In Crimmigration Clinic victory, Supreme Judicial Court rules state law enforcement lacks ‘detainer’ authority

Via Harvard Law Today

Credit: Emmanuel Huybrechts via Wikimedia Commons

Last week, in a victory for the Harvard Immigration and Refugee Clinical Program’s Crimmigration Clinic, the Supreme Judicial Court of Massachusetts issued a significant ruling on the question of whether Massachusetts police can detain and arrest someone for a U.S. immigration violation.

The court ruled in the case of Lunn v. Commonwealth that the Commonwealth’s law enforcement officers do not have the authority to arrest and detain an individual solely pursuant to a Detainer–a request from federal immigration authorities that a person placed under arrest by local authorities be further detained if Immigration and Customs Enforcement (ICE) believes the person may be deportable. The court arrived at the ruling based on the fact that there is no state statutory law or common law authorizing such an arrest.

In March, HIRC’s Crimmigration Clinic filed an amicus brief in Lunn v. Commonwealththat discussed the lack of legislative authorization for Massachusetts law enforcement officers and courts to arrest and detain an individual solely pursuant to an ICE Detainer. Specifically, the brief analyzed other civil arrest and detention authority under Massachusetts law and noted that procedural protections in those instances are absent when someone is held pursuant to an ICE detainer.

Crimmigration Clinic Supervisor and Lecturer on Law Phil Torrey, who is also HIRC’s managing attorney, and supervising attorney for the Harvard Immigration Project, filed the brief with Mark C. Fleming ’97, a partner at WilmerHale and vice-chair of the firm’s appellate and Supreme Court litigation practice.

Following the court’s decision, Torrey said, “In this landmark decision, the Massachusetts Supreme Judicial Court has recognized what advocates have been saying for years — there is no legal authority for Massachusetts law enforcement officer to detain someone solely pursuant to an ICE detainer. It is unlawful.”

Five HLS students helped write the brief: Tess Hellgren ’18, Emma Rekart ’17, Madelyn Finucane ’19, Harleen Gambhir ’19, and Alexander Milvae ’19. Hellgren and Rekart described the case and the brief, from which parts of the decision were drawn, on the HLS Clinical and Pro Bono Programs blog.

The decision, is the first ruling by a state’s high court on the question of whether state or local authorities can detain individuals based solely on a request by federal immigration authorities.

For additional coverage, visit

The New York Times: Court Officers Can’t Hold People Solely Under ICE Detainers, Massachusetts Justices Rule

WBUR: “Mass. High Court Rules Local Authorities Can’t Detain People Solely On ICE Detainers”