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Lunn v. Commonwealth

Supreme Judicial Court of Massachusetts, Suffolk

July 24, 2017

COMMONWEALTH & another.[1]

          Heard : April 4, 2017.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 7, 2017.

         The case was reported by Lenk, J.

          Emma C. Winger (Mark Fleming, of New York, & Alyssa Hackett, Committee for Public Counsel Services, also present) for the petitioner.

          Joshua S. Press, of the District of Columbia, for the United States.

          Jessica V. Barnett, Assistant Attorney General (Allen H. Forbes, Special Assistant Attorney General, & Sara A. Colb, Assistant Attorney General, also present) for the Commonwealth & another.

         The following submitted briefs for amici curiae:

          Sabrineh Ardalan, of New York, Philip L. Torrey, Mark C. Fleming, & Laila Ameri for Immigration and Refugee Clinical Program at Harvard Law School.

          Christopher N. Lasch, of Colorado, for David C. Baluarte & others.

          Karen Pita Loor for Criminal Defense Clinic at Boston University School of Law.

          Omar C. Jadwat, of New York, Spencer E. Amdur, of Pennsylvania, Cody H. Wofsy, of California, Matthew R. Segal, Jessie J. Rossman, Laura Rotolo, Carlton E. Williams, Kirsten V. Mayer, Kim B. Nemirow, & Laura Murray-Tjan for Bristol County Bar Advocates, Inc., & others.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.

         BY THE COURT.

         After the sole pending criminal charge against him was dismissed, the petitioner, Sreynuon Lunn, was held by Massachusetts court officers in a holding cell at the Boston Municipal Court at the request of a Federal immigration officer, pursuant to a Federal civil immigration detainer. Civil immigration detainers are documents issued by Federal immigration officers when they wish to arrest a person who is in State custody for the purpose of removing the person from the country. By issuing a civil detainer, the Federal officer asks the State custodian voluntarily to hold the person for up to two days after he or she would otherwise be entitled to be released from State custody, in order to allow Federal authorities time to arrive and take the person into Federal custody for removal purposes.

         The United States Supreme Court has explained that, "[a]s a general rule, it is not a crime for a removable alien to remain present in the United States, " Arizona v. United States, 567 U.S. 387, 407 (2012), and that the Federal administrative process for removing someone from the country "is a civil, not criminal, matter." Id.. at 396. Immigration detainers like the one used in this case, for the purpose of that process, are therefore strictly civil in nature. The removal process is not a criminal prosecution. The detainers are not criminal detainers or criminal arrest warrants. They do not charge anyone with a crime, indicate that anyone has been charged with a crime, or ask that anyone be detained in order that he or she can be prosecuted for a crime. Detainers like this are used to detain individuals because the Federal authorities believe that they are civilly removable from the country.

         It is undisputed in this case that holding someone in circumstances like this, against his or her will, constitutes an arrest under Massachusetts law. The question before us, therefore, is whether Massachusetts court officers have the authority to arrest someone at the request of Federal immigration authorities, pursuant to a civil immigration detainer, solely because the Federal authorities believe the person is subject to civil removal. There is no Federal statute that confers on State officers the power to make this kind of an arrest. The question we must answer is whether the State law of Massachusetts authorizes such an arrest. To answer the question, we must look to the long-standing common law of the Commonwealth and to the statutes enacted by our Legislature. Having done so, we conclude that nothing in the statutes or common law of Massachusetts authorizes court officers to make a civil arrest in these circumstances.[2], [3]


         Lunn was arraigned in the Boston Municipal Court on October 24, 2016, on a single count of unarmed robbery. The day before the arraignment, the United States Department of Homeland Security (department) issued a civil immigration detainer against him. The detainer document was a standard form document then in use by the department. It requested, among other things, that the Massachusetts authorities continue to hold Lunn in State custody for up to two days after he would otherwise be released, in order to give officers of the department time to arrive and take him into Federal custody.[4]

         Bail was set at the arraignment in the amount of $1, 500. Lunn did not post bail and, according to the trial court docket, was committed to the custody of the sheriff of Suffolk County (sheriff) at the Suffolk County jail in lieu of bail.[5]

         Lunn was brought back to court for trial on February 6, 2017.[6] He was transported from the jail to the court house by personnel from the office of the sheriff, and was delivered into the custody of the trial court's court officers. Because the Commonwealth was not ready for trial at that time, the judge dismissed the case for lack of prosecution.[7] At that point there were no longer any criminal charges pending against Lunn in Massachusetts. Lunn's counsel informed the judge of the outstanding detainer and asked that Lunn be released from custody notwithstanding the detainer, the criminal case having been dismissed. The judge declined to act on that request.[8]Lunn remained in the custody of the court officers; it appears that he was kept in a holding cell in the court house. Several hours later -- the record before us does not specify exactly how long -- department officials arrived at the court house and took Lunn into Federal custody.

