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Aggressive ICE Tactics Set Up Heavyweight Clash In Mass.

By Aaron Leibowitz | April 29, 2019, 9:56 PM EDT

The Trump administration's zealous approach to immigration enforcement at courthouses has resulted in a showdown between the federal government and progressive state prosecutors in Massachusetts, reaching a boiling point in recent days with the indictment of a sitting judge and a first-of-its-kind lawsuit by two district attorneys.

By allowing U.S. Immigration and Customs Enforcement officers to ramp up arrests of unauthorized immigrants around state courthouses, the White House has put state judges, prosecutors and the immigrants in a bind, compelling some to push back against federal policies and actions, experts told Law360.

"State court systems want to maintain their judicial integrity," said Jennifer Lee, a Temple University law professor who oversaw a report earlier this year on the increase in ICE courthouse arrests. "Across the country, they believe in the fair administration of justice and see these arrests as disrupting their ability."

Ultimately, the Tenth Amendment to the U.S. Constitution will likely be critical in sorting out this fight between state and federal government. The Tenth Amendment reserves to the states any powers not delegated to the federal government.

"It's clear that the federal government cannot commandeer the state to take certain actions on its behalf," Lee said. "The question is: To what extent is using the state court system to arrest individuals considered to be coercion under the Tenth Amendment? I think there’s an open question."

In Massachusetts, state-level officials increasingly seem to believe the feds are overstepping their authority. On Thursday, Newton District Judge Shelley Joseph was indicted on charges of obstruction of justice, accused of removing an ICE officer from her courtroom, then helping an unauthorized immigrant sneak out the back door of the courthouse rather than face arrest.

The indictment, pursued by Trump-appointed U.S. Attorney for the District of Massachusetts Andrew Lelling, drew blowback at the state level, including from Democratic Attorney General Maura Healey, who called it "a radical and politically motivated attack on our state and the independence of our courts."

Then, on Monday, the district attorneys for two Boston-area counties filed a lawsuit against ICE, seeking an injunction that would prohibit civil arrests of unauthorized immigrants at Massachusetts courthouses and arguing that ICE’s policy on courthouse arrests undermines their offices' work. 

"That is an assault on our justice system," Middlesex County District Attorney Marian Ryan said at a news conference, adding that the policy "makes our prosecution of cases more difficult and, in many cases, impossible" because unauthorized immigrants fear showing up to court.

Rachael Rollins, who was sworn in this year as the district attorney for Suffolk County, which includes Boston, has instructed her staff to inform her when ICE officers are present at courthouses. In a clear example of the rising tensions between state and federal prosecutors, Rollins said she's not afraid to face charges like those that hit Judge Joseph.

"If I am [charged], it would be my honor to be," Rollins said. "We need to stand up and be very, very bold."

Both Judge Joseph's case and the lawsuit against ICE will make Boston's federal courthouse a battleground over ICE arrests in the coming months. While some state court systems have handed down policies prohibiting ICE from making courthouse arrests without a judge's warrant — as New York did this month — Massachusetts' highest state court denied such a petition last year, paving the way for Monday's federal lawsuit.

Douglas Keith, a lawyer for the Brennan Center for Justice who organized nearly 70 retired state and federal judges to sign a letter condemning ICE courthouse arrests last December, said ICE's policy of allowing courthouse arrests is putting judges in an "impossible situation."

"Either they take part in the undermining of their state's justice system or they can be indicted," Keith said. "Essentially, ICE and [the U.S. Department of Justice] are saying judges should prioritize assisting federal immigration officials. That's not how our federal system is supposed to work."

Federal prosecutors, including Lelling, take a different view. Lelling has said he doesn't believe ICE's presence in courthouses has had any chilling effect. Last week, he said Judge Joseph had broken federal laws — namely, conspiracy and obstruction of justice — plain and simple.

"We don't get to pick and choose the federal laws that we follow," Lelling said.

Lelling has the support of groups like the Center for Immigration Studies, a nonprofit think tank that opposes high levels of immigration in the United States. Jessica Vaughan, the group's director of policy studies, told Law360 that judges need to be deterred from interfering with the work of federal law enforcement.

"This seems to be appropriate and overdue," Vaughan said of Judge Joseph's indictment. "This is a good case for the federal government to take on to try to address this problem."

But Susan Cohen, the founding chair of Mintz Levin Cohn Ferris Glovsky and Popeo PC's immigration practice, said Lelling's decision to pursue charges — and the Trump administration's approach to immigration enforcement more broadly — reflects a "conscious choice," not just an adherence to the letter of the law.

"The government always has the ability to exercise discretion in what cases it chooses to bring," Cohen said. "The priorities of this administration and its values are shown in its exercise of discretion and the choices that it's making."

How the Tenth Amendment on states' rights factors in is a question that will probably be answered in court. DA Rollins, pressed by reporters Monday to talk about the adversarial relationship between her and the Massachusetts feds, said it wasn't personal. Instead, she said, she is seeking justice in the way lawyers know how: by filing a lawsuit.

"I have a deep respect for U.S. Attorney Lelling," said Rollins, a former federal prosecutor in Boston. "We are being respectful. This is the way we operate when we think something isn't fair or just."

--Editing by Jill Coffey and Kelly Duncan.