On Thin ICE: Advocating for Non-Citizen Civil Litigants in an Era of Increased Immigration EnforcementPosted: May 28, 2020
by Caddie Nath-Folsom
In a time of unprecedented fear and uncertainty among immigrant communities, non-citizens may be afraid to pursue or defend their legal rights in state civil matters. This article is intended to help civil attorneys without immigration expertise more effectively assess the risks that their non-citizen clients face, confront immigration-related threats from opposing parties, and ensure access to justice for non-citizen litigants.
Opponents in cases involving divorce or custody, employment, landlord/tenant disputes, or tort and contract matters sometimes try to use immigration status as a litigation weapon, threatening explicitly or implicitly to report or expose a non-citizen party to Immigration and Customs Enforcement (ICE) to force settlement or gain an upper hand. Given the current political climate, these threats may be very effective against clients. Civil attorneys therefore need to be prepared a) to assess whether being reported to ICE is something the client actually needs to be worried about, and b) if it is, to push back against the threat and safeguard the client’s ability to exercise his or her rights under the law.
How then can a civil attorney without a background in immigration law determine whether being reported to ICE poses any real risk to a client? The attorney can fairly effectively assess the relative risk by determining whether ICE, or its umbrella agency, the Department of Homeland Security (DHS), has already detected the client’s presence in the United States. People who are “detected” include those with valid legal status and those with ongoing immigration court proceedings. If DHS is already aware that the client is present in the United States and the client is not currently detained, it means that the client is either not subject to detention or that DHS has determined that it isn’t necessary to detain this particular person. In either case, DHS is very unlikely to send ICE agents out to arrest that individual just because the opponent makes a report. However, if the client is “undetected,” or not currently on the DHS’s radar, the danger of being reported to ICE is very real. In 2017, the Trump administration announced the elimination of earlier policy guidelines that prioritized the detention and deportation of those with criminal convictions or who posed a threat to public safety. Today, ICE focuses its enforcement resources on whomever it can find.
While in some cases it may be difficult to ascertain whether or not a client is detected, usually the attorney can make an educated guess by talking to the client about her immigration history. Most often, undetected clients either entered the U.S. with a valid visa and then remained after its expiration or crossed a land border into the U.S. between ports of entry without being caught by border agents. In either case, it is important to determine whether the client has ever had any contact with immigration officials in the U.S. or was ever ordered to appear in immigration court and failed to do so. Those who fail to appear for immigration court hearings, almost without exception, are ordered removed (deported) in absentia, even if they were minors at the time of the hearing. Clients with old removal orders are at the greatest risk of detention or deportation if an opponent exposes them to ICE. If apprehended, the prior removal order can be immediately reinstated, and they can be deported from the U.S. in short order.
Where it is difficult or impossible to determine if a client is undetected, the attorney should err on the side of caution and assume that an opponent’s threat to report the client to ICE is something to be taken seriously.
It is important to discuss the risk of exposure with undetected clients, particularly where there are indications that the opponent may use the client’s immigration status as a litigation weapon, such as prior explicit threats to have the client deported. For some clients, the cost of possible exposure may outweigh the benefit they stand to gain through litigation.
As an advocate, no matter the client’s level of risk, the lawyer should be ready to head off and push back against immigration threats. This may require creativity in developing a litigation strategy to protect the client and it will mean actively working to prevent immigration status from becoming part of the case. The lawyer should be cautious about pre-arranged events, including depositions and settlement conferences, which might provide an aggressive opponent with an opportunity to expose the client to ICE. Advocate to keep information about the client’s immigration status out of discovery, particularly if it is raised as an intimidation tactic and not relevant to the merits of the case. Lawyers may also remind opposing counsel that threats related to immigration status may violate the Rules of Professional Conduct and could amount to criminal extortion. See Mass. Rules of Prof’l Conduct R. 3.4(h) and (i), R. 4.4(a), R. 8.4(d), (e); Wash. Rules of Prof’l Conduct R. 4.4 cmt. 4 (2013); NC Formal Ethics Op. 2005-3 (2005); Ass’n of Bar of City of N.Y. Comm. on Prof’l Ethics, Formal Op. 2017-3 (2017).
