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 [...]
A Light at the End of A Long, Dark Tunnel: The Second Circuit’s Limit on Indefinite Detention in Lora v. Shanahan
By Alina Das Every day, tens of thousands of immigrants experience immigration detention as punishment. Although characterized in law as “civil”, “non-punitive”, and “administrative” in nature, immigration detention presents all the hallmarks of punishment—immigrants are routinely locked up in county jails or private prisons, many miles away (and too often across state lines) from their families and communities, forced to wear prison uniforms, shackled when they appear in court, at the mercy of the jail or prison guards with respect to their ability to seek medical care and myriad other [...]
US Dist Ct: Mandatory detention presumptively unreasonable after 6 months
The federal government may invoke the INA’s mandatory detention provision, INA § 236(c), to keep individuals in removal proceedings locked up without bringing them before an immigration judge for a bond hearing. After that, the U.S. District Court for the District of Massachusetts concluded, immigration officials must provide detainees with bond hearings. Reid v. Donelan, No. 13-cv-30125-MAP, slip op. (D. Mass. Jan. 9, 2014) (Ponsor, J.). This case involved an LPR detained for 14 months by the time the court issued its order in January. During this time, he lost a claim for protection under [...]
TX Appellate Ct: When is deportation consequence “truly clear” for Padilla?
By Jorge G. Aristotelidis In 1997, Isabel Rodriguez Campos, a legal permanent resident (LPR), was arrested for misdemeanor theft (involving $50.00-$500.00), and for prostitution, both classified as Class B misdemeanors in Texas. She soon met her court appointed counsel who, aware of her immigration status, recommended that she plead guilty to both offenses, and received a probated sentence that was later revoked to a term of 60 days in jail. Years later, Ms. Rodriguez discovered that as a result of her two convictions, she is deportable, albeit with the possibility of discretionary relief [...]
Tx Ct Crim App: Right to counsel properly waived despite not being told about deportation possibility
The Court of Criminal Appeals of Texas, the state’s highest criminal court, held that a person who waived his right to an attorney in a misdemeanor drug possession prosecution did not do so impermissibly despite not having been told that he might be deportable upon conviction. State v. Guerrero, No. PD-1258-12, slip op. (Tex. Crim. App. June 5, 2013) (Cochran, Keller, Price, Womack, Johnson, Keasler, Hervey, and Alcala, JJ.). Judge Cochran wrote the court’s opinion. This case presents like the picture of interior immigration enforcement in the age of crImmigration law. The defendant entered [...]
SCOTUS: Padilla not retroactive
The U.S. Supreme Court announced today that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not apply retroactively. Chaidez v. United States, No. 11-820 (U.S. Feb. 20, 2013). The Court’s decision in Chaidez means that noncitizens convicted prior to March 31, 2010 who received ineffective assistance of counsel because they were not properly advised about the immigration consequences of conviction can’t challenge those convictions. In effect, untold numbers of people will suffer the consequences of unconstitutional convictions. (A detailed discussion of Chaidez is available here at [...]
NM Ct App: Padilla is retroactive; NM Supreme Court grants cert
The New México Court of Appeals, the state’s intermediate appellate court, held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively. State v. Ramirez, 278 P.3d 569, No. 2012-NMCA-057, slip op. (NM Ct. App. April 16, 2012) (Kennedy, Bustamante, and Fry, JJ.), cert. granted June 5, 2012. Judge Kennedy wrote the panel’s decision. This case involves an attempt to vacate multiple 1997 convictions for misdemeanor possession of less than one ounce of marijuana, possession of drug paraphernalia, and concealing identity on the basis that Ramirez’s attorney did not inform him of the [...]
1 client, 2 wins: Successful Padilla claims in crim & immigration courts
Taking an expansive approach to client representation, attorney Carlos M. García recently vacated a conviction that had served as the basis for removal, then headed to immigration court where he successfully moved to terminate removal proceedings. García, an attorney at García & García Attorneys at Law (this blog’s patrocinador and my brother), relied on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), in the Texas district court, then fended off DHS’s attempt to remove his client on the basis of the “reason to believe” the client was a drug trafficker ground of removal. The state district [...]