Heard : April 4, 2017.
action commenced in the Supreme Judicial Court for the county
of Suffolk on February 7, 2017.
case was reported by Lenk, J.
C. Winger (Mark Fleming, of New York, & Alyssa Hackett,
Committee for Public Counsel Services, also present) for the
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.
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
Pita Loor for Criminal Defense Clinic at Boston University
School of Law.
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, &
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.
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
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., 
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
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.
was brought back to court for trial on February 6,
2017. 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. 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.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.
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. 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
Civil versus criminal immigration enforcement.
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]), 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)
. Immigration crimes are prosecuted
in the Federal District Courts, like any other Federal
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") .
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[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) .
Use of civil immigration detainers.
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
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." 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.
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
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"; (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 ...