Last week, I wrote about the due process and detention provisions of the S. 744 immigration bill, and specifically the possibility of a right to appointed counsel in immigration proceedings (or at least for detainees, as I wrote about in Slate Wednesday). (The Senate Judiciary Committee seems ready to consider those provisions today). Subsequently, Robert Koulish and I wrote about ICE’s use of risk assessment for detainees—since if ICE’s risk tool is faulty, detention reforms will be naught.
Today, I’ll write about another forward-looking issue. In the coming decade, the U.S. Supreme Court will not only likely consider the right to a lawyer in immigration proceedings, but as a fallback, the right to a non-lawyer representative. The argument is far from hypothetical. Non-lawyers are already widely representing immigrants in the U.S. And as non-lawyer immigration representatives are subjected to increasing professionalization, standards, and oversight, an established “non-lawyer immigration bar” is developing, as already exists in Canada, the U.K., and Australia.
A future Court’s right-to-counsel decision will raise (at least) three sets of questions: constitutional, pedagogical, and empirical. I’ll set out some background, and then briefly summarize these arguments below.
I’ll speak on this issue twice this summer: at the AALS Midyear Meeting in San Diego on a panel with U.C. Davis' Kevin Johnson (editor of the essential ImmProf Blog), and at the Law and Legal Education in the Americas Conference at University of Detroit-Mercy School of Law. Previously, I spoke about this at the University of the District of Columbia’s Expanding the Civil Right to Counsel: 50 Years After Gideon symposium, with the University of New Hampshire’s Erin Corcoran, and excellently moderated by UDC’s Kristina Campbell, director of their Immigration and Human Rights clinic. (Here’s a video link). I also submitted a comment to the ABA’s Task Force on the Future of Legal Education on the implications of non-lawyer representation on legal education. Thanks also to Linus Chan of DePaul’s immigration clinic, who informed my thoughts. DePaul does great work with accredited representatives in Chicago. Thanks also to Brooklyn Law students Mary Bruch, Molly Kammien, Timothy Poodiack, Elana Rodman, and Tung Sing Wong for excellent research assistance.
Background. The use and professionalization of U.S. non-lawyer immigration accredited representatives is growing, as advocates seek to increase immigrants’ access to justice. (See Erin Corcoran’s and Careen Shannon’s work). In the U.S., non-lawyers currently provide fairly full legal services in civil immigration proceedings—essentially, everything except an appeal to the federal Circuit. The Board of Immigration Appeals (“BIA”) authorizes over 1,200 “accredited representatives” to represent noncitizens on behalf of “recognized organizations” before the Department of Homeland Security and the Executive Office of Immigration Review (“EOIR”).
The BIA accreditation system essentially encourages on-the-job learning through apprenticeship. To qualify for recognition by the BIA, a non-profit organization may charge no more than nominal fees for immigration services, and must “[have] at its disposal adequate knowledge, information and experience.” Once recognized, an organization may sponsor its employees for accreditation if they demonstrate “good moral character” and “experience and knowledge of immigration and naturalization law and procedure.”
From an access to justice perspective, the question is whether non-lawyers are better than no representation, or whether, as Careen Shannon noted, non-lawyers may “do more harm than good.” Public interest advocates have generally favored non-lawyer representation—in part in reaction to the traditional economic protectionism of the lawyers’ bar, and in part to increase access to justice for the indigent unrepresented. James Greiner and Molly Jennings described the latter rationale as “the idea that every little bit helps, and each little bit helps a little more.” Yet “[p]erhaps, like a small dose of antibiotics, a small amount of lawyering can be ineffective, or even harmful….”
At times, accredited representatives have indeed acted inadequately or negligently. For example, the infamous “Father Bob” Vitaglione took on 761 cases at once, hundreds in which he failed to show or showed up unprepared. U.S. scholars have thus recently emphasized enhanced licensing standards and oversight to encourage higher professionalism and skill in non-lawyer representation. Careen Shannon proposed a model unauthorized practice-of-law statute that would, inter alia, define the practice of immigration law and who can engage in it, strengthen enforcement provisions, encourage BIA accreditation, and establish a trust fund to fund training for accredited representatives. Shannon also suggested a “competency exam” similar to a bar exam, and ongoing training similar to CLE training, in addition to the existing requirements. Erin Corcoran highlighted the BIA requirement that a qualified organization must nominate an individual representative, so as to provide extra layer of oversight over and above an immigration law test.
Thus, U.S. non-lawyer immigrant representation is moving towards the model in place in Canada, the U.K., and Australia. Each has regulated immigration non-lawyer representation, with standards governing practice (for example, ethical rules and requirements of indemnity insurance); oversight mechanisms, such as disciplinary proceedings; and professional organizations, similar to bar associations. (Nor is the U.S. trend towards non-lawyer representation limited to immigration law. For example, Social Security disability and patent and trademark hearings also provide regulated non-lawyer representation, as Erin Corcoran pointed out.)
Constitutional Questions. Constitutionally, the Court will consider whether immigrants (particularly detainees) have a right to counsel. The cases are coming. The ACLU recently hired a Fellow to “help establish a right to appointed counsel for immigration detainees.” And at least for lawful permanent resident noncitizens, it is settled they possess due process rights.
These cases will also raise the sub-question whether nonlawyers suffice for due process. The U.S. Supreme Court has essentially sanctioned non-lawyer representation as a potential “middle ground” between no and full representation, in civil Gideon cases which deprive one of liberty. Recently, in Turner v. Rogers, 131 S. Ct. 2507 (2011), the Court allowed that a non-lawyer social worker might suffice for due process in a civil contempt proceeding—but in a way that opened the door to wider use of non-lawyer representation.
Previously, the Court had sanctioned specialized non-lawyer representation, such as a medical professional, where the particular factual issues were specialized rather than general. Thus, in Vitek v. Jones, 445 U.S. 480, 499-500 (1980), the concurring fifth vote sanctioned specialized non-lawyer representation in psychiatric commitment hearings (i.e. a mental health professional). In Washington v. Harper, 494 U.S. 210 (1990), the Court extended this reasoning to hearings regarding forced medication of mentally disordered prison inmates. But the Turner Court extended this rationale to factual issues more generally, in suggesting that a social worker might suffice to assist the “straightforward” factual determination of indigence.
U.S. immigration proceedings, in which professionalized non-lawyers already practice, may be a candidate for this new middle ground. As I, Ingrid Eagly, Kevin Johnson, and Laura Abel point out, Turner v. Rogers may well support a right to counsel for immigration detainees. Immigration removal proceedings deprive liberty through detention and deportation. And unlike Turner and Vitek, immigration proceedings often involve incredibly complex legal questions, with Government counsel on the other side unlike Turner. That said, the potential politicization of a ruling that provides counsel to immigrants may be the strongest motivation for a “middle ground” approach of non-lawyers. (The Court’s decision not to retroactively extend Padilla v. Kentucky may have been motivated more by politics than law. Denver’s Christopher Lasch suggested as much on this blog.) And practically, if non-lawyers are already practicing in immigration court, the precedent has been set.
The Court may consider the nuances of non-lawyer representation and due process. For example, even though immigration proceedings typically involve much evidence, there are few formal evidentiary rules—which, among other things, may raise the question as to which lawyers’ skills are necessary to ensure due process. (I.e. having taken Evidence in law school, or the ability to test evidence in court?)
Pedagogical Questions. More broadly, the Court’s question might be: If the salient difference between lawyers and non-lawyer representatives is law school, then what does law school add that ensures due process? Or, another way: Does legal education provide value to representation that apprenticeship does not? How much value, regarding what skills? Pedagogically, these questions are old, but constitutionally, they are new.
Pedagogically speaking, the answers to these questions will have profound implications at this time of intense debate regarding the value of law school. If a future Court constitutionally sanctions the current practice of non-lawyer accredited representatives, even in immigration proceedings involving complex legal and evidentiary issues, that might essentially invite a return to the apprenticeship model of legal training and de-emphasize the value of law school. After all, if one desiring to represent immigrants can do so by working for an immigration services organization, without law school debt—why law school?
