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Massachusetts Courts Memo on Questioning Defendants About Immigration Status

Massachusetts Courts Memo on Questioning Defendants About Immigration Status

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Published by J Cox

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Published by: J Cox on Nov 17, 2009
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09/15/2010

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TRANSMITTAL NO.
989Last Transmittal No. to:First Justices988Other Judges988Clerk-Magistrates988CPOs988
Trial Court of the CommonwealthDistrict Court Department
Administrative OfficeTwo Center Plaza (Suite 200)Boston, MA 02108-1906Lynda M. Connolly
Chief Justice 
M E M O R A N D U M
T
O
:District Court Judges, Clerk-Magistrates and Chief Probation OfficersF
ROM
:Hon. Lynda M. Connolly, Chief JusticeD
ATE
:June 3, 2008S
UBJECT
:
State court enforcement of immigration laws
Issues relating to Federal immigration law and its intersection with Massachusetts law arisefrequently in our sixty-two district courts. It is a complex and largely unsettled area of law. Thepurpose of this memorandum is to provide judges with a ready reference to the law in those areas whereit is settled and to provide an overview of some common questions that judges may confront in areas of the law or public policy which are not so firmly settled.In the past few months General Counsel Michael J. Shea of this office met with the judges of Regions 6 and 7 to discuss these matters at regional meetings, and he is available to speak at otherregional meetings if you would find it helpful. Judges are invited to contact their RegionalAdministrative Judge or Mike if you have an interest in this area of the law.I particularly look forward to having an opportunity to discuss some of these issues with the judges at our annual judicial conference in Northampton next week.I.F
REQUENTLY
A
SKED
Q
UESTIONS
.......................................1II.R
ELEVANT
F
EDERAL
L
AW
............................................7III.R
ELEVANT
M
ASSACHUSETTS
L
AW
.....................................13Appendix: Selected Immigration Violations .............................15
I.
 
F
REQUENTLY
A
SKED
Q
UESTIONS
 
1.When is it appropriate for a judge to inquire into a criminal defendant’s citizenship orimmigration status? 
Such questions appear to be permissible and appropriate in making routine bail determinations:in order to establish or confirm the defendant’s
identity
, andto gather information about
other recognized bail factors
(use of an alias or false ID,community and family ties, available resources, likelihood and ease of flight, whether to
 
1
The standard intake form used by probation officers to gather information about new criminal defendants includes thequestion: “U.S. Citizen Y___ N___.”
2
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).
3
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.”
4
 
8 Code Fed. Regs. § 287.7 Detainer provisions under [8 U.S.C. § 1357(d)(3)]
“(a)
 Detainers in general.
Detainers are issued pursuant to [8 U.S.C. §§ 1226 and 1357] [see nn. 37 & 38,
infra
]. 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,
infra.
No Federal or state court has yet made a determination regarding the constitutionality of this regulation. 2007 Op. OhioAtt’y Gen. No. 18 at 13 n.12 (June 28, 2007) (available athttp://www.ag.state.oh.us/legal/opinions/2007/2007-018.pd).
2require surrender of a passport, etc.)
1
It is important, of course, that any such inquiries be posed in a manner that avoids anysuggestion of racial or ethnic profiling
2
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
3
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.
4
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.
 
5
 
State v. Sanchez,
110 Ohio St.3d 274, 279, 853 N.E.2d 283 (2006).
6
See p.14,
infra.
7
8 U.S.C. § 1253(a).
8
8 U.S.C. § 1326.
9
8 U.S.C. § 1324.
3However, the regulations also indicate that a detainer only “serves to advise” other agencies thatICE is seeking custody and “is a request” to notify ICE prior to releasing the alien so that ICEcan arrange to assume custody. The Department of Justice routinely argues successfully inFederal courts that, unlike warrants, immigration detainers are ineligible for habeas reviewbecause they have no present binding force.
5
4.May a court share information with or from Federal immigration officials?
Yes. A court may share information about an individual with or from ICE. Federal law bars thestates from preventing “any government entity or official” from sending information to ICE orseeking information from ICE about the citizenship or immigration status of an individual. ICEis also required by statute to respond to such inquiries by state or local government agencies, andto designate and train liaisons to state courts regarding the immigration status of defendantscharged with drug offenses or aggravated felonies.If, from whatever source, a judge obtains information suggesting that a defendant is an illegalalien, the judge may have to consider the appropriateness of notifying immigration officials.Presumably, this would be done through the probation department, the local police department,or the prosecutor’s office. ICE is statutorily required to cooperate with and respond promptly tosuch notifications.
5.Absent a Federal immigration detainer, does a Massachusetts judge have authority todetain an individual solely for an alleged
 felony
immigration violation?
Yes. The judge may direct a court officer to arrest an individual where there is probable causethat the individual has committed a
 felony
immigration violation.It is generally accepted that Federal law allows state and local police officers to enforce criminalimmigration violations as authorized by state law. Massachusetts law authorizes warrantlessarrests for
 felonies
based on probable cause. By statute, court officers have the same statutorypolice powers as police officers.
6
Felony immigration violations include, inter alia, violating a final removal order,
7
illegal reentryafter exclusion
8
and smuggling aliens into the country.
9

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