In a pair of cases being argued today, the U.S. Supreme Court reviews the federal government’s power to detain migrants. This pair of cases, Johnson v. Arteaga-Martinez and Garland v. Aleman Gonzalez, raise similar legal issues: Can federal immigration officials detain a person indefinitely without the possibility of requesting release from an immigration judge when a person who is not a U.S. citizen has already been detained for at least 6 months and is waiting for immigration officials to decide whether they will be allowed to remain in the United States? In each case, a circuit court [...]
Abolish the ICE Prison Complex
Locking up migrants fighting to stay in the United States is permissible, the Supreme Court reiterated in February. The Court’s ruling mocks justice, but isn’t a big surprise. The federal laws under the Court’s consideration breathe life into a mean-spirited immigration law enforcement regime that holds tightly to the misguided belief that migrants pose a threat that prisons are best suited to extinguish. In Jennings v. Rodriguez, five justices overturned the decision of the U.S. Court of Appeals for the Ninth Circuit allowing migrants detained by the Immigration and Customs Enforcement [...]
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 [...]
5th Circuit: SB4 can go into force in Texas
When the Texas legislature passed Senate Bill 4 on party-line votes, it marked the most extreme immigration measure to make it through a state house since Arizona’s infamous Senate Bill 1070, the so-called “show me your papers” law. Within moments, all eyes turned to the courts. Yesterday, the U.S. Court of Appeals for the Fifth Circuit announced that most of the Texas law does not violate the U.S. Constitution. City of El Cenizo v. Texas, No. 17-50762, slip op. (5th Cir. March 13, 2018). As a result, Texas law enforcement agencies and local governments are now blocked from choosing to limit [...]
Texas anti-migrant law largely halted or curtailed
As attention remains focused on Hurricane Harvey’s devastating impact on the Texas Gulf Coast, the state’s controversial immigration law was to go into effect on Friday. Late Wednesday, a San Antonio federal court put that schedule on hold for most of the law. Its “show-me-your-papers” provision, however, can go into limited effect. Senate Bill 4 marks the pinnacle of state Republican elected officials to tie state and local governments to ICE’s immigration enforcement practices. The law authorizes police to ask about immigration status. It requires compliance with immigration detainers [...]
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 [...]
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