That said, the development of pedagogically sound skills-based legal education, spurred by the Carnegie report, may train better lawyers today in a way that mere apprenticeship could not, and traditionally did not. For example, the recent trend towards teaching client-centered lawyering, through pedagogically sound experiential and clinical education, may give law school graduates training in advising clients that apprenticeship could not. Law school clinics, given their traditional social justice mission, could also provide specified training to future immigration lawyers—i.e. “soft” skills beyond legal analysis—in a way apprenticeship historically did not.
As these observations suggest, the difference between lawyers and non-lawyers may not be so much “knowing the law,” i.e. traditional legal analysis of statutes. Most lawyers might not know “the [immigration] law” anyway. After all, law schools don’t require immigration law. Even if a lawyer took Immigration I, that could hardly prepare that lawyer for the incredible complexities of applying immigration law to facts in actual practice. Rather, anecdotally, the difference between lawyers and non-lawyers seemingly owes more to inculcated cultural, professional, and ethical norms of being a lawyer. Lawyers, it seems, more often give more complete answers covering all possibilities and satisfying ethical norms, rather than simply giving a solitary answer. Those skills could be learned through apprenticeship. But it’s possible as well that skills-based education, with pedagogically developed self-reflection, teaches those skills better today.
Back to legal education. So, as I put it in March to a room of University of District of Columbia law students: What parts of your legal education made you a better lawyer today than when you entered law school? And what parts are necessary to effectively represent a client in court, to a minimum standard of due process? Was it learning legal analysis? Oral argument? Taking Evidence and learning the Federal Rules, or learning how to test evidence upon cross-examination in your clinical course? Learning how to counsel clients and resolve ethical questions in your clinic or internships? When did you learn that skill – upon doing, or reflecting?
And as legal education moves away from a one-size-fits-all model, could legal education short of three years do the trick, in the Court’s eyes? Some schools are already incorporating two-year J.D.’s. Could a specialized one-year “immigration J.D.,” skills training, and passage of an “immigration bar exam” suffice for due process, even if non-lawyer representation does not?
Empirical Questions. To inform these constitutional and pedagogical questions, there is a real need for empirical research to begin to define and test the adequacy of non-lawyer representatives and legal education programs to train them. Put simply, empirical research is needed as to whether non-lawyers can perform as well as lawyers in immigration proceedings, and which proceedings, in what ways. I.e. of the “three A’s” of lawyers’ skills—analysis, advocacy, and advice—which non-lawyers perform just as well without law school, and which they do not.
Quantitative empirical analysis of outcomes in immigration proceedings—i.e. comparing success rates for those represented by lawyers versus non-lawyers—is an essential first step to test the adequacy of professionalized non-lawyer representation. Recent studies, such as Judge Robert Katzmann’s New York Immigrant Representation Study, have made it clear that representation matters greatly to success in immigration proceedings, at the least. It is surprisingly unclear, though, whether and how much non-lawyer representation matters compared to traditional lawyer representation and pro se attempts to litigate. No one yet has studied whether a non-lawyer accredited representative wins as much in immigration court as a lawyer. (In the Social Security context, as Erin Corcoran noted, older empirical data showed little difference in the success rate for clients represented by a non-lawyer versus a lawyer.)
Secondly, delineation of the lines described above—i.e. which cases require “lawyer’s skills,” and which skills a non-lawyer specialist might capably perform—may be more achievable through long-term qualitative research. This research would follow Laura Abel’s suggestion to conduct “process analysis,” and go beyond traditional access-to-justice research on case outcomes to more specifically research “the tasks involved in litigating a particular case.” Such research might be achieved through more neutral observational vehicles.
Once these empirical questions are answered, further empirical research may inform legal educators’ questions as to whether and how to provide the “limited license” programs described above—i.e. a specialized one-year “immigration J.D.” Legal educators might seek preliminary answers to some of these questions by conducting empirical research on immigration accreditation programs (or others), along the lines of the research proposed above.
While I have a public forum, I’d like to thank as well the Brooklyn Law students in my inaugural Constitutional Civil Rights and Immigration seminar. These students— Setenay Akdag, Venus Bermudez, Scott Foletta, Gillian Kosinski, Beile Lindner, Erin McKeever, Ari Rosmarin, Svetlana Turova, Rachel Weissman, Tung Sing Wong, Linda Yu, and Liat Zudkewich—considered the most contentious and difficult issues in civil rights and immigration today, and produced a set of groundbreaking papers that push the boundaries of the debate even further. Their papers examined topics like interdisciplinary “crimmigration” and “fammigration” courts; the impact of Secure Communities on domestic violence and school policing; comparisons of detention to international human rights law, or modern immigration law to Jim Crow; and the constitutionality of drivers’ licenses for DACA recipients, inadequate translation in immigration proceedings, poor religious dietary access in detention, deportation for probation violations, English-only laws, and relitigation of criminal facts in immigration courts. As I told them all, teaching a class with students like them in it is what made me want to be a teacher. Thank you all.
Mark Noferi teaches immigrants’ rights and legal writing at Brooklyn Law School.
[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.]
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.
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.
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.
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.
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 attorneys that practice criminal law.
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.
The bipartisan immigration bill released on Wednesday, titled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013,” contains a number of crImmigration provisions, with a heavy emphasis on border policing strategies. Most of these are nothing new; rather, they’re expansions of existing attempts to regulate clandestine immigration. Significant changes, however, do come in the resources that the bill would provide to noncitizens facing removal and the immigration courts that adjudicate their cases.
Based on a preliminary reading of the proposed law, I’ve summarized key points to supplement Mark Noferi’s wonderful summary yesterday.
Border Policing and Prosecution
Without question, policing takes a more central role in this proposed legislation insofar as other components of the bill wouldn’t kick in until specified border “security” measures are in place. In its “statement of congressional findings,” the proposal explains, “All parts of this Act are premised on the right and need of the United States…to protect its borders and maintain its sovereignty.” Sec. 2(4).
The BSEOIMA focuses a great deal of attention on the Mexican border. Before anyone can receive “Registered Provisional Immigrant Status,” the lawful status that the bill would create, DHS would have to provide Congress with a “Comprehensive Southern Border Security Strategy” that explains how DHS will achieve and maintain effective control of high-risk areas along the southern border. Sec. 3(c). “High-risk” areas are those in which 30,000 or more individuals are apprehended attempting to enter clandestinely, § 3(a)(5), and “effective control” means that DHS has to have the ability to apprehend 90% of attempted unauthorized entrants and maintain “persistent surveillance.” Sec. 3(a)(3). The bill does not mention the Canadian border so presumably these requirements don’t apply to that area. Based on Border Patrol statistics for apprehensions in fiscal year 2012, there appear to be three sectors that meet this definition: Tucson, Laredo, and the Río Grande Valley. The bill would appropriate $3 billion to this strategy to pay for, among other things, increased DHS surveillance capabilities, more Border Patrol and CBP officers, and more unmanned aerial vehicles (drones) and crew. Sec. 6(a)(3)(A)(i).
The bill would also devote about $1.5 billion to the “Southern Border Fencing Strategy” which requires DHS to identify where more fencing should be built along the border with México. Sec. 6(a)(3)(A)(iii). Again, no mention of the Canadian border. Also no mention of the failed Secure Border Initiative in which Boeing received $1.1 billion and was unable to actually build a wall.
A “Southern Border Security Commission” would be created if, after five years, the 90% apprehension rate in high-risk sectors along the Mexican border was not reached. Sec. 4(a). The commission would be tasked with issuing a report of recommendations for how to achieve 90% apprehension, § 4(c)-(d), and Congress would appropriate up to $2 billion for DHS to implement these recommendations. Sec. 6(a)(3)(A)(ii).
