9 Cir limits prolonged immigration imprisonment

The U.S. Court of Appeals for the Ninth Circuit recently reinforced a semblance of rationality that is long tried to inject into the federal government’s civil immigration detention practice. In Rodriguez v. Robbins (Rodriguez III), Nos. 13-56706 & 13-56755, slip op. (9th Cir. October 28, 2015), the court largely affirmed its commitment to critically examining ICE’s conduct inside the vast immigration detention center archipelago. This decision builds off a sustained challenge to detention that advocates have brought before the Ninth Circuit repeatedly since 2009 and in the Central [...]

5 Cir rejects BIA’s limitations on marijuana personal use exception

The U.S. Court of Appeals for the Fifth Circuit recently pushed back against the BIA’s efforts to expand the range of low-level drug offenses that can result in removal. In Flores Esquivel v. Lynch, No. 13-60326 (5th Cir. October 1, 2015), a divided panel of the Fifth Circuit took issue with the Board’s narrow construction of a key exception to the controlled substance offense basis of deportation. This case involved an LPR convicted of two misdemeanor possession of marijuana crimes in Texas: one in 2003 and the other in 2011. The first consisted of getting caught as an 18-year-old with a [...]

Immigration Arrests Violate the Fourth Amendment

By Michael Kagan The manner in which Immigration and Customs Enforcement (ICE) takes people into custody at the outset of removal proceedings fails to meet the constitutional requirements for seizure of a person under the Fourth Amendment. In other words, immigration arrests are unconstitutional. This may seem like an ambitious argument because it would upend the manner by which federal authorities have enforced immigration law since the 19th Century. But the constitutional analysis is in in fact quite simple. Indeed, the constitutional problems with immigration arrests are so [...]

Developing Better, Fairer Bond Hearings: Next Steps After Lora v. Shanahan

By Andrea Saenz The Second Circuit’s recent decision in Lora v. Shanahan, No. 14-2343-pr-, slip op. (2nd Cir. Oct. 28, 2015), gives immigration detainees a lot to be hopeful about, and gives scholars and advocates a lot of new questions to chew on. In Lora, the Second Circuit held that noncitizens cannot be subjected to prolonged no-bond detention under INA § 236(c) while their deportation cases are pending, and therefore must be given a bond hearing within six months of their detention. As Alina Das wrote on this blog, the decision represents a resounding victory for core due process [...]

A Light at the End of A Long, Dark Tunnel: The Second Circuit’s Limit on Indefinite Detention in Lora v. Shanahan

By Alina Das Every day, tens of thousands of immigrants experience immigration detention as punishment. Although characterized in law as “civil”, “non-punitive”, and “administrative” in nature, immigration detention presents all the hallmarks of punishment—immigrants are routinely locked up in county jails or private prisons, many miles away (and too often across state lines) from their families and communities, forced to wear prison uniforms, shackled when they appear in court, at the mercy of the jail or prison guards with respect to their ability to seek medical care and myriad other [...]

Supreme Court hears crimmigration arguments today

Today the U.S. Supreme Court will hear oral arguments in the latest in its constant stream of crimmigration cases. As with many other Supreme Court crimmigration decisions, Torres v. Lynch, No. 14-1096 (U.S.), requires the Court to untangle the aggravated felony basis of removal. In particular, Torres concerns the aggravated felony category concerning arson crimes. Stemming from a decision of the U.S. Court of Appeals for the Second Circuit affirming a BIA decision, Torres hones in on the precise meaning of the phrase “described in” which appears in several subsections of the sprawling [...]

9 Cir: Overly Broad California Child Pornography Statute Isn’t Aggravated Felony

By: Sarah Flinn­ The U.S. Court of Appeals for the Ninth Circuit, using the categorical approach, recently determined that the California statute regarding the possession of child pornography, California Penal Code § 311.11(a), is broader than the federal statute and therefore is not considered to be an aggravated felony for purposes of INA § 237(a)(2)(A)(iii) and § 101(a)(43)(I). Chavez-Solis v. Lynch, No. 11–73958, 2015 WL 5806148, at *1, *2 (9th Cir. Oct. 6, 2015). Oscar Chavez-Solis, a native and citizen of Mexico, has been a lawful permanent resident of the United States since 1999. [...]