Massachusetts Chapter 163 Changes Immigration Enforcement and Criminal Cases

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

August 2026

Massachusetts enacted Chapter 163 of the Acts of 2026 on August 5, 2026. The law is formally titled An Act Promoting Rule of Law, Oversight, Trust and Equal Constitutional Treatment and is commonly described as the PROTECT Act.

For a noncitizen involved in a Massachusetts criminal case, the Act makes five principal changes. It adds a narrow final-removal-order factor to the bail statute. It limits when Massachusetts law enforcement and court personnel may inquire about immigration status, share nonpublic information, or assist federal civil immigration enforcement. It regulates civil arrests at Massachusetts courthouses. It creates access-to-counsel requirements for people held in Massachusetts correctional facilities. It also replaces the state process governing T- and U-visa certification requests.

The law does not erase the federal immigration consequences of a Massachusetts charge or disposition. It does not stop ordinary criminal investigations, arrests, booking, or fingerprint transmission. It does not grant a visa or lawful status, and it does not prevent federal officers from enforcing federal law generally. It regulates specified Massachusetts institutions, state and local resources, courthouse conduct, and certification procedures.

Attorney Joe Serpa represents defendants in the Massachusetts criminal case. He does not appear in immigration court, before the Board of Immigration Appeals, or in federal removal proceedings. Where a criminal case presents an immigration issue, Attorney Serpa coordinates the state defense with the client’s immigration attorney before an admission or disposition.

The Effective Dates Are Staggered

Chapter 163 is an emergency law, but the Legislature delayed four sections central to criminal cases and immigration enforcement. It also set separate implementation deadlines for schools, child-care providers, health-care providers, and executive guidance. Each provision applies from its stated effective date.

As of August 2026, the bail amendment is already operative. The September and November provisions should be used in planning and should be applied to conduct on or after their effective dates, but they should not be described as though every delayed provision were already in force.

Immigration Status Is Not a General Criminal-Investigation Fact

Beginning September 4, new M.G.L. c. 147, § 64 supplies a direct-materiality rule. A person’s immigration or citizenship status is directly material only when it is necessary to establish an element of a specific Massachusetts criminal offense. The statute expressly states that status is not directly material for assessing credibility, cooperation, or general information gathering.

The rule applies to law enforcement officers, employees of covered law enforcement agencies, and employees of the Trial Court, Appeals Court, and Supreme Judicial Court acting under color of law.

Except when federal or state law, a judicial warrant, a court order, or a treaty requires otherwise, an officer may inquire about status only when the officer has an articulable, case-specific reason to believe that status is directly material to an element of an offense under M.G.L. c. 265, §§ 50 through 52 or another Massachusetts felony under investigation. The officer must document that reason in the incident report or case file.

The statute also restricts recording immigration or citizenship information. It does not authorize an officer to ask every witness, victim, passenger, or defendant about status and decide later whether the answer is useful. The statutory basis must exist, and where the case-specific exception is used, the reason must be documented. The exception for an authorized 287(g) agreement or another lawful intergovernmental service agreement appears in the resource-use and information-sharing clauses. It does not create an additional exception to the inquiry clause.

Two qualifications matter. First, the law contains exceptions and preservation provisions, so the rule is not an absolute prohibition on every nationality or status question. Consular-notification duties, firearm-license processing, T- and U-visa certification, and legal requirements can call for particular inquiries.

Second, a person should not give false information. A person questioned in connection with a criminal investigation should invoke the right to remain silent and request counsel rather than answer substantive questions or provide an untrue response.

Limits on State and Local Assistance in Civil Immigration Enforcement

Section 64 also restricts the use of state and local resources for federal civil immigration enforcement. Subject to its stated exceptions, covered officers and agencies may not use state or local resources for, conduct, or participate in federal civil immigration enforcement.

The information-sharing provision is detailed rather than absolute. Subject to federal or state law, judicial process, treaties, authorized agreements, and the subsection’s specified exceptions, a covered officer or agency may not knowingly provide federal immigration authorities with nonpublic personal information, custody status, specified advance release information, or advance notice of an upcoming court appearance.

Upcoming-appearance information may be provided only after a written request received within the preceding thirty days identifies a specific, named person. A law enforcement officer may then provide the information only with written authorization from an on-duty officer in charge. If obtaining that authorization is impracticable, the officer who provides the information must document the disclosure in writing. The statute separately permits advance release notice after completion of a sentence for the serious offense categories it lists.

