President Obama’s proposed budget for the 2015 fiscal year, unveiled on Tuesday, contains several indications of his administration’s immigration law priorities. Most remarkably, the administration would cut the number of immigration detention beds DHS maintains while expanding the immigration judge corps.

The proposed budget claims to “[f]ocus[] resources for immigration detention of mandatory and priority individuals, such as violent criminals and those who pose a threat to national security, while expanding less costly alternatives to detention programs” (p. 87). This is a variation of the administration’s oft-repeated claim to focus on the worst immigration law offenders.

Just as often, though, this claim is contradicted by the administration’s own statistics. In December, for example, DHS reported that 52.44% of the 477,523 people detained in FY 2012, the last year for which data have been released, had no criminal history (see my blog post about these data here). What’s more, available information suggests that those convicted of a crime aren’t dangerous and only a small number have committed a violent crime. According to DHS data obtained by Human Rights First of immigration detainees held on May 2, 2011, ICE classified 19% as “high risk” detainees and a mere 11% had committed violent crimes. The rest were classified as low risk (41%) or medium risk (40%) (see my previous blog post about these data here). With a track record like this, it’s hard to trust the administration to actually focus on “violent criminals and those who pose a threat to national security,” assuming for now that that’s even a worthy goal.

The budget also announces a reduction in the number of beds DHS maintains from the current 34,000 to 30,539. At a reported cost of $116 per day per bed, DHS claims that shaving a few thousand beds from the detention estate would save the government approximately $185 million (p. 66). Fewer beds certainly makes sense given that most people filling them pose no danger, but it’s unclear why the administration thinks more than 30,000 beds are necessary. Neither the White House nor DHS provided an explanation.

Furthermore, though it’s commendable that the budget suggests expanding alternatives to detention (ATDs), such programs are not without complications. As I wrote last August,

Though ATD programs ought to be expanded as a way of decreasing the detention population, ICE’s use of ATD programs needs to be watched closely. The agency, it seems, could easily be tempted to use ATD programs for individuals who pose such little risk of flight or danger to the community that they do not merit detention. This could quickly become “a large-scale regime of ‘alternatives to release,’ rather than true ‘alternatives to detention,’” as Anil Kalhan warned. Anil Kalhan, Rethinking Immigration Detention, 110 Columbia Law Review Sidebar 42, 56 (2010). Indeed, a recent Miami Herald article reported that ICE sometimes moves people into ATD programs who would show up to their hearings without monitoring. Brenda Medina, Instead of Detention, Many Undocumented Immigrants Being Electronically Monitored, Miami Herald (June 7, 2013).

In a separate section, the President’s budget proposes “to add 35 new immigration judge teams, [and] expand the successful Legal Orientation Program” (p. 103). Both would be very welcomed. The immigration courts are drowning under an enormous backlog. It currently takes on average 573 days for a case to wind its way through the immigration court system. Adding 35 new IJ teams isn’t likely to erase the backlog, but any additional resources would be helpful. It’s unclear what constitutes an “immigration judge team,” but assuming that refers to support staff such as law clerks, this is an even better proposition. Right now there are reportedly about 3 immigration judges for every law clerk, and without question they could greatly benefit from the assistance of more new attorneys that tend to fill clerk positions.

Similarly, the Legal Orientation Program has been a wonderful innovation in immigration courts and deserves to be expanded. Funded by the Justice Department’s Executive Office for Immigration Review, the agency that houses the immigration courts, the LOP gives immigration detainees information about immigration law, including relief from removal. In a report by the Vera Institute for Justice, participants in the LOP who were in detention had their cases completed substantially faster than non-participants (p. 48). In addition, LOP participants are less likely to fail to appear for an immigration court date than non-participants (p. 56).

Overall, the proposed budget represents an improvement over the status quo. Of course, that’s largely because immigration law enforcement has been on overdrive for many years while the immigration court system has been equally underresourced.

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By Jordan Cunnings

In a recent New Yorker interview, President Obama described marijuana use as a “bad habit and a vice, not very different from. . . cigarettes,” and not more dangerous than drinking. The President expressed concern with the disproportionate rates of criminal punishment for marijuana use in poor and minority communities, and spoke favorably of recent efforts to legalize small amounts of the drug in the states of Colorado and Washington.

While Obama’s comments may be a good sign for marijuana legalization advocates, his personal viewpoint is glaringly inconsistent with his administration’s consistently harsh enforcement efforts in the area of marijuana use and immigration. While marijuana use is legal in one form or another in twenty states and the District of Columbia, and banks now have the green light from the Treasury Department to finance legally operating marijuana dispensaries, noncitizens remain at risk for incredibly harsh and disproportionate immigration consequences when using small amounts of marijuana. Low-level marijuana charges often funnel noncitizens into the immigration law system, prevent otherwise-eligible noncitizens from obtaining lawful immigration status, and subject lawfully present noncitizens to deportation. Worse yet, marijuana laws are disproportionately enforced in poor and minority communities—as Obama himself noted, “[m]iddle class kids don’t get locked up for smoking pot, and poor kids do”—meaning that marijuana citations and arrests may disproportionately impact the people of color who make up the bulk of today’s immigrant groups.

Though recent prosecutorial discretion memos by the former head of the Immigration and Customs Enforcement (ICE) agency John Morton purport to refocus enforcement priorities away from individuals who have only minor criminal histories, immigration law enforcement statistics from the past two years show that this policy is not being followed. Marijuana laws are disproportionately enforced in poor and minority communities– as Obama himself noted, “[m]iddle class kids don’t get locked up for smoking pot, and poor kids do”—meaning that marijuana citations and arrests often serve as entry point into the criminal justice system and then the deportation system. A Transactional Records Access Clearinghouse (TRAC) review of ICE documents from fiscal years 2012 and 2013 found that marijuana possession was one of the top five most common offenses for which ICE issued immigration detainers against individuals. This means that thousands of noncitizens are funneled into ICE custody after being charged with low-level marijuana possession offenses.