         The following morning, February 7, 2017, Lunn's counsel filed a petition in the county court on his behalf, pursuant to G. L. c. 211, § 3, asking a single justice of this court to order the Boston Municipal Court to release him.[9] The petition alleged, among other things, that the trial court and its court officers had no authority to hold Lunn on the Federal civil detainer after the criminal case against him had been dismissed, and that his continued detention based solely on the detainer violated the Fourth and Fourteenth Amendments to the United States Constitution and arts. 12 and 14 of the Massachusetts Declaration of Rights. By that time, however, Lunn had already been taken into Federal custody. The single justice therefore considered the matter moot but, recognizing that the petition raised important, recurring, and time-sensitive legal issues that would likely evade review in future cases, reserved and reported the case to the full court.


         1. Civil versus criminal immigration enforcement.

         The principal statute governing immigration in the United States is the Immigration and Nationality Act (act), 8 U.S.C. §§ 1101 et seq. It sets forth in elaborate detail the terms, conditions, and procedures for admitting individuals into the United States who are not citizens or nationals of this country (referred to in the act as "aliens, " 8 U.S.C. § 1101[a][3]), as well as the terms, conditions, and procedures for removing those individuals from the country. Some violations of the act are criminal offenses. It is a crime, for example -- punishable as a misdemeanor for the first offense -- for an alien to enter the country illegally. 8 U.S.C. § 1325(a) .[10] Immigration crimes are prosecuted in the Federal District Courts, like any other Federal crimes.

         Many violations of the act are not criminal offenses. Being present in the country illegally, for example, is not by itself a crime. Illegal presence without more is only a civil violation of the act that subjects the individual to possible removal. 8 U.S.C. § 1227(a)(1)(B). See Arizona, 5 67 U.S. at 407; Melendres v. Arpaio, 695 F.3d 990, 1000-1001 (9th Cir. 2012) ("[U]nlike illegal entry, mere unauthorized presence in the United States is not a crime") .[11]

         Significantly, the administrative proceedings brought by Federal immigration authorities to remove individuals from the country are civil proceedings, not criminal prosecutions. See Arizona, 567 U.S. at 396. See also 6 C. Gordon, S. Mailman, S. Yale-Loehr, & R.Y. Wada, Immigration Law and Procedure § 71.01[4][a] (Matthew Bender, rev. ed. 2016) (acknowledging "the uniform judicial view, reiterated in numerous Supreme Court and lower court holdings, . . . that [removal] is a civil consequence and is not regarded as criminal punishment"). This is true even where the alleged basis for removal is the commission of a criminal offense. Aliens are subject to removal from the country for a variety of reasons. For example, an individual is subject to removal if he or she was inadmissible at the time of entry into the country or has violated the terms and conditions of his or her admission, 8 U.S.C. § 1227(a)(1)(A)-(D); has committed certain crimes while in the country, Id. at § 1227(a) (2); is or at any time after admission into the country has been a drug abuser or addict, Id. at § 1227(a)(2)(B)(ii); presents certain security or foreign policy risks, Id. at § 1227(a) (4); has become a public charge, Id. at § 1227 (a) (5); or has voted illegally, Id. at § 1227 (a) (6) . Removal proceedings are heard and decided by executive branch immigration judges appointed by the United States Attorney General, who operate within the Department of Justice's Executive Office for Immigration Review. Id.. at § 1101(b) (4) .

         2. Use of civil immigration detainers.

         The type of immigration detainer issued by the department in this case was Form I-247D, entitled "Immigration Detainer - Request for Voluntary Action." It was one of three different types of forms then being used by the department to notify State authorities that they had in their custody a person believed by the department to be a removable alien, and to indicate what action the department was asking the State authorities to take with respect to that person.[12]

         Form I-247D was to be completed and signed by a Federal immigration officer. In part l.A of the form, the officer was asked to indicate, by checking one or more of six boxes, a basis on which the department had determined that the person in custody was "an immigration enforcement priority."[13] The officer in this case checked the box stating that Lunn "has been convicted of a 'significant misdemeanor' as defined under [department] policy." There was no indication on the form what that misdemeanor was, whether it was a Federal or State offense, when it occurred, or when he was convicted.

         Part 1.B of the form stated that the department had determined that there was probable cause to believe that the person in custody was a removable alien, and required the officer completing the form to indicate, by checking one or more of four boxes, the basis for that determination. In this case the officer checked two boxes: the first stated that there was "a final order of removal against the [petitioner]"; and the second stated that there was "biometric confirmation of the [petitioner's] identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the [petitioner] either lacks immigration status or notwithstanding such status is removable under [United States] immigration law." The detainer did not provide any specific details as to the order of removal.[14]

         The detainer form stated that the department "requested" the custodian of the subject of the detainer to do three things: (1) "[s]erve a copy of this form on the subject and maintain custody of him/her for a period NOT TO EXCEED 4 8 HOURS beyond the time when he/she would otherwise have been released from your custody to allow [the department] to assume custody";[15] (2) notify the department at a given telephone number "[a]s early as possible prior to the time you otherwise would release the subject"; and (3) "[n]otify ...

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