On the prosecution front, the BSEOIMA would increase funding for Operation Streamline in Tucson. Sec. 1104(a)(1). Fifty million dollars in funding would be allocated to criminal prosecutions of immigration-related crimes (mostly illegal entry and illegal reentry). Sec. 6(a)(3)(B)(i). The goal would be to increase the average number of prosecutions per day to 210 from about 70. The bill would also reauthorize the State Criminal Alien Assistance Program (SCAAP), which reimburses state and local governments for incarcerating unauthorized individuals, through 2015. Sec. 1110. (I’ve written about the SCAAP previously, and noted that it only reimburses localities for part of the relevant cost.) The Arizona federal district courts would be authorized to hire two additional magistrate judges to, among other duties, preside over immigration prosecutions. Sec. 1104(a)(2).
More money would also be directed at Operation Stonegarden, a little-known initiative that FEMA runs through which it pays for state, local, and tribal law enforcement efforts to engage in border security operations. Sec. 1104(b)(1). In the past, Operation Stonegarden funds have been used for all manner of activities, including cover the cost of police issuing motor vehicle traffic citations and crowd control at soccer games. The BSEOIMA requires that at least 90% of the newly appropriated $50 million go toward “personnel, overtime, travel, and other costs related to illegal immigration and drug smuggling in the Southwest Border region.” Sec. 6(a)(3)(B)(ii), 1104(b)(1).
New Prosecutorial Tools
The BSEOIMA (“Bessie” as Kit Johnson has termed the mammoth bill) equips the federal government with a host of additional methods of penalizing noncitizens in the civil immigration system as well as through the criminal justice process. To begin with the civil immigration laws, the bill would add a ground of inadmissibility and another of deportability for conviction of an offense “for which an element was active participation in a criminal street gang.” Sec. 3701(a), (b). It goes on to define “active participation” as knowledge about the gang’s activities. For RPIS purposes, a waiver would be available if the individual has renounced affiliation with the gang and is otherwise admissible.
It would add similar inadmissibility and deportability provisions for three or more convictions for drunk driving offenses so long as one or more happens after enactment of the BSEOIMA. Sec. 3702.
The aggravated felony definition of sexual abuse of a minor would also be amended to clarify that an offense constitutes sexual abuse of a minor “whether or not the minority of the victim is established by evidence contained in the record of conviction or by credible evidence extrinsic to the record of conviction.” Sec. 3703.
On the criminal side, it increases the maximum possible term of imprisonment for illegal entry, the federal misdemeanor, from the current 6 months to 12 months. Sec. 3704(a). If the illegal entry occurs following a voluntary departure order, the maximum term of imprisonment rises to 3 years. Sec. 3704(a). Individuals with longer criminal history could see up to 10 years imprisonment. Sec. 3704(a).
The illegal reentry provision doesn’t change the maximum penalties, but it does alter the triggering device. Instead of asking whether the unauthorized entry occurred after conviction for an aggravated felony, as INA § 276(b)(2) currently does, the new statute would query whether the person was convicted of one or more felonies (not aggravated felonies) and specified terms of imprisonment were served. Sec. 3705. The bill would add an affirmative defense for offenses committed before turning 18 years old.
The bill’s section regarding illegal reentry (though not the illegal entry provision) explains that a felony is “any criminal offense punishable by a term of imprisonment of more than 1 year under the laws of the United States, any State, or a foreign government,” and a misdemeanor is any such offense punishable by up to 1 year imprisonment. Sec. 3705.
Cause for concern is a provision that requires that any information disclosed to the government in an application for RPIS “shall” be turned over to law enforcement agencies, courts, or grand juries in connection with “a criminal investigation or prosecution of any matter not related to the applicant’s immigration status.” Sec. 2104(a). This would potentially expose unauthorized individuals investigated or prosecuted for most crimes, including minor offenses, to prolonged jail time in locales that deny bail to people who lack permission to be in the United States or allow judges to increase bail amounts based on that fact.
Altering the Detention Emphasis
Importantly, the bill decreases one feature of immigration policing that’s been at the center of DHS’s strategy during the Obama Administration and latter years of the Bush Administration: detention. The BSEOIMA seems to shift the presumption away from detention. First, it specifies that, except for individuals who an IJ determines are subject to mandatory detention under INA § 236(c), an IJ “may detain the alien only if the Secretary demonstrates that no conditions, including the use of alternatives to detention that maintain custody over the alien, will reasonably assure the appearance of the alien as required and the safety of any other person and the community.” Sec. 3717(a). IJs “may review” custody decisions pertaining to individuals subject to mandatory detention “if the Secretary agrees the alien is not a danger to the community and alternatives to detention exist that assure the appearance of the alien” and any public safety risk is mitigated. Sec. 3717(a). All custody determinations shall be reviewed de novo every 90 days while the person remains in custody.
It would also authorize DHS to expand its alternatives to detention programs, including by contracting with community-based non-governmental organizations “to conduct screening of detainees, provide appearance assistance services, and operate community-based supervision programs.” Sec. 3715. Risk assessments for participation in ATD would be individualized and reviewed monthly. Importantly, enrollment in ATD would constitute “custody” for purposes of INA § 236, including the “mandatory detention” provision of INA § 236(c). Sec. 3715(d). If release is not appropriate, then the bill calls for placement in a custodial setting that “serve[s] as detention, including the use of electronic ankle devices.” Sec. 3715(d). Also, “[s]ecure alternatives shall not be used when release on bail or recognizance is determined to be a sufficient measure to ensure appearances at immigration proceedings and public safety.” Sec. 3715(c).
The proposal would require annual inspections of all detention facilities, including privately owned or operated sites. Sec. 3716(c). Contracts and reviews of detention facilities would be subject to disclosure under the Freedom of Information Act (FOIA), though, of course, there are plenty of exceptions embedded in FOIA that could prevent disclosure. Sec. 3716(c)(3). Failure to comply with DHS standards could subject the facility to financial penalties or termination of the contract.
Improving Immigration Courts
On a positive note, the bill would provide much needed funding for immigration courts. It would add 75 immigration judges in each of the 2014-2016 fiscal years. Sec. 3501(a). It would also require the Attorney General “ensure” that each IJ has “the equivalent of 1 staff attorney or law clerk and 1 legal assistant.” Sec. 3501(b). This additional staff would be tasked with ensuring that all decisions on whether someone in removal proceedings will remain in custody occur no later than 7 business days after the person was taken into custody except at the detainee’s request. Sec. 3717(a).
BIA staff attorneys would increase by 30 in fiscal years 2014-2016. Sec. 3501(c). It would also modernize the recording system currently used in immigration courts (shifting from cassette tapes to digital recordings), and require the EOIR to explore improvements to the transcription and interpreter selection methods. Sec. 3506(c).
IJs would also receive discretionary authorization to appoint counsel in any removal proceeding. Sec. 3502(a). Appointment of counsel would be required for unaccompanied minors, individuals deemed mentally incompetent to represent themselves, or otherwise “particularly vulnerable when compared to other aliens in removal proceedings.” Sec. 3502(c).
The well-regarded “legal orientation programs” that provide detainees with information about immigration law and process would be expanded. Sec. 3503(b). DHS would be required to ensure that LOPs are available for every detained person “within five days of arrival into custody.” Sec. 3503(c).
For the first time since its creation, the BIA would be codified in the INA. Sec. 3504(a). Also, noncitizens could appeal an IJ’s decision to a 3-judge panel of the BIA. Sec. 3504(c)(3).
The last of the bill’s myriad provisions that I’ll note are the many bars to eligibility for the provisional immigrant status that the bill would create, “Registered Provisional Immigrant Status.” Otherwise eligible individuals could not receive this status if they have been convicted of
On the flip side, individuals who have been removed may reapply for admission if they have a qualifying relative in the United States (United States citizen or LPR child or spouse) so long as they were not removed for a crime-based reason. Also, the proposal explains that, for purposes of RPIS eligibility, “conviction” “does not include a judgment that has been expunged, set aside, or the equivalent.” Sec. 2101(a). This would narrow the definition of conviction that’s currently in the INA, at least for RPIS purposes.
Update: The BSEOIMA has been numbered Senate Bill 744. Detailed information about amendments and the bill's path through Congress is available through the Library of Congress's Thomas web site.
By Mark Noferi
Here is a summary of the appointed counsel, detention, bond, and stipulated removal provisions in the new Gang of Eight bill. (The 844-pg bill is available here).
