Public Counsel



HABEING DEFENDANTS FROM IMMIGRATION CUSTODY

TO MASSACHUSETTS CRIMINAL COURTS

April 2018

The process for bringing a defendant from immigration custody to state court is an evolving (and unreliable) process. However, based upon recent federal litigation, Pensamiento v. McDonald, No. 18-cv-10475 (D. Mass 2018), we hope that this updated procedure will have more universal success:

Ask the state court judge to issue TWO HABES, one to ICE and one to the Sheriff’s Department

1. “ICE – ERO, 10 New England Executive Park, Burlington, MA 01803.”  Habe should be faxed to 781-359-7629. The habe should include the following critical language:

To ICE: You are hereby ordered to transfer physical custody of the defendant named above, who is presently in your legal and physical custody, to the Commonwealth of Massachusetts, to attend a hearing before this court on the date and time indicated above. This order requests only the transfer of physical custody; at all times, the defendant named above remains in the legal custody of ICE.

After the habe is requested, the District Attorney’s office needs to contact the habe coordinator at ICE (781-359-7656) to arrange for transportation. The habe alone is not enough – the DA must affirmatively reach out to ICE to arrange for transportation. ICE will not coordinate with defense counsel, so defense counsel must follow up with the DA’s office to make sure they contact ICE to help facilitate the defendant’s transport.

ICE will then transport the defendant to the ICE facility closest to the court and make the defendant available for pick up by the Sheriff’s Department or Mass. State Police.[1] It is then the responsibility of the county or state authorities to transport the defendant from the ICE facility to the court where the case is being heard and return the defendant to ICE custody after court. An ICE detainer will likely travel with the defendant.

2. The Sheriff’s Department for the county in which your case is being heard. This habe should request that the Sheriff’s Department transport the defendant from ICE custody at the closest ICE facility to the court. It should further request that the Sheriff’s Department contact ICE to coordinate transportation at 781-359-7500. The habe should include the following critical language:

To MA: The Commonwealth is hereby ordered to return to ICE the defendant named above, immediately upon his release from the physical custody of the Commonwealth of Massachusetts, or following his hearing before this court on the date and time indicated above. This order requests only the transfer of physical custody and, at all times, the defendant named above remains in the legal custody of ICE.

Please contact the IIU (iiu@) if you have attempted to have your client brought from ICE custody and have been unsuccessful, as we are trying to keep track of this issue.

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[1] ICE holds detainees at the following facilities in Massachusetts: Bristol County House of Corrections, Plymouth County Correctional Facility, and Suffolk County House of Corrections (South Bay) – though they have occasionally held detainees at Franklin County Jail and in Hartford, CT. ICE local headquarters are in Burlington, MA.

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