As long as the future of federal immigration policy remains unsettled and the use of ICE detainers to capture and deport suspected noncitizens remains widespread, practitioners should focus their attention on waging a frontal assault against the legality of ICE detainers on state law grounds by arguing that they constitute warrantless arrests that are prohibited by state statute. The recent Massachusetts Supreme Judicial Court decision in Lunn v. Commonwealth provides a model for how to wage such an attack—not only in states with similar common law and statutory frameworks that are unlikely to resolve the issue legislatively, like Maine, but also in states with legislatures diametrically opposed to placing any limitations on local law enforcement agencies’ abilities to effectuate federal immigration policy, like Texas. The fact that the reasoning in Lunn can be exported beyond Massachusetts’ borders suggests that state courts are likely to serve as an important front in the fight against the legality of ICE detainers and to provide a rare opportunity for practitioners opposed to the Trump administration’s draconian immigration policies to disrupt one of its primary mechanisms for arresting and deporting suspected noncitizens.
Death by Fifty Cuts: Exporting Lunn v. Commonwealth to Maine and the Prospects for Waging a Frontal Assault on the ICE Detainer System in State Courts,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol70/iss2/5