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” [...]

Private prison companies continue thriving off immigration imprisonment

The nation’s two largest private prison companies released information last week indicating that they continue to do quite well by contracting with ICE and other federal government agencies responsible for detaining migrants. Corrections Corporation of America (CCA) and GEO Group, respectively the largest and second-largest private prison companies operating in the United States, have long been involved in immigration imprisonment. That trend does not appear to be abating, but they are diversifying their business operations. CCA is huge. During the quarter that ended June 30, 2104, it [...]

Life on the border

To grow up on the border is to grow up privileged. Not in the material sense. The Río Grande Valley of South Texas, where I was born and raised, remains one of the poorest regions of the United States. It is a privilege—or at least it was for me—because of the region’s binational, bicultural, and bilingual core. And yet that benefit is often threatened by national policies that see the border as a division rather than a bridge. The politics of fear and divisiveness frequently frame the border as the “thin edge of / barbwire,” as the great Chicana intellectual who also grew up in the Río Grande [...]

State crimmigration lawmaking


Immigration law, the standard refrain goes, is firmly in the hands of the federal government. In the language of judicial doctrine, the federal government has plenary power over immigration. As the Supreme Court put it in the late nineteenth century, “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States this power is vested in [...]

Revisiting the exclusionary rule’s role in immigration proceedings

By Lindsay Adkin Thirty years ago in its landmark decision, INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Supreme Court held that the exclusionary rule should not apply to removal proceedings. Applying a cost-benefit analysis, the Court concluded that whatever benefit exclusion offered in immigration proceedings was outweighed by the cost of allowing removable immigrants to remain in the United States. Whether or not that was a proper assessment in 1984, the state of immigration law today—especially the rise of crimmigration law—leads to the opposite conclusion: the exclusionary rule [...]

9 Cir: Clarifies difference between divisible & indivisible statutes

The U.S. Court of Appeals for the Ninth Circuit jumped into the minutia of crimmigration law with a recent decision on a critically important topic: how to distinguish between divisible and indivisible statutes. Rendon v. Holder, No. 10-72239, slip op. (9th Cir. Aug. 22, 2014). Judge Reinhardt issued the court’s opinion. This case involved an LPR who was convicted of second-degree burglary in California. The BIA found that his conviction, pursuant to Cal. Penal Code § 459, constituted an attempted theft offense type of aggravated felony under INA § 101(a)(43)(U). In relevant part, the [...]