crImmigration.com

ICE Risk Assessments: From Mass Detention to Mass Supervision?

Cesar — 2013-05-16T09:00:00Z

[Ed. Note: Today, Mark Noferi is joined by Professor Robert Koulish, a political scientist in the Department of Government and Politics at the University of Maryland who also teaches immigration law at Maryland’s Carey School of Law. Professor Koulish’s most recent book is “Immigration and American Democracy: Subverting the Rule of Law,” in which he examined immigration control as a laboratory for post-9/11 expansion of U.S. executive power, and he is co-editing “Immigration Detention, Risk and Human Rights—Studies on Immigration and Crime” (2014 release). His recent article is “Entering the Risk Society: A Contested Terrain for Immigration Enforcement,” published in the volume Social Control and Justice. Along with Professor Noferi, and other law professors and social scientists, he is a member of the CINETS Crimmigration Control international research consortium, founded by Juliet Stumpf and Maria João Guia.

Together, Professors Koulish and Noferi are studying Immigration and Customs Enforcement’s (ICE’s) use of its new automated risk assessment tool. They discussed the issue in Baltimore Sun and Newark Star-Ledger op-eds, and will discuss further in forthcoming pieces under review.]

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If S. 744 passes, DHS has an opportunity to significantly reduce unnecessary over-detention of immigrants. DHS will make an “individualized determination” perhaps further, support outright repeal regarding detention for all. For those mandatorily held under INA § 236(c) for certain prior crimes, DHS will have explicit authority to place those individuals into “custody” rather than detention, “custody” now interpreted to include electronic tracking bracelets. For those discretionarily held under INA § 236(a), bond hearings must be provided within a week. At these hearings, DHS will have to demonstrate to an immigration judge that "no conditions, including ... alternatives to detention" will "reasonably assure" appearance at hearings and public safety. DHS will have to establish alternatives to detention that provide a "continuum of supervision,” including community support, case management, and appearance assistance services. DHS will be required to review an individual’s level of supervision monthly, and detainees will receive a custody review at least every 90 days.

Left unspoken in S. 744, however, is the process that will underlie DHS’ “individualized determination”—risk assessment. On March 19, ICE Director John Morton announced to Congress that ICE had deployed nationwide its new automated “Risk Classification Assessment” tool. Using this computerized tool—akin to a “point system”—ICE will collect information about an immigrant; ask its databases for a recommendation as to risk of flight or to public safety; and based on that recommendation, decide whether to detain or not. We think the information collected will include criminal history, family history, community ties, and vulnerabilities such as disability or crime victim status.

Risk assessment has drawn bipartisan support for its utility in criminal bail recommendations, especially in reducing cost. As Rep. Spencer Bachus (R-Ala.) recently asked Morton, “Are you overusing detention? Why don’t you do a risk assessment?” Alternatives to detention cost a tenth of detention or less—$14 per day as opposed to $164. Helpfully too, ICE's systems can produce statistical reports and trend analysis of its risk assessments to "better assess situations where [noncitizens] with similar characteristics seem to have different detention outcomes."

Thus, ICE risk assessment data has the potential to empirically support S. 744’s proposed reforms to reduce detention, and further reforms (as we wrote in the Baltimore Sun). First, ICE's risk practices and data may support ending mandatory detention. Risk data might show that individualized release determinations would not appreciably increase risk of flight or danger, especially regarding detainees with U.S. family ties. It may support S. 744’s revision of mandatory detention into mandatory “detention or custody,” and perhaps further, support outright repeal of mandatory custody altogether.

Second, ICE's risk practices and data may help Congress reform ICE's over-detention relative to U.S. criminal systems. For example, NYU’s Insecure Communities report found that in New York from 2005 through 2010, 80 percent of ICE arrestees were denied bond, with fewer than 1 percent released with no bond. By comparison, in criminal cases continuing past arraignment, 1 percent of defendants were denied bail, with 68 percent released with no bail. Congress should provide that DHS and immigration judges consider clear criteria regarding flight or danger, as criminal judges do, based on the risk data ICE now collects. Moreover, at the very least, individualized risk assessments should negate any need for Congress to continue its “bed quota” requiring 34,000 detainees at any one time (as the New York City Bar also advocated).

Third, comprehensive, accurate risk assessments should help reduce the severity of ICE detention. Dora Schriro, author of ICE's 2009 oversight report on detention, called immigrant detainees "appreciably different" from criminal detainees—often with intact families and jobs, well-developed life skills and nonviolent conduct. Yet, as the American Bar Association documented, immigrants largely remain in facilities "designed to hold criminal offenders," many actual jails. Even ICE's new civil detention standards are still modeled after jail standards. The ABA's model immigration detention standards provide a forward-thinking blueprint for both less and less restrictive detention, tailored to civil immigrant detainees. Congress should adopt the ABA standards into law (as the New York City Bar also advocated).

Yet risk assessment, along with its potential to support reform, poses potential concerns. Transparency is one (as we wrote in the Newark Star-Ledger). ICE has not released its risk assessment criteria. So, as things stand, ICE’s computers now determine immigrants’ liberty based on secret algorithms, which ICE officers must presumptively follow. There appears “no opportunity for immigrants to change or review information,” as New York City Bar wrote. All the more concerning, human rights advocates previously criticized the risk assessment tool for being weighted toward over-detention. If the risk tool says all immigrants are risky, detention reforms will be for naught. Since ICE refuses to release information related to RCA algorithms, it is unclear how risk will be measured, which variables will be used and how they will be weighted. Further, without having access to the risk assessment summary the immigration judge will have no evidentiary basis for a bond hearing. Congress should require immediate disclosure of ICE's risk assessment criteria, and require that the risk assessment summary, currently placed in DHS' file on an immigrant (the "A-File"), be reviewed in immigration court (as City Bar recommended as well).

Additionally, Congress should require ICE to publicize its statistical reports analyzing its new risk assessment practices (as S. 744 Section 3716 requires DHS to publicize other detention oversight activities). These reports could help prevent not only overuse of detention, but overuse of the most restrictive alternatives to detention. Immigrants in tracking bracelets are “freed but not free,” as a recent Rutgers-Newark School of Law study found. Restrictive alternatives should be reserved for the higher-risk, not expanded to nonviolent, long-time residents who should simply be released.

More broadly, the introduction of risk assessment technologies, without concomitant changes to laws requiring mandatory custody or practices resulting in over-detention, may facilitate a societal transformation from mass detention of immigrants to mass supervision. Alternatives to detention may garner wide public support, since the risk decision is purportedly neutral and computerized, and tracking bracelets are relatively cheap. But they also create additional risk for immigrants and society alike. A new risk assessment frame for immigration enforcement will increase the capacity for social control. While more immigrants may be freed from incarceration, for example, they will hardly be free under electronic or community supervision. This future “risk society” raises separate civil liberties concerns and societal inquiries, which we plan to address in forthcoming work.

Detention & Due Process in S. 744: The NYC Bar Speaks Out, Part 2

Cesar — 2013-05-15T09:00:00Z

Mark Noferi

Yesterday, I highlighted the New York City Bar Association immigration committee’s advocacy for universal appointed counsel in immigration proceedings, as well as City Bar’s analysis of Senate Judiciary Committee amendments that would roll back the limited right provided by S. 744. (City Bar’s April 24 letter supporting appointed counsel is available here, and its statement here).

Today, I’ll highlight City Bar’s advocacy for reduced detention, and its analysis of amendments that, similarly, roll back the advances provided by S. 744. (City Bar’s second letter supporting reduced detention is available here). As yesterday, although I summarize here some of City Bar’s positions, I speak in my personal capacity.

***

S. 744, while not dismantling the current system of immigration detention and deportation, took some significant steps to reduce over-detention, as César and myself previously summarized. S. 744 effectively revised mandatory detention without bail, for those with certain prior offenses, into mandatory “detention or custody,” now allowing alternative forms of custody like tracking bracelets. (This would overturn DHS’ interpretation that “custody” requires incarceration, despite opposing authority in criminal law.)

More generally, S. 744 encouraged alternatives to detention such as community-based supervision; provided important due process protections, such as timely bond hearings; and required additional, much-needed oversight and transparency over DHS detention facilities, whether publicly or privately owned. All these reforms would make civil immigration detention more humane, more fair, more cost-effective—and most importantly, there would be less of it. As the City Bar said, citing crImmigration.com, “if the term ‘civil’ detention means anything, it is that ICE should detain not just better, but less.” For those reasons, City Bar urged Congress to repeal mandatory detention or custody entirely, as other organizations repeatedly have.

Subsequently, Senator Charles Grassley (R-IA) proposed three amendments— 47, 51, and 53—that would collectively strike these reforms and reinstate and expand over-detention. Sen. Grassley’s Amendment 47 would entirely strike Section 3717, which provides due process protections such as bond hearings and time limits on detention. Amendment 51 would entirely strike Section 3715, which encourages alternatives to detention. And Amendment 53 would replace these sections with expanded detention, regardless of flight or safety risk.

Reading Amendment 53’s provisions is like inhabiting a parallel universe, in which the current detention system’s worst abuses are considered problems that more detention should fix. Under Amendment 53, mandatory pre-hearing detention would explicitly have no time limits, and apply no matter how long ago an individual completed criminal custody. (Needless to say, mandatory detention would also apply no matter how long one lived in America or whether one had a green card, job, or family.) For discretionary detention decisions, the burden on immigrants to prove their release would worsen, to “clear and convincing evidence.” (S. 744, conversely, shifted the burden to the government to detain, only if “no conditions including… alternatives to detention” would “reasonably assure” appearance at hearings or public safety). Moreover, Amendment 53 explicitly eliminated any ability of immigration judges to review custody status. And Amendment 53 expands mandatory detention after a removal order, as well.

