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. [...]

Is the border truly a shoot-at-will location?

The Fourth Amendment offers a powerful bulwark against the state’s power to deprive people of their liberty. Only with the intercession of a neutral arbiter, the text indicates, can the government exercise its immense coercive powers. Anyone who has followed the evolution of Fourth Amendment jurisprudence over the last three decades knows that this promise is far from the reality. Along the border, however, even the watered-down state in which the Fourth Amendment hobbles along might be too much. Is it possible that a Border Patrol officer might have wielded his weapon too loosely, but the [...]

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 [...]

Utah v. Strieff and the Exclusionary Rule’s Future in Immigration Court – Part II

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 [...]

Supreme Court reinforces unconstitutionality of key sentencing phrase

All eyes this week were appropriately on the Supreme Court’s consideration of President Obama’s immigration executive actions. Just before attorneys in that monumental case took to the lectern Monday morning, the Court released an important decision reinforcing its earlier holding that a key sentencing law phrase is unconstitutional. In Welch v. United States, No. 15-6418, slip op. (April 18, 2016), the Court held that a sentencing enhancement that turns on whether a defendant has previously been convicted of a “violent felony” cannot be applied regardless when the conviction occurred. At [...]

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 [...]

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 [...]