This past spring, the Boston Bar Association sent a letter to Massachusetts Supreme Judicial Court (SJC) Justice Elspeth B. Cypher supporting a request for a full-bench review of a petition asking the court to issue an order granting writs of protection against civil immigration arrests by federal officials in and around courthouses. The petition, filed by the Committee for Public Counsel Services, Greater Boston Legal Services, and the Lawyers’ Committee for Civil Rights and Economic Justice, was brought on behalf of seven adults who feared appearing in court as a result of the practice, and on behalf of a juvenile whose defense to a delinquency charge depended upon a non-citizen witness too fearful to appear in court on the juvenile’s behalf.
Yesterday, Justice Cypher issued a single-justice decision, declining to reserve and report the petition to the full SJC bench. In the Matter of C. Doe & Others (SJ-2018-0119). Justice Cypher found that the petition raised “an issue of systemic concern,” and that the “administration of justice in t he Commonwealth suffers when litigants, witnesses, and others with business before the courts are afraid to come near a Massachusetts courthouse because they fear being arrested by immigration authorities.” Nevertheless, due largely to the broad ex parte relief sought by the petitioners, as well as potential enforcement problems, Justice Cypher declined to grant the requested relief.
“As Justice Cypher’s decision recognizes, civil arrests of non-citizens in and around courthouses represent a significant threat to the administration of justice,” BBA President Jon Albano said. “The decision underscores why the Boston Bar Association remains committed to addressing the complex issues of administration of justice, civil rights and federal-state relations raised by the petitioners and others like them who seek access to justice in the Commonwealth.”
The BBA remains deeply concerned about the access to justice implications of ICE using courtho uses as a location to make civil immigration arrests. At its August meeting, the BBA Council adopted four new principles on immigration and endorsed an American Bar Association resolution that urges Congress to codify Department of Homeland Security guidelines that would include courthouses as “sensitive locations,” in which immigration enforcement actions can only be taken upon a showing of exigent circumstances. That resolution additionally urges U.S. Immigration and Customs Enforcement and Border Protection to, with or without congressional action, revise its existing guidelines to include courthouses as a sensitive location.