U.S. citizens don’t need the federal government’s permission to enter and exit the United States. They can’t be forcibly removed from the United States, and they can’t be convicted of entering the United States without the federal government’s permission. Put simply, immigration law’s controls on movement are off-limits to U.S. citizens. But what happens when someone doesn’t know they are a U.S. citizen? The short answer is that things get complicated. For the longer answer, let’s turn to the experience of Javier Garza-Flores. Born in México in 1974, he always knew that he was a Mexican [...]
Supreme Court says gap in conviction records hurts migrant
In a split decision issued today, the U.S. Supreme Court announced that gaps in conviction records created by state courts should be treated against migrants who are required to show that they haven’t been convicted of certain types of crimes. The decision, Pereida v. Wilkinson, No. 19-438 (March 4, 2021) (previewed here), split the Court along ideological lines, with Justice Gorsuch writing the majority opinion and Justice Breyer leading Justices Sotomayor and Kagan in dissent. Justice Barrett didn’t participate in this case, resulting in a five to three vote. The majority and dissenters [...]
The Great Writ’s Elusive Promise
By Mary Holper In two recent cases, Reid v. Donelan and Brito v. Barr, a federal court in Massachusetts limited ICE’s power to detain people. But by requiring detained immigrants to file habeas corpus petitions to get a bond hearing in immigration court, Chief Judge Saris of the District Court for the District of Massachusetts undercut the strength of her own clear-sighted analysis. Reid and Brito are both class actions challenging immigration detention. For Reid class members, they must file a habeas corpus petition arguing that their detention under a 1996 mandatory detention statute, [...]
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. [...]
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 [...]
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 [...]
Fifth Circuit Finds that Despite Ambiguity in Record of Conviction, Burden Rests on Alien to Prove Conviction is not Related to a Controlled Substance
By Alex Sheppard Last month the Fifth Circuit Court of Appeals released a decision on (1) whether the alien or the government bears the burden of proof in determining whether grounds for mandatory denial of an alien’s application for relief do not apply when the alien has demonstrated ambiguity in the record of conviction; (2) whether that burden was met; and (3) the effect of a Canadian pardon for the conviction in question. Le v. Lynch, No. 13-60664, slip op. (5th Cir. Jan. 6, 2016). The Fifth Circuit ruled that despite ambiguity in the record, the alien bears the burden of proof; that [...]
BIA creates rebuttable presumption for cancellation of removal applicants
By Alex Sheppard On October 28, 2015, the Board of Immigration Appeals (BIA) decided the companion cases Matter of Garcia-Ramirez, 26 I&N Dec. 674 (BIA 2015), and Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015), both of which addressed the burden of proof that rests on cancellation of removal applicants who are demonstrating continuous physical presence, a requirement for non-lawful permanent residents seeking this form of relief from removal. In the decisions, the BIA held that “[W]here an alien had the right to appear before an Immigration Judge, evidence that photographs [...]