Amendment 53 flies in the face of bipartisan support for detention reform. Nine in ten Americans, of all parties, support a “time limit on how long someone can be held in jail for immigration violations before they see a judge.” Conservative activist Grover Norquist and Rep. Spencer Bachus (R-AL) have questioned whether DHS is over-detaining immigrants. As Rep. Bachus asked ICE Director John Morton, “If these people are not public safety risks, if they are not violent, if they don’t have a criminal history, if they are not repeat offenders, if they’re going to show up for proceedings, why are they detained at all?” Indeed, Rep. Bachus went further: “Are some of those [immigrants] mandatory detentions that [ICE] could recommend to Congress that they not be?”

Moreover, Sen. Grassley’s amendments are likely unconstitutional. Unlimited detention without any judicial review violates due process and fundamental American presumptions of liberty, and raises “serious constitutional concerns,” as the U.S. Supreme Court ruled in Zadvydas v. Davis, 533 U.S. 678, 682 (2001). Lawsuits are already underway to challenge the harshest provisions of Amendment 53: prolonged detention without a bond hearing, the high burden already placed on immigrants to be released, and mandatory detention of those with convictions completed long ago. Undoubtedly more will follow if Amendment 53 is passed. City Bar opposed these Amendments.

Additionally, Sen. Jeff Sessions (R-AL) proposed an amendment (Sessions 12) to increase the bond minimum, from $1,500 to $5,000, to non-Mexican and non-Canadian immigrants (such as asylum seekers) who have not been admitted or paroled, and who are either 1) apprehended within 100 miles of the border or 2) present a “flight risk” as determined by ICE.

City Bar opposed this amendment as well. High bail is unfair to those without money. As the Justice Policy Institute wrote, the “ability to pay money is neither an indicator of guilt nor of risk, and means people are not properly screened for more rational measures of public safety.” Immigration bonds already are unnecessarily high—and far higher than those for criminal defendants, even though immigrants are less dangerous. For New York ICE arrestees, 75% of bond settings are $5,000 or more, and 35% are $10,000 or more. 55% of those ICE arrestees were unable to pay, and one in five of those have children. Conversely, for New York criminal pretrial detainees, 80% of bond settings are $1,000 and below. (These statistics come from the study “Insecure Communities,” authored by the NYU Immigrants’ Rights Clinic, the Immigrant Defense Project, and Families for Freedom.) Indeed, in City Bar’s initial letter, City Bar proposed to entirely eliminate the current $1,500 artificial immigration bond minimum, and make bond determinations more like the criminal system, where judges review bond under clear criteria without artificial restrictions.

As part of a transparent bond review process, City Bar also supported risk assessment as having “promise to reduce over-detention.” That said, City Bar noted that currently, “ICE appears to be making computerized determinations regarding immigrants' liberty based on a secret algorithm with no opportunity for immigrants to change or review information.” City Bar recommended immediate disclosure of ICE's risk assessment criteria, and that risk assessments be reviewed in immigration court. Robert Koulish, a University of Maryland political scientist, and I are writing about the promises and dangers that risk assessment poses (most recently, in the Baltimore Sun and Newark Star-Ledger). We’ll continue this conversation tomorrow.

Mark Noferi teaches immigrants’ rights and legal writing at Brooklyn Law School.

Appointed Counsel & Due Process in S. 744: The NYC Bar Speaks Out

Cesar — 2013-05-14T09:00:00Z

Mark Noferi

First, I’d like to thank Cesar for allowing me to guest blog this week. It’s been great to be involved as crImmigration has grown into the Internet’s most thoughtful analysis of crime and immigration issues. (You can also read my prior crImmigration posts on American Bar Association civil immigration detention standards, Moncrieffe v. Holder, and S. 744’s appointed counsel and detention provisions).

Today, I’ll start by summarizing recent amendments to appointed counsel and due process provisions in S. 744—largely under the radar in the reform debate (though I recently addressed this in an article on Slate)—and highlight the New York City Bar Association immigration committee’s advocacy work for stronger protections. Tomorrow, I’ll move on to detention-related provisions. Later this week, my co-author Robert Koulish and I will post on Immigration and Customs Enforcement’s (ICE’s) new risk assessment tool, which appears central to future detention decisions no matter what the outcome of reform. Although I summarize here some of City Bar’s positions, I speak here in my personal capacity.

***

The Senate Gang of Eight’s immigration reform bill, a.k.a. S. 744, contained in its 844 pages some significant advances to increase due process and reduce detention, as César and myself previously summarized. The New York City Bar Association, through its Immigration and Nationality Law Committee, issued two strong, detailed letters on April 24 recognizing these advances, but proposing further reforms to expand appointed counsel, reduce detention, and help our immigration system better reflect American values. (The City Bar’s public statement is also here.)

Meanwhile, of the over 300 amendments Senators proposed on May 7, nine would together largely reverse S. 744’s advances on due process and detention: Sen. Charles Grassley’s (R-IA) Amendments 39, 40, 41, 42, 47, 48, 51, and 53 and Sen. Jeff Sessions’ (R-AL) Amendment 12. City Bar then provided detailed analyses of these nine amendments, filling an important gap in the public debate, and its members are meeting with House and Senate staffers in Washington, D.C. The Senate Judiciary Committee began to consider amendments on May 9, and will continue “marking up” the bill today. These detention and due process amendments are expected to be considered by May 24, along with the rest of S. 744’s Title III addressing interior enforcement.

I’ve been proud to join these City Bar efforts, led by Professor Lenni Benson of New York Law School, who chairs the Immigration Committee with indefatigable effort and a wealth of knowledge. (Most recently, Prof. Benson co-authored a report by the Administrative Conference of the United States that concluded additional representation would help unclog overwhelmed immigration courts.) Special thanks also go out to Wilmer Hale’s pro bono team of Nicole Feit, Sanhita Sen, Ellie Martin, and Jonathan Pressman for their unflagging advocacy, writing, research, and support. Comments and suggestions would be welcome, as we continue our advocacy.

I’ll provide brief summaries here of this advocacy and recent amendments—today, on appointed counsel and due process provisions, and tomorrow, on detention-related concerns.

Appointed Counsel

S. 744 took a groundbreaking step by voluntarily providing appointed counsel to immigrants in removal proceedings—albeit only to children, the mentally ill, and the vaguely-described “particularly vulnerable when compared to other aliens in removal proceedings.” (Sec. 3502(c), p. 569). Few disagree with counsel to the first two groups. Indeed, shortly after S. 744, DHS and EOIR agreed to provide appointed counsel to the mentally ill in response to federal court litigation. But the third category raises additional questions. Who exactly is a “particularly vulnerable” immigrant in removal proceedings? Asylum seekers? Detainees, 84 percent of whom lack lawyers? Perhaps more to the point, who is not “particularly vulnerable” in removal proceedings that by definition force an individual to argue—under Byzantine statutes, against a Government lawyer, often in a foreign language—whether he or she stays in America? Indeed, conducting ad hoc, case-by-case reviews of whether one is “particularly vulnerable” would itself likely exacerbate immigration court backlogs. (See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 50-51 (1981) (Blackmun, J., dissenting).)

City Bar’s letter recognized S. 744’s advance, but advocated a more inclusive approach—free counsel to all indigents in removal proceedings (including expedited removal), as well as those bringing humanitarian claims such as asylum, the Trafficking Victims Protection Reauthorization Act ("TVPRA") or the Violence Against Women Act ("VAWA").

Many supporting arguments may be familiar to this blog’s readers (or those of my article that advocated for appointed counsel to immigrant detainees). Deportation, although technically "civil," involves much higher stakes than the typical civil proceeding-banishment from family, friends, livelihood, and property, or "all that makes life worth living." For these reasons, the right to counsel in criminal cases now includes immigration advice, after Padilla v. Kentucky, 130 S. Ct. 1473 (2010), since deportation can be "the most important part" of a criminal conviction. Immigration proceedings also force a uniquely vulnerable population to litigate uniquely complicated issues. As Justice Alito stated in Padilla, "[N]othing is ever simple with immigration law." And detention exacerbates the situation further, by depriving liberty, separating detainees from families, and frustrating any ability to meaningfully litigate a case.

Two particular arguments in City Bar’s letter warrant mention here. First, “there is no citizenship test for counsel in America.” We may forget this, since immigration proceedings are supposed to only involve non-citizens (theoretically). But when the U.S. or its states provide counsel, whether in criminal, civil, or military proceedings, we provide it to citizens and non-citizens alike. Put another way, the familiar Miranda words "You have the right to an attorney. If you cannot afford an attorney, one will be provided for you" do not include "only if you are a citizen." We do this because procedural safeguards reflect American values of fairness and due process, regardless of the defendant's identity.

And the U.S. and its states already provide counsel in many high-stakes proceedings, whether criminal or civil. For example, 44 states now provide counsel in civil proceedings to terminate parental rights. Deportation too frequently results in the same outcome. So to provide counsel in immigration proceedings, like many other high stakes proceedings involving loss of liberty or children, would not be so groundbreaking. Rather, a greater break from tradition would be to leave immigrants without lawyers, thus imposing a de facto citizenship test for appointed counsel.

Secondly, based on Prof. Benson’s report, the City Bar letter argued that “providing counsel to indigent non-citizens saves the government money by 1) preventing unnecessary court proceedings, 2) reducing the amount of time non-citizens spend in detention, and 3) relieving the burden of government support to disrupted families.” Existing Legal Orientation Programs ("LOPs") for detainees, in which advice is provided without full representation, have shortened case processing times for detainees by 13 days on average. Full representation would likely increase efficiency even further. City Bar recommended the creation of an independent immigration defender's office, modeled on the federal public defender office, with direct granting authority that would provide the Executive Office for Immigration Review with an independent stream of income. (On that point, City Bar cited UCLA Law Professor Ingrid Eagly’s helpful new Yale Law Journal article Gideon’s Migration).

Unfortunately, no Senators have (yet) proposed amendments for a more universal right to counsel, even though counsel for immigrants draws strong, bipartisan support. In a recent poll, three-quarters of Americans, and two-thirds of Republicans, support ensuring that "immigrants can have legal representation if they face deportation." Reasons for Senatorial reticence are unclear.

Meanwhile, several amendments scaled back S. 744’s provision of the right to counsel, and other due process improvements:

Grassley Amendment 40: This amendment proposes to make appointed counsel for children and the mentally ill discretionary, rather than mandatory. It also strikes the “particularly vulnerable” language altogether, as well as language providing funding for lawyers from the new immigration reform trust fund.

