Boston Federal Judge Invokes Constitution In Defeat For ICE

BOSTON, MA — A federal judge in Boston said even the US Immigration and Customs Enforcement agency has to follow the law in his court opinion on the issue of whether to release two Brazilian nationals who had entered the United States illegally. ICE failed to follow its own procedures and provide the detainees with due process, he said.

"The government, as well as the governed, must follow the law, and in habeas it is the court's duty to ensure that it does," Judge Mark Wolf wrote to in his 62-page opinion, in which he invoked the Constitution and the Federalist papers.

The Brazilian nationals were arrested while at immigration official interviews about the legitimacy of their marriages to US citizens.

Wolf had ICE release Brazilian immigrants Lucimar De Souza and Eduardo Junqueira to appear in court in May, and demanded ICE justify their detention.

In the decision filed Monday, Wolf determined ICE officials can detain people who are in the country illegally only if it's within 90 days of a formal order announcing the removal of them. ICE has been detaining people even when such orders are several months and in some cases years old, and has been keeping detainees for longer than the allowed three months.

“ICE’s illegal actions concerning de Souza and Junqueira have had profound human consequences that would continue without the court’s intervention,” Wolf wrote.

Wolf likened ICE's detentions to instruments of tyranny, calling back to the Constitution and Founding Father Alexander Hamilton:

As the Court wrote, in advocating for the adoption of the Constitution in 1788, "Alexander Hamilton explained in The Federalist No. 84:

[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone... are well worthy of recital: 'To bereave a man of life. . .or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.' And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls 'the bulwark of the British Constitution.' C. Rossiter ed., p. 512 (1961) (quoting 1 Blackstone 4 id., at 438) ."

Although it does not change law, the decision could influence and guide ICE, according to experts.

After the case, the Boston ICE Field Office reviewed its files and found 30-40 other individuals were being detained without the procedural due process ICE's regulations were intended to provide. ICE released about 20 of them, according to the court finding.

"At this time the agency has started a careful review of the judge’s decision. Until a full review of the legal decision is completed it would be premature for us to offer any response," John Mohan, an ICE spokesperson, told Patch Wednesday.

Although the two immigrants may still be subject to deportation, keeping them detained at this point would not be fair “in view of ICE’s repeated violations of its regulations — and its indifference to its duty to obey the law,” Wolf wrote.

A representative from the U.S. Department of Justice did not immediately return request for comment.

Impact on New England?

The ruling is bigger than Boston, said immigration attorney Jason Giannetti, and would impact a number of New England states and the immigrants in them.

"The real impact here is something that a lot of people have been afraid of since Trump's aggressive approach toward aliens in general: people have been afraid to go to courts, and have been afraid to basically do things they have a legal right to do for fear of being apprehended," he said in a phone interview.

Giannetti said he had a client who was arrested when the man appeared in court to defend himself. ICE jumped out of the bushes - literally, he said - and took the man into custody before he was able to defend himself in court.

"It's a complete perversion of the American system where you are innocent until proven guilty. They claimed he was guilty before a trial and did not allow him to defend his innocence," he said.

His clients are afraid to go to court for just that reason, he said. But it's also had a chilling effect throughout the legal system. People who are victims of domestic violence or abuse are afraid to seek restraining orders and even go to civil court.

"In these cases we have immigrants who are trying to follow the rules, where there are exceptions and waivers for their circumstances built into the immigration system, and at a place they were directed to go by the government only to be abducted by ICE agents," said Giannetti.

The ruling, he said, was valuable to his clients because it gives some assurances there won't be these unconstitutional abductions and detentions.

"What Judge Wolf is saying very clearly is that that cannot happen," said Giannetti. "ICE has to abide by the law. But it's very difficult to get ICE to abide by the law when the two top people in the pyramid in the hierarchy are promulgating things that are directly contrary to the law like the [Jeff Sessions/Trump] claim that people show up to seek asylum are illegals."

The law says that if you appear to a councilor officer, present documentation, and say you're seeking asylum, then it's completely legal, said Giannetti.

"What Wolf is upholding here are constitutional rights for immigrants," he said.

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