9 Cir: Arizona’s no bail law is unconstitutional

After years of litigation, the U.S. Court of Appeals for the Ninth Circuit announced yesterday that Arizona’s no bail law for unauthorized migrants violates the Due Process Clause of the Fourteenth Amendment. Lopez-Valenzuela v. Arpaio, No. 11-16487, slip op. (9th Cir. Oct. 15, 2014) (en banc). This case involved a facial challenge to Arizona’s Proposition 100, a slate of amendments to the state constitution that, among other things, prohibit state judges from setting bail of any amount for people charged with a slew of state felonies if the judge had probable cause to believe that the [...]

IJ: TX assault isn’t crime involving moral turpitude

Courts have long used the categorical approach to determine whether a migrant has been convicted of a removable offense. Along with its sibling, the modified categorical approach, this method of statutory interpretation is central to the work of crimmigration attorneys. In the last year, attorneys and courts have had much to consider as they’ve grappled with the impact of the U.S. Supreme Court’s 2013 decision in Descamps v. United States, 133 S. Ct. 2276 (2013) (which I blogged about here). There the Court reiterated that the categorical approach remains the default method of statutory [...]

Immigration detention population drops in FY ‘13, while removals increase to all-time high

The Department of Homeland Security detained a remarkably large number of migrants in fiscal year 2013—440,557—but not as many as the record high reached the previous year. DHS, Immigration Enforcement Actions: 2013 Annual Report 6 (September 2014). Removals, meanwhile, increased to what the department calls an all-time high of 438,421. Id. People convicted of nothing more serious than an immigration offense continue to face removal in increasing numbers. The number of migrants detained over the course of FY 2013 was 36,966 fewer than the 477,523 detained the previous year. To contextualize [...]

GA Supreme Court: “Could” be deported isn’t good enough for aggravated felony conviction

The Georgia Supreme Court took a strong stance in defense of the Sixth Amendment’s right to effective assistance of counsel recently when it held that advising a migrant defendant facing an aggravated felony conviction that he “could” be deported violated the U.S. Constitution. Encarnacion v. State, No. S14A0690, slip op. (Ga. September 22, 2014). Chief Justice Thompson wrote the court’s decision. This case involved a migrant convicted by way of a guilty plea to burglary. The parties and the court agree that this is a burglary offense as defined for immigration law purposes, INA § [...]

BIA continues eroding categorical approach

The Board of Immigration Appeals continued its efforts to resist the principal means of analyzing statutes that the Supreme Court requires in a case involving a drug conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014). Board Member Pauley wrote the panel’s decision. This case involved an LPR convicted via guilty plea of “sale of illegal drugs” in Connecticut. The immigration judge found that this conviction constituted illicit trafficking, a variety of aggravated felony, INA § 101(a)(43)(B), and a controlled substance offense, INA § 237(a)(2)(B)(i). On appeal, the migrant argued [...]

Is DHS admitting immigration detention is punishment?

Despite the vast number of migrants who are detained every year while waiting to learn whether they will be allowed to remain in the United States—almost 480,000 at last count—the federal government has consistently maintained that immigration detention is not punishment. It is civil confinement, the refrain goes. Detainees, advocates, and scholars, including me, have hammered away at this position, claiming it is more myth than reality, but government sources have held steadfast. Recent statements by multiple DHS officials, however, suggest that the federal government might finally be [...]

BIA deviates from categorical approach; expands use of “circumstance-specific” analysis

Bucking the Supreme Court’s persistent emphasis on the categorical approach, the Board of Immigration Appeals rejected that analytical method for the controlled substance offense’s personal use exception. Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014). Board Member Pauley wrote the panel’s decision. This case involved an LPR convicted under Nevada law of possessing more than one ounce of marijuana. DHS claimed that this constitutes a controlled substance offense under INA § 237(a)(2)(B)(i). The immigration judge disagreed. Instead of engaging in a “circumstance-specific” [...]