This Amendment makes little sense. As City Bar said, “There is no justification to force any children or mentally ill to defend themselves in court.” Moreover, case-by-case hearings to determine which children or mentally ill can purportedly defend themselves would be “inefficient, unfair, and useless without funding.” At risk of sarcasm, will U.S. immigration judges really hold hearings to determine how old a child must be before he or she can “play lawyer”? Eight? Ten? And at the end of the day, if immigration judges know that counsel won’t be paid for, immigration judges won’t appoint counsel. City Bar opposed this amendment.

Grassley Amendment 41: This Amendment eliminates the new proposed Office of Legal Access Programs, which would oversee the Legal Orientation Program (LOP). As noted, the LOP has made immigration proceedings fairer and more efficient for detainees, with benefits outweighing its costs. As City Bar pointed out, the Office of Legal Access Programs would institutionalize the LOP, and give it LOP independence from immigration courts, which avoids any appearance of impropriety. It is unclear what purpose this Amendment would serve, except to prevent the institutionalization of legal advice. Although City Bar recommended that Congress should go further than the LOP and provide universal appointed counsel, City Bar opposed this amendment.

Grassley Amendments 39, 48: These Amendments require the General Accounting Office (GAO) or Comptroller General to conduct a study of immigration courts’ workload before increasing immigration courts’ staff and resources, as S. 744 provides for.

These Amendments appear to be delaying tactics. The reports documenting extremely overloaded immigration courts have already been written—by Prof. Benson and the bipartisan Administrative Conference of the United States (137 pages); by the bipartisan American Bar Association (282 pages); and by the Appleseed Foundation (108 pages). As the Appleseed Foundation wrote, “Immigration Courts are so backlogged that in some places half-day hearings are being scheduled for 2015.” And when “DHS admits that its attorneys are ‘dodging bullets’ and a sitting judge testifies before Congress that her court system is broken,” it may be time for a “transformative fix,” let alone additional resources and funding. But additional resources and funding, without delay, would only help. City Bar opposed this amendment.

Grassley Amendment 42: This Amendment would keep in place procedures allowing for single-judge decisions by the Board of Immigration Appeals, and overturn S. 744’s proposal to return to the three-judge system.

In the 2000s, the Bush Administration allowed the Board of Immigration Appeals (BIA) to decide appeals in summary fashion by a single judge. Federal Circuit immigration appeals then exploded fivefold. Federal judges such as Second Circuit Judge Robert Katzmann and Seventh Circuit Judge Richard Posner criticized the poor quality of decisionmaking in immigration courts. The Second and Ninth Circuits hired extra staff attorneys, at extra costs, just to handle immigration cases. And as Prof. Benson related, the federal government’s Office of Immigration Litigation (OIL) appeals unit still seeks to remand, on its own initiative, one-quarter of federal Circuit appeals from the BIA because the records below are poor.

Returning to the three-judge system, as S. 744 proposes, is a common-sense move. Conversely, if enacted, Amendment 42 would instead reduce fairness, increase inefficiency, and increase the workloads on federal circuit courts, ultimately increasing costs to taxpayers and slowing down the immigration process for all. City Bar opposed this amendment. (See generally here Robert Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3, 5-6 (2008), citing e.g. Lenni B. Benson, Making Paper Dolls: How Restrictions on Judicial Review and the Administrative Process Increase Immigration Cases in the Federal Courts, 51 NYLS L. Rev. 37 (2006).)

Tomorrow, I’ll explore the detention-related amendments to S. 744.

Mark Noferi teaches immigrants’ rights and legal writing at Brooklyn Law School.

The Mentally Ill Immigrant & Due Process

Cesar — 2013-05-07T09:00:00Z

Patty Corrales

On April 23, 2013, a federal district judge ordered in the case of Franco-Gonzalez v. Holder, a class action lawsuit, the U.S. Immigration and Customs Enforcement, the Attorney General, and the Executive Office of Immigration Review to provide legal representation to immigrant detainees with mental disabilities who are facing deportation and who are unable to adequately represent themselves in immigration hearings. Franco-Gonzalez v. Holder, No. CV 10-02211 DMG, slip op. (C.D. Cal. April 23, 2013) (Gee, J.).

The ruling is the first of its kind for immigrant detainees who are mentally ill and who often languish in detention facilities for years without legal representation. The case applies only to certain detainees who reside in Arizona, California and Washington and comes as a result of a lawsuit filed by José Antonio Franco-Gonzalez, a Mexican immigrant with a cognitive disability who was detained in federal immigration facilities for nearly five years without a hearing or a lawyer

In the court’s ruling, Judge Dolly M. Gee determined that for this type of immigrants who suffer mental illness, appointed counsel “is the only means by which they may” defend themselves. Moreover, the court criticized the government for not having any safeguards to protect this most vulnerable population: “In this case . . . the very basis of Plaintiffs’ claim is the absence of meaningful procedures to safeguard” detainees with mental disabilities. As a result, the Court ordered that these detainees with serious mental disabilities be provided with qualified representatives at government expense and a bond hearing to avoid prolonged detention.

The ruling provides that immigrant detainees with mental disabilities finally get their day in court with representation that will ensure their due process rights are protected. The lawsuit was brought by the ACLU of Southern California and the ACLU Immigrants’ Rights Project.

The decision is a milestone but does it go far enough? My answer: No.

Problem: A relatively small but identifiable portion of society, our mentally ill immigrants, are needlessly suffering from the inability of immigration judges to order alternative detention solutions or court-ordered mental health counseling.

In the early 1970s, there was a shift in public policy regarding the mentally ill that consisted mainly of reducing public services. Politicians did not want to create a “welfare state”. L.L. Bachrach, Deinstitutionalization: An Analytical Review and Sociological Perspective (1976). As a result of this shift in policy, there was systematic mass closing of residential psychiatric hospitals nationwide treating the mentally ill. The process known as deinstitutionalization aimed at mainstreaming mentally ill patients back into the public. Id. Included in this population of the mentally ill were undocumented immigrants. Id. The unintended consequence of this deinstitutionalization was the shift in care of the severely mentally ill from the mental health community to the emergency services and corrections communities. It resulted in thousands of severely mentally ill persons being sent into the public, most often without psychiatric care and follow-up that they would need to function in society. Without resources available to them, many of the mentally ill became homeless or involved in otherwise preventable criminal activity. Id.

One such individual is a client I am defending in removal proceedings. Mr. Alvarez is a sweet and gentle 47-year-old who as a young child exhibited mentally illness and severe epileptic attacks. Mr. Alvarez may be 47 in physical age but he thinks, acts and speaks as someone with the acuity of a six-year-old.

His parents came to this country many years ago and brought him to the United States to get treatment when he was 6-years-old. At the time, Mr. Alvarez had no status. Eventually, his parents and the rest of his family became lawful permanent residents. Unfortunately someone had told his mother and father that because Mr. Alvarez was mentally ill and “stupid,” they could not petition for him. As a result, Mr. Alvarez was left without any status. In 1985, his parents put Mr. Alvarez in a hospital hoping and praying that the doctors could treat him. He was there for 72 hours and then the hospital discharged him because he was illegal and because there was no room at the hospital. Mr. Alvarez didn’t get any help.

A few years later, in 1992, he was arrested for lewd and lascivious acts upon a child under 14 years of age. Mr. Alvarez’s mental illness was never discovered by his public defender. It was never raised as a defense to the criminal charges. Why? I have no idea. Mr. Alvarez has no recollection of the day he got arrested, but his family said that “he would not do something like that.” His family believes that he was playing like a gentle child but that someone mistook his innocent mindset as an abusive physical contact. Mr. Alvarez pleaded guilty to the lewd and lascivious charge without understanding what he did or what it meant. He did 4 years in jail during which he received no mental health treatment.

In the 1990s, an illegal immigrant who was in the criminal system did not necessarily go straight to immigration authorities so Mr. Alvarez was not placed in deportation proceedings after his conviction. It was not until 2012 when Mr. Alvarez was convicted of failing to register as a sex offender that he came to the attention of immigration authorities. Mr. Alavarez failed to register because he had suffered a severe epileptic attack and was at a public hospital trying to get medical help. It did not matter because again his public defender didn’t recognize the mental health issues. Like before, Mr. Alvarez pleaded guilty to this offense and was sentenced to probation, only this time he was turned over to ICE.

I’ve met Mr. Alvarez and, as a prior prosecutor, I’m convinced that he is innocent. That is irrelevant, however, because immigration judges cannot look behind the conviction documents. Mr. Alvarez was detained for a very, very long time because ICE believed that his conviction in 1992 subjected him to mandatory detention. It did not, but that’s of no consequence now.

His family, desperate to get their son, their brother, out of detention, borrowed money to hire a lawyer to get him out of detention because Mr. Alvarez’s epileptic attacks were worsening. They are humble folks that see legal services as a luxury. Somehow they found me and I was able to convince the immigration judge that his 1992 conviction did not make him “mandatorily” detainable. The immigration judge agreed.

Had Mr. Alvarez not had an attorney to point out the legal requirements of when and how mandatory detention works, he would still be sitting in detention. But, having a lawyer to represent a mentally ill immigrant is not enough. Yet, having a lawyer at counsel table is still not sufficient to safeguard an immigrants’ due process. Without having legal status, most mentally ill immigrants have few resources from which they can seek medical assistance. After I obtained Mr. Alvarez’s release from detention, he has gone twice to mental health hospitals and twice they have refused to treat Mr. Alvarez because he has no legal status.

If comprehensive immigration reform happens, it would be important to give immigration judges the power to order mental health counseling or the power to order a mentally ill alien to be enrolled in an out-patient program so that people like Mr. Alvarez get the treatment they need and that a just society should provide.

Patty Corrales is a Former Senior Attorney with ICE. She worked at ICE for over 17 years. She is now in private practice and has dedicated her practice to criminal defense and immigration defense.

