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 [...]
1st Circuit rolls back detention reforms
In a disheartening move that is likely to create more impediments to migrants trying to escape detention pending removal proceedings, the U.S. Court of Appeals for the First Circuit overturned a district court decision that imposed substantial limits on the federal government’s use of INA § 236(c), the so-called mandatory detention statute. Reid v. Donelan, No. 14-1270, slip op. (1st Cir. April 13, 2016). The court held that migrants detained unreasonably are entitled to an individualized hearing, but it tossed out the district court’s conclusion that the Fifth Amendment Due Process Clause [...]
Limiting immigration imprisonment
Immigration imprisonment is undeniably a core feature of immigration law enforcement. Every year since President Obama took office, ICE has held somewhere in the vicinity of 400,000 people behind barbed wire simply because they are thought to have violated a civil provision of immigration law. Almost another 100,000 are confined while awaiting prosecution for an immigration crime, usually unauthorized entry or unauthorized reentry. States do their part too to ratchet up the likelihood that a migrant will wind up behind bars for doing something related to migration. Arizona has been most [...]
Arizona on verge of increasing jail time for migrants
After a few years out of the limelight, Arizona legislators appear on the verge of reigniting the state’s notorious climate toward migrants. A subtle change to the state’s criminal sentencing statutes promises to substantially increase the amount of time in prison certain migrants face. The proposal, Senate Bill 1377, targets migrants who are in the country in violation of a small number of federal immigration crimes, most notably Immigration and Nationality Act § 275 and 276, illegal entry and illegal reentry respectively. SB 1377 would limit a sentencing judge’s power to tailor the [...]
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 [...]
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