AS THE WARM WEATHER APPROACHES especially here in the city, Immigration Enforcement will be occurring in many neighborhoods in Greater Boston and throughout Massachusetts.
The current atmosphere of Immigration Enforcement across the country is causing polarizing views across the country. People are absolutely against the actions by Immigration Customs Enforcement (ICE) or absolutely in support of their operations.
However, regardless of whether a community is “Sanctuary City” or a state refuses to co-operate with Federal Officials, Immigration is solely a province of the Federal Government. It is an executive function of government under Article Two of the United States Constitution.
This issue is also covered by the Tenth Amendment to the United States Constitution, which holds which duties are of the respective states and what are functions of the Federal Government. Immigration is solely a Federal Duty.
Local and State Authorities can refuse to assist Federal Law Enforcement, however they cannot enact legislation or policies to control or obstruct their enforcement. Nor can a state charge a Federal Officer with a crime, who is acting under his Federal Authority.
This precedent has been decided by the Supreme Court of the United States over one hundred years ago in 1890, the case “In re Neagle.”
In that case David Neagle, a United States Marshal protecting a Justice of the Supreme Court shot and killed a man in California who also was a judge. California pressed charges against Neagle for murder. The Supreme Court ruled that Federal Officers are immune from state prosecutions for acts performed within the scope of their duties.
If you choose to interact with a Federal Officer exercising their Immigration Duties, you need to be careful. There are things you can do while ICE is conducting an arrest or a removal.
You can film the officers, you can take photographs, if you witness excessive use of force, you can report it to the Inspector Generals office of the respective agency and you can also report it to the United States Attorney for the District you reside in.
However, you can’t obstruct or interfere with the officers. These are Federal Crimes and you can be prosecuted. Activities such as physically attempting to stop the officers, blocking in their vehicles or attempting to remove a detainee or arrestee from their custody can have disastrous consequences. Any assaultive behavior can have serious consequences, and you could be hurt or even killed.
Contrary to rumors and disinformation by some local officials for political purposes. The officers who are enforcing Immigration laws are Federal Officers and are empowered by United States Code to enforce the Laws of the United States of America.
They are fully trained, usually at the Federal Law Enforcement Training Center in Glynco, Georgia. They’re not mall cops or rent-a-cops, and interfering or assaulting them will land you in Federal Court before a United States Judge, that is not a good place to be.
I want to be clear I am taking no position in this article on what Immigration Enforcement should be or what I think it should be. If one is not happy with the current policies and law, you need to call your Congressman or Senator, the Legislative process is the only way to change the status quo.
There is also the argument that a warrant is needed and there is no due process for the person being removed. That is a falsehood being spread to cause problems.
A United States Immigration Judge must issue an order for removal. Prior to this the person who is subject to a removal hearing and hire counsel for representation. There is no right to an Attorney to be provided in Immigration Court as in Criminal Court.
In a great number of instances, the party subject to removal fails to attend the hearing, and that default triggers the issuance of a removal order.
ICE can make arrests in public places and do not need to present any third party with documents or warrants and orders. ICE can’t enter a private residence without permission of the occupant or a warrant.
Many say that ICE is taking people off the street who aren’t violent offenders, yes that is true, but like any other law enforcement officer, an Immigration Officer or Federal Agent is required to carry out orders of removal and execute warrants, so if ICE is searching for “person A” who issubject to removal and encounter “person B,” who was not the target of their searching, but is also subject to removal they will take that person into custody as well.
There are many avenues to voice your opposition to Immigration Enforcement, peaceful protest, lawful assembly, contacting your elected representatives, reporting wrongdoing or abuse when observed. The things not to do are criminal actions directed at Federal Law Enforcement.
In this article I am not condoning or condemning, neither am I approving, accosting or apologizing for ICE. This article is to make clear some factors and hot topics that may be presented inaccurately.
Enjoy the start of Spring!
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Peter Marano is a former Police Officer and now a Criminal Defense Attorney with twenty years of experience, his sole focus is Criminal Defense, he practices in Boston and Washington D.C.
