Since the November election, tensions have arisen between the Trump administration and elected officials in Massachusetts over “sanctuary” policies.
While never wavering in their abiding commitment to open borders, the state’s Democratic officeholders have varied their tactics for confronting the administration according to their targeted audience. The eight existing “sanctuary cities” in the Commonwealth proudly reaffirmed their commitments, and an additional town (Natick) voted to become a sanctuary with others reportedly contemplating similar action.
Likewise, in testimony before Congress, Boston Mayor Michelle Wu solidified her standing in progressive circles by portraying Boston as welcoming to all immigrants, whatever their legal status, while replying evasively as to whether city officials would cooperate in deporting criminal aliens.
By contrast, Governor Maura Healey – who is seeking reelection in a state which sometimes elects Republican governors and shifted toward Republicans in November by one of the largest margins in the country – opted for a strategy of siding with the open borders forces enough to mollify her base while presenting as moderate a face as possible to centrist voters: she asserted that Massachusetts is not a sanctuary state and that she is willing to cooperate in removing criminal aliens.
Because many dispute her claims, it is worthwhile to evaluate where Massachusetts stands with respect to border security and sanctuary.
The Basics of Sanctuary
Sanctuary policies are capable of gaining acquiescence from the public only because they have been portrayed superficially and misleadingly by the media and politicians. Thus, articles routinely use the phrase “sanctuary policies which protect undocumented migrants from deportation,” a formulation that completely misrepresents what sanctuary really entails.
Sanctuary apologists further confuse the issue by playing on empathy for “the undocumented” who work low-paying jobs while living “in the shadows” without legal status. Whatever claims such persons may have on our sympathies, they are entirely irrelevant to the underlying issue, as sanctuary policies typically apply to non-citizens who are in custody of state and local law enforcement agencies (LEAs) for serious crimes.
Very few LEAs in the country hold anyone in custody for being in the country unlawfully. In 2012, the Obama administration invoked the doctrine of “prosecutorial discretion,” formalizing the existing practice of only deporting convicted felons. The first Trump administration did not reverse this decision and the new Trump administration’s “Border Czar” Tom Homan reaffirms that their highest priority is to remove criminal aliens. Among the many millions of people who are in the country unlawfully, only the approximately one million convicted felons with final orders of removal are currently targeted for deportation.
It may be hard for the average citizen to fathom the motivations of jurisdictions that enact laws with the purpose of preventing the deportation of felons but the practice is now baked into hard left ideology. Opposition to deporting convicted felons also runs deep among progressive prosecutors and judges who often reduce charges against persons charged with felonies in order to prevent their removal.
While sanctuary apologists claim that by refusing to cooperate in enforcing federal laws, sanctuary jurisdictions can concentrate on protecting the public – particularly immigrant communities, the most effective act to protect immigrants – and the rest of us – would be to remove criminals from their midst. Criminal aliens inflict huge harm on the population.
According to a Government Accountability Office (GAO) report, noncitizens were responsible for 21% of federal crimes between 2011 and 2016.
Between fiscal years 2011 and 2018, 27,300 illegal immigrants were serving sentences for homicide in state prisons. Over the same period, non-citizens committed 5.5 million offenses – including 667,000 drug offenses, 42,000 robberies, 91,000 sex crimes, 81,000 auto thefts, 95,000 weapons offenses, and 213,000 assaults.
Sanctuary is an extreme position, even among Democrats. Concerning the main piece of sanctuary legislation that regularly appears before the Massachusetts legislature (the “Safe Communities Act”), just 17 of 36 Democrat senators cosponsored this legislation during the 2022-24 session, while in the House only 16 of 132 Democrats sponsored it. This suggests that even in a deep blue state, legislators know that the public would not support sanctuary policies if they are understood.
Sanctuary advocates are aware of the gap between their own ideology and the values of most citizens. During hearings in the state legislature, sanctuary policies are not defended based on their content but as necessary to maintain good relations between law enforcement and immigrant communities where fear of deportation is allegedly rampant. It is never made clear how fears of deportation of non-criminal aliens are alleviated by policies that thwart the removal of persons who are in police custody for crimes.
Sanctuary and Federal State Cooperation in Law Enforcement
In deporting criminal aliens, the present administration is simply executing laws enacted by bipartisan Congressional majorities over the last thirty years. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which mandated the deportation of non-citizens convicted of serious crimes, was approved by large bipartisan majorities and signed by President Clinton. Enforcement by subsequent administrations was sporadic, and by the end of the Biden administration, more than one million criminal aliens who had been issued final orders of removal were still in the country, some in the custody of LEAs and others at large.
In January 2025, a stronger bill commonly known as the Laken Riley Act (S.5) expanded the list of deportable offenses and made it possible for citizens to hold jurisdictions that do not cooperate with ICE accountable for acts of criminal aliens. About one-fifth of Congressional Democrats, including one congressman from Massachusetts, broke party ranks and voted for the bill, which was the first signed by President Trump.
The term “sanctuary” has no formal legal definition and its usage has changed over time. It was originally used in the 1980s by institutions (frequently not official agencies but churches or community organizations) that offered “sanctuary” to Central Americans fleeing violent conflicts. This use of the term in this context is basically obsolete.