It is also critical to bear in mind Fifth Amendment protections in preparing for discovery and cross examination that could elicit admission to acts that constitute uncharged criminal acts (such as unlawful border crossings and aiding others to enter the U.S. unlawfully).
Finally, attorneys representing non-citizen clients should be prepared to address client fears about attending court hearings due to widespread reporting on ICE enforcement actions in courthouses. In June 2019, a federal district court judge temporarily enjoined all ICE enforcement activity in courthouses in Massachusetts. See Ryan v. ICE, 1:19-cv-11003-IT (D. Mass. June 20, 2019). Even before the injunction, ICE activity in courthouses appeared to be limited to targeted arrests of specific individuals, all of whom were attending criminal hearings, and did not include random checks of persons in a courthouse. While the injunction stands and ICE maintains current policies, non-citizen clients should not fear attending hearings on civil matters in Massachusetts.
The immigration regulatory landscape is complex and constantly changing. The information here provides only a high-level roadmap to help in assessing risk. Clients with more complex immigration histories or specific questions regarding eligibility for immigration relief should be referred to a qualified immigration attorney.
Caddie Nath-Folsom is a staff attorney at the Justice Center of Southeast Massachusetts in Brockton. She represents survivors of crime in immigration and family law matters.
by Tad Heuer and Daniel McFadden
On July 24, 2017, in Lunn v. Commonwealth, the Massachusetts Supreme Judicial Court ruled that state and local officials are not authorized to arrest immigrants based on civil immigration detainers issued by U.S. Immigration and Customs Enforcement (“ICE”). As a result, public safety officials in Massachusetts generally cannot detain or hold a person in custody based solely on the existence of an ICE detainer. It appears that the SJC is the first state highest appellate court to reach and decide this issue.
The Detainer Controversy
Although ICE officers frequently detain people accused of being “removable” (i.e., subject to deportation), ICE does not always make the initial arrest. Rather, ICE often issues “detainers” to the state or local public safety officials who have certain immigrants in their custody. A detainer is ICE’s “request” that, if an immigrant of interest to ICE is in the custody of local authorities for any reason, the authorities voluntarily delay that individual’s release by up to 48 hours to allow ICE to transfer him or her into immigration custody. This is an efficient mechanism for ICE to seize immigrants who are being released from prison, who have been arrested, or who have simply been pulled over for a traffic stop.
Detainers have been controversial because they essentially ask state and local officials to hold people in custody absent a judicial warrant or probable cause. Most violations of immigration law are not crimes, and most removal proceedings are purely civil matters handled by administrative courts within the Department of Justice. Nor do detainers typically provide information establishing probable cause. Critics of current ICE practice have contended that neither state law, nor the state or federal constitutions, permit a warrantless arrest in such circumstances.
Prior to Lunn, challenges to the legality of compliance with ICE detainers had met with some success. In 2014, the Maryland Attorney General issued a memorandum concluding that “an ICE detainer, by itself, does not mandate or authorize the continued detention of someone beyond the time at which they would be released under State law.” The Virginia Attorney General issued an official opinion reaching the same conclusion in 2015. In Massachusetts, a Single Justice of the SJC ruled in May 2016 that law enforcement officials are “without authority to hold [a person], or otherwise order him held, on a civil [ICE] detainer.” Moscoso v. A Justice of the East Boston Div. of the Boston Mun. Court, No. SJ-2016-0168, slip op. at 1 (May 26, 2016). However, until Lunn, it appears that no state’s highest appellate court had squarely addressed the question.
The Lunn Decision
The Lunn case arose from the detention of Sreynoun Lunn, an immigrant ordered removed from the United States in 2008. However, ICE was apparently unable to execute that order because Mr. Lunn’s country of origin declined to issue the necessary travel documents, and he was therefore released.
