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.
I have always seen the practice of law as one of the most significant means of participating in our unique American democracy. As lawyers, we are accustomed, by training and practice, to embracing an adversarial role while still advancing a principled position.
Still, many of us in the bar could not help but be deeply troubled by the implications of some of the rhetoric in this year’s election campaign upon our long-held principles of American jurisprudence, including respect for the rule of law, due process, equal rights, and access to justice. Like so many of you, I have been angered and saddened to hear comments, and learn of events, that disrespect individuals who identify as minorities, or come from diverse backgrounds, beliefs and cultures. Such conduct erodes our Constitutional democracy, resulting in divisiveness, fear, and anxiety, all of which are felt acutely not only by adults, but perhaps most disturbingly, by our children as well.
In this context, I wanted to reach out to my colleagues at the bar to let you know that I believe the work of the Boston Bar Association, and its mission, have rarely been more relevant.
The BBA has a strong record of rising above division, finding common ground, and inspiring diverse groups to overcome disagreement to advance access to justice and excellence in the practice of law. We are – and will continue to be – a solutions-oriented convener that welcomes all stakeholders to exchange ideas and build relationships. But we also bear a responsibility, to one another and in the service of our communities, to be ever watchful and vigilant in ensuring that individual and due process rights remain valued and protected as bedrock principles in the implementation of our laws.
I write to our members now, to assure you that the BBA stands ready, willing and able to answer any necessary call to action resulting from this climate of uncertainty and ever changing events.
Over the past week, we have heard many expressions of concern, – both from our members and from local organizations with whom we partner. But we have also experienced a true sense of inspiration by the commendable desire of those same members and organizations to become actively engaged. We recognize that as lawyers, we are at our best when we are dealing with well-defined issues and actual cases and controversies. I want to state — unequivocally — that we remain committed to our work on the following fronts:
- The BBA is committed to protection of due process rights for all, as enumerated in the United States Constitution, with its Bill of Rights, and our Massachusetts Constitution, with its Declaration of Rights. Yet it is not enough for us to remain watchful. We will be empowering others to do the same through “Know Your Rights” programs in our communities and schools.
- We must remain cognizant of deportation as a potential collateral consequence of involvement with the justice system. Just this week, the SJC heard arguments on a case regarding the so-called Annie Dookhan defendants, in which the BBA filed an amicus brief asking the Court to vacate all remaining convictions without prejudice. The risk that any of these individuals might face deportation proceedings on the basis of a conviction supported by tainted drug-lab evidence adds greatly to our argument for a “global remedy.”
Harassment, discrimination, and hate crimes:
- I share the concern of many of our members over the recent spike in acts of violence and intimidation against members of minority populations. Such actions must never be tolerated. We will continue to work with our partners at the six local affinity bar associations – and seek ways to engage with other, similar organizations – to defend individuals and groups that are under threat, and to educate people about their rights.
Access to justice:
- Our advocacy on behalf of access to justice for all residents will not waver. Join me on January 26th at Walk to the Hill as we once again make the case to the Governor and the Legislature, for a substantial increase in funding for civil legal aid, building on the BBA’s Investing in Justice task-force report. Providing all with access to justice is more important than ever.
- In addition, we are working with Attorney General Maura Healey and other legal services organizations to identify emerging legal needs in the community, particularly as they pertain to the increase in Hate Crimes and Immigration issues.
The BBA will continue to do everything we can to support the core values of meaningful access to justice and of diversity and inclusion that are at the heart of who we are as an organization of lawyers. Now is the time for all of us at the BBA to show Boston, the country, and the world that we can continue to advance respectful, innovative, and common-ground solutions to big challenges. But that must start at home with listening to one another and getting involved. I am proud and grateful to work with all of you, and I have no doubt that you will continue the great tradition in this Commonwealth during times of change or uncertainty, by rolling up your sleeves and asking the simple question, “How can I help?”
