MBA weighs in on national issues

Issue March/April 2017

Immigration resolution passed at January HOD

The following resolution was passed at the January House of Delegates meeting. MBA President Jeffrey N. Catalano was subsequently quoted by the Springfield Republican and Massachusetts Lawyers Weekly.

RESOLVED, That the Massachusetts Bar Association (MBA), which has long supported equal justice and the due process of law as guaranteed by the

United States Constitution and the Massachusetts Constitution and its Declaration of Rights of Inhabitants of the Commonwealth, reaffirms its support for and commitment to vigorously defend the rule of law and fundamental Constitutional and statutory rights and due process protections in the detention or deportation of residents of Massachusetts. Specifically, thet MBA endorses actions by the federal government, and where applicable, the Commonwealth, that:

(1) Promptly and fully inform the public about the specific parameters of any immigration enforcement policy for expedited detention and deportation of lawful permanent residents, those on temporary lawful status, and immigrants who are without lawful immigration status;

(2) Ensure that appropriate legal measures are taken to prevent and prohibit any discriminatory immigration‐related enforcement practices by federal, state, or local law enforcement officials that target or profile persons based on race, ethnicity, national origin, religion, sexual orientation, gender identity or gender expression;

(3) Preclude the use of any database established or maintained by the U.S.

Citizenship and Immigration Services, or any other governmental agency or entity, based on Executive Orders and immigration enforcement policy and programs under "DACA" (Deferred Action for Childhood Arrivals), to identify and locate undocumented immigrants for any detention and deportation program unrelated to protecting national security, as it would be unfair to penalize such persons who applied in good faith for provisional waivers of unlawful presence, protection from deportation, and temporary work authorization, under then‐existing U.S. government policy;

(4) Continue, until adoption of comprehensive immigration reform legislation, immigration enforcement programs that protect certain immigrants residing in Massachusetts from detention or deportation and prevent expansive detentions or deportations that result in family separations and negatively impact the education of students;

(5) Ensure that attorneys representing immigrants at hearings are provided reasonable access to their clients in detention and full access to all information that has subjected the individual to deportation;

(6) Establish, in collaboration with the Massachusetts legal community, an effective system that ensures free legal representation for all immigrants facing removal (deportation) proceedings who are unable to afford an attorney, on account of the complicated nature of immigration law and immigration court proceedings, where many undocumented immigrants lack an understanding of their legal rights and options, and given that the government is represented in such proceedings; and where deportations often result in prolonged detention and incarceration, disrupting families and communities, causing negative financial impact, and possibly endangering the life or liberty of individuals deported to their "homelands";

(7) Support "sanctuary city" protections in Massachusetts as such protections promote trust and cooperation with law enforcement essential to public safety; and

(8) Support comprehensive immigration reform legislation that provides for legal status and a pathway to citizenship for undocumented immigrants with strong ties to the United States, who do not pose a national security or public safety risk to our country and its residents, while taking necessary steps to further secure our borders.

Affinity bars show support for resolution

The MBA resolution received praised from members of the legal community around the commonwealth. Several affinity bar association leaders in attendance at the January HOD meeting also expressed their strong support for the MBA resolution.

Eugene H. Ho, president of the Asian American Lawyers Association of Massachusetts (AALAM), said: AALAM is proud to stand with the MBA and the other affinity bars on this important resolution. As a voice for our members, many of whom are first and second generation immigrants, and in light of President Trump's recent executive order halting immigration from seven Muslim-majority countries, it is more important now than ever that we reaffirm our commitment to vigorously defend the rule of law and fundamental constitutional protections related to the detention and deportation of residents of Massachusetts, and endorse actions by the federal government that ensure equal justice and due process in enforcement of any immigration policies and legislation. We thank the MBA for its leadership in passing this resolution, and we are committed to working with the MBA and the other affinity bars to ensure that all immigrants have access to justice."

Migdalia Iris Nalls, the president of the Massachusetts Association of Hispanic Attorneys (MAHA), said: The Immigration Resolution adopted by the MBA speaks volumes at a critical time in history, where we are witnessing our Constitutional Due process rights and Human rights under attack by Federal Executive orders. Within MAHA, we see first-hand the terrible consequences of the violations of these rights. Immigrants are already halted from traveling to see their families abroad and living in fear of work availability and family separation; causing stress and trauma to their families and children. This is morally unacceptable in our society and we deeply thank the MBA for taking action to support a state and country made of immigrants. "

Saraa Basaria, president of the South Asian Bar Association of Greater Boston, said: "The South Asian Bar Association of Greater Boston (SABA GB), comprised of many first-generation Americans, strongly supports the MBA Resolution regarding prohibition of discriminatory immigration enforcement policies and is committed to championing lawful immigration policies that align with and respect the principles upon which this nation was founded. "

MBA president issues statement on executive orders

This statement was also sent directly to all MBA members via email on Feb. 10.