In 2016, Mr. Lunn was held by Massachusetts authorities on a larceny charge, which the state court dismissed for lack of prosecution. Ordinarily, Mr. Lunn would have been free to go. However, ICE had issued an immigration detainer requesting that Massachusetts authorities continue holding Mr. Lunn for up to two days beyond when he would otherwise have been released. Consequently, even though all charges had been dismissed, court officers detained Mr. Lunn for several more hours, until ICE agents arrived and took him into federal custody.
Mr. Lunn promptly sought a ruling that state officials were wrong to hold him based solely on ICE’s civil immigration detainer. A single justice of the SJC reserved and reported this question to the full Court.
In agreeing with Mr. Lunn, the SJC first explained that “the administrative proceedings brought by Federal immigration authorities to remove individuals from the country are civil proceedings, not criminal prosecutions.” The Court further explained that ICE detainers are issued for the purpose of this “civil process of removal,” and are purely requests for voluntary state or local assistance. In its briefing, the federal government even expressly conceded that state authorities are not obligated to enforce ICE detainers.
The Court then turned to the question of whether Massachusetts officials have statutory or common-law authority to arrest people solely because the officials received a voluntary request from the federal government to hold the person for a civil proceeding. The Court found no such authority. The Court also rejected the federal government’s argument that state law enforcement officers possess “inherent authority” to enforce detainers. Accordingly, it is generally unlawful for Massachusetts state and local officials to arrest and detain a person based solely on an ICE detainer.
However, Lunn does not preclude executing an arrest for other independent reasons (for instance, if the person is subject to a state or federal warrant arising out of suspected criminal activity). Nor does Lunn prevent officials from providing ICE with advance notice of a given detainee’s or inmate’s intended release date.
The Lunn decision could also carry implications beyond the immigration context, particularly its conclusion that a law enforcement officer has no arrest powers outside of those expressly granted by statute or common law. As the Court stated, “[t]here is no history of ‘implicit’ or ‘inherent’ arrest authority having been recognized in Massachusetts that is greater than what is recognized by our common law and the enactments of our Legislature.” Further, the Court indicated its discomfort with any expansion of common-law arrest powers, explaining that “[t]he better course is for us to defer to the Legislature to establish and carefully define” new arrest powers. This language likely will be useful to future criminal defendants and civil rights plaintiffs who seek to challenge other forms of warrantless detention.
Notably, authorship of the Lunn decision was attributed as “By The Court,” rather than to any specific justice, and the reasons for the Court doing so remain unclear. What is known is that this approach is rare, having last been employed over two decades ago. While typically employed in cases (like Lunn) involving regulation of the judicial branch or the practice of law, it is infrequent even then: in the vast majority of decisions in such cases, opinions are authored by specific and identified justices.
The Lunn decision leaves several open questions. For example, the SJC did not reach the question whether Mr. Lunn’s arrest would, if nominally authorized by state statute, be permitted by the state and federal constitutions. This is not strictly academic. Governor Baker has drafted legislation that would authorize such detention in at least some circumstances. Critics have expressed strong opposition to any such law on multiple constitutional grounds.
The SJC also did not reach the question of whether an arrest would be lawful if a particular detainer form provided sufficient information to establish probable cause that the individual had committed a federal crime. Nor did the SJC address whether an arrest would be permissible if made by a state or local official acting pursuant to a state-federal partnership under 8 U.S.C. § 1357(g). That statute permits ICE to specially deputize state and local officials to act with the authority of ICE officers. In Massachusetts, ICE has executed such agreements with the Massachusetts Department of Corrections and the Sheriff’s Offices of Bristol and Plymouth counties. These outstanding questions will have to await resolution in future cases.
Tad Heuer is a partner at Foley Hoag LLP practicing administrative law. He is currently a member of the Board of the Boston Bar Journal. Daniel McFadden is a litigation associate at Foley Hoag LLP, where his practice includes representation of both individuals and organizations on immigration law matters.