Once in removal proceedings, noncitizens with a history of marijuana use face significant barriers to fighting removal. A single marijuana possession offense, no matter how minor, makes a noncitizen inadmissible, INA § 212(a)(2)(A)(ii), which can often close off eligibility for types of relief from deportation like non-LPR cancellation under INA § 240A(b) or adjustment of status under § 245. A noncitizen otherwise eligible to receive an immigrant visa would be rendered presumptively ineligible for that visa with one marijuana offense on her record, no matter how long ago the offense occurred and how little marijuana was involved. A limited waiver is available under INA § 212(h), but only if the applicant can prove that the offense involved “a single offense of simple possession of thirty grams or less of marijuana,” and, unless the offense occurred fifteen years before the application for admission, that denial of the waiver would cause extreme hardship to a qualifying relative. If criminal records are incomplete or missing, it can be exceptionally difficult for waiver applicants to meet their burden of proving that the offense involved less than 30 grams of marijuana, and extreme hardship is a very high standard to meet, meaning that many of these waivers are denied. Though precise data on § 212(h) waiver approval and denial rates are unavailable, a rough gauge of the high threshold to obtaining one comes from State Department reports on the success of challenges to findings of inadmissibility on controlled substances offense bases. For example, in Fiscal Year 2012, less than 15 percent of individuals found ineligible by consulates for immigrant visas on controlled substance grounds were able to overcome that inadmissibility via a waiver or by proving that the ground did not apply.

The controlled substance deportability ground, INA § 237(a)(2)(B)(i), also operates harshly against noncitizens convicted of marijuana offenses. Though the INA contains a personal use exception at § 237(a)(2)(B)(i), which, like the 212(h) waiver, excuses one offense involving simple possession of thirty grams or less of marijuana, this exception often operates narrowly. As explored previously on the crImmigration blog, the BIA has interpreted offense to mean conviction, meaning that two convictions from the same instance of using marijuana (like drug possession and possession of drug paraphernalia, for instance) make an individual ineligible for the exception. Individuals with two or more marijuana offenses also can be subject to removal as aggravated felons, if the second offense is charged as a recidivist offense. Matter of Cuellar-Gomez, 25 I. & N. Dec. 850, 862 (BIA 2012), distinguishing Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010).

Additionally, in places where marijuana use has not been legalized but penalties for the use of small amounts have been significantly lowered, noncitizens very often face low-level marijuana charges without the assistance of court-appointed counsel who would be required to advise them of the immigration consequences of their charges. Because criminal defendants do not have a constitutional right to counsel if their charges could not result in actual imprisonment,¹ states facing budget crises have an incentive to lower penalties for low-level drug offenses and thus save money in their indigent defense budgets. When then-governor of California Arnold Schwarzenegger signed Senate Bill 1449, for example, reducing penalties for possessing less than 28.5 grams of marijuana from a misdemeanor to an infraction, he justified the bill in part because the state would save money by not having to provide defense attorneys for these cases. Noncitizens facing these charges without counsel may not realize that admitting guilt of a marijuana violation by paying a small fine or accepting probation can lead to near-automatic removal from the country.

While these inadmissibility and deportability grounds have inflicted harsh and disproportionate consequences on noncitizens for decades, the injustice of these provisions is even more obvious against the backdrop of national moves towards decriminalization and President Obama’s recent comments. At least theoretically, inadmissibility and deportability grounds are meant to correspond with society’s views on what constitutes appropriate behavior for its members. Since a decisive majority of Americans now favor marijuana legalization, marijuana use should no longer be grounds for the removal of noncitizens from the United States.

Legalization advocates are hopeful that substantive changes to federal drug laws could be forthcoming. But in the meantime, there is no excuse for the continued deportation or exclusion of immigrants for marijuana use. In the criminal justice realm, judges should ensure that counsel is appointed to any noncitizen facing drug charges, even charges that don’t carry potential jail time, so a proper advisal on immigration consequences can be provided. And if President Obama truly cares about disproportionate and biased punishment rates for marijuana use, he should turn his eye to the immigration realm. An expansion of prosecutorial discretion to meaningfully protect individuals with minor marijuana convictions from deportation would be at least a first step towards aligning his actions with his words.

Jordan Cunnings is currently a third-year law student at UCLA School of Law. She served as Chief Articles Editor of Volume 61 of the UCLA Law Review, and is pursuing specializations in Critical Race Studies and the David J. Epstein Program in Public Interest Law and Policy.

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^{1. See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972); Scott v. Illinois, 440 U.S. 367, 369 (1979). ↩}

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A report issued by the Justice Department’s Bureau of Justice Statistics indicates that immigration crime continued to take up more time on the federal criminal docket during the 2010 fiscal year. Mark Motivans, Federal Justice Statistics, 2010 (Dec. 2013). Law enforcement actions targeting immigration crimes have driven up arrests and investigations of federal crimes, while also affecting the daily work of federal criminal courts.

Immigration crime was the most common category of federal crime for which suspects were arrested and booked by the U.S. Marshals Service (USMS), the federal agency responsible for taking a criminal suspect into custody. According to the report, 46.1% of all people arrested and booked by the USMS in FY 2010 were suspected of having committed an immigration crime. This is a jump from FY 2006 when 32.8% of suspects met this fate for this reason. Id. at 3 tbl.2. Indeed, “[i]mmigration offenses increased by an average of 16% from 2006 to 2010, making it the fastest growing offense among suspects arrested and booked by the U.S. Marshals Service. Immigration arrests doubled from 1994 to 1994. Immigration arrests nearly doubled from 1998 to 2004, and doubled from 2004 to 2008.” Id. at 4.

Most of these individuals were taken into USMS custody in the judicial districts along the United States-México border. The Southern District of Texas, a district that runs from Houston south to the Río Grande Valley, led the way with 103,689 people taken into federal custody due to an immigration crime charge from 2006 and 2010. Id. at 4 map 2.