The bill essentially provides for appointed counsel to unaccompanied minors, the mentally disabled, or those “particularly vulnerable when compared to other aliens in removal proceedings.” See Sec. 3502(c), “Improving Immigration Court Efficiency and Reducing Costs By Increasing Access To Legal Information,” at bill p. 567 et. seq. (providing changes to 8 USC 1362, the current statutory right to counsel section, and 8 U.S.C. 1229a(b)(4), “alien’s rights in [removal] proceeding”). It also gives the Attorney General authority to appoint counsel at government expense to noncitizens in removal proceedings, “in the Attorney General’s sole and unreviewable discretion.” Sec. 3502(a), (b)(2). It reiterates that “[t]he Government is not required to provide counsel to aliens.” Id. Note that this echoes the Obama Administration draft proposal, with the addition of the “particularly vulnerable” language.
Funding for appointed counsel will be provided from the new “Comprehensive Immigration Reform Trust Fund,” Sec. 3502(d), as established at Sec. 6(a)(1) of the bill (p. 24 et. seq.) The Trust Fund will initially be established with $6.5 billion of general Treasury funds, an additional $100M of startup costs, and then receive ongoing funding through the collection of various visa fees and penalties. Many programs throughout the bill appear to be funded by the new Trust Fund.
The bill also establishes an “Office of Legal Access Programs” within EOIR. Sec. 3503. It appears to formalize and expand the Legal Orientation Program for detainees, and to statutorily require the LOP to perform the screening function for counsel to unaccompanied minors, the mentally disabled, or those “particularly vulnerable.” Sec. 3503(b). It also directs DHS to establish procedures to ensure that LOP is available to all detainees within 5 days of arrival into custody, so as to “[i]nform such aliens of the basic procedures of immigration hearings, their rights relating to those hearings under the immigration laws, information that may deter such aliens from filing frivolous legal claims, and any other information deemed appropriate by the Attorney General, such as a contact list of potential legal resources and providers.” Sec. 3503(c). That said, the statute provides that “[n]othing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.” Sec. 3503(d). LOP funding would also come from the general Trust Fund. Sec. 3503(e).
The bill also directs EOIR to produce a “practice manual” describing “best practices for the immigration courts” to be made available electronically. Sec 3506(b). There are other procedural provisions for hiring more IJs, training for IJs, BIA appeals, provision of digital recording, review of translation and transcription practices, etc. See generally. secs. 3501-06 (pp. 566-77).
Sec. 3717. Procedures For Bond Hearings and Filing of Notices To Appear (P. 652):
The bill now requires DHS to “immediately” determine whether alien “shall remain in custody or be released.” Sec 3717(a) (creating new INA Section 236(f), sp. new 236(f)(2)). Moreover, the bill now requires DHS to serve the custody decision upon the noncitizen within 72 hours after being taken into custody, with “the reasons for continued custody” and any bond amount. Id.
Previously, there was no requirement to serve a Notice of Custody at all. Mark Noferi, Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, 18 Mich. J. Race & L. 63, 83 & n.103 (2012), citing 8 C.F.R. §236.1(g)(1) (immigration official “may” issue an I-286 Notice of Custody determination “at any time… up to the time removal proceedings are completed”).
The bill also now requires DHS to serve a Notice to Appear within 72 hours on anyone “taken into custody”. New section 236 (f)(1). The bill also requires DHS to “inform the alien of his or her rights under this paragraph,” i.e. re: bond hearings, “at the time the alien is first taken into custody.” New section 236 (f)(7). Together, these provisions would hopefully put every immigrant on notice within 72 hours of the reasons for his detention and possible deportation, and begin to allow him or her to challenge them.
It appears to remain the immigrant’s responsibility to affirmatively request the bond hearing (unlike the criminal system, where a bail hearing is affirmatively provided). See new section 236(f)(3). (Attorney General “shall ensure the alien has the opportunity to appear before an immigration judge for a custody determination hearing promptly after service of the Secretary’s custody decision”) (emphasis mine).
That said, the bill appears to presumptively provide for a bond hearing within 72 hours of service of the custody decision. On DHS’ motion, the immigration judge may for “good cause” postpone the “custody determination hearing” for 72 hours after service of the custody decision and no more than seven calendar days after being taken into custody. Id. Concomitantly, on the immigrant’s oral or written motion, the immigration judge may postpone the “custody determination hearing” for no more than 14 days. See new section 236(f)(4). (There appears no “good cause” requirement for the immigrant). Id.
At the bond hearing, (with exceptions below primarily regarding 236(c) mandatory detainees), the new statute places a higher burden on DHS to establish detention. The immigration judge “shall review the custody determination de novo” and may detain the alien “only if the Secretary demonstrates that no conditions, including the use of alternatives to detention that maintain custody over the alien, will reasonably assure the appearance of the alien as required and the safety of any other person and the community.” See new section 236(f)(5).
That said, the bill does not repeal mandatory detention under INA 236(c). See new section 236(f)(5) (“Except for aliens that the immigration judge has determined are deportable as described in section 236A [ed note: certified suspected terrorists] and 236(c)…”). Rather, it provides that “[f]or aliens detained under 236(c),” the immigration judge “may” review the custody determination “if the Secretary agrees the alien is not a danger to the community and alternatives to detention exist that assure the appearance of the alien as required and the safety of any other person and the community.” Accordingly, in one sense, the bill provides for immigration court review of the DHS 236(c) mandatory detention decision only if DHS allows it.
Importantly, though, that this and other sections of the new bill provide that 236(c) mandatory detention may now include alternatives to detention. See new section 236(f)(5) (“alternatives to detention that maintain custody over the alien”); Sec. 3715(d) (“If an individual is not eligible for release from custody or detention, the Secretary shall consider the alien for placement in secure alternatives that maintain custody over the alien to serve as detention, including the use of electronic ankle devices”) (described below). Thus, the bill appears to overrule DHS’ prior interpretation that mandatory “custody”—i.e. for pre-hearing detainees under INA 236(c)—requires mandatory “detention,” i.e. incarceration in a secure facility. See American Immigration Lawyers’ Association, Memorandum to David Martin, The Use of Electronic Monitoring and Other Alternatives to Institutional Detention on Individuals Classified under INA § 236(c) (Aug. 6, 2010).
Note also that the new bill can be read to require a Joseph detention hearing, reviewing DHS’ legal determination of 236(c) mandatory detention for prior crimes, before a bond hearing is denied under 236(c). In providing for a bond hearing within 72 hours of service of the custody decision except for those “the immigration judge has determined are deportable… [under] 236(c), the bill appears to envision that an immigration judge must determine mandatory deportability before the exception is met. It could be that the Joseph mandatory detention hearing is folded in to the bond hearing. Indeed, the new hearing is called a “custody determination hearing,” not just a “bond redetermination hearing.” That said, this section is a bit unclear.
(Note also there is a small list of crimes that would render someone mandatory deportable but not detainable, and the impact of this bill on those crimes is unclear. See Noferi, Cascading Constitutional Deprivation, 18 Mich. J. Race & L. at 87 n. 135, citing Gerald Seipp & Sophie Feal, The Mandatory Detention Dilemma: The Role of the Federal Courts in Tempering the Scope of INA §236(c), 10-07 Immigr. Briefings 1, 5-6 & nn.45-46 (2010).)
It also appears that every detainee – including 236(c) mandatory detainees – will now receive de novo custody determination hearings by an immigration judge “every 90 days so long as the alien remains in custody.” See new section 236(f)(6) (“In the case of any alien remaining in custody after a custody determination”) (emphasis mine). “The alien may obtain a de novo custody redetermination hearing upon a showing of good cause.” Id. This overrules the current DHS regulation that immigrants cannot ask for a redetermination unless a “material change of circumstances” occurs, even if they secure counsel. Noferi, Cascading, 18 Mich. J. Race & L. at 88 & n. 146, citing 8 C.F.R. §1003.19(e) (2012).
Sec 3715: Alternatives to Detention (p. 646):
The Gang of Eight bill directs DHS to create new “secure alternatives” programs, which appear to formalize current projects to establish alternatives to detention, through initiatives such as electronic tracking, etc. Sec. 3715 (p. 646).