The detention rules are more direct. Subject to the statutory exceptions, a covered officer may not:

• stop, arrest, search, seize, or detain a person based on actual or perceived citizenship or immigration status;
• investigate, question, or interrogate a person for the purpose of federal civil immigration enforcement;
• continue to detain a person based solely on an immigration detainer after the person would otherwise be eligible for release; or
• transport a person into an immigration agent’s custody without a judicial warrant or court order, except as allowed by an authorized agreement.

An immigration detainer is a request that another agency maintain custody. It is not the same as a criminal arrest warrant signed by a judge. In Lunn v. Commonwealth, 477 Mass. 517, 537 (2017), the Supreme Judicial Court held that Massachusetts law gave court officers no authority to arrest or hold a person solely on a federal civil immigration detainer after the person otherwise became entitled to release from state custody. Section 64 adds statutory restrictions on covered officers and employees, including detention beyond the state release time based solely on an immigration detainer.

The new law also restricts new, renewed, or materially expanded 287(g) agreements that deputize state or local personnel to perform civil immigration functions. It preserves the Department of Correction agreement identified in the statute and creates a gubernatorial process for limited agreements confined to criminal warrants or criminal process under specified public-safety conditions.

Ordinary Criminal Investigations, Booking, and Fingerprints Continue

Chapter 163 expressly preserves criminal-law enforcement that is not undertaken for the purpose of federal civil immigration enforcement. This distinction preserves ordinary Massachusetts criminal procedure.

Covered agencies and officers may continue to:

• request and receive personally identifying information during a lawful criminal investigation, arrest, or booking process;
• send fingerprints to the State Police identification section, Massachusetts criminal-justice information systems, and the FBI;
• communicate with state, local, and federal authorities in coordinated criminal investigations unrelated to federal civil immigration enforcement;
• transfer a person to another law enforcement agency to enforce criminal law unrelated to federal civil immigration enforcement; and
• ask federal immigration authorities to return a person to state or local custody for a criminal prosecution or for testimony in a criminal case or grand jury.

The statute also preserves sending or receiving citizenship or immigration-status information when 8 U.S.C. §§ 1373 and 1644 require it, entering or fulfilling a lawful agreement to provide detention services for people in federal custody, and complying with other applicable federal, state, or local law. Those savings clauses preserve the conduct they identify. They do not erase the separate limits in § 64.

The practical consequence is that a Massachusetts arrest can still create state and federal identification records. Chapter 163 limits specified civil immigration activity; it does not prevent fingerprint-based criminal record reporting after an arrest. The firm’s page on Massachusetts criminal records and federal records explains the separate databases.

The same distinction controls the criminal case. Police may investigate the charged offense, prosecutors may present evidence, courts may impose lawful bail or release conditions, and the case may proceed from arraignment through trial. The question under § 64 is whether a disputed act served legitimate criminal enforcement or instead served federal civil immigration enforcement in a manner the statute restricts.

A New State Remedy for Federal Constitutional Violations

Chapter 163 also added M.G.L. c. 12, § 11I 5/6, effective August 5. It creates a Massachusetts cause of action against a person who, under color of state, federal, or other specified governmental authority, subjects someone within the Commonwealth to a deprivation of rights, privileges, or immunities secured by the United States Constitution.

The statute contains defined limits. A defendant may raise the defenses available under 42 U.S.C. § 1983, including qualified immunity to the same extent that defense is available in the circumstances. A prevailing injured person may recover litigation costs and reasonable attorney’s fees to the same extent provided by 42 U.S.C. § 1988. A claimant must give written notice to the Massachusetts Attorney General when filing and certify that notice to the court.

This civil remedy does not itself suppress evidence or dismiss a criminal charge. A defendant seeking suppression, dismissal, release, or another remedy in the criminal case must establish the requirements for that remedy under the governing criminal and constitutional rules. The same incident may therefore produce separate criminal-case litigation and a civil claim.

The New Bail Factor Is Narrow

Section 14 amended M.G.L. c. 276, § 58, effective August 5, 2026. A court may now consider a final order of removal in deciding whether release will reasonably assure the defendant’s appearance, but only when every statutory condition is satisfied.

The new factor applies only when:

1. the alleged acts involve a felony under Massachusetts law;
2. a final order of removal, as defined in 8 C.F.R. § 1241.1, has been entered;
3. all rights of appeal have been exhausted or waived;
4. no stay of removal, order of supervision, or other administrative or judicial action affecting execution of the removal order has been sought or entered; and
5. the federal government has begun active execution of the removal order.