Not surprisingly, immigration provided the federal courts and U.S. Marshals with plenty of work. “Immigration offenses increased from 2,453 cases filed in 1994 to 29,016 in 2010.” Id. at 17. Similarly, DHS’s Customs and Border Protection and Immigration and Customs Enforcement divisions accounted for 53.5% of all suspects arrested and booked by the USMS in FY 2010. Id. at 7 tbl.3.

DHS also kept U.S. attorneys, the nation’s federal prosecutors, busy. After having provided U.S. attorneys with 35.8% of their suspects in 2006, DHS accounted for 53.8% in FY 2010. Id. at 12 tbl.5. Given DHS’s role in funneling cases into the federal courts, it is again not surprising that immigration crimes accounted for a large percentage of the cases that U.S. attorneys concluded in FY 2010—an impressive 44.6% up from 25.9% in FY 2006. Id. at 12 tbl.6. This was the fastest growth rate of any type of federal crime. Id. at 12.

In all but a tiny fraction of matters, U.S. attorneys chose to move forward with a criminal prosecution when it involved an immigration crime. Although U.S. attorneys declined to prosecuted 15.8% of all matters investigated (called the “declination” rate), in FY 2010 it declined to pursue only 0.9% of instances of alleged immigration crime. The next lowest declination rate is the 16.5% for drug crimes. Id. at 13 tbl.7.

Interestingly enough, immigration crime defendants tend to see the inside of a jail cell more often than other types of federal defendants while their case is pending. While 76.1% of all federal defendants were detained prior to case termination in FY 2010, 87.5% of immigration crime defendants did so. The next highest detention rate was for individuals accused of violent offenses—86.1% of those defendants were detained pending case termination. Id. at 16 tbl.9.

Once the government chose to prosecute an immigration crime it was almost assured a conviction. A whopping 97.2% of immigration cases prosecuted in the federal district courts resulted in a conviction. This is a significant bump from the already remarkable 91.3% conviction rate for all offenses. Id. at 19 tbl.11.

Upon conviction, individuals convicted of an immigration crime tend to see less prison time than other federal defendants. While federal defendants were sentenced to a median prison term of 31 months for all offenses in FY 2010, immigration crime defendants received a median term of 15 months. No other category of federal felony reported a lower median prison term in FY 2010. The median prison term for federal felonies of all types was 3 months. Id. at 22 tbl.13.

Even though their prison terms come in well below other crimes, “[i]mmigration offenders comprised 12% of the prison population in 2010, rising slightly from…11% of the prison population in 2001.” Id. at 23.

I don’t see any reason to think that these upward trends will change anytime soon.

The U.S. Court of Appeals for the Ninth Circuit held the generic definition of “conspiracy” used in the aggravated felony definition requires an overt act in furtherance of the conspiracy, but Nevada’s conspiracy offense does not. This discrepancy between the federal generic definition and the state statute means a conviction under the Nevada conspiracy statute is not a conspiracy type of aggravated felony. United States v. García-Santana, No. 12-10471, slip op. (9th Cir. Feb. 20, 2014) (Alarcón, Berzon, and Zouhary, JJ.). Judge Berzon wrote the panel’s opinion.

This case involved a woman who was convicted in 2002 of conspiracy to commit burglary in violation of Nevada Rev. Statute §§ 199.480, 205.060(1). Two weeks later she was removed from the United States using the summary removal procedure authorized by INA § 238(b). García-Santana, No. 12-10471, slip op. at 3. This procedure grants immigration officials authority to remove a non-LPR who they deem to have been convicted of an aggravated felony. Individuals subject to summary removal usually do not see an immigration judge.

Seven years after having been summarily removed, García reentered the United States without authorization. Eventually she came to ICE’s attention and was indicted for illegal reentry, the federal felony found at INA § 276. She moved to dismiss that prosecution on the basis that her prior removal was unconstitutional insofar as she had been denied her right, based in the Due Process Clause, to a fundamentally fair immigration proceeding. She claimed that her 2002 removal was fundamentally unfair because she had been denied the right to seek relief—namely, voluntary departure—for which she was eligible. Because immigration officials denied her the opportunity to seek relief because they concluded her Nevada conspiracy conviction constituted an aggravated felony, the key question before the court was whether immigration officials in 2002 erred. Id. at 4. The district court found that they did and the Ninth Circuit affirmed. Id. at 5.

To decide this, though, the court had to determine whether Nevada’s conspiracy offense matches the definition of “conspiracy” used for aggravated felony purposes. Whether the state and federal definitions match turns on whether an overt act in furtherance of the conspiracy is required. The Ninth Circuit easily concluded that Nevada’s conspiracy offense “requires no proof ‘that any overt act was done in pursuance of such unlawful conspiracy or combination.’” Id. at 8 (quoting Nev. Rev. Stat. § 199.490).

The federal generic definition used the aggravated felony definition, INA § 101(a)(43)(U), provided little more difficulty though more legwork. The court first explained that the generic definition of a crime turns on its “contemporary usage” and to glean that “we survey the definitions codified in state and federal statutes, adopted by the Model Penal Code (‘MPC’), and endorsed by scholarly commentary.” Id. at 9. All point toward a generic definition that requires an overt act. First, the court canvassed state penal codes as well as the penal codes of Washington, DC, Guam, Puerto Rico, and the Virgin Islands. Of these 54 jurisdictions, 40 require an overt act. Id. at 9. Second, the MPC requires an overt act. Lastly, a scholarly treatise regularly relied upon by the Supreme Court does too. Id. at 11. This was more than enough for the court to comfortably conclude that contemporary usage of “conspiracy” requires an overt act.

