Kate Evans & Robert Koulish In summer 2018, the Trump administration ratcheted up its immigration enforcement and detention practices with new family separation and forced detention, as part of its “zero tolerance” strategy aimed at deterring asylum applicants from exercising their asylum rights under the 1980 Refugee Act. Part of its effort was to manipulate the immigration risk detention tool, known as the risk classification assessment, or RCA. The risk tool was designed during the Obama administration to reduce the arbitrary detention of immigrants by tailoring it to risk. A new [...]
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 [...]
Supreme Court to hear another immigration imprisonment case
On the heels of its decision allowing prolonged confinement in an ICE detention center to continue, the U.S. Supreme Court decided to hear arguments in another case about the federal government’s practice or locking up migrants. Every day, the Department of Homeland Security detains roughly 34,000 individuals. At a cost of at least $126 per day per person, ICE spends more than $4 million daily to incarcerate. In Nielsen v. Preap, No. 14-16326, the Court will decide whether ICE is required to detain migrants who have served their jail or prison time for a laundry list of crimes and have [...]
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 [...]
California Supreme Court decision opens breathing room for migrants, alters typical political lineup
Last week, the California Supreme Court issued an important decision expanding the ability of migrants given poor advice about the immigration consequences of a conviction to obtain relief. In People v. Patterson, No. S225193, slip op. (Cal. March 27, 2017), the court unanimously held that a migrant isn’t barred from withdrawing a guilty plea that results in mandatory immigration detention and deportability simply because the plea form stated that conviction “may” result in adverse immigration consequences. Pursuant to Cal. Penal Code § 1016.5, all defendants are provided this generic [...]
DHS issues border policing plans
In response to President Trump’s January 25 executive order on border policing, the Department of Homeland Security issued a memo with details about how it plans to carry out the president’s directives. The memo promises to further militarize the Mexican border, expand the nation’s already unprecedented immigration detention capacity, and skirt the immigration court system. Secretary of Homeland Security John Kelly signed the memo, titled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies,” on February 20, 2017. The memo consists of instructions [...]
Limiting immigration imprisonment
Immigration imprisonment is undeniably a core feature of immigration law enforcement. Every year since President Obama took office, ICE has held somewhere in the vicinity of 400,000 people behind barbed wire simply because they are thought to have violated a civil provision of immigration law. Almost another 100,000 are confined while awaiting prosecution for an immigration crime, usually unauthorized entry or unauthorized reentry. States do their part too to ratchet up the likelihood that a migrant will wind up behind bars for doing something related to migration. Arizona has been most [...]
Justice Scalia’s Crimmigration Legacy
Andrea Sáenz Supreme Court Justice Antonin Scalia’s recent passing has spurred a wealth of commentary about his career and legal philosophy, including the recognition that the legendary conservative jurist issued a number of rulings sympathetic to criminal defendants [see here, here, or here]. What have attracted less notice so far are his consistent votes for noncitizens in cases involving the immigration consequences of criminal convictions, or for defendants in cases involving the sentencing consequences of prior convictions. In both types of cases, Scalia was an extremely reliable vote [...]
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