When ICE Detains a Defendant With an Open Massachusetts Criminal Case

By Attorney Joe Serpa | Georgetown University Law Center

This post is for general informational purposes only and is not legal advice. It is based on the Supreme Judicial Court’s public descriptions of the three appeals, the text of the statutes and rules, and news reporting. The Supreme Judicial Court has not decided the three appeals.

Federal immigration agents have arrested dozens of people who face pending criminal charges in Massachusetts courts. Immigration and Customs Enforcement (ICE) often holds these defendants in detention centers outside Massachusetts. Some are deported before their Massachusetts trials begin. The defendant cannot come to court, but the criminal case stays open. The Supreme Judicial Court (SJC) is now deciding what a Massachusetts judge should do with that criminal case.

The Boston Globe reported on October 2, 2026 that the SJC will hear three of these appeals in the coming week. According to the Globe, the Massachusetts courts recorded 614 immigration arrests at or near courthouses in 2025, more than double the 282 recorded in 2024. This post describes the three appeals, the questions the SJC will answer, and the state law that already governs ICE detainers and courthouse arrests.

The Three Appeals Before the Supreme Judicial Court

The SJC identified the three cases when it invited friend-of-the-court briefs earlier in 2026.

In Commonwealth v. Noralus, SJC-13882, ICE held the defendant in a detention center in Kentucky while his Massachusetts case was pending. The trial judge declined to issue a writ of habeas corpus to bring him to Massachusetts for trial. According to the Globe, the judge believed the court lacked authority to order his return once ICE had custody. The SJC will decide whether the trial judge erred in declining to issue the writ.

In Commonwealth v. Loredo, SJC-13875, the defendant faced drug charges. ICE detained him out of state and later deported him before his trial. He had moved to compel his presence at trial or, in the alternative, to dismiss the charges because the Commonwealth did not secure his appearance. The trial judge denied that motion. According to the Globe, the judge had issued writs for the defendant to appear by video. ICE honored some of those writs before it deported him.

In Commonwealth v. Martell-Lebron, SJC-13920, ICE agents arrested the defendant on March 27, 2025, during a lunch recess in his own trial at the Edward W. Brooke Courthouse in Boston. He was on trial in the Boston Municipal Court for charges arising from a driver’s license application. Judge Mark Summerville dismissed the charges with prejudice, which means the Commonwealth cannot bring them again. Judge Summerville also held the ICE agent in contempt. The Suffolk District Attorney’s Office appealed the dismissal and has stated that its prosecutors had no advance knowledge of the arrest.

The Questions the SJC Will Answer

In these three appeals, the SJC will decide what a Massachusetts judge can do when a federal agency holds a defendant who must appear for trial in a Massachusetts court. The Globe identified five questions before the SJC.

Whether a Massachusetts judge can order ICE to bring a detained defendant to court for trial.
What happens when ICE does not comply with a state court writ.
Whether a judge should issue an arrest warrant for a defendant who misses court because ICE is holding the defendant.
When a judge should dismiss the charges because the defendant cannot be brought to trial.
Whether prosecutors must disclose that they know ICE plans to arrest a defendant.

Prosecutors and defense lawyers have both asked for guidance. A Bristol County assistant district attorney told the Globe that these cases “will become functionally unprosecutable” without guidance from the SJC. The Globe reported that the SJC is expected to rule within several months.

The Writ of Habeas Corpus and ICE Custody

A writ of habeas corpus to bring a prisoner to court is the ordinary order a Massachusetts judge issues when another jail or prison holds a defendant. The judge orders the custodian to deliver the defendant to the courtroom on a set date. A sheriff or a state prison complies because the Massachusetts court has authority over the sheriff and the state prison.

ICE is a federal agency. A federal immigration detention center operates under the authority of the federal government rather than a Massachusetts court. In the Noralus appeal, the trial judge concluded that the court had no power to order ICE to produce the defendant. The SJC will decide whether that conclusion was correct. In the Loredo case, the trial judge took a second approach and ordered that the defendant be made available by video.

The Speedy Trial Rule and an Unavailable Defendant

Rule 36 of the Massachusetts Rules of Criminal Procedure requires the Commonwealth to bring a defendant to trial within twelve months, after excluded periods of delay are subtracted. A defendant who is not tried within that time is entitled, on motion, to dismissal of the charges.