Though the court had no trouble identifying the generic definition’s requirements, it did spend a bit of time explaining that its holding constitutes a rejection of the BIA’s position in Matter of Richardson, 25 I&N Dec. 226, 228 (BIA 2010), that “conspiracy” as used in INA § 101(a)(43)(U) refers to the term’s definition at common law which does not require an overt act. Id. at 15. Nothing in the statutory text or legislative history indicates that Congress sought to use the common law definition that most jurisdictions had ceased to follow, the court explained. In the court’s words, “As the INA aggravated felony definition is used to impose collateral consequences for earlier state and federal convictions, Taylor and Duenas-Alvarez direct us to presume that Congress sought to track contemporary state criminal practice, not now-abandoned common law concepts.” Id. at 18 (discussing Taylor v. United States, 495 U.S. 575 (1990), and Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007)).

The proper interpretation of “conspiracy” as used in INA § 101(a)(43)(U), therefore, is in light of contemporary trends requiring “performance of an overt act in pursuit of the conspiratorial objective. García-Santana, No. 12-10471, slip op. at 8. Because Nevada’s conspiracy offense lacks an overt act requirement, a conviction under the Nevada statute is not an aggravated felony under INA § 101(a)(43)(U).

The U.S. Court of Appeals held that the Sixth Amendment right to receive advice about the immigration consequences of a conviction does not apply prior to March 31, 2010 whether the criminal defense attorney affirmatively provided incorrect advice or simply failed to say anything about possible immigration consequences. Chavarria v. United States, No. 11-3549, slip op. (7th Cir. Jan. 9, 2014) (Cudahy, Ripple, and Hamilton, JJ.). Judge Cudahy wrote the panel’s opinion.

This case involved an LPR who was convicted in 2009. After the Supreme Court announced in Padilla v. Kentucky 559 U.S. 356 (2010), that the Sixth Amendment’s right to counsel clause obligates criminal defense attorneys to inform their clients about possible adverse immigration consequences of conviction, Chavarria sought to vacate his conviction. Two years after it issued Padilla, the Supreme Court added that this Sixth Amendment obligation only applies to convictions entered after the date Padilla was announced—March 31, 2010. Chaidez v. United States, 132 S. Ct. 1103 (2012).

In light of Padilla and Chaidez, Chavarria “now argues that Chaidez distinguished between providing no advice…and providing bad advice….” Chavarria , No. 11-3549, slip op. at 3. A defendant who received bad advice, Chavarria contends, can rely on ineffective assistance of counsel case law that existed prior to Padilla to attempt to vacate the conviction even if it was entered prior to March 31, 2010, but a defendant who received no advice can not. Id.

The Seventh Circuit quickly dismissed Chavarria’s argument. The distinction between no advice and bad advice “was not a relevant factor in Padilla,” the court concluded. Chavarria , No. 11-3549, slip op. at 4. Indeed, the court went on, “in its analysis, the Padilla majority was unconcerned with any distinction between affirmative misadvice and non-advice; because, until Padilla was decided, the Sixth Amendment did not apply to deportation matters at all.” Chavarria , No. 11-3549, slip op. at 5. Sixth Amendment case law, including the extensive body of law that existed around the effective assistance of counsel requirement, was “irrelevant” prior to the date Padilla was announced. Id. It could, therefore, not be of help to Chavarria.

By Geoffrey Boyce

On February 11, articles in the New York Times and the Washington Post focused attention on Operation Streamline, the federal program under which as many as 80 unauthorized border crossers may be charged, convicted and sentenced in a hearing lasting as little as half an hour. Those convicted under Streamline face sentences of up to 180 days for “illegal entry,” INA § 275, or 2 to 20 years for “illegal reentry,” INA § 276, depending on whether they have a previous “aggravated felony” conviction in the United States.

Readers of crImmigration.com are likely familiar with Operation Streamline, which is responsible for an alarming increase in criminal prosecutions for immigration-related offenses since its inception in 2005. According to Syracuse University’s Transactional Records Access Clearinghouse, Streamline-related prosecutions grew to 91,135 in FY 2013, constituting a significant plurality of all federal criminal cases. Because so many immigrants are from Latin America, one of Streamline’s effects on the criminal justice system is that fully 48% of those sentenced to federal prison are now Latino.

Yet despite billing Streamline as a “zero tolerance” program, the U.S. Border Patrol only referred about 22% of the 364,000 border crossers apprehended in 2012 for criminal prosecution of any kind – this despite the fact that Streamline is now active in all Border Patrol sectors in Arizona, New Mexico and Texas. As Border Patrol chief Mike Fisher explained in testimony to the U.S. House of Representatives:

“Criminal prosecutions are essential to border security operations; however the volume of border related illegal activity restricts the percentage of criminal cases that the Border Patrol is able to process within the criminal justice system.… [d]ue to limitations imposed by the labor, detention costs, and the expense of criminal prosecutions and administrative proceedings.”

If, despite its “streamlined” court procedure, only a fraction of migrants apprehended by the Border Patrol are able to be run through Operation Streamline, how, then, do the Border Patrol and Justice Department select and decide whom to prosecute?

Key to answering this question is what the Border Patrol calls the “Consequence Delivery System” (CDS). In its 2012-2016 National Strategic Plan the Border Patrol announced the CDS as the backbone of its transition from a “resource-based” to a “risk-based” approach to its enforcement mission. According to the agency:

“The CDS measures the consequences applied to persons illegally entering the country against defined alien classifications. CDS provides a process designed to uniquely evaluate each subject and apply the appropriate post-arrest consequences to that individual to break the smuggling cycle and end the subject’s desire to attempt further illegal entry. The CDS is a means of standardizing the decision-making process regarding the application of consequences and provides for the evaluation of outcome effectiveness.”

The litany of “consequences” that can be applied to an apprehended individual include:

• prosecution through Operation Streamline
• “fast track” prosecution for illegal reentry
• lateral repatriation – wherein individuals are separated from travel companions (including loved ones) and deported to ports of entry far from the site of apprehension
• internal repatriation (via flight to Mexico City)
• transfer to Mexican authorities for criminal prosecution (applied to alleged human smugglers)
• expedited removal
• formal reinstatement of removal.