Regulating Migrants in Franklin County, Ohio–Part 2

Cesar — 2013-05-02T09:00:00Z

Lauren Hines

Within Franklin County, Ohio, the most effective method for finding and removing criminal migrants is regulating the movement of migrants across space. Civil and criminal charges that often lead to a migrant’s arrest are subjective. The high removal rates of migrants without criminal records and migrants facing low-level misdemeanor and civil charges in Franklin County make sense within an enforcement framework that willfully obfuscates the line between criminal and civil codes, and criminalizes migrant interactions with law enforcement for the sake of creating removable criminal aliens.

Locally active immigration enforcement officers and the subjectivity of local law enforcement officers exacerbate the creation and subsequent targeting of criminal migrants for removal in the Franklin County context. Law enforcement communities are uncertain about their enrollment in immigration enforcement programs. Franklin County residents concerned by the Sheriff’s Office’s role in the Secure Communities program have approached Sheriff Zach Scott on multiple occasions. In an informal meeting with Central Ohioans, Sheriff Scott was initially unfamiliar with the program and stated that the Sheriff’s Office did not honor ICE detainer requests in spite of having submitted over 85,000 fingerprints to the ICE Law Enforcement Support Center since 2010. Even though law enforcement actively participate in the creation of removable criminal migrants through the process of enforcement, the formalization of the biometric data submission process obscures their direct role in enforcement.

The Secure Communities initiative operates to query individuals arrested on criminal grounds as to their immigration status, a dramatic shift from prohibiting non-federal authorities from enforcing civil aspects of the Immigration and Nationality Act. According to the Secure Communities Standard Operating Procedures for participating law enforcement agencies, the program exists to pinpoint migrants currently in the custody of law enforcement either charged with or convicted of “serious criminal offenses” and to establish enforcement strategies primarily targeting migrants “convicted of serious criminal offenses” for removal.

Secure Communities promises to establish safety and maintain the integrity of communities that face the threat of insecurity caused by the criminal presence of immigrants. ICE frames the program as a “simple and common sense” tool for keeping the nation safe from any threats to its security without “imposing” enforcement decision-making responsibilities on enrolled law enforcement agencies. This bolsters the discourse that enrollment is logical, and participation is an efficient way to fix the imagined correlation between immigration and crime on a local scale with federal support.

Signing on to participate in Secure Communities is a rational way for jurisdictions across the US, whether near a border or in the nation’s interior, to address undocumented and undesirable immigration to their communities. In protecting their communities through enrollment in Secure Communities, activated jurisdictions take on the responsibility to keep their communities and the nation safe from criminal immigrants. Participating jurisdictions enter into the memorandum of agreement without expecting additional responsibilities or costs, although programs divert existing local law enforcement resources to immigration enforcement. Once adopted by a jurisdiction, there is no guarantee that the program’s discursively-established internal parameters will be followed. Moreover, contradictions between stated enforcement strategies and enforcement practices result in uneven enforcement of the program’s goals to identify and remove convicted level 1 criminals.

Whether directly enrolled in Secure Communities or not, local law enforcement partners face local-scale consequences. In partnering with ICE to remove migrants, local officials reinforce migrants’ overall distrust in law enforcement and the criminal justice system threatens the security of communities that immigration enforcement memorandum of agreement claim to protect. If migrants fear law enforcement will discover their or relatives’ unauthorized status, it is unlikely they will report crime or cooperate with a law enforcement investigation.

Recently, internal ICE emails revealed that the agency set annual removal quotas, which were the sole performance metric for field offices. Franklin County criminal defense attorneys have noticed a marked increase in removals through docket trolling and ICE agents’ presence in the county municipal court. ICE also suggested methods for reaching these quotas, including participation in local law enforcement-run traffic checkpoints, trolling state DMV records, and assigning ICE officers to jails to find removable noncitizens.

Within Franklin County, migrants who encounter law enforcement officials may soon become removable criminal aliens. Jurisdictions in which Secure Communities is activated often face low incidence of crimes reported for fear of victims being removed after revealing their unauthorized status, or losing breadwinning family members who may be perpetrators of crimes against them. The impending threat of deportation causes fear, insecurity, and misinformation to sediment in migrant communities. Multiscalar policies and practices in Franklin County regulate migrant movement to the point of incapacitation, facilitating the identification and subsequent removal of criminal migrants from the community. Law enforcement agencies’ role in incapacitating entire migrant communities is justified by the perceived presence of criminal unauthorized migrants. One must not ignore that immigrants sometimes commit crime, but it is vital to recognize that immigration enforcement practices turn large swaths of migrant communities into removable criminal aliens.

Lauren Hines is a newly-minted MA in Geography from the Ohio State University, as well as founder and coordinator of Central Ohio Immigrant Justice, a community organization dedicated to identifying and filling gaps in resources in Columbus’ migrant and solidarity communities.

Report: Private prison growth on civil & crim side of immigration prosecutions

Cesar — 2013-05-02T09:00:00Z

Private prisons have expanded at an astonishing rate in recent years and much of that growth can be attributed to immigration imprisonment, according to a new report by the Sentencing Project. Cody Mason, The Sentencing Project, Dollars and Detainees: The Growth of For-Profit Detention (July 2012). Thanks in large part to immigration prisoners, private prison corporations have maintained strong bottom-lines even while the economy has struggled, the report added.

The report divides immigration prisoners into two camps: those held under the direction of ICE and those under the United States Marshals Service’s control. ICE prisoners are held pending immigration proceedings and USMS prisoners are held awaiting prosecution for an immigration-related or other crime. Mason at 2-3.

In 2002, Mason reported, 4,841 INS detainees were held in private facilities. By 2010, that number had jumped to 14,814, a 206% increase. Mason at 4. For its part, USMS held 4,061 people in private facilities in 2002 and 17,154 in 2010, a 322% increase.

Today, ICE holds approximately 43% of its prisoners (13,927 on average per night in 2012) in private jails. Thanks to their contracts to house these individuals, the country’s two largest prison corporations, the Corrections Corporation of America and the GEO Group, earned 20 and 14 percent of their 2011 revenue, respectively, from ICE. Mason at 5. Plus, it can’t hurt that they’re allowed to pay immigrant prisoners as little as $1 per day for an 8-hour workday. That’s right: $1 per day for 8 hours of work. (See government documents obtained through Freedom of Information Act request.)

A few other interesting bits of information jumped out at me while reading Mason’s report: forty percent of all USMS prisoners in 2011 were detained on immigration-related charges, Mason at 3; CCA spends about $2 million lobbying legislators each year, Mason at 13; and 8 of ICE’s 10 biggest facilities are privately operated, Mason at 8.

The gist is that private immigration imprisonment is growing creating quite a lucrative market for the prison corporations.

Regulating Migrants in Franklin County, Ohio–Part 1

Cesar — 2013-05-01T09:00:00Z

Lauren Hines

The Secure Communities program permits federally-trained officers to scrutinize individuals booked into non-federal jails for their immigration status. The program uses shared biometric data from all enrolled Secure Communities jurisdictions as well as FBI and other federal databases to alert Immigration and Customs Enforcement (ICE) to removable migrants with criminal records. Secure Communities, however, is not the only program used for targeting migrants classified as criminal aliens for removal. Other federal-local memoranda of agreement (MOA) as well as non-federal practices and policies differentiate undesirable migrants from the rest of the population. Many local and state anti-immigrant initiatives exist to supplement the perceived ineffectiveness of federal immigration enforcement practices. These non-federal initiatives inhibit migrant social reproduction through incapacitation, which target migrants’ access to housing, education, social services, work, and free speech.

On January 19, 2010, Franklin County and Cuyahoga County became Ohio’s first two counties to voluntarily enter the Secure Communities agreement. Like many other activated Secure Communities jurisdictions, Franklin County has no other federal enforcement responsibilities. Columbus, the Franklin County seat, houses a branch of the Criminal Alien Program, as well as the USCIS Columbus Field Office and an ICE Enforcement and Removal operations sub-field office. Columbus is a diverse city with a growing migrant population, and despite several unsuccessful attempts by state legislators, Ohio has yet to pass explicitly anti-immigrant laws. In 2010, the Columbus City Council unanimously passed a resolution in favor of comprehensive immigration reform.

However, according to ICE’s Secure Communities Nationwide Interoperability Statistics Report through April 30, 2011, Franklin County had the 17th highest percentage of removals of individuals without any pending criminal records. Although the percentage of non-criminal removals from Franklin County has decreased, the program still overwhelmingly removes non-criminal migrants and low-level criminal and civil offenders.

Upon review of local policies and practices, it became clear that the central Ohio context facilitates regulating and managing migrant populations through restricting their movement. According to state law, every Ohio driver must carry proof of automobile insurance, a valid driver’s license, and automobile registration. Ohio does not issue licenses or state identification to migrants without social security numbers and stopped issuing automobile titles to people without social security numbers in 2009 through a massive policy shift. The Ohio Bureau of Motor Vehicles’ issuance of letters threatening cancellation of current titles unless their holders paid an additional fee, provided a valid Social Security Number, and requested to have their case heard before a court. On March 6, 2012, a state intermediate appellate court found in LULAC v. Governor of the State of Ohio, 2012-Ohio-947, No. 10AP-639, slip op. (Ohio Ct. App. March 6, 2012) that there was no sufficient basis in Ohio law for the mass cancellations of vehicle titles.

Migrant communities often rely on notaries who offer support in navigating unfamiliar laws and customs. Since the end of the policy granting vehicle title access to people without Social Security Numbers in 2009, local notaries have charged exorbitant fees to transfer migrants’ car titles to citizens as well as create fictitious companies with Taxpayer Identification Numbers in order to register “commercial” vehicles. Although international driver’s licenses are not state-issued identification and do not authorize their holders to drive per se, many local businesses claim to help migrants overcome barriers to driving lawfully in Ohio. Notaries and other supposed advocates often claim to provide services they are unauthorized to offer and exploit migrant communities in the process. In doing so, they foster misinformation and fail to protect their clients and communities from removal. Policing tactics perpetuate insecurity within large, newly-settled migrant communities.

