Baker shifts immigrant detention policy to reflect new federal program
BOSTON >> Massachusetts State Police will newly be able to hold certain people on immigration detainers under a Baker administration policy that rolls back prior restrictions on state law enforcement.
Gov. Charlie Baker's new policy does not allow State Police to stop or arrest people "solely on the basis of their immigration status," and continues to prohibit State Police inquiries into individuals' immigration status for the "sole purpose" of helping federal officials detain or deport the person.
State Police are allowed to inquire into a person's immigration status if it relates to another investigation, excluding investigations into violations of immigration law, according to the old and new policies.
"This policy revision gives the professionals of our statewide policing agency the tools necessary to detain criminals, gang members or suspected terrorists wanted by federal authorities," Baker said in a statement. "As before, the State Police will not be enforcing immigration law nor will they inquire about immigration status; they will now be able to assist in detaining for our federal partners individuals who pose a significant threat to public safety or national security."
A divisive issue that helped launch presumptive Republican presidential nominee Donald Trump's campaign last summer, federal immigration policy has undergone the biggest recent shifts at the direction of the White House not Congress.
Citing roughly 400,000 annual deportations, Massachusetts Immigrant and Refugee Advocacy Coalition Executive Director Eva Millona said federal authorities are capable of carrying out immigration enforcement on their own.
"We do not question the governor's intent to keep us safe, but this is a very complex issue and we are concerned that this will increase fears among the community and this will backfire," Millona told the News Service. She said people in immigrant communities feel more comfortable talking to police when law enforcement is restrained from cooperating with federal immigration law enforcement.
The Baker administration policy keys off a new Obama administration initiative called Priority Enforcement Program, the successor to the controversial Secure Communities program.
The new federal program allows Immigration and Customs Enforcement (ICE) to ask state and local law enforcement to detain "removable aliens" if they are suspected of terrorism or espionage, or have been convicted of gang-related crimes, felonies or a "significant misdemeanor" such as domestic violence or drug distribution. Federal immigration officials can also request the local detention of an individual convicted of three or more misdemeanors stemming from three separate incidents and not including minor traffic infractions.
The prior State Police policy was put in place Aug. 26, 2014 during the administration of Gov. Deval Patrick, a two-term Democrat who defeated Baker in 2010. Priority Enforcement replaced Secure Communities last July.
Baker has had two policy shifts in the week before Saturday's Democratic State Convention - the endorsement of a transgender access bill and this new cooperation on illegal immigration enforcement splashed on the front of the Boston Herald on Thursday.
On Boston Herald Radio on Thursday Senate President Stan Rosenberg said he would have preferred retaining the older policy.
Asserting that undocumented immigrants in the country aim to "stay out of people's way," Rosenberg said Baker had not clued him in on the pending change and said, "I would have been happy to have a head's up."
Millona spoke favorably about the structuring of the Priority Enforcement Program but said the federal government has withheld data about its operation. She also said acceding to ICE requests could open the state to liability, saying detainers are "unconstitutional."
Last Thursday, in a single-justice ruling, Supreme Judicial Court Justice Francis Spina ruled in favor of Santos Moscoso, writing, "[B]ecause the trial court is without authority to hold the petitioner, or otherwise to order him held, on a civil I.C.E. detainer, the defendant must be released upon posting bail, unless he is held on some other process."
Signed by State Police Superintendent Richard McKeon and dated Thursday, the new general order limits detention at ICE's request to 48 hours, excluding weekends and holidays, beyond when they would otherwise be released. Those detained for ICE must have been arrested for a criminal violation or on warrant and detentions must be approved by the troop duty officer, according to the policy.
Laura Rotolo, staff counsel at the American Civil Liberties Union of Massachusetts, said it appears the new State Police orders "might be in conflict" with Spina's ruling, which she said could be appealed to the full court.
"The Fourth Amendment requires that you have probable cause and these detainers just don't," Rotolo told the News Service. She said the ruling was in tune with "what courts are saying around the country."
In Moscoso's petition, which Spina granted, public defenders Emma Winger and M. Barusch argue the detainer was issued without "review by a neutral magistrate," without a chance to challenge it, and detainers can be issued by "virtually all rank-in-file Department of Homeland Security agents."
"The detainer is unaccompanied by a warrant, purported removal order, or any other particularized facts to support these allegations," said the petition, which said Moscoso obtained a copy of the detainer only with help from his criminal attorneys. Moscoso had been previously detained on other cases, according to the petition.
Under the old policy, State Police were not allowed to contact Immigrations and Customs Enforcement even on customs matters without permission from a supervisor, according to the older policy. The new policy "reiterates that implementing federal immigration law is not part of" the State Police mission, according to the administration.
"With their statewide jurisdiction the State Police encounter a broad range of individuals on a daily basis and it makes sense from a public safety perspective to allow them to report and temporarily hold any type of individual wanted by federal authorities," Secretary of Public Safety and Security Dan Bennett said in a statement. "Now that ICE has moved to the Priority Enforcement Program, Massachusetts is changing its own policy to complement that effort to enhance public safety."
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