Within CDS, the “consequence” that is applied to an individual is supposed to be determined by factors that would indicate their risk of “recidivism” (e.g., crossing again in the future), rather than solely – or even primarily – the severity of that individual’s actions, behavior, immigration or criminal history.

The Border Patrol has not made public its “standardized” methodology for calculating “risk” or applying consequences. However, in order to calibrate the CDS the Department of Homeland Security has reached out to social scientists to conduct research on migrant detainees. In summer 2012 the DHS Office of Immigration Statistics contracted with the University of Arizona’s “National Center for Border Security and Immigration” to interview a total of 1,016 recently apprehended individuals inside the Border Patrol’s Tucson Sector headquarters. A team of seven researchers worked in shifts, asking detainees a list of detailed biographical questions and calculating how their answers correlated to these same individuals’ stated intention to cross the border again in the next seven days or at any point in the future. In their published report, the researchers identify a number of factors that, they claim, correlate to a higher risk of recidivism. These include:

• Individuals who currently live in the U.S. or consider the U.S. home
• Those with relatives in the U.S.
• Those crossing to work, study, or unite with friends or family
• Those with more years of education
• Those with a greater number of previous attempts
• Those who have crossed successfully in the past.

In addition, the researchers identify several factors that supposedly make one less likely to cross again, namely:

• Individuals crossing to look for work only
• Those with only one previous crossing attempt
• Those whose crossing experience was particularly difficult or traumatic.

According to the Border Patrol, the shift to a “risk-based” approach should be credited with a long-term reduction in the number of unauthorized crossings and the recidivism rate of Border Patrol detainees. Yet there is reason to be skeptical of this claim. The long-term decline in apprehensions began as early as 2001, well before the advent of Operation Streamline or Consequence Delivery. Meanwhile, the most recent significant decline correlates to the 2008 economic crisis, rather than any change in Border Patrol policy.

Pointedly, the University of Arizona study itself found that knowledge or experience of prosecution or related enforcement “consequences” had little deterrent effect on migrant detainees. As the report states:

“During the interviews, subjects frequently made comments such as ‘I understand the consequences, but the need to go to the U.S. is greater’. Many subjects also commented that it is not the legal consequences of crossing that deter them, but rather the difficulty and danger of crossing the desert.”

Regardless of the efficacy of the Border Patrol’s various deterrent practices, it is worth considering, on a broader level, the implications the agency’s “Consequence Delivery” model.

There is no person who “deserves” to be processed through a program like Operation Streamline. Streamline funnels tens of thousands of individuals into U.S. prisons annually. Many of these individuals’ only offense is directly related to their immigration status, and due to associated bars to lawful re-entry their criminal convictions may render them inelligible for future immigration relief (as would have been the case under S.744, the 2013 Senate immigration bill). The program’s faults simultaneously extend well beyond its harmful impacts on individual border crossers, leading its many critics to call for the program to be ended.

In the meantime, based on what we know about the Border Patrol’s Consequence Delivery System, it is those most often highlighted by the President and Congressional advocates as priority candidates for immigration relief and reform – e.g., those with immediate family members in the U.S., those most assimilated into U.S. culture, and those with the highest educational profile – who are most likely being identified as having a higher “risk” of recidivism, and therefore singled out for Streamlined prosecution. Such an outcome should give us pause, and cause us to question whether the President is really sincere when he discusses his immigration priorities.

Geoffrey Boyce is a PhD candidate in the School of Geography and Development at the University of Arizona. He conducts research, writes and blogs on Homeland Security and immigration-related issues along the northern border and in the U.S. southwest. He can be reached at gboyce [at] email.arizona.edu.

By April M. Schueths

“I feel like I’ve changed her life… I feel like I’ve screwed her life up,” Joel laments head in hands, fighting back the tears. Joel, a Mexican immigrant who is undocumented, is facing at least a ten year unlawful presence ban from the U.S. He planned on staying in the U.S. for just a few years to earn some money, but then he met Alyssa, “She’s my right hand, mi media naranja” (my other orange half or soul mate).

When Alyssa, a U.S. citizen, married Joel over ten years ago, they gave little thought to federal laws. They were both musicians and met in their church choir. Even though they were from two different countries they both grew up in small, rural communities and had shared values of faith, family and hard work. They married and had a baby. They lived the American Dream of home ownership and have another baby on the way.

They were told by their attorney to wait for immigration reform, as there is virtually no hope for their family to adjust Joel’s legal status under the current immigration policies. His only other option for adjustment of status was to return to Mexico for at least10 years.

“Where are my rights, my child’s rights as a U.S. citizen? I don’t think any American citizen should be separated from their spouse for this. We can’t even pay a fine.” Alyssa voices her frustration passionately.

Their reality shatters the popular myth that marriage to a U.S. citizen is a direct and easy pathway to citizenship. Alyssa’s experience, and the experience of tens of thousands of other U.S. citizens, supports the position that the full rights and benefits of citizenship are not extended equally to all Americans. Alyssa’s story demands that we reevaluate the assumed benefits of U.S. citizenship in mixed-status marriage.

Alyssa and Joel’s story and the stories of other mixed-status couples are rarely mentioned, especially the ways in which citizen spouses too become marginalized. During the last eight years I’ve talked with many mixed-status couples and U.S. citizen spouses consistently discuss several challenges.

Experiences of Marginalization

Nearly everyone the couple encounters, who knows about their immigration situation, says something along the lines of, “but you’re married, I don’t understand why you’re having all of these immigration problems.” Most people don’t realize that since 1996 that stereotypical “Green Card” marriages for undocumented spouses, especially those with extended unlawful presence in the U.S. or multiple entries, have become relatively outdated. In those situations, marriage alone cannot help someone without documentation adjust his/her legal status. As Abby, a U.S. citizen spouse said, “Nobody gets what it’s like.”