Rule 36(b)(2)(B) excludes delay caused by the absence or unavailability of the defendant. Under the rule, a defendant is unavailable when the defendant’s whereabouts are known but the defendant’s presence for trial “cannot be obtained by due diligence.” ICE usually holds a detained defendant at a known location. Under the text of Rule 36, the judge therefore asks what the Commonwealth did to obtain the defendant’s presence. The SJC’s decision on writs will affect what the Commonwealth must do to show due diligence when ICE holds the defendant.

What Massachusetts Law Already Says About ICE Detainers and Courthouse Arrests

The SJC has already limited what Massachusetts officers may do for ICE. In Lunn v. Commonwealth, 477 Mass. 517, 537 (2017), the SJC declared that Massachusetts law gives Massachusetts court officers no authority to arrest and hold a person solely on a federal civil immigration detainer after the person is otherwise entitled to release from state custody.

The Legislature added new rules in Chapter 163 of the Acts of 2026, which Governor Healey signed on August 5, 2026. The new G.L. c. 221D takes effect on November 3, 2026. Under G.L. c. 221D, no law enforcement officer may make a civil arrest in a courtroom. An officer who seeks to make a civil arrest elsewhere in a courthouse must show a judge, justice, or magistrate sitting in that courthouse a judicial warrant or judicial order authorizing the arrest. The chapter defines the courthouse to include its steps, plazas, sidewalks, walkways, and judicial branch parking lots. An ICE administrative warrant is not a judicial warrant. Serpa Law Office explains the rest of the new statute in a separate post on Chapter 163 and Massachusetts criminal cases.

Chapter 221D governs arrests at courthouses only. ICE agents may still arrest a defendant at home, at work, or on the street. The three SJC appeals address the criminal case that remains open after an arrest of that kind.

Steps for a Noncitizen Defendant With a Pending Case

A noncitizen charged with a crime in Massachusetts can face two proceedings at once. In the criminal case, a judge or jury decides whether the defendant is guilty, and a judge imposes any sentence. In federal immigration proceedings, an immigration judge decides whether the person may remain in the United States. A conviction or an admission to sufficient facts in the criminal case can lead the federal government to seek the person’s removal.

Defense counsel can take several steps while the SJC appeals are pending.

Counsel can ask the judge to issue a writ of habeas corpus or an order for a video appearance if ICE detains the client.
Counsel can move to dismiss under Rule 36 when the Commonwealth has not tried to bring a detained client to court.
Counsel can ask the prosecutor whether the Commonwealth knows of any planned ICE action against the client.
Counsel can have an immigration lawyer review any plea or admission to sufficient facts before the client offers one.

Under G.L. c. 278, § 29D, a judge must warn every defendant before accepting a guilty plea, a plea of nolo contendere, or an admission to sufficient facts. The judge warns that, for a person who is not a United States citizen, the plea or admission may lead to deportation, exclusion from admission to the United States, or denial of naturalization. The same statute provides that the defendant does not have to tell the court the defendant’s immigration status at the plea. The judge gives the same general warning to every defendant. The judge’s warning does not tell a particular defendant what will happen in that defendant’s immigration case. Serpa Law Office describes the federal rules in more detail on its pages about criminal convictions for immigrants and visa holders and motions for a new trial based on immigration advice.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. He represents clients in the Boston Municipal Court, the district courts, and the Superior Court. He also works with immigration counsel when a client’s immigration status is at stake.

Key Takeaways

ICE has detained many people with pending Massachusetts criminal charges and has held some of them outside Massachusetts. ICE deported some of those defendants before trial.
The SJC is hearing three appeals, Noralus, Loredo, and Martell-Lebron, on writs to ICE, missed trial dates, warrants, dismissal, and prosecutors’ disclosure duties.
Rule 36 excludes delay from a defendant’s unavailability only when the defendant’s presence cannot be obtained by due diligence.
Lunn v. Commonwealth bars Massachusetts court officers from holding a person solely on a civil immigration detainer.
Beginning November 3, 2026, G.L. c. 221D bars civil arrests in courtrooms and requires a judicial warrant for a civil arrest elsewhere at a courthouse.
A noncitizen defendant should have an immigration lawyer review any plea or admission before offering one.

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