Carol A. Starkey is the president of the Boston Bar Association. She is a partner at Conn, Kavanaugh, Rosenthal, Peisch & Ford.
by Professor Daniel Kanstroom
Goldberg, J., Haynes v. Washington, 373 U.S. 503, 515 (1963)
In Commonwealth v. Sylvain,466 Mass. 422 (2013), the SJC held that the requirements placed on criminal defense lawyers to properly advise defendants about certain immigration consequences enunciated in Padilla v. Kentucky, 559 U.S. 356 (2010) are retroactive to 1997. The SJC, relying both on the Sixth Amendment and on art. 12 of the Massachusetts Declaration of Rights, diverged from the U.S. Supreme Court on the retroactivity question. This very important—but rather esoteric—immigration law case may have profound implications regarding the retroactivity of recent holdings in such areas as public trial rights during jury selection and juvenile sentencing.
The SJC achieved a just outcome while reminding the legal community why retroactivity is an extraordinarily difficult jurisprudential concept and why immigration law has long been known as a subject that could “cross the eyes of a Talmudic Scholar.” The daunting complexities presented by the case derived in part from certain anachronistic late nineteenth century legal doctrines establishing “plenary power” over noncitizens seeking to enter the United States as well as those facing deportation. The Court has held that certain noncitizens seeking to enter the United States have no enforceable constitutional rights and that deportation exercised under that power was not criminal punishment. Therefore, the specific constitutional norms attendant to the criminal justice system are largely inapplicable to deportees. See Fong Yue Ting v. United States, 149 U.S. 698 (1893).
For more than a century, the constitutional implications of these doctrines and their progeny frequently (but not always) defeated claims of ineffective assistance of counsel by deportees who were badly advised (or not advised at all) by their criminal lawyers. Noncitizens have the right to appointed counsel in the criminal justice system, but they do not have such a right in deportation proceedings. Deportation has often been deemed a civil “collateral” consequence of criminal conviction. Among other implications of this categorization, criminal defense lawyers have sometimes been found to have no professional duty to advise defendants about such consequences.
In 2010, however, the Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010), a case in which the question of ineffective assistance was squarely presented. Mr. Padilla, a long-term lawful permanent resident of the United States, had apparently been advised to plead guilty to a drug-related charge in criminal court, which—unbeknownst to him—virtually guaranteed his deportation and lifetime banishment from the United States and his family. The Court upheld his claim that his criminal defense counsel was ineffective due to this incorrect advice concerning the risk of deportation. This was in many respects a path-breaking, virtually unprecedented constitutional decision, with powerful Fifth and Sixth Amendment implications. See generally, Daniel Kanstroom, The Right To Deportation Counsel in Padilla v. Kentucky: The Challenging Construction of the Fifth-And-A-Half Amendment, 58 UCLA L. REV. 1461 (2011); see also, Daniel Kanstroom Padilla v. Kentucky and the Evolving Right to Deportation Counsel: Watershed or Work-in-Progress? 45 NEW ENGLAND L. REV. 305 (2011).
The Court, most significantly, recognized that deportation as a consequence of a criminal conviction now has such a close connection to the criminal process that it is uniquely difficult to classify it as either a “direct or a collateral consequence.” Padilla at 364. The two systems, in short, have become inextricably linked. Further, the Court recognized that “the landscape of federal immigration law has changed dramatically.” In the past there were only a “narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation.” But now, the regime contains a much-expanded class of deportable offenses and it has limited the authority of judges “to alleviate the harsh consequences of deportation.” Id. at 357. As a result of these changes, the “drastic measure” of deportation or removal, . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes. Deportation has become “an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Id. at 362 (emphasis added). From this logic, one can easily see why substantial due process protections, and also some of the more specific protections normally tied to the criminal justice system, are warranted. See generally Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARVARD LAW REVIEW 1890-1935 (June, 2000).