Immigration status alone does not satisfy that language. A pending immigration case, an allegation that a person lacks lawful status, an administrative warrant, or an immigration detainer is not automatically the statutory final-order factor. Even a final removal order does not meet the amended provision unless the felony, finality, absence-of-stay, and active-execution requirements are also established.

The amendment adds one factor to the appearance analysis under § 58. It does not direct the judge to detain the person or set a particular amount. The presumption begins with release on personal recognizance, and the judge must consider financial resources before imposing money bail.

Preventive detention based on danger is a separate proceeding under M.G.L. c. 276, § 58A. It requires an eligible predicate offense and clear and convincing evidence that no release conditions will reasonably assure another person’s or the community’s safety. Money bail under § 58 cannot be used as a substitute for that dangerousness process. The firm’s Massachusetts bail guide explains those rules.

Where the Commonwealth invokes the new factor, the record should identify the alleged felony, the removal order, the date and basis of finality, the status of every appeal or motion, any stay or order of supervision, and the evidence of active federal execution. Criminal defense and immigration counsel should review those documents together. A label in a police report or an unsupported statement that “ICE has a detainer” does not establish the five statutory conditions.

Civil Arrests at Massachusetts Courthouses Beginning November 3

New M.G.L. c. 221D takes effect November 3, 2026. It regulates civil arrests at Massachusetts courthouses, including civil immigration arrests.

The statute defines “courthouse” broadly. It includes the interior of a facility where a Massachusetts court conducts business and the courthouse curtilage. The listed curtilage includes lawns, plazas, courtyards, steps, ramps, sidewalks, walkways, contiguous garages, driveways, and parking lots owned or leased by the judicial branch, together with walkways connecting the courthouse to a judicial-branch garage or parking lot.

Outside a courtroom but within that courthouse area, a law enforcement officer or agency representative may make a civil arrest only when acting in an official capacity and after providing documentation to a designated judge, justice, or judicial magistrate sitting in the courthouse. The documentation must show that the person is the subject of a judicial warrant or judicial order authorizing the civil arrest. The judicial official must promptly review it.

A civil arrest cannot be made in a courtroom.

The judicial-process distinction is decisive. Chapter 221D defines a judicial warrant or order as one issued by a judge or magistrate in the judicial branch of a local, state, or federal government. An ICE administrative warrant, removal warrant, notice to appear, or civil detainer is not transformed into a judicial warrant because a federal agency issued it.

The chapter does not cover every arrest made at a courthouse. Its definition excludes an arrest for qualifying criminal prosecution, contempt, a Massachusetts capias, specified parole and probation warrants, a governor’s warrant, and an arrest connected to an application under M.G.L. c. 123, § 12.

It does not require any person to interfere with or assist a federal official engaged in civil immigration enforcement, and it grants no officer authority or responsibility to enforce, interpret, supervise, assess compliance with, or prevent conduct governed by the chapter. It also states that its protections do not narrow or abrogate any right or privilege against civil arrest that exists at common law.

An arrest or detention in violation of chapter 221D constitutes false imprisonment as defined in M.G.L. c. 263, § 3. The Attorney General may seek declaratory, injunctive, or other equitable relief, and a person with reasonable cause to believe a violation occurred may apply for habeas corpus. The chapter does not create a new private right of action, but it preserves remedies otherwise available under state or federal law.

The law protects access to Massachusetts courts. A defendant should not miss a criminal court date because of a generalized fear about immigration enforcement. A default can produce a Massachusetts warrant, interrupt the defense of the pending charge, and create additional facts that immigration counsel may need to address. A person with a specific enforcement concern should coordinate the required appearance with criminal and immigration counsel before the court date.

Access to Counsel in Massachusetts Detention Facilities

New M.G.L. c. 127, § 87B also takes effect November 3, 2026. It applies to Massachusetts state correctional facilities, state prisons, county correctional facilities, houses of correction, and prerelease centers that house detained people. Courthouses are excluded from the definition of a facility.

At intake, each facility must provide written notice in the detained person’s primary language of:

• the right to legal counsel;
• the right to decline interviews by state or federal law enforcement or consular officials;
• instructions for contacting counsel and legal services; and
• procedures for confidential legal communications and grievance review.

Facilities must ensure confidential, unmonitored attorney-client telephone communications. Each facility must provide a verified-legal-counsel phone line that allows counsel to complete at least one confidential inbound call per day with the detained person. If direct inbound calling is technologically infeasible, the facility must provide a system through which verified counsel can request a confidential callback within twenty-four hours. Facilities must also provide free, regular, and reasonable video access for legal meetings.

