Kate Evans & Robert Koulish In summer 2018, the Trump administration ratcheted up its immigration enforcement and detention practices with new family separation and forced detention, as part of its “zero tolerance” strategy aimed at deterring asylum applicants from exercising their asylum rights under the 1980 Refugee Act. Part of its effort was to manipulate the immigration risk detention tool, known as the risk classification assessment, or RCA. The risk tool was designed during the Obama administration to reduce the arbitrary detention of immigrants by tailoring it to risk. A new [...]
Supreme Court to hear another immigration imprisonment case
On the heels of its decision allowing prolonged confinement in an ICE detention center to continue, the U.S. Supreme Court decided to hear arguments in another case about the federal government’s practice or locking up migrants. Every day, the Department of Homeland Security detains roughly 34,000 individuals. At a cost of at least $126 per day per person, ICE spends more than $4 million daily to incarcerate. In Nielsen v. Preap, No. 14-16326, the Court will decide whether ICE is required to detain migrants who have served their jail or prison time for a laundry list of crimes and have [...]
Jennings v. Rodriguez highlights need for detention time limits
Justine N. Stefanelli The US Supreme Court’s decision in Jennings v. Rodriguez, 583 U.S. ___ (2018) (slip opinion), denying bail hearings to thousands of detainees is a serious blow to the rule of law. Detaining categories of people without regard to their individual circumstances is an arbitrary interference with the right to liberty and, at the very least, should be accompanied by procedural safeguards. The most obvious of these is a temporal limit on immigration detention. However, US immigration law provides no maximum. The closest the law has come is the setting of a presumptively [...]
Judges can’t deny bail because ICE threatens removal
Focusing its sights squarely on criminal law’s intersection with immigration law, a federal appellate court concluded that judges can’t deny bail to migrant defendants simply because ICE threatens to deport them. The court’s opinion, in a case involving an illegal reentry prosecution, is an important reminder of the presumption of liberty in United States criminal law—and an equally stark example of ICE’s persistent efforts to pierce holes in that presumption. Mario Ailon-Ailon, a resident of Dodge City, Kansas for seven years, was arrested by ICE and handed over to the U.S. Marshals [...]
Massachusetts top court deals detainers another blow
In another loss for federal immigration officials, the highest court in Massachusetts decided yesterday that it is illegal under state law to hold someone on an immigration detainer. Lunn v. Commonwealth, No. SJC-12276, slip op. (Mass. July 24, 2017). This case involved a man who was held in a courthouse holding cell after the judge overseeing a criminal prosecution against him dismissed the case. [Disclosure: I was one of many immigration law scholars to sign a brief authored by my colleague Christopher Lasch submitted on behalf of Mr. Lunn.] The state’s Supreme Judicial Court easily [...]
The rest of the National Guard memo
This morning’s news cycle was flooded by reports of a Trump Administration draft memorandum authorizing deployment of up to 100,000 National Guard troops for immigration policing activity. Even as a draft, it’s frightening that the federal government is articulating the kind of extremism not witnessed in the United States since Operation Wetback in the 1950s. Though long decried for its sheer cruelty, as a candidate Donald Trump praised it, claiming it was effective and popular. Fortunately, I am convinced that we are still a few steps away from launching a massive military campaign targeting [...]
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 [...]
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