Within Franklin County, immigration enforcement targets the monitoring and restriction of migrants’ movement in automobiles. Stories have circulated within migrant communities and local advocacy organizations of migrants parked at gas stations being approached by ICE agents who suddenly appear out of a black SUV with tinted windows. When migrants get ready to leave their apartment complexes in the morning to drive to work, they may find ICE agents awaiting them, asking if they have documentation to confirm their legal presence. Recently, a local organization heard from community members that ICE agents dressed in civilian clothing failed to identify themselves as such before approaching and questioning possible migrants.

Local migrant communities perceive themselves as targets of ambush tactics, and although ICE ostensibly targets convicted criminals, absconders, and migrants who were previously removed, a community leader asserts that “[ICE is] spending time in apartment complexes where these people used to live, looking for them… they never find the criminals they’re looking for and always end up finding other victims that live at those addresses.” ICE agents present an unpredictable and impending threat; they may suddenly appear to question migrants and confirm their right to be in the country. In southwest Columbus, this possibility has discouraged migrant parents from opening their front door to let their children catch the school bus. Foreseeable interaction with law enforcement also causes anxiety-based insecurity in Columbus’ migrant communities.

Predictable encounters with law enforcement officers, such as announced operating a vehicle under the influence of alcohol (OVI) checkpoints and routine traffic stops, may result in the removal of undocumented migrants. If a driver passes through a City of Columbus traffic stop and cannot provide state-issued identification matching the name on her automobile registration, the city confiscates her vehicle. The car rests in an impound lot until the title holder (or a relative) provides sufficient identification and pays a fine to recover the car.

When dealing directly with local law enforcement officers, there is more room for subjectivity than an Immigration Alien Query that transforms into an ICE hold. According to a criminal defense attorney with long-standing relations with local migrant communities, “who picks them is usually not an issue. It’s when they get put in jail that it’s a problem. Or they get fingerprinted.” The responding officer can ultimately decide whether a migrant is set on the path to removal proceedings or is free to continue without incident until stopped again:

You have police officers that are generally sympathetic to the community, and you can break them up as 1/3 sympathetic, 1/3 completely unsympathetic, and the other ones, it depends on the circumstances and how they’re feeling that particular day. …[I]t means that 1/3 of the cases, the officers are going out of their way to make sure that the individual is not identified as an undocumented.

The justification for stops that lead to a migrant’s arrest and eventual removal is highly contingent upon the officer involved. Law enforcement agencies like the Columbus Division of Police may have official directives about how to handle immigrants suspected of unlawful presence, yet this does not mean that all agents and departments will follow them. Once a person is charged with driving without a license, the arresting officer may determine that the migrant’s identification, whether lawful (such as the Mexican government-issued matrícula consular, a lawfully-obtained license from a state that issues identification to unauthorized migrants, or a notary-issued international driver’s license) or not is fraudulent. If so, a migrant faces a felony charge of identity fraud or identity theft, which prosecutors often dismiss in exchange for a guilty plea to driving without an operator’s license.

Moncrieffe: Lessons in Crimmigration Law

Cesar — 2013-04-30T09:00:00Z

By Maritza I. Reyes, Associate Professor of Law, Florida A&M University College of Law

César did a great job of summarizing the U.S. Supreme Court opinion in Moncrieffe v. Holder, No. 11-702, slip. op. (U.S. April 23, 2013). I will not duplicate what has already been posted, but I will briefly examine some of the lessons in the opinion to elucidate the importance of crimmigration as a developing area of law.

At the state level, Moncrieffe pleaded guilty to possession of marijuana with intent to distribute, a violation under Georgia law (Ga. Code Ann. § 16–13–30(j)(1) (2007)). Moncrieffe, No. 11-701, slip. op. at 3. The state court ordered Moncrieffe to complete five years of probation, after which time his charge would be expunged. Id. At the Supreme Court, the parties did not dispute that this type of state procedure (available for first-time offenders) is a conviction under section 101(a)(48)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101(a)(48)(A). Id. at 3 n.2.

At the federal immigration level, the Government charged Moncrieffe as removable under INA sections 237(a)(2)(A)(iii) and (B)(i), 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i) for an “aggravated felony” and a controlled substance offense respectively. Brief for Petitioner at 6. The immigration judge ruled “that every marijuana distribution conviction is ipso facto an ‘aggravated felony’” and ordered Moncrieffe removed. Id. at 6; Moncrieffe, No. 11-701, slip op. at 3. The Board of Immigration Appeals (BIA) affirmed the immigration judge’s order and the Fifth Circuit Court of Appeals denied Moncrieffe’s petition for review. Moncrieffe, slip. op. at 3-4. The importance of challenging the “aggravated felony” ground of removability was set forth by the Court at the beginning of the opinion when it explained that an aggravated felony conviction would preclude Moncrieffe from applying for discretionary forms of relief, such as asylum and cancellation of removal. Id. at 2.

The Supreme Court resolved a conflict among the Courts of Appeals and decided that “[i]f a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.” Id. at 22. In reaching its conclusion, the Court examined what it termed a “chain of [statutory] definitions.” Id. at 2. In section 101(a)(43), 8 U.S.C. § 1101(a)(43), the INA defines a range of offenses that constitute aggravated felonies. Under subsection 101(a)(43)(B) “illicit trafficking in a controlled substance,” as defined in 21 U.S.C. § 802, is an aggravated felony, which includes a “drug trafficking crime,” which is defined in 18 U.S.C. § 924(c)(2) as “any felony punishable under the Controlled Substances Act [CSA].” Id. at 2. The final definition in the chain is 18 U.S.C. § 3559(a)(5), which defines a “felony” as “an offense for which the ‘maximum term of imprisonment authorized’ is ‘more than one year.’” Id. at 2.

In accordance with Lopez v. Gonzalez, 549 U.S. 47, 60 (2006), a state offense constitutes a felony punishable under the CSA only if it “proscribes conduct punishable as a felony under [the CSA].” Id. at 3. The Government argued that possession of marijuana with intent to distribute is an offense under the CSA, 21 U.S.C. § 841(a), punishable by up to five years’ imprisonment as provided in 21 U.S.C. § 841(b)(1)(D), and therefore an aggravated felony. Id. at 3. Moncrieffe argued that marijuana distribution of a small amount of marijuana without remuneration is only punishable as a misdemeanor under the CSA, 21 U.S.C. § 841(b)(4), and is therefore not an aggravated felony. Id. at 4.

The two dissenters, Justice Thomas and Justice Alito (the two Justices that remained silent during oral arguments, as noted by Professor Mark Noferi in his contribution to this online symposium) argued that the Court should look to the “default provision” (subsection 841(b)(1)(D)) and not to the “mitigating” exception/sentencing guideline (subsection 841(b)(4)) to determine the punishment prong. Id. (Thomas, J., dissenting at 3; Alito, J., dissenting at 5–6). To support this proposition, Justices Thomas and Alito cited United States v. Outen, 286 F. 3d 622 (2d Cir. 2002), a criminal case that dealt with an Apprendi issue and, in citing Outen, both Justices included a parenthetical noting that Justice Sotomayor wrote the opinion in that case. Id. In addressing the Outen decision in Moncrieffe, Justice Sotomayor provided a lesson on the distinction between a federal criminal prosecution and an immigration removal proceeding. Slip op. at 11-14. She explained why the interpretation in a criminal proceeding does not apply for the purpose of the INA’s definition of a generic federal offense, including because an Apprendi issue is a jury issue and immigration proceedings are not conducted before a jury. Id.

As in Nijhawan v. Holder, 557 U.S. 29 (2009), the Court applied the “categorical approach” to determine whether the Georgia offense is comparable to an offense listed in the INA. Id. at 4–5. Therefore, the Court looked, not at the particular facts of Moncrieffe’s case, but at whether the Georgia statute’s definition categorically fit within the “generic” federal crime of “illicit trafficking in a controlled substance.” Id. at 5–6. The Court set forth a “two conditions” test (prohibited conduct plus felony punishment) for a state drug offense to satisfy the categorical approach and fit within the generic federal crime of illicit trafficking in a controlled substance: (1) the state offense must “‘necessarily’ proscribe conduct that is an offense under the CSA;” and (2) “the CSA must ‘necessarily’ prescribe felony punishment for that conduct.” Id. at 6. The Court’s decision hinged on the second condition―the punishment as a felony prong. Id. at 7.

As evidenced by the facts of Moncrieffe’s case (1.3 grams of marijuana: the equivalent of about two or three marijuana cigarettes), Georgia prosecutes the offense for possession of a small amount of marijuana. Id. at 3, 9. Additionally, “distribution” does not require remuneration. Id. at 9. The Court made an important distinction between criminal law and immigration law when, in response to one of the Government’s arguments, it explained that Carachuri Rosendo v. Holder, 130 S. Ct. 2577 (2010), clarified that, “for purposes of the INA, a generic federal offense may be defined by reference to both” the elements of the statute AND the sentencing factors used to determine the punishment. Id. at 13.

The majority opinion also provided guidance beyond the facts of Moncrieffe’s case. For example, the Court once again stated that the categorical approach applies for generic crimes, but, as the Court held in Nijawan, for circumstance-specific provisions, the immigration court is allowed to examine “the ‘particular circumstances in which an offender committed the crime on a particular occasion.’” Id. at 17 (citing Nijawan, 557 U.S. at 38–40).

Another interesting portion of the opinion addressed the Government’s suggestion that defense attorneys in criminal proceedings, as part of their effective assistance of counsel duty under Padilla v. Kentucky, 559 U.S. 359 (2010), will build an appropriate record of facts that may subsequently assist their noncitizen clients in subsequent removal proceedings. Id. at 18. The Court responded to this argument as follows:

Even assuming defense counsel “will” do something simply because it is required of effective counsel (an assumption experience does not always bear out), this argument is unavailing because there is no reason to believe that state courts will regularly or uniformly admit evidence going to facts, such as remuneration, that are irrelevant to the offense charged.