As noted above, the bill appears to overrule DHS’ prior interpretation that mandatory “custody”—i.e. for pre-hearing detainees under INA 236(c)—requires mandatory “detention,” i.e. incarceration in a secure facility. Rather, Sec. 3715(d) provides that “If an individual is not eligible for release from custody or detention, the Secretary shall consider the alien for placement in secure alternatives that maintain custody over the alien to serve as detention, including the use of electronic ankle devices.” Indeed, sec. 3715(d) provides for use of “secure alternatives” for any detainee except one mandatorily detained as a suspected terrorist pursuant to Attorney General certification under INA 236A(8 U.S.C. 1226a). Id. (To my knowledge, no one to date has ever been detained under this authority.)
The bill further requires DHS make an “individualized” determination in determining whether to use secure alternatives. Sec. 3715(c). “Secure alternatives shall not be used when release on bail or recognizance is determined to be a sufficient measure to ensure appearances at immigration proceedings and public safety.” Id. (It is unclear who makes that determination, DHS or EOIR, although the context seems to suggest DHS).
These secure alternatives “shall” offer a continuum of supervision mechanisms and options including community support, depending on an assessment of each individual’s circumstances.” Sec. 3715(b). “[F]or each individual placed on secure alternatives [DHS] shall review the level of supervision on a monthly basis.” Sec. 3715(c). As I recall, I’m not sure if there is any current guidance as to when DHS reviews the level of supervision, if at all.
The bill provides that DHS “may” contract with nongovernmental organizations to implement secure alternatives that “maintain custody over the alien.” Sec. 3715(b). Presumably, this would allow contracting with private companies such as BI Incorporated, the subsidiary of the GEO Group that currently runs the “ISAP” electronic ankle monitoring contract. (It could also allow community-based organizations to supervise such a program as well).
Also, notably, the bill appears to require DHS to establish community-based supervision programs similar to the Appearance Assistance Program previously conducted with the Vera Institute. See Demore v. Kim, 538 U.S. 510, 565 (2003) (Souter, J., dissenting). The bill requires DHS “shall” contract with “nongovernmental community based organizations” to “conduct screening of detainees, provide appearance assistance services, and operate community-based supervision programs.” Sec. 3715(b).
Sec. 3716. Oversight of Detention Facilities (p. 647):
The bill provides new oversight mechanisms for DHS detention, and new requirements for DHS contracted facilities to comply with ICE detention standards.
The bill takes steps to make compliance with DHS/ICE detention standards mandatory for all facilities, whether federal, state, local, or private. Sec 3716 (a)(2). Compliance with DHS/ICE detention standards will now be a “material term” in all new, renegotiated, modified, or renewed detention contracts, specifically including “fee negotiations.” Sec. 3716(d)(1)(A). Moreover, DHS “shall” secure a “modification incorporating these terms for any existing contracts or agreements” within 180 days of the bill’s passage. Sec. 3716(d)(1)(B). Any detention contract not modified to incorporate DHS/ICE detention standards will be cancelled within 1 year of the bill’s passage (unless “the Secretary provides a reasonable extension to a specific detention facility that is negotiating in good faith”). Sec. 3716(d)(1)(C).
Moreover, all immigration detention facilities, whether federal, state, local, or private, shall be inspected by DHS at least annually for compliance with the most recent DHS/ICE detention standards. Sec 3716 (a)(2), (c)(1); see also ICE Detention Standards. DHS shall also conduct “routine oversight,” including “unannounced inspections.” Sec 3716 (c)(2).
DHS “shall impose meaningful financial penalties” upon facilities that fail to comply with DHS/ICE detention standards. Sec. 3716(d)(2)(A). Penalties “shall be imposed immediately after a facility fails to achieve an adequate or the equivalent median score in any performance evaluation.” Sec. 3716(d)(2)(B). However, penalties may be waived if “the facility corrects the noted deficiencies and receives an adequate score in not more than 90 days.” Sec. 3716(d)(2)(C). For multiple offenders, if “persistent and substantial non-compliance,” including “scoring less than adequate or the equivalent median score in 2 consecutive inspections,” DHS “shall terminate contracts or agreements with such facilities within 60 days,” or close DHS-operated facilities within 90 days. Sec. 3716(d)(2)(D).
DHS will report on its its detention inspection and oversight activities to the House and Senate Judiciary Committees each year. Sec. 3716(e). The report will include descriptions of facilities in noncompliance, remedial DHS actions, and whether such remedial actions ensured compliance. Sec. 3716(e)(2).
DHS also must make detention information public. DHS “shall require that detention facilities provide to the Secretary all contracts, memoranda of agreement, evaluations, and reviews regarding the facility on a regular basis,” and “make these materials publicly available.” Sec. 3716(d)(1)(D). Moreover, all “detention facility contracts, memoranda of agreement, and evaluations and reviews” are now considered agency records under FOIA. Sec. 3716 (c)(3), citing 5 § 552(f)(2). Thus, privately owned detention facilities would now have to disclose these records under FOIA as a government agency would.
DHS also “shall seek input from nongovernmental organizations regarding their independent opinion of specific facilities.” Sec 3716 (c)(4).
Sec 3717(d): Stipulated Removals: (p. 654):
The bill now requires that any stipulated removal entered by an immigration judge must be at an in-person hearing, upon a finding that the stipulation is “voluntary, knowing and intelligent.” Sec. 3717(d); see also Jennifer Lee Koh, Waiving Due Process (Goodbye): Stipulated Orders of Removal and the Crisis in Immigration Adjudication, 91 N.C. L. Rev. 475 (2013). As to stipulated removals between DHS and an immigrant, the bill directs the Attorney General to develop regulations. Id.
By Mark Noferi, Instructor of Legal Writing, Brooklyn Law School
First, thanks to César for the opportunity to speak as part of this Symposium, and for providing a platform to analyze these important issues in real-time. It’s one of the real benefits that “new media” vehicles like crimmigration.com provide in fostering academic analysis. (Another benefit is that I can post this from Coimbra, Portugal, while attending and speaking at the excellent First International Crimmigration Control Conference, organized by Juliet Stumpf, Robert Koulish, Maria Joao Guia, and others.)
The Moncrieffe argument yesterday brought up fascinating issues: some narrow and technical, for those of us who closely follow crimmigration statutory interpretation, and some broader and wide-ranging, as to this Supreme Court’s future treatment of immigration laws. And the two relate, since the very technical complexity of these issues may raise constitutional issues for another day. First, here, I’ll “keep score” on the argument in Moncrieffe’s case. Second, I’ll address the more far-reaching issues that Moncrieffe raises beyond its four corners (some raised by our other Symposium participants), most of which remained largely implied, unsaid, or unexplored at oral argument. One of them – the impact of non-categorical analysis on constitutional right-to-counsel arguments for detained immigrants – is addressed in my forthcoming Michigan Journal of Race & Law article, Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings (forthcoming 2012). (Disclosure: The law professors’ amicus brief, authored by Symposium participant Alina Das, cites it with my permission at p. 29.)
To recap, petitioner Moncrieffe, a first-time drug offender, was arrested in Georgia with 1.3 grams of marijuana (about two or three joints’ worth) while driving with another individual, and pled guilty to possessing marijuana with intent to distribute, without any facts evidencing more than social sharing. The transcript is here. Prior previews (our Symposium participants, SCOTUSblog, ImmProf Blog), and other recent argument summaries (SCOTUSblog, ImmProf Blog) provide good background as well.
Keeping Score—The Moncrieffe Argument
At the outset, three Justices (Sotomayor, Kagan, and Kennedy) seemed very skeptical of the Government’s arguments; two expressed moderate skepticism on some points but not others (Ginsburg and Roberts); two asked targeted questions without tipping their hand (Breyer and Scalia); and two were silent (Alito and Thomas).
