The ACLU of Massachusetts last night filed an access to courts habeas on behalf of a Massachusetts man who was detained earlier this year by Immigration and Customs Enforcement (ICE). In its lawsuit, the ACLU – together with Foley Hoag LLP – urges the federal court to remedy a recent ICE practice that prevents people in immigration detention from attending state court proceedings.

The motion was filed on behalf of Samuel Pensamiento, a Massachusetts man who was detained at the Chelsea District Court after attending a hearing on misdemeanor charges of leaving the scene of an accident in January 2018. Although he was due back in Court on March 5, 2018, ICE and the Plymouth County officials who are detaining Pensamiento on behalf of ICE prevented Pensamiento from attending court. The lawsuit asks the federal court to order state and federal officials to transport Pensamiento to his next court appearance, where he is likely to be found in default if he does not appear.

In 2013, Pensamiento fled to the United States to escape persecution in Guatemala. With strong community ties – including a U.S. citizen wife who is expecting a child in May, lawful employment, and Massachusetts driver’s license – Pensamiento was following the process to apply for lawful permanent residency before his detention.

Pensamiento’s open criminal charges, which he has not been permitted to address, have a significant impact on his immigration proceedings. His marriage petition has been put on hold, and ICE is seeking his removal to Guatemala. Pensamiento was denied bond on the basis of the charged conduct, and – if he is removed from the United States without having the chance to resolve his charges – he is likely to be prevented from ever coming back, even though he has never been convicted of a crime and is eligible to seek to immigrate to the United States through his U.S. citizen wife.

“This is yet another local example of a senseless ICE policy that undermines our state’s institutions and disrupts lives,” said Carol Rose, executive director of ACLU of Massachusetts. “Beyond separating Mr. Pensamiento from his family and his community, ICE is also interfering with his constitutional rights to due process and barring state courts from doing their job to provide access to justice for all Massachusetts residents.”

According to the lawsuit, ICE and its state-operated detention facilities in Massachusetts have recently adopted a policy of refusing to comply with writs of habeas corpus ad prosequendum issued by Masssachusetts courts. By failing to transport detained immigrants to court, the government eliminates the opportunity to defend or resolve pending criminal charges, and interferes with people’s constitutional rights to be heard in state court. In addition to requesting a constitutionally adequate bond hearing, the ACLU’s lawsuit requests that Pensamiento be transported to his upcoming state court hearing on March 19, 2018.

Read more about Samuel Pensamiento's case here