The facility must update its custody and contact-routing record within six hours of intake and within six hours of a transfer out. Within six hours of any transfer to or from the facility, the facility must make reasonable efforts to notify counsel of record and the person’s designated contact, including the name of the receiving facility and instructions for locating the person. The section also requires meaningful language access for intake, medical, mental-health, disciplinary, legal-access, and grievance interactions.

These rights matter when a person faces both a Massachusetts criminal case and federal immigration proceedings. The lawyers handle different questions. Criminal counsel needs prompt access to address bail, evidence, deadlines, and the state charge. Immigration counsel needs access to address custody, removal, status, and federal relief. Chapter 163 does not combine those proceedings or make one lawyer responsible for both.

New T- and U-Visa Certification Procedures

Chapter 163 replaces M.G.L. c. 258F effective November 3, 2026. The chapter governs requests to state and local certifying entities from victims of qualifying criminal activity and severe forms of human trafficking who intend to seek U or T nonimmigrant status.

A certification is not a visa and does not grant immigration status. USCIS makes the federal eligibility decision. A U-visa petitioner must submit Form I-918 Supplement B, the law-enforcement certification, as initial evidence. A T-visa applicant may submit Form I-914 Supplement B as evidence, but federal law does not require that declaration in every T-visa case.

The Massachusetts process requires the following procedures.

No charge or conviction is required. A certifying entity cannot require that criminal charges were filed or that the offender was convicted before determining whether the person was a victim of qualifying activity for certification.

Each entity must publish a written policy. The policy must identify the certifying official and alternate, explain how to submit a request, provide objective helpfulness criteria, prohibit a fee, prohibit consideration of immigration admissibility or eligibility beyond the determinations the federal form requires, and identify an internal review process for denials.

The ordinary response period is forty-five days. The entity must complete and sign the applicable federal form or issue a written denial without prejudice stating the specific reasons the request fails to meet its policy and identifying the internal-review procedure. The ordinary forty-five-day provision does not authorize a delay response.

Some requests receive a fourteen-business-day response period. The shortened period applies when the applicant, counsel, or advocate certifies that the applicant is in federal removal proceedings, has an immigration court hearing within forty-five days, or has a qualifying derivative T-visa beneficiary who will age out within forty-five days. Only in this expedited category, and only when extraordinary circumstances outside the entity’s control prevent a timely response, may the entity provide a written explanation of delay with a projected response date.

Timely reporting creates a rebuttable presumption of helpfulness. The presumption applies to a victim who timely reports qualifying criminal activity and is willing to be helpful or provide information in a manner reasonably requested by the certifying entity. Helpfulness includes past, present, or likely future helpfulness consistent with the federal form and guidance.

Four grounds cannot stand alone as the reason for denial. The entity cannot deny solely because no arrest occurred, the case closed, the victim has an unrelated criminal record, or the victim exercised constitutional rights.

Chapter 258F provides that allegations of wage theft, workplace-safety violations, housing violations, or labor exploitation accompanied by deportation threats, intimidation, or retaliation may constitute qualifying criminal activity when the nature and elements are substantially similar to a listed federal category. It bars a state or local employer from reporting or threatening to report a person to federal immigration authorities in retaliation for specified reporting, certification, investigation, labor, civil-rights, or cooperation activity.

A crime victim seeking certification should preserve the report, incident number, communications with the investigating agency, proof of requests for assistance, and any prior response. Immigration counsel should determine the appropriate federal petition and evidence. A defense lawyer representing the person accused in the underlying criminal case has a different duty and should not advise the complainant about federal immigration relief.

Schools, Child Care, Health Care, Employers, and Guardianship

Chapter 163 extends beyond criminal courts.

Covered schools and child-care settings may not permit civil-law-enforcement arrests on their grounds or premises without a judicial warrant or judicial order, subject to the Act’s exceptions. Their required policies must be in effect by September 1, 2026, or the first day of the 2026 to 2027 school year, whichever is earlier.

All covered health-care providers must restrict civil arrests in areas they designate as nonpublic without a judicial warrant, subject to the Act’s exceptions. By September 4, 2026, the Departments of Public Health and Mental Health, in consultation with the Attorney General, must issue the model policy required by M.G.L. c. 111, § 251(d). By October 4, the providers identified in § 251(c) must adopt a provider-specific policy. Other covered providers may adopt one.

The Act separately requires the Governor to publish multilingual guidance for state agencies, private entities, law enforcement agencies, school districts, and individuals by February 11, 2027.

An employer that receives an ICE notice of inspection for I-9 forms or other employment records must, except where federal law requires otherwise, provide written notice to each employee within forty-eight hours.