Much of the argument centered on statutory interpretation. Put as simply as possible: When Congress made “illicit trafficking” in drugs an “aggravated felony” under the Immigration & Nationality Act (INA), in light of the already-enacted federal ControlledSubstances Act (CSA) which made some marijuana distribution crimes felonies and some misdemeanors, did Congress intend that all state misdemeanor distribution convictions that contain the same elements of the CSA felony be “aggravated felonies,” and render someone mandatorily deportable and detainable without relief? Compare 8 U.S.C. § 1101(a)(43)(B) (under immigration law, “illicit trafficking,” which includes a “felony punishable under the Controlled Substances Act,” is “aggravated felony”) with 21 U.S.C. § 841(b)(1)(A)-(E) (CSA felonies), § 841(b)(4) (misdemeanor distribution of a small amount for no remuneration), and § 844 (misdemeanor first-time simple possession).
Or, under the traditional “categorical approach,” in effect when Congress passed these laws, should the Court examine the four corners of the conviction to determine whether petitioner’s conviction “necessarily” corresponds to a felony; and if not “necessarily” (as in Moncrieffe’s case), resolve the indeterminacy in the immigrant’s favor? Or, as the Fifth Circuit found in Moncrieffe’s case, and the BIA later adopted as its rule, should the Court assume the former, but provide the immigrant an opportunity to rebut that assumption by conducting a hearing with “any probative evidence” into the facts underlying the conviction?
Petitioner Moncrieffe’s counsel advanced the second position, while the Government ultimately at oral argument advanced the third – or as Justice Kagan called it, “your whole back-end process.” Tr. at 34:25. That Government position did not sit well with the Court, most notably Justice Kagan. She stated in so many words that either Congress intended a categorical approach or it did not. As she said, “all we've done in our past cases… is compare the elements. But if all we do is compare the elements, then we don't get to your discretionary scheme in which we also admit evidence of the case-specific nature of the offense.” Tr. at 48:25 – 49:16. So the Government’s “back-end process, which says, oh, well, maybe not, maybe he's not automatically deportable…it doesn't come from the statute, and it seems to run into the statutory language which says an aggravated felon must be deported, the end.” Tr. at 34:12-35:4.
Justices Roberts and Ginsburg offered similar concerns. See Tr. at 33:1-6 (Roberts: “You say Congress took away the Attorney General's discretion. Then you come back and say, well, we're going to exercise that discretion…”), 17:22-18:4 (Ginsburg, citing Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010)).
Interestingly, Justice Roberts signaled he might have supported the first position above—that all these state “social sharing” misdemeanants might well be “aggravated felons” for immigration purposes under the categorical approach. Tr. 14:15-21. Justice Breyer did as well. See Tr. at 61-62 (“the word "punishable" doesn't appear in… the other [statutes] that we've construed”)… That said, even the Government had backed away from this position by oral argument.
If the question, then, was the feasibility of the second approach—Petitioner’s categorical approach—the Justices spent significant time looking for ways to correct any under-inclusivity of this approach. Justice Sotomayor reiterated multiple times that the salient question was mandatory, versus discretionary, deportability, and an immigration judge could still deny cancellation of removal if allowed that discretion. See Tr. at 8:17-20 (“None of these immigrants are being let out automatically”). Still, Sotomayor also advanced the idea of a modified categorical approach based on facts in the plea allocution. See Tr. at 57:15-19 (“in many of these cases that we're talking about, it is possible that the plea allocution itself would set out the amounts that the alien sold or show that he sold something… and that would take care of this issue of how many people are escaping automatic removal.”).
In my view, it is hard to imagine Justice Sotomayor advancing this position before Padilla v. Kentucky, 130 S. Ct. 1473 (2010), which required criminal defense counsel to advise on the immigration consequences of a conviction. Before then, and especially before the retroactive INA revisions, criminal lawyers wouldn’t have included those facts in a plea allocution since they wouldn’t have envisioned their client would be detained and deported (if they considered immigration consequences at all). Today, though, the President of the National Association of Immigration Judges has described “seasoned immigration practitioners” as “virtually obsessive in developing records” in criminal cases. Dana Leigh Marks & Denise Noonan Slavin, A View Through the Looking Glass: How Crimes Appear from the Immigration Court Perspective, 93 Fordham Urban L.J. 91, 105 (2011). Or at least, they should be.
This may be somewhat aspirational (as the law professor’s amicus put it, whether “nonessential facts” to the criminal record appear in that criminal record is often “completely haphazard.” See at 14). And Padilla at this point requires only advice. But as Alina Das pointed out recently, the strict categorical approach in immigration courts has already been departed from, for some aggravated felonies and crimes of moral turpitude. This departure has already prospectively and “dramatically” changed the calculus for plea agreements, as the law professor’s amicus noted. Id. It highlights the issues facing criminal defense providers as they attempt to best comply with their Padilla obligations in criminal court (and in some forward-thinking instances, go beyond them). And leaving aside constitutional obligations, it highlights the dramatic positive effect that continuity from criminal court to immigration court can have. As I argue in my article, the more that criminal facts are re-litigated in immigration court, as categorical analysis falls by the wayside, the more it makes sense for criminal lawyers to litigate in immigration court, since Padilla already requires them to research the issues. See IV.B.2.
Lastly, Justice Kagan proposed a novel (or perhaps not-so-novel) approach to solving any under-inclusivity from use of the categorical approach—that the Attorney General, if he so chose, could issue a categorical per se directive denying cancellation of removal relief to those state misdemeanants with facts evidencing drug trafficking for money. Tr. at 23: 5-9. Justice Kennedy “had the same question.” Id. at 24:5-6. Petitioner’s counsel Tom Goldstein demurred, saying that “[a] per se categorical rule would be very unlike what we understand the Attorney General to do in any other circumstance,” and might be “arbitrary and capricious.” Id. at 23:10-24:15.
Seasoned immigration law cynics might remember the INS’ treatment of Salvadorans, and say that such a policy might be very like what we understand DHS to do, except publically and visibly. Most likely, such a policy would raise thorny issues, involving the interplay of due process and perhaps equal protection with plenary power principles, in the context of purely discretionary relief, all beyond the scope of this blog post. See Daniel Kanstroom, The Better Part of Valor: The REAL ID Act, Discretion and the"Rule" of Immigration Law, 51 N.Y.L. Sch. L. Rev. 161 (2006); Daniel Kanstroom, Surrounding the Hole in the Doughnut:Discretion and Deference in U.S. Immigration Law, 71 Tul. L. Rev. 703 (1997).
Scalia asked a targeted question about the impact of Apprendi. Tr. at 54:19-23. Thomas and Alito remained silent. (Perhaps more interesting regarding Alito, given his relatively impassioned Padilla concurrence regarding the extreme complexity of immigration law’s treatment of criminal convictions.)
Thus, there looked to be at least six votes for Petitioner’s position (Sotomayor, Kagan, Kennedy, Ginsburg, Roberts, and Breyer), albeit with some limiting principle, or openness to creative government approaches in discretionary relief proceedings. It might give one pause that had the Government taken its more extreme position, Roberts’ and Breyer’s votes might have been supportive.
What Does Moncrieffe Show Us About Crimmigration Law?
Even more interesting is what the Moncrieffe arguments show us about how U.S. courts treat crimmigration law today.
So it’s not a stretch to say that “Moncrieffe is about proportionality.” It’s probably not a stretch to say “crimmigration law is about proportionality,” given how often these issues arise. Yet the word “proportional” was never spoken during oral argument yesterday. Why?
Those of us whom are law professors know the answer is the plenary power doctrine. We know the word “proportionality” during argument might draw a quick response from a Justice that “Congress may make rules as to aliens that would be unacceptable if applied to citizens.” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976); Demore v. Kim, 538 U.S. 510, 527-29 (2003). Indeed, Tom Goldstein, an experienced Supreme Court practitioner, likely knew this as well as anyone. His argument framed the argument exclusively as one of statutory interpretation. See Tr. at at 9:8-20 (“They say our position is underinclusive because the Georgia statute does include conduct that would be a felony….” “[T]heir rule is overinclusive. It treats as felonies some convictions that should be misdemeanors.” “[O]ur underinclusivity is a problem, but it’s… not as big as their problem…. [A]s this Court explained in Carachuri-Rosendo, the offense still is removable…”).
