Immigration @ Work

Courthouse Immigration Arrests Interfering with Criminal Prosecutions

By Marylou Fabbo

What do you do when your victims, witnesses and defendants are too afraid to come to court due to concerns they will be arrested?  Bring a lawsuit to stop those arrests.  Prosecutors and public defenders in Massachusetts have filed a lawsuit to block ICE from arresting people in and around courthouses for immigration violations.  People accused of very serious and violent crimes walk free because witnesses don’t show up to testify.  They are afraid that if they show up, they will be arrested. 

This lawsuit comes after Boston-area Judge Shelley M. Richmond Joseph and retired court officer Wesley MacGregor were indicted on obstruction charges after allegedly helping an undocumented immigrant escape from an ICE enforcement officer.  The immigrant was arrested by Newton Police and charged with a drug possession and being a fugitive from Pennsylvania.  A national law enforcement database matched his fingerprints with someone who had been deported twice and banned from returning to the U.S. until 2027.  ICE issued a federal immigration detainer that requested local law enforcement to hold him for 48 hours until ICE could take him into custody.  It turns out that the man in custody was not the fugitive from Pennsylvania. 

After Judge Joseph dismissed the fugitive charge, concerns about him being picked up by ICE resulted in the judge, according to prosecutors, ordering the man to go to the basement, where he was let out a back door rather than into the lobby where ICE was waiting for him.  Both Judge Joseph and Mr. MacGregor pleaded not guilty.  If convicted, the judge faces up to 25 years in prison and the officer could face up to 30 years.  They each could face a fine of $250,000. 

The case is likely to have some solid barriers to overcome.  In 2017, the Massachusetts Supreme Judicial Court in Lunn v. Commonwealth, held that state law enforcement officers do not have the authority to arrest someone based on a detainer order from ICE.  The detainer is a request from ICE to hold a person in custody whose criminal proceedings have been settled and who is otherwise free to go. The detainer would give ICE up to two days to look into a person’s immigration status and potentially pursue deportation.  A detainer is not an arrest warrant; a warrant requires proof of probable cause and a judge’s signature. 

ICE’s courthouse arrests of immigrants continues to draw national attention.  On April 26, in an Oregon courthouse, a federal immigration officer allegedly refused to show a criminal defense lawyer an arrest warrant and shoved the attorney as he tried to step on an elevator with his client.

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