U.S. citizen spouses report that they’ve lost numerous benefits and rights. Here are just a few of the more common issues discussed. Because most employers require a spouse’s social security number to access benefits, citizen spouses aren’t usually able to share their employment benefits with their undocumented spouses. This is important as most undocumented immigrants do not have their own health insurance or a job that provides employer-based insurance. In some cases, couples have trouble even getting a marriage license. Couples report having to figure out which city or county will marry them without a social security number. U.S. citizens that would normally qualify for Earned Income Tax Credit are not eligible if their spouse has an Individual Taxpayer Identification Number (ITIN). This was also the case in 2008 when the federal government sent economic stimulus payments to eligible families. Citizen spouses have even had trouble getting car insurance in their own names. Additionally, couples face restrictions and risks on travel. Most undocumented spouses don’t have a valid driver’s license, but some drive out of necessity (e.g., work, family obligations, etc.). Mixed-status couples cannot fly anywhere together and certainly cannot leave the U.S. together—at least not if they plan to return together.

These citizens feel betrayed by their country when their rights are taken from them.

Mixed-status couples including U.S. citizens experience tremendous distress. They can live a clandestine life in the U.S. but face chronic distress and fear that the rug will be pulled out from underneath them at any moment by falling into immigration detention or deportation proceedings. This is especially true for families that include immigrants of color living in anti-immigrant communities. And this doesn’t even consider the compounded stress and oppression experienced by same-sex couples who are also mixed-status. For many couples, every time they say goodbye they know it could be their last. Even for families that haven’t had a family member detained or deported, most of them know families who have experienced this trauma.

When a spouse has been deported (although some families are pushed out and leave on their own as the stress of living without legal status becomes too stressful), the family may relocate to that spouse's country of origin or in a few cases, an entirely different country. For the most part, undocumented immigrants are migrating from developing nations, with few job prospects. Therefore, exiled families often see their incomes reduced dramatically. Access to quality education, healthcare, and concerns regarding public safety are often mentioned. The final option, and also the least desirable, is to live separate from a spouse and/or children in two different countries. For couples dealing with medical and economic issues, this becomes their difficult reality.

American families are having their families terrorized by U.S. immigration policies. No human is illegal, no family should live in fear, and every citizen should get to be with their other half of the orange.

How can I help? Get involved with groups like American Families United, an advocacy group for mixed-status couples.

Related Publications

Schueths, April M. “Life and Love Outside the Citizenship Binary: Mixed-Status Couples in the U.S.” In In Between the Shadows of Citizenship. Eds. April M. Schueths and Jodie Lawston (under review).

April M. Schueths and Jodie Lawston (Eds). In Between the Shadows of Citizenship: Mixed-Status Families (under review).

Schueths, April M. 2014. “‘It’s almost like White Supremacy’: Interracial Mixed-Status Couples Facing Racist Nativism." Ethnic and Racial Studies (in press).

Schueths, April M. 2012. “Where Are My Rights?” “Compromised Citizenship in Mixed Status Marriage.” Journal of Sociology and Social Welfare 39(4): 97-109.

April M. Schueths, Ph.D., LCSW is Assistant Professor of Sociology at Georgia Southern University. Within the broad area of social stratification her research focuses on the intersection of race/ethnicity with social structures including family, education, and health. She has peer-reviewed articles published in Ethnic and Racial Studies, Latino Studies, Journal of Sociology and Social Welfare, International Journal of Qualitative Studies in Education, and Teaching in Higher Education. She is the co-founder and editor of www.SociologySource.org, a site dedicated to sharing resources and ideas for teaching sociology. You can learn more about April at her website, www.aprilschueths.com.

Editor’s Note: All names have been changed to protect anonymity.

By Izabella Majcher

For over a decade U.S immigration scholars and practitioners have observed a growing convergence between criminal justice and migration control systems. Regular posts at the crImmigration.com blog document the spread of this phenomenon in the U.S. This post, which builds on the author’s Global Detention Project working paper “Crimmigration” in the European Union through the Lens of Immigration Detention, aims to give some insights into how the phenomenon of crimmigration has influenced the European Union (EU) legal system.

Arguably, immigration detention represents the most peculiar manifestation of crimmigration in the EU. The EU immigration detention regime comprises two sets of rules: the 2008 Returns Directive, governing pre-removal detention, and the 2013 (Recast) Reception Conditions Directive, governing asylum detention. Member states are required to transpose the EU directives into their domestic legislation, i.e. to adapt their laws to meet the goals provided in the directives.

There are two distinct trends within the broad phenomenon of crimmigration. The first one, also called “criminalization of migration,” refers to the use of criminal sanctions for violations of immigration law, the most extreme form of which is punishing irregular stay with imprisonment. Importantly, the EU immigration detention regime appears to restrict to a certain extent the scope of this trend. The rulings by the Court of Justice of the EU in El Dridi and Achughbabian, show that the Returns Directive provides for some limits on states’ prerogatives to punish status-related offences with imprisonment. Although in principle criminal legislation falls under the scope of the states’ competence, domestic penal provisions must not jeopardize the achievement of the objectives pursued by EU law. On this basis, the court in found in El Dridi and Achughbabian that imprisonment for the failure to comply voluntarily with the return decision or for irregular stay itself—imposed during or prior to return proceedings—is not compatible with the Returns Directive because criminal prosecution leading to imprisonment would delay removal. This interpretation of the Directive has nevertheless only a limited impact on the criminalization of migration because states are free to impose a sentence of imprisonment if removal has failed. In any case, however, Global Detention Project research appears to show that the formal criminalisation facet of crimmigration is not very common among EU countries. There are few states that punish status-related offences with imprisonment.

Rather, it is the second facet of crimmigration that can be viewed most clearly in the EU. One key aspect is adding criminal offences to the grounds justifying expulsion in immigration legislation. More broadly, however, this trend refers to the incorporation of criminal law’s functions, priorities, and techniques into (administrative) immigration law. As Legomsky observed, this incorporation is selective. Immigration law absorbs stringent features of criminal law enforcement, while deliberately rejecting protective elements that accompany criminal process. ¹ This mismatch is beneficial for states. Authorities may apply criminal justice methodologies while acting within an ambit of (administrative) law that does not require due process guarantees to be observed.

