3 Cir: Limits § 236(c) mandatory detention to reasonable period

The U.S. Court of Appeals for the Third Circuit held that INA § 236(c) authorizes mandatory detention only for a reasonable period of time. Diop v. ICE, No. 10-1113, slip op. (3d Cir. Sept. 1, 2011) (Fuentes, Chagares, and Pollak, JJ.). Judge Fuentes wrote the panel’s decision. This case involved a petition for writ of habeas corpus brought by an individual who was convicted in 1995 of Pennsylvania possession of a controlled substance with the intent to manufacture or deliver it and in 2005 of reckless endangerment. Diop, No. 10-1113, slip op. at 4. After being placed in removal [...]

Op-ed: House bill would put many immigrants in prison unnecessarily

Note: I published this op-ed in the Columbus Dispatch on August 20, 2011. Government coffers are empty and crime rates are at their lowest in 40 years, yet Congress is considering a vast expansion of the nation’s prison system that is unnecessary, expensive and likely unconstitutional. A proposal by Rep. Lamar Smith, R-Texas, approved by the House Judiciary Committee and its two Ohio members, Reps. Steve Chabot, R-Cincinnati, and Jim Jordan, R-Urbana, would drastically expand the number of immigrants imprisoned pending a deportation decision or awaiting a deportation that may never occur [...]

US dist ct: Mandatory detention applies only if detained upon release from crim custody

The U.S. District Court for the Eastern District of Virginia recently kept up its practice of holding that the INA’s mandatory detention provision, INA § 236(c), applies only to individuals who ICE detains upon release from criminal custody. Hosh v. Lucero, No. 1:11-cv-464, 2011 WL 1871222 (E.D. Va. May 16, 2011) (Trenga, J.). The individual involved here, Hosh, is an LPR charged as removable for having been convicted of an aggravated felony and thus subject to mandatory detention pursuant to INA § 236(c)(1)(B). ICE did not arrest Hosh until sometime after he had successfully completed his [...]

9th Cir: Burden on govt to justify continued detention; must record bond hearing

The U.S. Court of Appeals for the Ninth Circuit recently held that the government has the burden of proving by clear and convincing evidence that continued detention pending removal is justified and that the immigration court must make a contemporaneous record of a bond hearing. Singh v. Holder, No. 10-15715, slip. op. (9th Cir. March 31, 2011) (Graber, Fisher, and Bybee, J.). Judge Fisher wrote the panel’s opinion. This case involved an LPR imprisoned by ICE since April 10, 2007. An IJ ordered him removed in September 2007, but his case has moved slowly through the appeals process, [...]

GAO: States pay most cost of imprisoning immigrants in state jails

The U.S. Government Accountability Office recently reported that most of the cost of imprisoning “criminal aliens” in state prisons systems was paid by state governments. GAO, Criminal Alien Statistics: Information on Incarcerations, Arrests, and Costs (March 2011 GAO-11-187). [A summary in html is also available.] States, cities, and counties are partially reimbursed for the costs of incarcerating noncitizens who meet specified criteria through the Justice Department’s State Criminal Alien Assistance Program (SCAAP). Importantly, “SCAAP is not intended to reimburse state and local [...]

Scholars Sidebar: Due Process & Immigrant Detainee Prison Transfers

I’m finally making time to start a project long in waiting—Scholars Sidebar, a (hopefully) regular focus on scholarly writings of special relevance to crimmigrationistas. And, in admittedly sin verguenza style, I’m starting with my latest article—a hot-off-the-press piece from the Berkeley La Raza Law Journal titled Due Process and Immigrant Detainee Prison Transfers: Moving LPRs to Isolated Prisons Violates Their Right to Counsel, 20 Berkeley La Raza L.J. 17 (2011). I argue that moving LPRs in immigration detention to prisons located in isolated locations (as most are) violates their Fifth [...]