The question quickly arose whether the Padilla model would be retroactive. Unfortunately, Padilla itself did not address this question. In Commonwealth v. Clarke, 460 Mass. 30 (2011), the SJC held that Padilla was retroactive, at least as to convictions that became final after April 1, 1997 (the effective date of relevant changes to deportation law). The SJC followed a long-standing framework derived from Teague v. Lane, 489 U.S. 288 (1989). See also, Commonwealth v. Bray, 407 Mass. 296, 300-301 (1990) (adopting Teague model). The essential question from Teague and progeny was whether the Supreme Court in Padilla had announced a “new” rule. A “new” rule, very simply put, “breaks new ground or imposes a new obligation” on the government. If so, the Padilla norms would not be retroactive. In Clarke, the SJC concluded that Padilla was not a new rule because it was merely an application of well-recognized Sixth Amendment ineffective assistance of counsel standards. See Strickland v. Washington, 466 U.S. 668 (1984); Clarke at 34-46.
So far, so good; and so far, at least moderately clear. However, things soon got murkier. In Chaidez v. U.S., 133 S. Ct. 1103 (2013), the Supreme Court held that Padilla had in fact announced a “new” rule and therefore its holding should not be applied retroactively by federal courts. Chaidez, however, did not necessarily bind state courts. Indeed, the Supreme Court had recognized the propriety of such divergence in Danforth v. Minnesota, 552 U.S. 264 (2008) in which the Court held that Teague does not constrain the authority of state courts to give broader effect to “new” rules of criminal procedure.
In Sylvain, the SJC continued to view retroactivity differently from the Supreme Court. The SJC concluded that Padilla did not announce a “new” rule for the “simple reason that it applied a general standard—designed to change according to the evolution of existing professional norms—to a specific factual situation.” Sylvain at 435 (citing Clarke, supra at 36, 38-39, 43; Chaidez, supra at 1114-1116 (Sotomayor, J., dissenting). Importantly, the SJC based its ruling both on the Sixth Amendment and on art. 12 of the Massachusetts Declaration of Rights. As one excellent Practice Advisory notes, art. 12 may prove to be a broader source of rights for noncitizens than the Sixth Amendment. See CPCS, Immigration Impact Unit, Practice Advisory on the Retroactivity of Padilla in Massachusetts: Commonwealth v. Sylvain, 466 Mass. 422 (2013), October 2013.
The SJC also correctly noted that professional standards in Massachusetts have long required criminal defense lawyers to advise noncitizen clients about immigration consequences. Practitioners thus now face a certain dissonance in that criminal defendants prosecuted in federal courts who face or have faced deportation may only cite Padilla prospectively, while state court defendants in Massachusetts may use the Padilla ruling to seek to vacate convictions dating back to 1997. The practical difficulties involved in bringing such claims on behalf of deportees are still significant, however. See, e.g., Perez Santana v. Holder, No. 12-2270 (1st Cir. Sept. 27, 2013) (invalidating regulation barring such claims), and Bolieiro v. Holder, No. 12-1807 (1st Cir. Sept. 27, 2013) (same).
Sylvain may also portend greater assertiveness by the SJC in certain other arenas where retroactive application of constitutional holdings is at issue. The SJC has now made clear that it considers a “new” rule to be such only if the result is contrary to precedent. Sylvain, at 434. This is rather narrower than the approach taken by the Supreme Court, which has used the formulation of that which was not “apparent to all reasonable jurists.” The SJC formulation could thus expand state court remedies for other violations of constitutional rights. Indeed, the Court highlighted that retroactivity in Sylvain was required by “tenets of fundamental fairness.” Sylvain at 437, citing Commonwealth v. Amirault, 424 Mass. 618, 639 (1997). It therefore seems quite possible that Sylvain could influence such pending questions as the retroactivity of rulings about mandatory life without parole sentences for juveniles—See Diatchenko v. D.A. for the Suffolk District, SJC-11453—and public trial rights during jury selection. See Commonwealth v. Alebord, SJC-11354. Retroactivity analysis will thus have to consider, in addition to precedent, such factors as the evolution of practice, reliance, and deeper normative questions of justice and fairness.
Daniel Kanstroom is a Professor of Law and Director of the International Human Rights Program at Boston College Law School. He is also the Founder of the Post-Deportation Human Rights Project.