Seven years ago, Border Patrol agent Jesús Mesa shot and killed fifteen-year-old Sergio Adrián Hernández Güereca. On Monday, the Supreme Court refused to tell us whether Hernández’s parents can successfully sue agent Mesa. The aggrieved parents sued Mesa claiming that the officer violated the Fourth and Fifth Amendments of the U.S. Constitution when he killed Hernández. They wanted Mesa to financially pay for violating their son’s constitutional rights, a claim brought under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which recognizes an implied right to sue federal [...]
Should ICE or an immigration judge decide that a migrant deserves imprisonment?
The script is fairly simple: someone gets arrested and without much delay he is haled into court where a judge decides whether to grant bail. As depicted on television, this happens as a matter of routine. Everyone, it seems, accepts that it’s a judge’s role to decide whether a person who has been arrested should remain jailed pending prosecution. Not so when it comes to immigration law. Migrants are frequently locked up without seeing an immigration judge. Today, the Supreme Court hears arguments about the legality of prolonged mandatory detention without a hearing. In Jennings v. [...]
Fed govt misrepresentations about detention data matter
Last week we learned that the federal government provided the Supreme Court with bad data about the length of time migrants remain in detention. When? In 2002 as the Court geared up to consider what has become an enormously important decision, Demore v. Kim, 538 U.S. 510 (2002). In Demore, the Court held that the Immigration and Nationality Act’s so-called mandatory detention provision, § 236(c), is constitutionally permissible. For fourteen years, lower courts have dutifully followed the Court’s instruction. Now we know that the Court’s reasoning turned on wrong statistics. In its 2002 [...]
Following Trend, Fifth Circuit Holds Definition of Crime of Violence Unconstitutionally Vague
By Sarah Flinn Agreeing with both the Seventh and Ninth Circuits, the U.S. Court of Appeals for the Fifth Circuit concluded that the definition of crime of violence in 18 U.S.C. § 16(b) is unconstitutionally vague. United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 537612, at *1 (5th Cir. February 10, 2016). Mr. Gonzalez-Longoria was convicted and sentenced for being illegally present in the United States in violation of Immigration and Nationality Act (INA) § 276. Id. During sentencing, the trial court determined that Mr. Gonzalez-Longoria’s prior Texas felony conviction was an [...]
Defining crimmigration law: Part III
A working conceptualization of crimmigration law, at least as it plays out in the United States, must start with the radical changes to substantive law that I’ve described in parts I and II of this series of essays on defining crimmigration law. But it can’t end there. As an emergent area of law, crimmigration law is highly functional. Consequently, one of its lasting—and, frankly, devastating—impacts, enforcement, merits as much attention as the substantive law previously discussed. Indeed, I give enforcement methods special attention in Part III of my book Crimmigration Law. Crimmigration [...]
5 Cir: Sexually assaulted detainees have tough row to hoe to hold officials accountable
The U.S. Court of Appeals for the Fifth Circuit denied claims brought by women who were sexually assaulted while being transported from the notorious T. Don Hutto Residential Center, an immigration prison in central Texas. Doe v. Robertson, No. 13-50459, slip op. (5th Cir. May 6, 2014) (Stewart, Garza, and Southwick). Judge Garza wrote the panel’s opinion. This case involved complaints by several women who were detained at Hutto and sexually assaulted by Donald Dunn, an employee of the private prison company Corrections Corporation of America (CCA), while being transported by Dunn from [...]
First Circuit to decide whether removal requires proportionality review
The U.S. Court of Appeals for the First Circuit heard oral arguments on April 9, 2014 about the role of proportionality in removal decisions. Hinds v. Holder, No. 13-2129 (1st Cir. 2014). Is removal and the inability to return to the United States simply too weighty a sanction for the law to mete out? This case involves a 58-year-old Jamaican citizen, Rogelio Blackman Hinds, who has lived in the United Since 1975, was honorably discharged from the U.S. Marines, has five U.S. citizen children, and a U.S. citizen wife. He also has a serious criminal history, having been convicted of federal [...]
The Immigrant and Miranda
It’s no longer news that migrants frequently find themselves being prosecuted for federal immigration crimes. Illegal entry and illegal reentry regularly top the list of most prosecuted and convicted federal offenses. Meanwhile, DHS makes much of its reliance on local law enforcement officials to identify potentially removable individuals. Programs like Secure Communities and 287(g) have become part of the public conversation about crimmigration law even if other local-state-federal initiatives like the Criminal Alien Program and the Criminal Alien Removal Initiative remain largely [...]