The guardianship amendments make an adverse immigration action against a parent or guardian an event that can activate a parental appointment under M.G.L. c. 190B, § 5-202. The definition includes immigration detention, departure under specified removal or voluntary-departure processes, and denial of admission or entry. The appointment does not supersede either parent’s parental rights. If both parents are dead, have been adjudged incapacitated, or are subject to an adverse immigration action, the appointment made by the parent who was last to experience one of those events receives priority.

These provisions can affect a defendant’s family, employer, school, or medical care even when they do not determine the criminal charge. They should be addressed with counsel for the affected legal matter rather than treated as part of the criminal disposition alone.

What Chapter 163 Does Not Change About Criminal Immigration Consequences

Chapter 163 changes state enforcement practices and procedures. It does not amend the federal definition of a conviction or the federal grounds of inadmissibility and deportability. A Massachusetts continuance without a finding can still satisfy 8 U.S.C. § 1101(a)(48)(A), and a suspended sentence still counts under § 1101(a)(48)(B). A conviction may trigger an offense-based ground, while the protection-order ground in 8 U.S.C. § 1227(a)(2)(E)(ii) turns on a qualifying court determination and does not require a conviction.

The Act does not change whether a plea, admission, or sentence triggers inadmissibility, removability, loss of status, visa consequences, or a naturalization issue. The firm’s pages on immigration consequences of Massachusetts criminal charges and criminal convictions for immigrants and visa holders provide the broader federal analysis. This post addresses the new Massachusetts procedures created by Chapter 163.

Practical Steps in a Massachusetts Criminal Case

At arrest or questioning. Invoke the right to remain silent and request a lawyer. Do not answer investigative questions about the alleged offense or immigration status without counsel, and do not provide false information. Expect ordinary identification, booking, fingerprinting, and criminal-record procedures to continue.

At bail. If the Commonwealth invokes a removal order, counsel should require evidence addressing every part of amended § 58. The defense should also present the ordinary appearance factors, including local residence, family, employment, prior appearances, financial resources, and feasible conditions of release.

Before a courthouse appearance. Do not default. Beginning November 3, chapter 221D regulates civil arrests in the courthouse and its defined curtilage. A person with a particular immigration concern should speak with both lawyers before appearing rather than miss the state case.

While detained. Ask to contact criminal and immigration counsel through confidential channels. Beginning November 3, § 87B establishes specific telephone, video, notice, location, transfer, and language-access requirements in covered Massachusetts facilities.

When the person is a victim or witness. Keep the reporting and cooperation record. Beginning November 3, the certifying entity must follow the new written-policy, response-time, helpfulness, and denial rules. Immigration counsel should decide whether and how a certification supports a federal filing.

Before any plea or admission. Complete the offense, sentence, and status-specific federal analysis. Chapter 163 does not replace the advice required by Padilla v. Kentucky, 559 U.S. 356 (2010), or the Massachusetts court warning under M.G.L. c. 278, § 29D. The firm’s Padilla motion and new-trial page addresses earlier dispositions entered without adequate advice.

Bottom Line

Chapter 163 changes how Massachusetts institutions interact with civil immigration enforcement while preserving ordinary criminal-law functions. The bail amendment became effective August 5, 2026. The restrictions on status inquiries, information sharing, state and local participation, detainers, and specified 287(g) agreements begin September 4. The courthouse civil-arrest rules, detention access-to-counsel provisions, and replacement T- and U-visa certification process begin November 3.

For a noncitizen defendant, the law creates specified procedural protections governing state and local conduct but does not decide the federal consequence of the charge. The criminal defense must still address the Massachusetts evidence and disposition, while immigration counsel addresses removal, admission, status, federal custody, and relief. Those two strategies should be coordinated before bail litigation, an admission, or a plea.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and represents noncitizens in the Boston Municipal Court and Massachusetts District Courts. He handles the criminal case and coordinates with the client’s immigration lawyer where the charge or proposed disposition presents a federal consequence. Serpa Law Office can be reached at 617.936.0201.

Related Serpa Law Office Resources

• Immigration Consequences of Massachusetts Criminal Charges
• Criminal Convictions for Immigrants and Visa Holders
• Crimes Involving Moral Turpitude and Aggravated Felonies
• Domestic Violence Charges and Immigration in Massachusetts
• Massachusetts Bail
• Arraignment in Massachusetts
• What to Do in the First 24 Hours After an Arrest
• The Right to Remain Silent in Massachusetts
• Padilla Motions and New Trials in Massachusetts
• Massachusetts Criminal Records and Outcomes