Currently, “sanctuary” means the refusal of states and localities to cooperate with the federal government (mainly ICE) in removing persons who have been placed on a track for deportation by competent authorities. Of those who are the subjects of final orders of removal, some 93% are convicted of felonies, with the remainder for immigration offenses such as a denial of a request for asylum.
A certain amount of cooperation inevitably occurs. All LEAs routinely transmit real-time information on persons apprehended for crimes to national databases, including biometric data. This information is shared among competent authorities. The information is used by the FBI to determine whether the person in question is wanted for crimes in other states and also by ICE to determine whether they have an active detainer for that person.
Sanctuary policies affect the extent to which ICE and LEAs can cooperate and communicate beyond the initial mandatory exchange of information. The Center for Immigration Studies (CIS) defines sanctuary as “laws, ordinances, regulations, resolutions, policies, or other practices that obstruct immigration enforcement and shield criminals from ICE — either by refusing to or prohibiting agencies from complying with ICE detainers, imposing unreasonable conditions on detainer acceptance, denying ICE access to interview incarcerated aliens, or otherwise impeding communication or information exchanges between their personnel and federal immigration officers.”
The nine sanctuary jurisdictions in the Commonwealth have statutes, ordinances, and policies that deliberately prevent all cooperation with federal immigration authorities. Other jurisdictions are in less clear situations, depending upon the form of cooperation.
Analytically, it is possible to distinguish three forms of cooperation between ICE and LEAs:
1) an “immigration arrest” when an LEA, usually under a formal agreement with ICE, arrests a person or participates in an ICE-led arrest, thereby assuming some of the enforcement functions of ICE
2) prolongation of detention for persons in LEA custody for another offense who are the subjects of ICE detainers in order for ICE to assume custody
3) other exchanges of information.
The first form, or “immigration arrest,” is of no practical significance since no jurisdiction in the Commonwealth has an active agreement with ICE.
The second form of cooperation, prolongation of detention, occurs when ICE has a detainer for a person who is in police custody for another offense and requests the LEA to maintain custody over the individual for up to 48 hours beyond their normal release time in order for ICE to assume custody. A decision by the state’s Supreme Judicial Court (SJC) makes such cooperation impossible. Under the Lunn vs. Commonwealth decision of 1997, the SJC ruled that since an ICE detainer is a civil detainer, LEAs may not hold any individual beyond the time that the individual would otherwise be released.
The Lunn decision further states that LEAs could prolong detention for ICE to take custody if a law authorizing such cooperation were enacted. In fact, a law authorizing cooperation for persons convicted of serious crimes has been before the legislature for several years, without gaining significant traction.
However, in the current session, the legislature’s Republican leaders have included such a proposed bill in their package of measures designed mainly to deal with the state’s migrant shelter crisis.
The final form of cooperation involves exchanges of information between ICE and LEAs. Without prolonging detention, the LEA could inform ICE that an individual is under interrogation or serving a sentence in a state or local prison and is scheduled to be released on a given date and time, thereby enabling ICE to take custody upon release. Additionally, in cases where the identity and/or status of a person in custody are not certain, ICE may want to interview that person to determine whether a detainer on that person is active. The Lunn decision does not prohibit this form of cooperation with ICE.
Is Massachusetts a Sanctuary State?
There are some bills before the legislature that would remove all ambiguity by making all of Massachusetts a formal sanctuary state, placing limits on all LEAs – similar to those already in effect in the nine sanctuary cities. The main sanctuary bill known as the “Safe Communities Act” would forbid state and local law enforcement from asking persons in custody about their immigration status while placing limits the capability of law enforcement to share information with federal immigration authorities or to detain persons who are subjects of ICE detainers. A second related bill called “An Act relative to access to justice” would impose additional restraints on ICE interviewing or obtaining information from persons in custody.13
Because neither of these laws have been approved by the legislature, it could be said Massachusetts has not voted to become a full de jure sanctuary state. But some towns and cities are, by their own volition, full sanctuary jurisdictions. The combination of sanctuary laws, the Lunn decision, and the lack of cooperation by the executive were probably the factors that persuaded CIS to categorize Massachusetts as a sanctuary state.
Given these constraints on cooperation between federal and state authorities, Gov. Healey is being disingenuous when she claims that Massachusetts is not a sanctuary state. Furthermore, she is making an extremely misleading statement when she offers to cooperate in deporting criminal aliens, because the Lunn decision severely limits such cooperation.
Moreover, the Governor cannot simply claim that her hands are tied by decisions made by others because, as Attorney General, she filed a brief supporting the restraints eventually included in the Lunn decision, and on the day it was issued she applauded the decision as “a victory for the rule of law and smart immigration and criminal justice policies, and a rejection of anti-immigrant policies that have stoked fear in communities across the country.”
“As my office argued in this case, Massachusetts law protects our residents from illegal detention and prevents the federal government from forcing local law enforcement to make decisions contrary to the public safety interests of their communities. This decision allows local law enforcement to focus their resources on keeping people safe.”
If Gov. Healey has changed her mind, she could remove the apparent contradictions by telling us whether she would now support the legislation that would enable cooperation with ICE in deporting felons and urge its passage by the legislature.
This article was written by John Thompson, Co-Chair of the Massachusetts Coalition for Immigration Reform. The opinions expressed are his own.
