By Katie Tinto The availability of the exclusionary rule as a remedy for unconstitutional police conduct was recently further restricted by the Supreme Court in Utah v. Strieff, ___ S. Ct. ___, No. 14-1373 (June 20, 2016). In a prior blog post, I warned of the potential of Strieff to seriously limit the availability of the suppression remedy in immigration court. Although the exclusionary rule in immigration court may not be directly impacted, the decision will likely have a detrimental effect on our immigrant communities and the manner in which they are policed. To quickly summarize the [...]
Reviewing Mathis v. United States
By Kelley Keefer and Linus Chan Justice Alito’s woeful tale of a misguided European driver in his dissenting opinion of Mathis v. United States is presented as a criticism to the Supreme Court’s categorical approach jurisprudence. No. 15-6092, slip op. dissent at 1 (J. Alito dissenting) (U.S. Sup. Ct., June 23, 2016). And while one (and the majority) may disagree as to whether Taylor v. United States, 495 U.S. 575 (1990), really was a wrong turn, the 26 years since the publication of Taylor has nonetheless proven to be an interesting journey. Mathis provides the latest attempt by the [...]
GAO Report Reveals Troubling Inconsistencies and Issues Regarding Immigration Detention Medical Care
By: Thamys Gaertner BACKGROUND The United States Government Office Accountability Office (GAO) issued a report in February 2016 analyzing the disturbing costs and problems of the current on-site and off-site medical care in immigration detention facilities across the United States. U.S. Gov’t Accountability Office, GAO-16-231, Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of Detainee Medical Care (2016). During 2015, ICE held about 28,000 detainees per day in over 165 facilities. Id. at 6. In line with what has previously been reported on [...]
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 [...]
BIA: CHILD ENDANGERMENT OFFENSE IS CHILD ABUSE UNDER § 237(a)(2)(E)(i)
By: Thamys Gaertner In a decision issued on February 9, 2016, the Board of Immigration Appeals (BIA) concluded that a crime of endangering the welfare of a child is categorically a removable offense under § 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012). Henry Javier Mendoza Osorio is a native of Ecuador and a United States lawful permanent resident. Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016). Mr. Mendoza Osorio was convicted of endangering the welfare of a child under § 260.10(1) of the New York Penal Law. Id. Consequently, DHS [...]
Utah v. Strieff and the Exclusionary Rule’s Future in Immigration Court
By Katie Tinto Immigration scholars and practitioners should pay close attention to the outcome of Utah v. Strieff, a Fourth Amendment case argued before the U.S. Supreme Court two weeks ago. 357 P.3d 532 (Utah 2015), cert. granted, 136 S. Ct. 27 (U.S. Oct. 1, 2015) (No. 14-1373). In this case, the police detained Mr. Strieff without reasonable suspicion, and then, after obtaining his identification, ran a routine warrant check on his name and discovered an outstanding arrest warrant for a traffic violation. During the search incident to arrest on the traffic warrant, the officer found [...]
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” [...]
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 [...]
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