Arguably the EU immigration detention regime is an example of such discrepancy. Across the EU immigration detention is most often defined as an administrative process. Authorities insist that detention of non-citizens is merely a preventive and non-punitive measure resorted to during asylum or removal proceedings. Administrative denomination of this measure is of unquestionable benefit for states. Ordered by executive rather than judicial officers, administrative detention is a flexible and less costly tool than detention ordered under criminal law. For migrants it implies that they do not have access to fair trial guarantees that their criminal counterparts are entitled to under article 6 of the European Convention on Human Rights. Yet, arguably, formally administrative EU immigration detention regime has incorporated criminal justice objectives that can render it punitive in practice.

The above claim that the objective pursued by a sanction may reveal the nature of the sanction as administrative or criminal stems from the jurisprudence of the European Court of Human Rights. Aware that states may tend to qualify a sanction as administrative in order to avoid applying the fair trial guarantees under article 6 of the European Convention, in Engels v. The Netherlands the court developed three non-cumulative criteria to distinguish criminal proceedings from administrative ones. The Engels criteria are as follows: 1) formal denomination of proceedings under domestic law; 2) the nature of offence sanctioned by the penalty in question; and 3) the nature and severity of that penalty. Under the last criterion, the court assesses the nature of the penalty by looking mostly at the objective for which is was imposed. Thus detention that occurs for a reason traditionally associated with punishment—deterrence, retribution, or incapacitation—will be deemed to have a criminal character in practice, irrespective of its formal administrative label under domestic law.

Arguably, each of these criminal justice objectives exists in the EU immigration detention regime. First, it is submitted that the Reception Conditions Directive, due to its broad terms, does not preclude systematic and prolonged detention of asylum seekers aimed at deterring future arrivals. Three grounds justifying detention under the Directive may implicitly allow such practice, notably detention in the context of a procedure to decide on the right to enter the territory; for determination or verification of an asylum seeker’s identity or nationality; and determination of the elements on which the asylum application is based (art. 8(3)). These grounds sanction detention in a vaster range of cases than what is permitted under the United Nations High Commissioner for Refugees’ Detention Guidelines.

The potentially deterrent function of detention under the Directive results also from the fact that, unlike international refugee law, the Directive does not restrict the use of detention only to preliminary assessment of identity or facts on which the asylum application is based. Thus, in contradiction to refugee law, detention sanctioned under the Directive may extend to the whole asylum determination process. Moreover, states are not prevented from detaining asylum seekers for lengthy periods, since the Directive does not set a maximum permissible length of detention.

In turn, the Returns Directive allows states to punish a non-citizen’s supposedly non-cooperative behaviour with detention. The Directive sets out two grounds for detention on account of lack of cooperation by the returnee. First, states may put in detention a person who avoids or hampers the preparation of return (art. 15(1)(b)). It is not supposed to cover cases of the risk of absconding since this is addressed in a separate ground. The Directive does not, however, elucidate what acts would amount to hampering or avoiding the return; authorities thus enjoy a broad discretion to order detention. Secondly, the Directive allows extension of the length of detention from six to a maximum of eighteen months when the return proceedings last longer due to detainee’s lack of cooperation (art. 15(6)). Again, the lack of cooperation is not defined. Retributive elements are evident in these grounds – detention resembles a sanction to reprimand migrant’s behaviour that authorities do not desire.

Besides retribution, detention sanctioned by the Returns Directive may also amount to incapacitation. States are permitted to extend the initial six-month detention by one year where return proceedings last longer due to lack cooperation either by the detainee (as discussed above) or by the countries of destination (art. 15(6)). It is argued that if return is not possible, detention cannot be justified on account of facilitating such return. Prolonged detention without a realistic prospect of removal operates thus as a means to incapacitate non-citizens who the authorities presume to threaten public order. Often authorities tend to perceive persons without regular status or financial means as a potential threat to public order. The Directive thus gives states a tool to keep such persons locked up rather than release them.

Arguably, the EU immigration detention regime displays features of crimmigration. It allows formally administrative pre-removal and asylum detention to be punitive in practice. Thus, while immigration detention sanctioned by EU directives may pursue objectives similar to those of criminal justice—retribution, deterrence, or incapacitation—detainees are not entitled to fair trail rights afforded to their criminal counterparts. Because of this selective application of processes that are normally associated with criminal law, crimmigration within EU law has the potential to render detainees more vulnerable while at the same time offering greater discretion to governments.

Izabella Majcher is a PhD candidate in international law at the Graduate Institute of International and Development Studies in Geneva, Switzerland. Her doctoral research focuses on the European Union law on irregular migration. Izabella is also a research assistant at the Global Detention Project, Global Migration Centre, in Geneva. She researches states' laws, policies and practices addressing immigration detention.

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^{1. [Legomsky, Stephen H. “The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms.” Washington and Lee Law Review 64 (2007): 469–528, p. 469. ]↩}

Last week, Deputy Attorney General James Cole announced that President Obama is likely to ramp up the number of commutations he issues for drug offenses. While commendable, presidential commutations are unlikely to help immigrants avoid removal.

In a speech to the New York State Bar Association, Deputy AG Cole noted the futility of relying on incarceration to punish low-level drug offenders. “Over half of the federal prison population is there for drug offenses,” he said. “Some are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a long time. But others are lower level drug offenders, many with their own drug abuse issues, who fall into the all too common vicious cycle of drug abuse, crime, incarceration, release – and then the cycle repeats.” The United States simply can’t afford to keep doing this, he added. DOJ alone spends $6.5 billion annually on prisons.

One way of reducing the prison population is by wielding the president’s pardon authority more powerfully. In particular, Cole suggested that President Obama and the Justice Department are interested in commuting more sentences for low-level drug offenders. As Cole put it, “Commutation of sentence is an extraordinary remedy that is rarely used. But it may be available in certain circumstances, including when an individual has a clean record in prison, does not present a threat to public safety, and has been sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.” This is one way, he added, that the president can use his executive power to inject some fairness into the criminal justice system.