When the Massachusetts Bar Association was incorporated in 1910, it adopted the motto Fiat Justitia" - Let Justice be Done. Over the course of the MBA's 100 year existence, we have been called upon to live up to that creed. At various times, we have spoken on matters of great importance to our jurisprudential system and the rights of others under the state and federal constitutions. Some matters were controversial at the time, but history has looked favorably upon our actions on those occasions. As this state's largest bar association, we have always understood that apathy is not an option in matters of justice. That is because unchecked infringements on the rights of one diminishes us all.

We are now presented with another occasion to act arising out of recent presidential executive orders (EO) relating to immigration. We do so humbly appreciating the words of Martin Luther King Jr. who said, "Even when pressed by the demands of inner truth, men do not easily assume the task of opposing their government's policy."

Yet, in a state whose constitution served as the model for the U.S. Constitution, it is particularly incumbent upon this bar association to be a bulwark against any threats to due process rights under both constitutions. These threats arise when actions are taken that may deport or detain people without a fair hearing; or that may separate mothers from children, such as in the New Bedford factory sweeps; or that unfairly discriminate against or burden people seeking refuge on our shores.

Accordingly, the MBA is proud to be the first state bar to pass a historic Immigration Resolution reaffirming our support for the due process and constitutional rights of those who are subjected to deportation or detention under new EOs. This Resolution, proposed by the MBA's Richard Cole, received the overwhelming support of our section councils, county bars and affinity bars, and the House of Delegates at our meeting on January 26, 2017.

It endorses actions by our governments to "[e]nsure that appropriate legal measures are taken to prevent and prohibit any discriminatory immigration-related enforcement practices by federal, state, or local law enforcement officials or agents that target or profile persons based on their race, ethnicity, national origin, religion, sexual orientation, gender identity or gender expression." In addition, the Resolution endorses "immigration enforcement programs that ... prevent expansive detentions or deportations that result in family separations and negatively impact the education of students."

Following that Resolution, the MBA provided a Declaration in support of the commonwealth's motion in federal District Court to extend the temporary restraining order on the ban due to harm to the commonwealth and its residents. The Declaration I drafted with MBA Chief Legal Counsel Martin Healy expressed the concern that the EO would cause unfair discrimination and detrimentally impact foreign attorneys practicing here, as well as law firms that represent multi-national companies, and Massachusetts law schools with international faculty and students.

This week the MBA, under the leadership of Kevin Curtin, became the only state bar association to co-sponsor the American Bar Association's Resolution urging that the executive branch ensure that any executive orders concerning border security, immigration enforcement and terrorism be within the bounds of laws, treaties and other agreements.

Sometimes these occasions to act seem laden with partisanship, but that is never the MBA's motivation. And, the MBA must not let any such misperception deter us in our pursuit of the overarching goal of reaffirming our rights, regardless of which party is in power.

Underlying all of our measures is confidence in the nobility of our intentions to protect the unalienable rights of everyone. While national security is a compelling government interest, there is also much at risk if we do not challenge arbitrary and discriminatory actions against our most vulnerable people by our highest authorities.

Throughout our efforts, we followed an orderly and fair process that obtained overwhelming consensus. We are very honored by the wide-spread praise we have received for our work. We realize that this feeling may not be unanimous. However, this great bar association has an opportunity to demonstrate that what unites us is far stronger than that which divides us. And that which must unite us was eloquently stated by Chief Justice Edward F. Hennessy of the Supreme Judicial Court when he addressed the MBA in 1986:

[W]e are becoming an increasingly pluralistic nation. Of all things that threaten us, I think racial, religious and ethnic hatred is the most clear and present danger to our country, particularly as we observe the horror of terrorism in other nations ...

Wouldn't it be a great thing if the lawyers of America were to become a permanent, outspoken cadre for fairness, equality, and decency for all persons and all groups, and against bigotry and discrimination.

Thirty years later, the MBA is again prepared to continue its most important mission of ensuring that "Justice be Done" - always and in every matter.

Other Articles in this Issue: