1972) ( if a defendant is locked up [before trial], he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. ); 4 Wayne R. LaFave et al., Criminal Procedure 12.2(c)(3d ed. 2013) ( There is little reason to doubt the proposition that pretrial detention has a significant adverse impact upon the ability of a defendant to vindicate himself at trial ); Charles H. Whitebread & Christopher Slobogin, Criminal Procedure 527-28 (4th ed. 2000) (stating that bail facilitates preparation of a defense and prevents incarceration of a possibly innocent person ); see also Mary T. Phillips, A Decade of Bail Research in New York City, New York Criminal Justice Agency, 115 (Aug. 2012) ( Defendants who were detained pretrial were more likely to be convicted, less likely to have their charges reduced, and more likely to be sentenced to jail or prison than their counterparts who were at liberty during the pretrial period. ). It is worth noting that in a memorandum dated June 3, 2008, the Honorable Lynda M. Connolly, then Chief Justice for the District Court, instructed Massachusetts judges that they had authority to order an individual to be detained based solely on a Federal immigration detainer. Memorandum from Hon. Lynda M. Connolly to District Court (June 3, 2008), http://www.publiccounsel.net/iiu/wp-content/uploads/sites/15/2014/07/district-court-memoto-judges-re-state-court-enforcement-of-immigration-laws.pdf. While this memorandum fails to address the constitutional concerns implicated by detaining a person based solely on a detainer, it certainly suggests that where the judge has authority to order someone held based solely on a detainer, she likewise should have authority to order the court officers not to hold someone based solely on a detainer. iii. Advocacy with the Custodian Even without a judicial forum, defense counsel may consider advocating directly with the custodian, by arguing that detaining a client solely on an ICE detainer is unlawful and may expose the custodian to liability. As Part I.b reveals, educating custodians regarding the legal issues surrounding detainer enforcement, including that compliance is voluntary and that potential liability issues may exist, has been a very powerful tool in the anti-detainer movement. b. Arguments Challenging Detainer Enforcement 5 i. Lack of Arrest Authority As the U.S. Supreme Court has made clear, because generally it is not a crime for a removable alien to remain present in the United States... [i]f the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. Arizona v. United States, 132 S. Ct. 2492, 2506 (2012). While the Immigration and Nationality Act grants authority to the Attorney General to arrest and detain noncitizens in certain circumstances, that power is circumscribed. Id. Absent a federal warrant, federal immigration authorities may arrest a noncitizen they believe to be present in the U.S. in 5 For more discussion of these issues, see Immigration Detainers: Legal Issues (May 7, 2015) from the Congressional Research Service: https://www.fas.org/sgp/crs/homesec/r42690.pdf. 8
violation of immigration laws only where the noncitizen is likely to escape before a warrant can be obtained. 8 U.S.C. 1357(a)(2). As the Arizona court observed, any attempt to authorize state authorities to hold persons based solely on suspicion that they are subject to removal expands the authority of the state beyond even that provided to immigration authorities by statute. 132 S.Ct. at 2506. For this reason, lower courts have concluded that Arizona precludes state law enforcement from arresting based solely on civil immigration violations. Santos v. Frederick County Bd. of Comm'rs, 725 F.3d 451, 464-465 (4th Cir. 2013); Villars, 2014 U.S. Dist. LEXIS at *32-36; Swenson, 994 N.Y.S.2d at 844. 6 Neither the detainer form itself, nor the underlying federal regulations, can grant authority that conflicts with the plain terms of the federal statute, which limits warrantless arrest authority to federal immigration officers who have made a determination both that there is a reason to believe the noncitizen is unlawfully present and presents a flight risk. See Arizona, 132 S.Ct. at 2506; Villars, 2014 U.S. Dist. LEXIS at *32-36 (detainer regulations do not grant arrest authority to state law enforcement); see generally Perez Santana v. Holder, 731 F.3d 50 (1st Cir. 2013) (federal regulations may not conflict with federal statute). Massachusetts law provides no authority for law enforcement to arrest based solely on civil immigration violations. As a consequence, there is no authority permitting Massachusetts law enforcement authorities to detain persons based solely on an ICE detainer request. ii. Fourth Amendment and art. 14 Unlawful Seizure The detention of a person based solely on an ICE detainer constitutes an unconstitutional seizure for at least two reasons the detention is not supported by probable cause that the person has committed a crime and the determination to issue the detainer is not subject to review by a neutral magistrate. Both failures run afoul of the Fourth Amendment and art. 14. Where a person is held solely on a detainer, this unquestionably constitutes a new arrest that must satisfy the Fourth Amendment and art. 14. Morales, 793 F.3d at 217 ( Because Morales was kept in custody for a new purpose after she was entitled to release, she was subjected to a new seizure for Fourth Amendment purposes one that must be supported by a new probable cause justification. ); Miranda-Oliveras, 2014 U.S. Dist. LEXIS at *30-31 (holding that where Miranda-Oliveras was capable of posting court-ordered bail, but informed she would not be released if she posted bail, her continued detention constituted a new seizure); see Commonwealth v. Cook, 419 Mass. 192, 198-199 (1994) (defining arrest). A lawful arrest requires the existence of probable cause to believe that the individual arrested is committing or has committed a criminal offense. Commonwealth v. Jackson, 464 Mass. 758, 761 (2013). By contrast, the ICE detainer does not purport to assert a criminal violation, but instead asks state law enforcement to detain a person based solely on an alleged civil violation. Arizona v. United States, 132 S. Ct. 2492, 2495 (2012) ( Removal is a civil matter. ). Where there is no authority for state officials to detain for solely civil enforcement, 6 While there are statutory provisions that encourage cooperation between local authorities and federal immigration agents, 8 U.S.C. 1357(g)(10), and in fact no law can prohibit communication between state government and DHS, 8 U.S.C. 1373, these provisions do not grant independent arrest powers to local authorities. 9
