BBA Joins Amicus Brief in Support of Keeping ICE Out of Massachusetts Courthouses

We have been concerned for several years about the issue of enforcement of our immigration laws, and an amicus brief the BBA joined this week is the latest example of our advocacy in this area.

In April 2019, Middlesex County District Attorney Marian Ryan, Suffolk County District Attorney Rachael Rollins, the Committee for Public Counsel Services (CPCS), and the Chelsea Collaborative, Inc., jointly filed a lawsuit in federal court against U.S. Immigration and Customs Enforcement (ICE), the U.S. Department of Homeland Security (DHS), and several other officials. The lawsuit challenges ICE’s policy and practice of conducting civil immigration arrests inside of and near state courthouses in Massachusetts.

The Plaintiffs contend that:

  • At the time the Immigration and Naturalization Act (INA) was enacted, all those appearing in court on official court business enjoyed a common-law privilege against civil arrest.
  • INA does not specifically extinguish this common law privilege and therefore must be interpreted to be constrained by it.
  • Any ICE policies which permit civil courthouse arrests are in excess of the power granted by the INA and must be set aside by the court.

The Defendants argue that there is no common-law privilege against civil arrest in courthouses and, in the alternative, that any such privilege was superseded long before the codification of the current immigration scheme.

In June 2019, the Plaintiffs’ Motion for a Preliminary Injunction, which sought to restrict immigration authorities from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they were going to, attending, or leaving the courthouse, was allowed.

This week, the BBA joined an amicus brief in the case jointly drafted by Professor Christopher Lasch of the University of Denver School of Law and the Massachusetts Bar Association (MBA). The brief was also joined by the Massachusetts Academy of Trial Attorneys (MATA), the Women’s Bar Association (WBA), and the South Asian Bar Association of Greater Boston (SABA GB).

The brief is positioned in support of affirming the District Court’s order granting the injunction. Defendants are currently pursuing an interlocutory appeal of that order in the First Circuit, while simultaneously filing a motion to dismiss in the District Court—and an amicus brief in opposition to the latter has been submitted by Professor Nikolas Bowie and the Harvard Immigration and Refugee Clinical Program.

The brief:

  • Contextualizes the case by detailing how “thirty years of ever-increasing efforts by the federal government to harness state and local justice systems in the service of immigration enforcement” set the stage for the conflict between the parties.
  • Outlines why the common-law privilege from arrest recognized by the District Court guarantees access to equal justice and is essential for preserving individual rights.
  • Argues that the privilege from arrest prohibits civil arrests in and around courthouses, protecting the sanctity of the courts as a branch of government and signaling equal access for all who come seeking justice.
  • Argues that the privilege from arrest prohibits arrests of those on their way to, or returning from, court proceedings, protecting individual access to the courts and preserving individual rights.

The BBA has spoken on this issue previously. Our Immigration Principles, as adopted in 2018, state:

“[I]mmigrants, like all other residents of the Commonwealth, must be free to access courthouses, law enforcement agencies, and other governmental agencies without fear that doing so will lead to immigration detention or deportation.”

Earlier that same year, we sent a letter to SJC Justice Cypher in her capacity as Single Justice, in support of the request by plaintiffs in a related case for full-bench review of a similar claim. (She denied that motion, and the case ended there.) And, in 2019, we spoke out against the federal indictment of Judge Shelley Joseph, who allegedly helped an undocumented man avoid an ICE agent who was waiting for him outside her courthouse. In that occasion, we asserted that the federal government’s decision to send ICE officers to Massachusetts courthouses significantly interfered with the ability to secure justice for all in cases where immigrants—documented and undocumented—are victims, witnesses, or defendants.

The amicus brief we joined this week presents a united front among a number of concerned Massachusetts bar associations, who agree that ICE enforcement in and around our courthouses contributes to a detriment in the ability for all persons to access the justice system, and we hope that this will help persuade the Circuit Court to uphold the injunction.

We will of course continue speaking out on this issue, guided by our Immigration Principles, and we hope that this case sets a precedent that will protect individual litigants in and around courthouses across the Commonwealth and, in doing so, advance the cause of justice.  

-Lucia Caballero
Government Relations Assistant
Boston Bar Association