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 [...]
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 [...]
WI Supreme Court Adopts Realistic Plea Withdrawal Standard for Migrants Facing Inadmissibility Based on Criminal Conviction
By: Sarah Flinn The Wisconsin Supreme Court recently held that a migrant defendant is permitted to withdraw a guilty plea if she is able to show that the judge presiding over the plea hearing failed to notify her of “likely” adverse immigration consequences of conviction, as required by state statute, and that the guilty plea is now “likely” to result in adverse immigration consequences. State v. Valadez, Nos. 2014AP678, 2014AP679, 2014AP680, 2016 WL 325524, at *2, *6 (Wis. Jan. 28, 2016). In contrast to previous Wisconsin caselaw regarding the burden of proof required to show “likely” [...]
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 [...]
10 Cir rejects retroactivity of BIA decisions which change circuit precedent
By Mark R. Barr The U.S. Court of Appeals for the Tenth Circuit issued a precedential decision this week finding that a ruling from the BIA which interprets an ambiguous statute, and which overrules prior circuit court precedent under Brand X, should be presumed to act prospectively only. De Niz Robles v. Lynch, No. 14-9568, slip op. (10th Cir. Oct. 20, 2015). The decision will have a potentially sweeping impact on individuals who relied on controlling Tenth Circuit precedent only to have those settled expectations upset by an intervening, contrary Board decision. Our client, Alfonzo De [...]
9 Cir. finds part of crime of violence definition unconstitutional
The U.S. Court of Appeals struck an important blow against the crime of violence type of aggravated felony yesterday holding that part of the term’s definition is unconstitutionally vague. Dimaya v. Lynch, No. 11-71307, slip op. (9th Cir. Oct. 19, 2015). The court held that the so-called “residual clause” of the crime of violence definition fails to provide migrants with sufficient notice of the kind of conduct it prohibits to satisfy the Fifth Amendment Due Process Clause. This case involved a lawful permanent resident twice convicted of first-degree burglary in violation of California [...]