While this is a noteworthy statement and I hope Cole’s words turn into meaningful action, it is unlikely to be of much help to immigrants with low-level drug offenses who wish to remain in the United States. Commutation does not eliminate a conviction. Rather, it merely replaces the original sentence with a new sentence. As the BIA explained years ago, “commutation by the President of the United States or the Governors of States ha[s] exactly the same legal effect as though the commuted sentence had been imposed by the court in the first instance and that, after commutation, the commuted sentence is the only one in existence.” Matter of J, 6 I&N Dec. 562, 569 (BIA 1955).

Without question, a commuted sentence benefits individuals who are still serving their criminal punishment. It means, after all, the ability to leave prison. In the immigration context, a commuted sentence would likewise benefit anyone who is subject to removal as a result of a provision of the INA that is triggered by a specified sentence. If, for example, the immigrant is removable for having been convicted of “a theft offense…for which the term of imprisonment [is] at least one year,” then substituting a sentence of less than one year for an original sentence that was greater than a year would be of great benefit.

Neither of the two principal drug-related removal provisions, however, includes a minimum sentence requirement. The drug-related aggravated felony category simply turns on whether the immigrant was convicted of “illicit trafficking in a controlled substance…including a drug trafficking crime.” INA § 101(a)(43)(B). Similarly, the controlled substances offense provision asks whether the immigrant was convicted “of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance…other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” INA § 237(a)(2)(B)(i). A sentence reduced through the president’s commutation power wouldn’t affect whether the offense meets these requirements.

Though an immigrant is unlikely to be able to avoid a finding of removability even with a commutation for a drug offense, in some instances commuting the sentence may help maintain eligibility for withholding of removal under INA § 241(b)(3). A person who has been convicted of an aggravated felony or aggravated felonies "for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime" and a PSC conviction precludes eligibility for withholding. INA § 241(b)(3)(B). This would help someone who, for example, was convicted of a drug offense that constitutes an illicit trafficking type of aggravated felony (regardless of the sentence imposed), initially sentenced to more than five years imprisonment, and, thanks to a commutation, had that sentence reduced to less than five years. [Thanks to Ben Winograd for pointing this out.]

To its credit, the Justice Department says as much on its web site. “[C]ommutation of sentence, if granted, will not prevent your deportation or removal from the United States,” it informs prospective applicants. Indeed, it adds, it “may actually hasten the process.”

The messy intertwinement of criminal law and immigration law, therefore, means that any attempt by the president to use his commutation power to relieve low-level drug offenders of the severe consequences of decades of harsh drug sentencing laws is unlikely to help noncitizens who fall into this category. Without more, they will continue to face removal.

The U.S. Court of Appeals for the Fifth Circuit rejected the Attorney General’s decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), expanding the analytical framework by which immigration courts determine whether an immigrant has been convicted of a crime involving moral turpitude. Silva-Trevino v. Holder, No. 11-60464, slip op. (5th Cir. Jan. 30, 2014) (Benavides, Owen, and Southwick, JJ.). As a result, immigration courts in the Fifth Circuit must use the categorical approach and modified categorical only when determining whether an immigrant has been convicted of a CIMT. Judge Benavides wrote the panel’s decision.

This appeal arrived at the Fifth Circuit after the Attorney General entered a groundbreaking, precedential decision in Silva-Trevino’s case. In his decision, Attorney General Michael Mukasey expanded the method used to determine whether a crime for which an individual has been convicted is a CIMT. Rather than continue using the categorical approach and modified categorical approach as courts had done for upwards of a century and the BIA had endorsed since 1954, AG Mukasey instructed immigration judges to “consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.” Matter of Silva-Trevino, 24 I&N Dec. at 704.

Since then the courts of appeals have split on whether to follow AG Mukasey’s framework. They must do so if they find that the agency interpreted an ambiguous statutory provision in a reasonable manner. By the Fifth Circuit’s count, four circuits (the Third, Fourth, Ninth, and Eleventh) have concluded that the phrase is not ambiguous, thus they have not followed Mukasey’s opinion. Two other circuits (the Seventh and Eighth) have concluded that the CIMT provision is ambiguous and Mukasey’s interpretation reasonable, thus they have followed his opinion. Silva-Trevino, No. 11-60464, slip op. at 5 & n.1.

The Fifth Circuit sided with the majority of circuits. The relevant statute at issue, the court concluded, is not ambiguous, therefore the court must follow long-standing precedent requiring use of the categorical approach and modified categorical approach to determine if an immigrant has been convicted of a CIMT.

Importantly, the Fifth Circuit reached this conclusion by honing in on the term “conviction” as the key phrase that Mukasey’s order addressed. There is nothing ambiguous about what constitutes a “conviction” for purposes of deciding if someone has been convicted of a CIMT, the court explained, because Congress provided a definition of “conviction” within the INA at § 101(a)(48)(A). Id. at 6. The INA even includes a list of documents that “shall constitute proof of a conviction,” the court noted. Id. at 6 (citing INA § 240(c)(3)(B)). Nothing in the statute indicates that Congress intended for an IJ to rely on other evidence as proof of a conviction. Silva-Trevino, No. 11-60464, slip op. at 6.

Moreover, the Fifth Circuit explained that Congress is presumed to be aware of the traditional method for interpreting whether a conviction constitutes a removable offense, the categorical approach. Using the categorical approach, courts have consistently limited the type of evidence admissible for purposes of proving that a particular person was convicted of a removable offense. Despite that, Congress has never altered the conviction requirement to allow for consideration of other evidence even though it has routinely amended the CIMT provision. Id. at 9. The court, therefore, assumed that Congress expects it to continue using the categorical approach. Id.

This is a major victory for immigrants in removal proceedings within the Fifth Circuit. Meanwhile, the circuit split that Mukasey’s opinion created continues to grow. Only time will tell how that ends.