Yet there are incongruities in indirectly making a proportionality argument in statutory clothing. For one, it is entirely unclear what Congress intended when it passed the “aggravated felony” provisions. The 1996 provisions, which ushered in what Daniel Kanstroom calls our “vast experiment in deportation,” were passed extremely quickly, as a rider to legislation, with little debate. As Justice Roberts implied, what’s to say that Congress didn’t intend for all noncitizen social marijuana sharers to be mandatorily detained and deported without relief? Indeed, if the Government hadn’t abandoned that position at oral argument, because of these proportionality concerns, it might have garnered more Justices’ votes.
This leads to the second point Moncrieffe shows us about how U.S. courts treat crimmigration law today:
The answer is that the Constitution says it, in at least two ways. One is the vast disproportionality of detaining and deporting long-time lawful permanent residents for activity such as smoking two or three joints. (Michael Wishnie and Angela Banks have done excellent work on proportionality.) Indeed, Justice Kagan referenced this in disparaging the Government’s attempt to insert some proportionality into the process. See Tr. 48:25 – 49:16 (“so your arguments all go towards a very purist solution. And then you say, oh, no, that's a crazy solution….”).
Another is the due process concerns raised by forcing immigrants, while mandatorily detained without bail or a lawyer, often thousands of miles away from home, to produce in court evidence and witnesses relating to their underlying conviction, and then make complicated statutory arguments about that evidence. My article addresses these procedural due process arguments, in articulating the “cascading constitutional deprivation” of mandatory pre-hearing detention. The NIJC amicus called it a classic “Catch 22”: “a detainee cannot be released unless she produces evidence to support her arguments; but she cannot find evidence to support her arguments unless she is released…” Id. at 6.
Petitioner’s counsel almost got there yesterday, as he referenced these due process concerns in making the case for his statutory interpretation (albeit without using the term “due process). See Tr. 25:20-25 (“it's going to be extremely difficult for uncounseled noncitizens who are in jail, who don't have access to tools of communication, to prove to an immigration judge this fact-bound inquiry…”).
Yet these issues were not addressed in great detail yesterday. It is not the fault of the parties, who must win a case before the Court given precedent. But so long as the Constitution is left out of crimmigration law rulings like this, crimmigration law may rest on a shaky foundation, one that is open to countervailing statutory arguments (as Justices Roberts and Breyer raised), and perhaps engenders public frustration with the disconnect between courts’ public and private rationales.
Future Issues That May Force the Constitutionalization of Immigration Law—i.e., The Demise of Categorical Analysis and the Right to Counsel. So what issues will force the Court to address constitutional issues regarding immigration law? Most likely, they will be procedural due process issues, as courts have carved out more of a “procedural due process” exception to plenary power than in any other area, and Justice Kennedy signaled some willingness in that direction in his Demore concurrence. Demore v. Kim, 538 U.S. 510, 531-32 (2003) (Kennedy, J., concurring).
I’ll raise one issue here that relates to Moncrieffe. The increasing demise of categorical analysis, and concurrent requirement for immigrants to litigate complicated evidentiary as well as statutory issues in immigration court, may change the procedural due process analysis so as to strengthen right-to-counsel arguments in immigration court (especially for detainees).
Moncrieffe is not the first time the Government has sought to depart from categorical analysis so as increase its chances of deporting immigrants. As Alina Das set out, noted above, the Supreme Court opened up some aggravated felony determinations to fact-specific determinations in Nijhawan v. Holder, 129 S. Ct. 2294, 2299 (2009). And, the Attorney General added a third level of fact-finding to some crime of moral turpitude determinations in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), allowing “any additional evidence or factfinding” the immigration court deems necessary. Moncrieffe presents a more indirect twist on this calculus: in prior cases, as Tom Goldstein put it, “the Government wanted to go beyond the record to go up. But here what they're saying is that [petitioner] should go beyond the record to figure out if you should go down.” Tr. 18:5-14. But the import is the same – because of the Government’s willingness to include more facts, more immigrants will be likely be deported.
As I argue in the article, this affects right-to-counsel procedural due process arguments in two ways. First, the relitigation of facts in immigration court increases the complexity and adversarial nature of either a detention or deportation hearing. Not only must immigrants argue immigration laws as complex as the tax code, against trained Government counsel, but they now must produce and cross-examine witnesses, and use advocacy skills to proffer interpretations of those facts before the court. (The departure from categorical analysis may also make it less likely that non-lawyer assistance such as a social worker will be constitutional adequate). Also, the relitigation of facts belies any Government arguments as to the necessity for “informal” or “efficient” deportation hearings. In these categorical analysis cases before the Supreme Court, it has always been the Government that has sought to bring more facts into the process.
The Continuing Education of the Supreme Court on Crimmigration. Lastly, it is worth noting that with each crimmigration case that reaches the Supreme Court, the Justices become more educated on these incredibly complex statutory and procedural issues, especially where they raise disproportionality or unfairness concerns. In Moncrieffe, for example, Justice Breyer didn’t know that Moncrieffe’s conviction counted as a “conviction” even though he had been sentenced to probation, without a judgment of guilt, and the state did not deem his activity a conviction. Tr. 12:6-13:7. Or, Justice Kennedy asked yesterday whether the “back-end” factual immigration hearing would be done at the beginning of the state prosecution. Id. at 15:6-21. (Indeed, the question is telling as to the overlapping nature of “crimmigration” law.) Or, in Padilla, Justice Alito spent several pages detailing the incredible complexity of the immigration consequences of criminal convictions.
Because of this continuing education, by the time the above-mentioned Constitutional cases do reach the Supreme Court, it is likely the Court may have both a greater knowledge of the issues, and a willingness to depart from statutory grounds. I argue that right-to-counsel issues, at least in detained cases, especially mandatory detention, are ripe for the Supreme Court. It is my hope they will be addressed in the next decade.
A single Supreme Court decision can alter the legal landscape for decades, but immigration cases tend to fly below the radar. To help crImmigration.com readers stay up-to-date on what’s before the Court, today crImmigration.com launches its inaugural online symposium on Supreme Court crImmigration cases.
A group of well-informed, passionate crImmigration experts have agreed to share their unique insight of Moncrieffe v. Holder, No. 11-702, scheduled for oral arguments tomorrow (October 10). In Moncrieffe, the Court is expected to decide whether possession with intent to distribute constitutes a drug trafficking type of aggravated felony even where it’s possible that the noncitizen was convicted of possessing such a small amount of marijuana that it would qualify as a misdemeanor under federal law rather than as a felony.
To provide the most comprehensive coverage possible, the symposium begins before oral arguments, includes coverage of the arguments that actually occur, and extends to analyses of the Court’s decision. Today, Claudia Valenzuela, the Associate Director of Litigation at the National Immigrant Justice Center in Chicago, along with Sarah Rose Weinman, an Equal Justice Works Fellow at NIJC, and Patty Corrales, a former DHS attorney now in private practice in Los Angeles, explain what’s at stake when the Court hears arguments tomorrow. Tomorrow, Alina Das, the Co-Director of NYU Law School's Immigrant Rights Clinic and a professor there, will delve into the real-world impact of the categorical approach question that's at the heart of the case.
Later this week Mark Noferi, a professor at Brooklyn Law School and the author of exciting articles on immigration detention and appointed counsel in removal proceedings, and Cathy Potter, an immigration attorney with extensive experience representing individuals facing removal due to criminal histories, will recap Wednesday’s arguments. And whenever the Court issues a decision, you can expect to hear from Maritza Reyes, a law professor at Florida A&M University who has written impressively and compassionately about the impact of crime-based removal on LPRs, as well as Ms. Valenzuela.
Collectively, the symposium’s contributors represent the breadth of legal advocacy—direct representation, impact litigation, and academic inquiry—and bring to bear the varied experiences of immigration lawyers throughout the country. I am confident that their combined efforts will go a long way to shed much needed insight into the rapid evolution of crImmigration law.