Id. Interestingly, the Government’s argument that effective assistance of counsel requires defense attorneys to develop the record in the criminal proceeding implies that defense counsel must know how to perform the type of crimmigration analysis that the Court conducted in Moncrieffe. The Government’s position highlights the increasing importance of crimmigration as an area of expertise for criminal attorneys.

In yet one more crimmigration law lesson, the Court went out of its way to explain that the non-aggravated felony determination, for the purpose of removability (deportation), only means that noncitizens who qualify for some forms of discretionary relief may not be presumptively denied. Id. at 19. Ultimately, the decision as to whether the relief from deportation will be granted is discretionary. Id.

One final but important point was, in my opinion, the Court’s direct admonishment to the Government to stop trying to expand the aggravated felony category by characterizing low-level drug offenses as “‘illicit trafficking in a controlled substance.’” Id. at 21. The Court basically told the Government that this approach lacks common sense as evidenced by the fact that the Court has been forced to stop this aggravated felony expansion for “the third time in seven years.” Id. at 21 (citing Carachuri-Rosendo and Lopez). This point was of particular interest to me because the Court did what I had suggested that it can do in cases that involve potential deportation of lawful permanent residents based on criminal-related removal grounds.

In my article, Constitutionalizing Immigration Law: The Vital Role of Judicial Discretion in the Removal of Lawful Permanent Residents, 84 Temple Law Review 637 (2012), I recognized that, due to the Court’s deference to the political branches in the area of admission and deportation of noncitizens, “the Court has refused to engage in a constitutional analysis of the removal laws.” Id. at 670. But, I suggested that, even if the Court continues to refuse to examine the constitutionality of the current crime-based deportability grounds (as violations of the Eighth Amendment in the case of lawful permanent residents, a proportionality argument), the Court can use its decisions “to advise Congress about the injustices of the current removal laws.” Id. at 675. This is exactly what the Court did in Moncrieffe when it admonished the Government to stop trying to expand the aggravated felony category.

In his posting, Professor Noferi discussed how the concept of “proportionality”—categorical removal based on a minor drug conviction— was not addressed during oral arguments. It was also not mentioned explicitly in the Court’s opinion. However, Moncrieffe, Carachuri-Rosendo and Lopez all involved longtime lawful permanent residents who were ordered removed for minor drug crimes. And, the Court’s admonishment to the Government to stop treating minor drug offenses as aggravated felonies implicitly addressed proportionality, even if the case was decided on the basis of statutory interpretation (the type of approach that Professor Noferi termed “undertaking constitutional analysis on subconstitutional grounds”). Professor Noferi also referred to Professor Hiroshi Motomura’s suggestion that a “reliance on ‘surrogates’ for constitutional analysis is at best a ‘crude tool,’ and impedes the sound development of immigration law.”

I agree that the Court should stop avoiding the constitutional issues. In my Constitutionalizing Immigration Law article, I also advanced that “recent jurisprudence may provide an avenue for review of the constitutionality of removal laws that are tied to criminal convictions.” Id. at 670. In support of this position, I analyzed a trilogy of cases, United States v. Booker, 543 U.S. 220 (2005), Fong Yue Ting v. United States, 149 U.S. 698 (1893), and Padilla (cited in Moncrieffe), that, together, may provide the basis for the Court to entertain constitutional challenges to the removal provisions that are tied to criminal convictions in cases of lawful permanent residents like Moncrieffe. Id. at 670-76. The removal laws at the time of Fong Yue Ting, the case where the Court held that deportation is not punishment, were very different from the criminal-removal grounds that are used to deport lawful permanent residents today. Id. at 674. The Court came closer to recognizing that deportation is punishment in Padilla (a case that involved a lawful permanent resident), but precedent still holds that deportation is not punishment and, so long as that precedent stands, the Court will have a difficult time analyzing today’s crime-based removal laws from a constitutional perspective.

Moncrieffe is a welcomed reprieve for many noncitizens who will not necessarily avoid deportation, as the Court properly recognized, but who may be at least able to seek discretionary relief in the immigration proceeding where proportionality of the punishment (removal) to the crime may be considered. Even if the constitutional analysis is still missing, I am happy that the Court is putting a break to the Government’s continued attempts to expand the aggravated felony category. As important, the Supreme Court continues to educate all of us as it continues to educate itself about crimmigration law and the drastic immigration treatment that noncitizens face in today’s deportation nation.

Professor Reyes teaches immigration law and researches and writes in the area of crimmigration law. She is a graduate of the Master of Laws program at Harvard Law School and earned a J.D. summa cum laude from Nova Southeastern University Shepard Broad Law Center. She serves on the Board of Advisors of the Harvard Latino Law Review and as faculty advisor to the FAMU College of Law Hispanic American Law Students Association.

Moncrieffe: Supreme Court Does a Reality Check on the Immigration Detention & Deportation System

Cesar — 2013-04-29T09:03:00Z

Sarah Rose Weinman | National Immigrant Justice Center

Adrian is a green-card holder who has lived lawfully in the United States since age three. In 2007, he was arrested in Georgia after police found 1.3 grams of marijuana in his car. He pleaded guilty to the Georgia state offense of “distribution of marijuana,” and, as a first-time offender, was sentenced only to probation. But federal immigration officials said that Adrian’s offense qualified as an “aggravated felony” under federal immigration law. As a result, he was mandatorily detained in immigration custody, placed in deportation proceedings, and ordered deported.

Ruben (a pseudonym) entered the United States in 1979, at the age of two, and has never known another home. He experimented with marijuana as a youth, and was arrested in his 20s in Illinois for a marijuana offense similar to Adrian’s. After that, Ruben turned his life around. He studied and worked in construction. He was a proud union member. He enjoyed close relationships with his immediate family, nearly all of whom are U.S. citizens. He became engaged to a U.S. citizen. And he had no further encounters with law enforcement. That is, until immigration officers inexplicably showed up at his home last year, misled his mother into thinking that Ruben was wanted for questioning regarding a car accident, and then took him into immigration detention. There, Ruben has remained for the past 15 months, at a cost to the government of about $164 per day, while the government sought to deport him on the allegation that his state marijuana conviction from nearly a decade ago is an “aggravated felony” under immigration law. Because he was charged as being an aggravated felon, Ruben was unable to seek a bond from immigration custody or mount any defense to his deportation proceedings, notwithstanding his long-standing ties to the United States and positive, law-abiding contributions to society over the past ten years. An immigration judge ordered him deported.

Adrian appealed his deportation order up to the Supreme Court, and on April 23, 2013, the Court ruled in his favor in Moncrieffe v. Holder, No. 11-702, slip op. (U.S. Apr. 23, 2013). In a 7-2 decision, the Court upheld a long-standing rule of legal analysis – the so-called “categorical approach” – for determining whether a given criminal offense can be considered an aggravated felony under immigration law. The Moncrieffe decision serves as a reminder of why the rule makes sense in in our detention and deportation system.

The Court explained in a nutshell what the “categorical approach” does: it requires an immigration judge adjudicating a non-citizen’s deportation proceedings to ask only what the person was “convicted of”, not “what he did.” See Moncrieffe v. Holder, slip op. at 15. The immigration judge is to look at the language of the law under which the person was convicted, and see if that language necessarily, or categorically, matches up to the federal aggravated felony ground that the government has charged.

In Adrian’s case, the government alleged that the Georgia marijuana distribution offense constituted a ground of deportation for aggravated felony illicit drug trafficking under federal law. But the Court pointed out that the Georgia offense – like many state marijuana statutes – punishes conduct that falls within a federal misdemeanor provision for social sharing of a small amount of marijuana. In other words, a person who shares a joint with a friend at a party, and a person who sells a kilogram of marijuana, both could be convicted under the same Georgia statute. The Court therefore observed that the Georgia statute doesn’t necessarily match up to the federal definition of aggravated felony drug trafficking; sometimes it matches up to the federal misdemeanor.

The government in Moncrieffe proposed a solution to this tangle with the categorical approach: an immigrant in deportation proceedings should have to have a “mini-trial” to re-litigate their criminal case before the immigration judge to prove that the conviction was only for a small amount of marijuana that was freely shared, and thus would qualify as a misdemeanor. But the Court pointed out several fatal flaws with the government’s proposed solution.

First, the Court rejected the proposed “mini-trial” solution because it would fly in the face of the categorical approach itself. It would require an immigration judge adjudicating a case like Adrian’s to look, in effect, behind the statute of conviction, at “what he did,” not what he was “convicted of.” The Court pointed out that this solution would defeat the whole purpose of the categorical approach, which is to ensure uniformity and fairness across similar cases. For example, under the government’s approach, immigration judges would have to:

entertain and weigh testimony from, for example, the friend of a noncitizen who may have shared a marijuana cigarette with him at a party, or the local police officer who recalls to the contrary that cash traded hands. And, as a result, two noncitizens, each “convicted of” the same offense, might obtain different aggravated felony determinations depending on what evidence remains available or how it is perceived by an individual immigration judge.

Moncrieffe, slip op. at 16.

Second, the Court took a pragmatic look at the realities of our immigration detention and deportation system, and found that the government’s proposed solution would be impractical and unfair. The Court observed that requiring mini-trials in deportation proceedings would further burden our already-overwhelmed immigration courts. Each immigration judge handles more than 1,200 cases every year, with the assistance of only one law clerk shared among four judges. See Moncrieffe, Brief for Nat’l Immig. Justice Center et al. as Amici Curiae at 19. The immigration court system as a whole completes more than 280,000 cases each year. Id. at 20. Many of these cases are years-old by the time they conclude due to backlogs in the system. Holding fact-intensive mini-trials would only further delay cases and unnecessarily tax the courts.

