The standard intake form used by probation officers to gather information about new criminal defendants includes thequestion: “U.S. Citizen Y___ N___.”
The Fourth Amendment does not permit police to single out individuals for questioning regarding their immigrationstatus based on their ethnic or national appearance or ancestry.
United States v. Brignoni-Ponce,
422 U.S. 873, 95 S.Ct. 2574(1975). Racial profiling is a form of selective enforcement that may be the basis of pretrial motions to dismiss or to suppressevidence.
Commonwealth v. Lora
, 451 Mass. 425, — N.E.2d — (2008);
Commonwealth v. Franklin,
376 Mass. 885, 894-895,385 N.E.2d 227 (1978);
Commonwealth v. Palacios,
66 Mass. App. Ct. 13, 18-19, 845 N.E.2d 382 (2006).
8 U.S.C. § 1103(a)(1) and (3) charge the Secretary of Homeland Security “with the administration and enforcementof this chapter and all other laws relating to the immigration and naturalization of aliens” and authorize the Secretary to “establishsuch regulations . . . as he deems necessary for carrying out his authority under the provisions of this chapter.”
8 Code Fed. Regs. § 287.7 Detainer provisions under [8 U.S.C. § 1357(d)(3)]
Detainers in general.
Detainers are issued pursuant to [8 U.S.C. §§ 1226 and 1357] [see nn. 37 & 38,
]. Anyauthorized 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 seekscustody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer isa request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assumecustody, 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 analien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not toexceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.”The terms “law enforcement agency” and “criminal justice agency” are not defined for purposes of this regulation or thetwo referenced statutes. A different regulation, 8 Code Fed. Regs. § 287.1(e), defines the statutory term “Federal, state or locallaw enforcement official (or other official)” to include courts for purposes of 8 U.S.C. § 1357(d), which requires immigrationofficers, upon inquiry by such an official, to make a prompt determination whether to issue a detainer against an alien arrestedon a drug charge. See n.38,
2require surrender of a passport, etc.)
It is important, of course, that any such inquiries be posed in a manner that avoids anysuggestion of racial or ethnic profiling
or that gives an impression that the defendant’simmigration status might affect the court’s neutrality in adjudicating the charges against him orher.
2.May a Massachusetts judge order an individual to be detained based solely on a Federalimmigration detainer?
Yes. Federal regulations with the force of law
authorize Federal immigration officials to issuean immigration detainer requesting state and local “law enforcement agencies” to detain an alienfor up to 48 hours (excluding weekends and holidays) in order to permit the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement (ICE) to assumecustody. The regulation appears implicitly to authorize them to do so.
3.Are Massachusetts judges legally required to enforce Federal immigration detainers?
This is less certain. Federal regulations provide that state and local criminal justice agencies“shall” detain for the 48-hour period a person for whom an immigration detainer is outstanding.