DHS Inspector General assesses ICE alternatives to detention

A recent report by the Department of Homeland Security’s Inspector General provides much needed insight into the inner workings of ICE’s alternatives to detention (ATDs). U.S. Department of Homeland Security, Office of Inspector General, U.S. Immigration and Customs Enforcement’s Alternatives to Detention (Revised) (Feb. 4, 2015). At the same time, the report hints at a major risk inherent in ATD expansions: that throwing more people into some form of government supervision will eventually mean more people in detention. Until November 2014, the government ran a single ATD program, called [...]

Virginia Supreme Court on Padilla prejudice standard

Migrants are prejudiced, the Virginia Supreme Court held, when their criminal defense attorneys fail to provide advice that would objectively lead them to turn down a plea offer whether or not the evidence of guilt is strong. Zemene v. Clarke, No. 140719, slip op. (Va. 2015). Students from the Immigrant Justice Clinic at American University Washington College of Law successfully argued this case under the supervision of their outstanding professor Jayesh Rathod. This case concerned a lawful permanent resident who was convicted of petit larceny stemming from an incident in which he was [...]

Creating & Policing Migrant Illegality in Europe

Distressing news reports from Europe keep coming in. A dozen migrants died here trying to make their way from Africa, a few hundred there. Italy claims it’s outmatched and needs European Union support. Spain says it’s interested in a humanitarian response. Meanwhile, I imagine the ghost of Muammar Gaddafi wryly admonishing its former European powers with an “I told you so” years after warning that his fall would mean Libya would no longer apply a heavy hand to keep migrants in Africa. Lost from this conventional account are the many people who are directly engaged in the migration process. [...]

Crimmigration Law Symposium at DU: A Wrap-up

In 2006, Juliet Stumpf noted a trend that had largely gone unnoticed. Criminal law and immigration law, she wrote in her foundational article “The Crimmigration Crisis,” were quickly merging into a distinctive creation of law and policy. Less than a decade later, the concept of crimmigration has spread across disciplines and oceans. It is a hotly discussed area that shifts almost as rapidly as it can be conceptualized. To help make sense of this burgeoning field, the Denver University Law Review convened “CrImmigration: Crossing the Border Between Criminal Law and Immigration Law” on [...]

Understanding the categorical approach

Whether dealing with criminal sentencing or potential removability, attorneys must constantly consider the proper scope and interpretation of the statutory construction method we know simply as the “categorical approach.” Last week’s BIA decision about the categorical approach, Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) (which I blogged about here), reminded me that there’s nothing simple when it comes to the standard method of statutory interpretation used in crimmigration law. In its most recent pronouncement on the categorical approach, the Supreme Court laid out its basic [...]

2 Cir: Broadens 212(h) eligibility; further isolates BIA & 8th Circuit

The U.S. Court of Appeals for the Second Circuit held that anyone who did not enter the country as a lawful permanent resident is eligible for a waiver of inadmissibility under INA § 212(h). Husic v. Holder, No. 14-607, slip op. (2d Cir. Jan. 8, 2015) (Katzmann, Winter, and Marrero). Chief Judge Katzmann wrote the panel’s decision. This case involves a 65-year-old migrant who entered the United States in 1994 on a B-2 nonimmigrant visa. About four years later he became an LPR by adjusting his status. In 2012, he pleaded guilty to attempted criminal possession of a weapon in the second [...]

BIA: Categorical approach is circuit-specific

No one has ever said that the categorical approach is straightforward. In a decision issued yesterday, the BIA managed it make it tougher to follow. Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) [hereinafter Matter of Chairez II] (Pauley, Greer, and Malphrus). Board Member Pauley wrote the panel’s decision. Immigration attorneys and judges are required to use the categorical approach to determine whether a crime falls into a category of removable offense listed in the INA. The same analysis applies to possible sentencing enhancements in criminal proceedings, thus categorical approach [...]

CrImmigration Law symposium at University of Denver Friday & Saturday

The Denver University Law Review is hosting “CrImmigration: Crossing the Border Between Criminal Law and Immigration Law” this Friday and Saturday. I’m thrilled that the journal’s editors decided to bring this topic to DU Law, where I teach, and to make it available online live through a livestream. As crimmigration.com readers are keenly aware, the boundary between criminal law and immigration law no longer has much meaning for literally hundreds of thousands of people every year. Interactions with the criminal justice system frequently lead to immigration detention and removal [...]