And the Court stated that such mini-trials would be patently unjust to immigrants, citing to an amicus brief filed by the National Immigrant Justice Center, Americans for Immigrant Justice, the Northwest Immigrant Rights Project, and the Florence Immigrant and Refugee Rights Project (collectively, “amici”), represented by Baker & McKenzie. Amici, all of which are organizations that provide direct legal services to detained immigrants in deportation proceedings, used their on-the-ground and day-do-day experiences to explain to the Court how the nature of our detention affects immigrants in proceedings. Virtually all immigrants who have been convicted of any drug offense, even simple possession of only a small amount of marijuana, are subject to mandatory detention. Once detained, it is next to impossible for immigrants to gather evidence to defend themselves in deportation proceedings. Detained immigrants have limited ability to place or receive telephone calls, and no access to fax, email, or internet. Postal services are rendered effectively nonexistent because detainees are transferred frequently between facilities with no mail forwarding. And in-person communications are similarly unavailable since most detention facilities are in remote locations. In some cases, criminal defendants in pre-trial detention might face similar obstacles. But there is an all-important distinction between a criminal defendant and an immigrant in civil deportation proceedings: the former is appointed a lawyer to represent him, and the latter is not. Indeed, more than half of immigrants in deportation proceedings, many of whom have little or no English proficiency or education, appear pro se, and only 10% of detained immigrants are able to secure counsel. As a result, the Court observed, “[a] noncitizen in removal proceedings is not at all similarly situated to a defendant in a federal criminal prosecution.” Moncrieffe, slip op. at 16. And so, individuals like Adrian “have little ability” to locate witnesses, records, or otherwise “to collect evidence” to defend against aggravated felony charges brought by the government for old, low-level offenses that in many cases would in fact be misdemeanors by federal standards. Id. Requiring them to re-litigate such offenses under these circumstances defies common sense and basic notions of justice.

The Court cautioned that escaping being charged with having an “aggravated felony” under immigration law does not mean escaping deportation proceedings. Indeed, Adrian and other immigrants with low-level drug convictions are subject to proceedings as controlled substance offenders. But they may be eligible to ask the immigration judge for certain types of relief from removal not available to individuals who have the type of significant drug sale and trafficking convictions that federal law punishes as aggravated felonies.

In sum, the Court called the government’s proposed mini-trial solution a “cure … worse than the disease” and an approach that “is simply wrong.” Moncrieffe, slip op. at 19. It would produce disparate results, create chaos in the courts, and unfairly force immigrants to re-try, without the benefit of counsel and while detained, cases for which they already went through criminal proceedings and served their sentence (often without having to spend so much as a day in jail), with permanent, irrevocable banishment from the United States and separation from U.S. citizen parents, spouses, and children, at stake.

So, what now? Adrian’s case will be remanded, and an immigration judge now could determine whether he is eligible for any relief from deportation that he was prevented from applying for while the government had lodged the improper “aggravated felony” charge against him. And Ruben, whose appeal of his deportation order NIJC is handling before the Seventh Circuit, now has a chance to contest the government’s aggravated felony charge against him and ask an immigration judge for a chance to stay in the United States, marry his fiancée, and continue making his proud contributions to the work force and to his community. For both, and for many others like them, this week’s common sense ruling from our highest court means a fighting shot for justice in the often-unjust world of immigration detention and deportation.

Sarah Rose Weinman is an Equal Justice Works Fellow and attorney working with NIJC's Detention and Litigation Projects. Sarah’s project seeks to protect the rights of immigrants who are in deportation proceedings due to prior criminal convictions that were constitutionally defective and to assist criminal defense attorneys to safeguard the rights of their non-citizen clients during criminal proceedings, in compliance with the recent U.S. Supreme Court decision in Padilla v. Kentucky. Sarah joined NIJC after working at an indigent defense law office in New York City and clerking in the U.S. Federal District Court for the Northern District of Illinois. She attended law school at the University of California at Berkeley (Boalt Hall), and obtained her bachelor’s degree from Reed College. Between college and law school, she worked as NIJC's Policy and Program Liaison. Sarah is licensed to practice law in New York. Her fellowship is generously sponsored by Baker & McKenzie LLP.

US Dist Ct: ICE agents’ lawsuit against prosecutorial discretion survives

Cesar — 2013-04-25T09:00:00Z

In a decision about a politically contentious lawsuit, a federal district court struck a blow at the Department of Homeland Security’s use of prosecutorial discretion to manage its removal work. Crane v. Napolitano, No. 3:12-cv-03247-O, slip op. (N.D. Tex. April 23, 2013) (O’Connor, J.). The court strongly suggested that it will uphold the bulk of the claims brought against DHS by the ICE union challenging ICE’s prosecutorial discretion memoranda and the specific prosecutorial discretion initiative known as Deferred Action Against Childhood Arrivals (DACA).

As I detailed before, the agents essentially contend that the prosecutorial discretion policies enunciated by ICE require them to violate the Immigration and Nationality Act. Their claim is grounded on the fact that the INA uses the term “shall” in key provisions announcing which individuals are subject to removal, and that the PD policies preclude them from putting those people into removal. If they follow the statute, they add, they face disciplinary action by department superiors for going against the department’s PD policies. Crane, No. 3:12-cv-03247-O, slip op. at 2-3. The court had previously concluded that the agents had standing to sue DHS.

The district court essentially adopted the agents’ position. The agents’ claim preliminarily focuses on the language of INA § 235(a), 8 U.S.C. § 1225(a). In its entirety, it provides:

“An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.”

This provision, the court first concluded, applies to individuals “whether they are arriving in the United States at a port of entry or are encountered by immigration officers elsewhere in the United States.” Crane, No. 3:12-cv-03247-O, slip op. at 14.

More importantly, the court then turned to the provision at the heart of the agents’ claim, INA § 235(b)(2)(A), 8 U.S.C. § 1225(b)(2)(A). In pertinent part, this provision states:

“in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240.”

The court concluded that this provision requires that immigration agents initiate removal proceedings against anyone who meets the specified criteria: an “alien seeking admission [who] is not clearly and beyond a doubt entitled to be admitted.” Crane, No. 3:12-cv-03247-O, slip op. at 15. This despite the fact that the court acknowledges the Supreme Court’s repeated assertions that prosecutorial discretion exists in immigration law. Crane, No. 3:12-cv-03247-O, slip op. at 16-17. The district court nonetheless concluded that “Congress, by using the mandatory term ‘shall’ in Section 1225(b)(2)(A), has circumscribed ICE’s power to exercise discretion when determining against which ‘applicants for admission’ it will initiate removal proceedings.” Crane, No. 3:12-cv-03247-O, slip op. at 17.

According to the court, DHS can only exercise prosecutorial discretion as to how to proceed in removal proceedings against individuals who are covered by § 235(b)(2)(A), the court added. For example, they could choose between removal proceedings under INA § 240 (the standard removal process before an immigration judge) or expedited removal under INA § 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). Crane, No. 3:12-cv-03247-O, slip op. at 19. Alternatively, DHS could exercise discretion after removal proceedings are initiated by, for example, cancelling a notice to appear or dismissing removal proceedings. Crane, No. 3:12-cv-03247-O, slip op. at 24. “[N]othing in this Order limits DHS’s discretion at later stages of the removal process. Through the exercise of discretion at these later stages in the removal proceedings, DHS appears capable of prioritizing its removal objectives and conserving its limited resources.” Crane, No. 3:12-cv-03247-O, slip op. at 24 (internal citations omitted).

Importantly, the court did not grant a preliminary injunction, as the agents asked, because of an outstanding jurisdictional issue related to the Civil Service Reform Act. Crane, No. 3:12-cv-03247-O, slip op. at 36-37. The court ordered additional briefing on that issue due by May 6, with a decision on the preliminary injunction expected after that. Despite this lingering issue, the court’s order strongly suggests that it has bought the agents’ arguments about the merits of their claim. If the court ultimately concludes that it has jurisdiction and enters an order consistent with this explanation, it threatens to take the punch out of ICE’s recent PD initiatives and will undoubtedly be appealed to the Fifth Circuit.

David Martin (UVA Law), a former general counsel for the INS and former deputy general counsel for DHS, explained why the reasoning adopted by the district is wrong in Yale Law Journal Online essay.

SCOTUS: Affirms categorical approach; illicit trafficking requires selling

Cesar — 2013-04-23T15:48:05Z

The U.S. Supreme Court issued its long awaited decision in Moncrieffe v. Holder today affirming the use of the categorical approach in immigration proceedings. No. 11-702, slip op. (U.S. April 23, 2013) (Sotomayor, Roberts, Scalia, Kennedy, Ginsburg, Breyer, and Kagan, JJ.; Thomas and Alito, JJ. dissenting). Justice Sotomayor wrote the opinion for the seven-justice majority. Justice Thomas and Justice Alito wrote separate dissenting opinions.

The case involved an LPR who was convicted of violating Georgia’s possession of marijuana offense. During a traffic stop he was caught with 1.3 grams of marijuana in his car. Moncrieffe, No. 11-702, slip op. at 3. He was placed in removal proceedings on the basis that this offense constituted an aggravated felony under the “illicit trafficking” provision of INA § 101(a)(43)(B). The IJ and BIA agreed. On appeal, the Fifth Circuit also took the position that this was illicit trafficking despite Moncrieffe’s argument that the Georgia statute allows for conviction even where no remuneration is exchanged—that is, where the marijuana was given away rather than sold.

[For earlier discussions of Moncrieffe visit crImmigration.com’s online symposium contributions. Three symposium contributors were cited by the majority’s opinion—one by Alina Das (NYU) and another by Claudia Valenzuela and Sarah Rose Weinman (National Immigrant Justice Center).]

This is an important distinction that ultimately carries the day for Moncrieffe because federal law treats exchanging a small amount of marijuana for no remuneration as a misdemeanor but every other marijuana exchange is a felony. The Court had previously determined that a state drug offense constitutes illicit trafficking only if it is a felony punishable under the federal Controlled Substances Act. Lopez v. Gonzales, 549 U.S. 47, 60 (2006).

Reviewing Moncrieffe’s situation, Justice Sotomayor and the six justices who joined her concluded that courts are required to examine only the elements of the offense of conviction to determine if it is an illicit trafficking crime. This is the “categorical approach” to statutory interpretation that the Court has used on numerous occasions previously.

“Under this approach we look ‘not to the facts of the particular prior case,’ but instead to whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony. By ‘generic,’ we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state offense is a categorical match with a generic federal offense only if a conviction of the state offense ‘necessarily involved . . . facts equating to [the] generic [federal offense].’ Whether the noncitizen’s actual conduct involved such facts ‘is quite irrelevant.’”

