Massachusetts Republicans look to give power to courts in violent illegal immigrant cases

Top Massachusetts Republicans are filing legislation that they say would give local courts more tools to protect the public from illegal immigrants who have been arrested for violent crimes.

Senate Minority Leader Bruce Tarr and House Minority Leader Brad Jones are leading a push that addresses a “critical statutory gap” preventing trial courts from holding convicted criminals and repeat offenders subject to immigration detainers.

The legislation, slated to be filed Monday, comes after a series of  violent illegal immigrants were released back into the community by local courts while federal officials held immigration detainers on them.

Massachusetts courts policy on detention of immigrants is currently in accordance with a decision by the state’s Supreme Judicial Court which has said the state cannot hold a suspect beyond the time specified by the suspect’s underlying charge and bail conditions.

Key components of the new bill include detention authorization, bail consideration, and judicial accountability.

Detainers, per the U.S. Immigration and Customs Enforcement, request that local or state law enforcement “maintain custody of the noncitizen for a period not to exceed 48 hours beyond the time the individual would otherwise be released.”

ICE argues that detainers “minimize the potential that an individual will re-offend” since they “result in the direct transfer of a noncitizen from state or local custody to ERO custody.”

But following the state SJC’s so-called Lunn ruling, Massachusetts courts lack the authority to “arrest and hold an individual solely (based on) a federal civil immigration detainer, beyond the time that the individual would otherwise be entitled to be released from State custody.”

That decision also left it up to the Legislature to enact such authority if necessary.

The SJC made the ruling in July 2017, when Gov. Maura Healey served as attorney general, marking the first statewide decision in the nation on whether local law enforcement can “detain someone at the request of federal immigration authorities.

Under the proposed legislation, court officials would be authorized – not required – to honor ICE detention requests for up to 12 hours when an individual poses a public safety threat, focusing on those convicted of murder, rape, domestic violence, and narcotics or human trafficking.

A release that Tarr’s office provided to the Herald included how Middlesex Superior Court in September ignored a detainer against an unlawfully present 38-year-old Guatemalan national charged with forcibly raping a minor, releasing the noncitizen into the community.

That followed an incident last February, highlighted in the release, in which the Gloucester District Court released an unlawfully present 34-year-old Guatemalan citizen convicted of indecent assault and battery on a child under the age of 14.

“The recent failure to hold a dangerous individual due to a lack of clear legal authority highlights why action is urgently needed,” Tarr said in a statement. “This legislation offers a practical and reasonable solution to ensure dangerous criminals are not prematurely released.”

The proposed legislation would also define specific crimes, such as terrorism or violent felonies, that qualify an individual as a public safety risk.

Judges would be required to provide written explanations for denying a detainer and authorized to consider requests when setting bail, allowing them to withhold bail if ICE provides sufficient justification.

“Enough is enough,” First Assistant House Minority Leader Kimberly N. Ferguson, of Holden, said in a statement. “We are talking about very dangerous individuals who have committed very serious crimes, and our citizens deserve to feel safe and protected.

“Due to the fact that the state’s highest court kicked detainers into the hands of the legislature,” she added, “we will take that as a clear signal to implement much-needed change.”

In the case of Maynor Francisco Hernandez-Rodas, Middlesex Superior Court arraigned the unlawfully present 38-year-old Guatemalan national on Sept. 4 for aggravated rape of a child with force and rape of a child by force.

ERO Boston had lodged a detainer against Hernandez in late June after Lowell Police arrested him on June 14. The court “refused to honor (the) immigration detainer and released (the) noncitizen back into (the) community,” ERO Boston said in a release.

A $1,000 bail was posted at the Billerica House of Corrections, and the defendant was brought to the Lowell courthouse on Sept. 20 for a GPS, said Jennifer Donahue, spokesperson for the Massachusetts Trial Courts. ICE agents were present and took him into custody after he was released, she noted.

“In order to comply with Massachusetts law … a court officer will not interfere with ICE arresting an individual who has been released,” Donahue said in a statement to the Herald last week. “On the other hand, court officers are prohibited from keeping a released individual in custody awaiting an ICE agent.”

Worcester Sheriff Lewis Evangelidis said the law needs to change, adding that he’s seen growing resistance from police, courts and fellow sheriffs to work with immigration officials.

Before the migrant crisis, the Worcester County Jail and House of Correction held roughly a handful of individuals on a detainer at any given time, Evangelidis said. These days, that number is between 10 and 15, a “significant increase in illegal immigrant crime,” he noted.

“Our hands are tied when it comes to the state’s positions on detainers,” Evangelidis said. “We are legally obligated to release anyone bailed out, regardless of a detainer status. This is causing a major threat to the public safety of our communities.”

A local candidate for the Governor’s Council has also taken up the issue.

Anne Manning-Martin, a Peabody city councilor and long-time corrections professional, has challenged her opponent in the 5th District, Eunice Ziegler, to “pledge not to appoint judges unless they agree to cooperate with ICE.”

“The recent spate of activist judges ignoring ICE detailers and releasing dangerous criminal illegal immigrants directly into our communities demonstrate that these judges care more about preserving their political views rather than public safety,” Manning-Martin, a Republican, said in a release.

In response to a Herald inquiry on the challenge, Ziegler said, “I will only support judges that uphold the constitution. Doing otherwise could prove unconstitutional and illegal. Furthermore, it would go against the Governor’s Council’s main duties to protect the judicial system.”