see above, detention by state officials based solely on a civil ICE detainer constitutes an unconstitutional seizure. See Villars, 2014 U.S. Dist. LEXIS at *35-36 (holding that plaintiff stated a claim for which relief may be granted, where he alleged that he was held on a detainer that failed to state probable cause for any crime); see also Buquer v. City of Indianapolis, No. 1:11-cv-00708, 2013 U.S. Dist. LEXIS 45084, at *37-39 (finding state statute authorizing arrest for civil immigration infractions violates Fourth Amendment because does not require probable cause of a crime). In addition, detaining a person solely based on an ICE detainer, issued without a judicial or quasi-judicial determination of probable cause of a crime, violates the Fourth Amendment and art. 14. See Gerstein v. Pugh, 420 U.S. 103, 111-116 (1975) (arrest must be supported by probable cause of a crime and promptly followed by a determination of a neutral magistrate to justify extended detention); County of Riverside v. McLaughlin, 500 U.S. 44, 55-58 (1991) (probable cause hearing must be held within 48 hours, not excluding holidays or weekends); Jenkins v. Chief Justice of Dist. Court Dep't, 416 Mass. 221 (1993) (hearing must be held within 24 hours, not excluding holidays or weekends, for determination by neutral magistrate of probable cause that a crime was committed). As discussed above, an ICE detainer may be issued by virtually all rank-in-file DHS agents, without any intervention by a neutral magistrate. 8 C.F.R. 287.7(b) (authorizing all deportation officers and immigration enforcement agents, among others, to issue detainers). It further provides for detention up to 48 hours, excluding holidays and weekends, without any review by a neutral fact-finder. 8 C.F.R. 287.7(d). Nor does the detainer include any information to permit review of any underlying determination, because it is unsupported by any information or explanation regarding the grounds for removal. See Form I-247. As such, continued detention based solely on a detainer cannot be justified under either the Fourth Amendment or art. 14. iii. Fourteenth Amendment and art. 12 Procedural Due Process Violation The deprivation of liberty inherent in detention pursuant to an ICE detainer comes without either an opportunity to be heard or, in many circumstances, notice. As such, the decision to hold a person on an ICE detainer constitutes a violation of her procedural due process rights. See Mathews v. Eldridge, 424 U.S. 319 (1976); Paquette v. Commonwealth, 440 Mass. 121, 131 (2003). There can be no doubt that the deprivation of liberty associated with the enforcement of an ICE detainer implicates rights under the Fourteenth Amendment as well as art. 12. See Aime v. Commonwealth, 414 Mass. 667, 676 (1993) ( The right to be free from governmental detention and restraint is firmly embedded in the history of Anglo-American law. ). This fundamental liberty interest, when weighed against the government interest voluntary assistance with federal civil immigration enforcement compels the conclusion that some measure of notice and an opportunity to be heard must be provided. See Paquette, 440 Mass. at 131 ( A fundamental requisite of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner. ); Aime, 414 Mass. at 676-83; see also Morales, 996 F. Supp. at 40-41 (where county complies with all ICE detainer requests, county is obligated to put due process protections in place). Certainly, the longer a client is held based solely on an ICE detainer (presumably, in the context of pre-trial detention, where the client is essentially prevented from posting bail because he has been 10
informed that he will not be released if he posts bail, but instead held and sent to ICE custody), the stronger the due process argument becomes. As applied to ICE detainers: Lack of Notice o Where a client does not receive a copy of the ICE detainer form itself, counsel may argue that he was not given notice of the basis of the detainer. o Where the detainer itself does not articulate the ground of removal (as in most cases), counsel may argue that the notice is deficient because it does not permit counsel to challenge the detainer. Lack of Meaningful Opportunity to be Heard at a Meaningful Time o At present, there is no means to challenge a local determination to honor an ICE detainer. o Nor does the regulation set forth any process to challenge the issuance of a detainer. o On the back of both Form I-247 and Form I-247D, detainees are advised to call 1-877-2INTAKE (877-246-8253) if the detainee has a complaint regarding this detainer or related to violations of civil rights or civil liberties connected to DHS activities. In addition, detainees who maintain that they are U.S. citizens or victims of crime may contact the ICE Law Enforcement Support Center toll free at (855) 448-6903. Counsel should consider contacting this number in an attempt to challenge the issuance of the detainer this step should allow counsel to argue these phone numbers do not provide meaningful review at a meaningful time. IV. Conclusion While challenging enforcement of ICE detainers may not prevent ICE from ultimately gaining custody of our clients by other means, it may significantly slow down the criminalimmigration pipeline that seriously harms our noncitizen clients. It will also prevent the continued unlawful detention of our clients by Massachusetts law enforcement officials. The IIU is eager to collaborate with defense counsel on further developing and presenting the arguments discussed above and would greatly appreciate feedback regarding results. 11