Moncrieffe, No. 11-702, slip op. at 5 (internal citations omitted). Using the categorical approach, courts “must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” Moncrieffe, No. 11-702, slip op. at 5.

Courts may deviate from the categorical approach in some instances. Where the state statute, for example, encompasses multiple crimes, courts may determine if the noncitizen is removable by looking at the record of conviction. Moncrieffe, No. 11-702, slip op. at 5. This is called the modified categorical approach. In addition, courts must ensure that there is actually a “realistic probability, not a theoretical possibility,” that the state would actually punish the conduct that falls outside the generic definition. Moncrieffe, No. 11-702, slip op. at 6. This means that there needs to be some proof that conduct that does not fall within the removal category (e.g., it’s not an illicit trafficking offense) would actually be prosecuted and sanctioned under the state crime; merely pointing out that it could happen isn’t enough.

Applying the categorical approach framework to the illicit trafficking provision, the Court explained that “a state drug offense must meet two conditions: It must ‘necessarily’ proscribe conduct that is an offense under the CSA, and the CSA must ‘necessarily’ prescribe felony punishment for that conduct.” Moncrieffe, No. 11-702, slip op. at 6. Here, Moncrieffe was clearly convicted of conduct that is prohibited by the federal CSA—it’s a federal crime to possess marijuana with the intent to distribute. Moncrieffe, No. 11-702, slip op. at 7.

The problem for the government—and the saving grace for Moncrieffe—turns on the second requirement: that the Georgia offense for which Moncrieffe was convicted necessarily provides felony-level punishment (defined as at least one year of imprisonment). Though the federal CSA treats most marijuana possession with intent to distribute crimes as felonies, it treats possession of marijuana with intent to distribute as misdemeanors if they involve “a small amount of marihuana for no remuneration.” 21 U.S.C. § 844(b)(1)(D)(4).

The key is whether Moncrieffe’s conviction falls within this misdemeanor exception. According to the majority, it does. Georgia’s possession with intent to distribute offense includes exchanges of small amounts of a marijuana and, crucially, “distribution” as defined by Georgia “does not require remuneration.” Moncrieffe, No. 11-702, slip op. at 9. In other words, giving it away for free constitutes “selling” in Georgia; it does not under the federal CSA. This is not intuitive, but it’s not extraordinary either; legislatures can define words used in a statute however they deem fit. Consequently “[u]nder the categorical approach, then, Moncrieffe was not convicted of an aggravated felony.” Moncrieffe, No. 11-702, slip op. at 9.

Interestingly, the Court goes on to explain its rejection of the government’s position that distribution convictions be presumed to be felonies but that noncitizens be given the opportunity to rebut this presumption in immigration court. Doing this would create “minitrials” in the immigration courts that the Court has no interest allowing. “[T]he Government’s approach,” the majority explained

“would have our Nation’s overburdened immigra¬tion courts entertain and weigh testimony from, for exam¬ple, the friend of a noncitizen who may have shared a marijuana cigarette with him at a party, or the local police officer who recalls to the contrary that cash traded hands. And, as a result, two noncitizens, each ‘convicted of’ the same offense, might obtain different aggravated felony determinations depending on what evidence remains available or how it is perceived by an individual immigra¬tion judge. The categorical approach was designed to avoid this ‘potential unfairness.’”

Moncrieffe, No. 11-702, slip op. at 16. Such minitrials are particularly undesirable, the Court adds, because noncitizens are frequently detained pending removal proceedings and “are not guaranteed legal representation.” Moncrieffe, No. 11-702, slip op. at 16. (For this point, the Court cites an amicus brief of immigration law professors that I was proud to sign, as well as an amicus brief submitted by the National Immigrant Justice Center whose attorneys have guest blogged about this case.)

In a parting note, the majority points out that this is the third time in seven years that it has considered the illicit trafficking provision in cases involving “low-level” offenses. “Once again we hold that the Government’s approach defies ‘the commonsense conception’ of these terms.” Moncrieffe, No. 11-702, slip op. at 21.

6 Cir: Driving while undocumented leads to shackled while giving birth

Cesar — 2013-04-23T09:00:00Z

The U.S. Court of Appeals for the Sixth Circuit reversed a favorable summary judgment disposition and jury award involving a woman who was shackled while giving birth after she was caught driving without a license and processed through a 287(g) program. Villegas v. Metropolitan Government of Nashville and Davidson County, No. 11-6031, slip op. (6th Cir. Mar. 4, 2013) (Clay, Gibbons, and White, JJ.). Judge Clay delivered the panel’s majority opinion. Judge White dissented.

This case involves a woman who was pulled over for a traffic offense. When she failed to produce a driver’s license, the officer arrested her, took her to the county jail, and processed her identification information through the county’s 287(g) program. ICE then placed an immigration detainer on her. As a result of the detainer, the county jail classified her as a medium-security inmate. Villegas, No. 11-6031, slip op. at 2. Two days later Villegas went into labor and an ambulance was called to take her to the local hospital.

What happened next is startling so I’ll quote at length:

For transportation in the ambulance, Plaintiff was placed on a stretcher with her wrists handcuffed together in front of her body and her legs restrained together. According to Defendant Metropolitan Government of Nashville and Davidson County, because hospitals are “conducive to security breaches including escape,” medium-security inmates at hospitals remain shackled until they return to jail. Two male officers (Matthew Barshaw and Thomas Farragher) accompanied Plaintiff in the ambulance to the Hospital with Barshaw riding in the front seat and Farragher in the back with Plaintiff. Barshaw questioned his supervisor about the leg restraints because “what if all of a sudden the baby started [and it] took more time to unrestrain these restraints in the back of the ambulance.”
Upon arriving at the Hospital, Farragher removed Plaintiff’s shackles at the request of Hospital staff so that Plaintiff could change into a hospital gown. Barshaw and Farragher remained in the room with Plaintiff with their backs turned as she changed, and after she finished, they again restrained her. Shortly after Plaintiff arrivedat the Hospital, officer Brandi Moore arrived to relieve Barshaw and Farragher. Farragher informed Moore that Plaintiff was a “medium-security inmate” with a “hold” or “detainer” in her file and gave Moore a “charge sheet,” indicating Plaintiff’s name, charge, and custody level. After Farragher and Barshaw left, Moore removed Plaintiff’s handcuffs but kept one of Plaintiff’s legs restrained to the hospital bed.
At some point during Moore’s shift, Moore overheard Hospital staff talking to a doctor about a “No Restraint Order” but claims that she never received such an order from the Hospital. Additionally, Moore admitted to having been told by a nurse that she “shouldn’t put leg irons on [Plaintiff],” but the conversation ended there. At 11:20 p.m., a Hospital doctor signed a physician’s order stating: “Please remove shackles,” and this order was placed in Plaintiff's hospital file, though never specifically given to any officer. Moore was relieved by officer David Peralta at 11:00 p.m. on June 5th and told Peralta to “be prepared for a no restraint order.”
Shortly after the shift change, Peralta removed Plaintiff’s restraints. According to hospital records, when the shackles were removed, Plaintiff had only dilated to 3 centimeters (“cm”). Plaintiff did not become dilated to 4 cm, a point that Defendant contends is medically relevant, until 11:45 p.m. It was around this time that Plaintiff also first requested pain medication, which she received in the form of an epidural. Plaintiff gave birth without any complications at approximately 1:00 a.m on July 6, 2008—roughly two hours after Peralta removed her shackles. Plaintiff remained unshackled until shortly before Peralta’s shift ended at 7:00 a.m., when he re-restrained Plaintiff to the bed at one of her ankles. Plaintiff was never handcuffed postpartum”

Villegas, No. 11-6031, slip op. at 3-4

In addition, Villegas was not allowed to take a breast pump issued by the hosital to the jail because it was not deemed a “critical medical device. Villegas, No. 11-6031, slip op. at 4.

The federal district court granted Villegas’s summary judgment motion claiming that the jail staff were deliberately indifferent to her need to be unrestrained while in labor and to her postpartum medical needs by denying her access to the breast pump. Both are claims that fall within the Eight Amendment’s Cruel and Unusual Punishment Clause. Villegas, No. 11-6031, slip op. at 5-6. A jury awarded her $200,000 in damages. Villegas, No. 11-6031, slip op. at 5.

The Sixth Circuit reversed the trial court’s summary judgment disposition. First, the court concluded that there exists a factual dispute about whether Villegas posed a risk of flight. If she did, then, as the court recounted, restraints would be consistent with American Medical Association and United Nations standards regarding custody. Villegas, No. 11-6031, slip op. at 15. In addition, the court concluded that there remains a factual dispute about the risk posted by shackling. Villegas, No. 11-6031, slip op. at 18.

Secondly, the court concluded that there was no evidence indicating that the breast pump was issued as part of a treatment plan. Villegas, No. 11-6031, slip op. at 22. The evidence showed “little more than the fact that Hospital staff handed her a breast pump as she was being discharged.” Villegas, No. 11-6031, slip op. at 22. Testimony from a psychiatrist and an ob/gyn “that a breast pump was necessary to allow Plaintiff to express her milk and relieve her breast pain,” the court explained, “does not speak specifically to the obviousness of the risk to Plaintiff” of being denied access to the breast pump. Villegas, No. 11-6031, slip op. at 22. Therefore, summary judgment on this issue was also inappropriate.

In a spirited dissent, Judge White pointed out that Villegas was treated in this manner for no reason except that her immigration status automatically subjected her to a medium-security classification under the theory “that illegal immigrants in general pose a danger of flight.” Villegas, No. 11-6031, slip op. at 26 (White, J., dissenting). It was not based on any assessment of Villegas’s flight risk or danger to the public. Villegas, No. 11-6031, slip op. at 26 (White, J., dissenting). Indeed, “[i]n order to flee or pose a threat, Villegas would have had to harm or elude armed officer(s) and the nurse authorizing entry and exit from the maternity ward charged with unlocking the doors.” Villegas, No. 11-6031, slip op. at 27 (White, J., dissenting).