Let the conversation begin:
By Guest Blogger Mark Noferi (Brooklyn Law School)
On August 6, 2012, the American Bar Association’s (ABA) full House of Delegates adopted, for the first time, model “Civil Immigration Detention Standards” to guide reform of U.S. immigration detention, America’s fastest growing and least scrutinized incarceration system. ABA, Civil Immigration Detention Standards (Aug. 2012). Donald Kerwin, who led the effort for the ABA Commission on Immigration, called the new ABA standards an “outline” for how “truly civil immigration detention should look and operate.” The ABA standards, if implemented, would palpably improve detainee treatment, as the current system has been repeatedly criticized for violating basic human rights and commonly providing worse conditions than criminal facilities. Yet what is “truly civil” detention? Is it possible, or is the term an oxymoron? Is it even desirable?
Here, I’ll preview some arguments from my forthcoming article Making Civil Immigration Detention “Civil”: Defining the Emerging Civil Detention Paradigm (Journal of Civil Rights and Economic Development, 2013). I’ll provide the first analysis of the new ABA standards, in light of ICE’s own 2011 standards and ICE’s reform efforts generally. Ultimately, it is hard to term immigration detention “civil” if it still imposes round-the-clock confinement like a jail. More broadly, the civil nature of immigration enforcement suggests, rather than merely different conditions of detention, that the overall system should employ detention less. Although the new ABA standards by design address the former, on which they are the most forward-looking document to date, they look furthest forward in suggesting the latter.
I’ll analyze the ABA standards by using the typology of detention reform that Dr. Dora Schriro set out in her 2009 report for DHS. (Indeed, Dr. Schriro advised on the ABA standards, and perhaps not coincidentally, they more closely track her report’s vision than ICE’s own reforms.)
Population management. Dr. Schriro’s first category, addressing the overarching strategy and standards of the system, including consideration of alternatives to detention, overshadows the analysis. To provide background, the immigration system has commonly housed its civil detainees in actual prisons or jails (50% of detainees in 2009 were in such facilities) with convicted criminals, wearing prison uniforms, and otherwise in jail-like conditions.
ICE’s 2011 standards –while still citing model jail standards in nearly every section –were a step forward. They required separate housing for immigrant detainees apart from criminal detainees, and provided a system to meaningfully classify immigrant detainees by security risk. ICE, ICE Performance-Based National Detention Standards (PBDNS) at 66-78. Essentially, ICE’s standards provide for a system analogous to low-, medium-, or high-security jails. Yet the system still assumes 24-7, round-the-clock confinement. The deprivation of liberty for the immigrant detainee is similar to that in jail, with the same concomitant effects of inability to work and separation from normal life and family (sometimes with loss of children in parallel family court proceedings).
The ABA standards go further. They recommend that ICE employ risk assessment not only to determine how to detain, but whether to detain. See ABA Standards § III.A.1, III.B.1 (“if detention is necessary…”). They advocate for ICE to use a “continuum of strategies and programs” to achieve its main goal of preventing flight from deportation. These strategies range from “release on recognizance or parole, to release on bond, to community-based supervised release programs, to ‘alternative to detention’ programs with various levels of supervision, to home detention (with strict conditions) that represent an alternative “form” of detention, to detention in civil detention facilities.” ABA Standards § II.C n. 1.
To be clear, these are not recommendations to reform detention conditions per se. These are recommendations to reform a system that over-detains. Yet they also reconcile the use of immigration detention with its intended civil, preventive purposes. If the primary aim of immigration detention is preventing flight–rather than punishment, or something quasi-punitive and bias-inflected–then logically, ICE should use alternatives to detention that prevent flight nearly as well as total incarceration. Even if the secondary aim of immigration detention is preventing crime by deportees, immigrant detention decisions could follow clear criteria for pre-hearing detention (as criminal pretrial decisions do).
As things stand, ICE’s policies result in a binary detention-or-not framework, most often leading to detention. Even the criminal pretrial system is more narrowly tailored. Currently, for example, New York criminal defendants are 75 times more likely than immigrants in proceedings to be released on recognizance, with even serious felony defendants 37 times more likely. There is no rational explanation based on preventing flight risk or danger for a discrepancy this vast.
Detention management (i.e. conditions of confinement). That said, the ABA standards perhaps subtly open the door to qualitatively different facilities that do not require round-the-clock confinement. Under “Physical Plant and Environment,” the ABA standard provides that a facility should be “secured by controlled access and perimeter walls if necessary” (emphasis mine). ABA Standards § IV.B.8.
The grammatical question of what words “if necessary” modifies raises far more fundamental questions. Is the ABA recommending a facility that should be secured “if necessary”–i.e., an “open” check-in or registration facility, as is more common in Europe, in which immigrants can come and go? (That would be a dramatic change.) Or is the ABA recommending a facility that should be secured by controlled access, but with the most prison-like controls present “if necessary”–i.e., perimeter walls, prison-like towers, fences, or barbed wire? (The latter might be “prison-lite,” like the new Karnes Civil Detention Center in Texas.) The answer is unclear from the ABA standards’ language and context. The ABA cites as analogous some examples more resembling the former (i.e., domestic violence shelters, see ABA Standards § II.C.D), some more resembling the latter (i.e., secure nursing homes or in-patient psychiatric facilities, see id.)
So long as a facility employs round-the-clock confinement in a closed space–in Michael Flynn’s words, being locked up against one’s will–it resembles what Western societies have most commonly called a “jail.” As César argues, a prison is a prison. I argue the defining characteristic is constant confinement, since so long as secured walls exist, the deprivation of liberty and concomitant effects remain the same. The Supreme Court has repeatedly affirmed this, at least in its procedural due process jurisprudence.
Presuming the facility is secure, under the ABA standards, conditions of confinement inside the facility would be less restrictive. The ABA standards state that residents should have the “maximum amount of freedom of movement within the facility,” and generally should be “able to move freely and without escort during daylight hours,” absent security risks. See ABA Standards § V.D.1. This goes a step further than ICE’s standards, which provide for “continuous supervision by staff.” ICE PBNDS at 291.
Programs management. The ABA standards, if implemented, would provide dramatic improvements for detainees in programs, recreational opportunities, and medical care, even beyond the recent ICE standards (themselves a marked improvement over current conditions). The ABA standards provide that recreational areas be available for “most of each day,” which goes beyond ICE standards that provide for outdoor recreation four hours a day, seven days a week. ABA Standards § V.D; ICE PBNDS at 290. (Jail standards provide only one hour per day).
The ABA standards provide for medical, dental, and mental health screening within 12 hours, a crucial component since 121 ICE detainees have died since October 2003. ABA Standards § III.C; compare ICE PBNDS at 55. The ABA standards provide for special training and accommodations for vulnerable populations, such as women, children, the mentally ill, and asylum seekers (and indeed, counsels that minors and pregnant women should not be detained at all). ABA Standards § II.G, XII. For families, ABA guidelines provide that ICE should house detainees “within a reasonable distance of their family, social and cultural support systems,” and allow visitation every day, with physical contact, for “at least two hours ordinarily.” ABA Standards § X.A.
In addition, the ABA standards provide specific requirements for a law library, including access to electronic legal databases Lexis and Westlaw and “current relevant codes, regulations, court rules, self-help materials, and legal forms,” ABA Standards § VII.B, and require that all facilities permit “know-your-rights” presentations, ABA Standards § VII.D. Given that 97 percent of unrepresented detainees lose their cases, absent appointed counsel, this is a start. Moreover, the ABA standards provide for drastically improved visitation policies, for both lawyers and family. For counsel, ABA guidelines provide for access to detainees 12 hours a day, without advance notice, in private, confidential rooms without Plexiglas where detainees and counsel can trade documents. ABA Standards § VII.B-C.
Although these improvements inside the walls would bring immigration facilities up to human rights standards, and in some respects beyond them, none of them would change the reality of constant confinement. Interestingly, though, ABA guidelines also provide for supervised furloughs for those detained longer than 90 days, especially those with citizen families. ABA Standards § X.B. This is another small step beyond the presumption of round-the-clock incarceration.
Accountability. Lastly, the ABA guidelines provide, among other things, that DHS should conduct robust oversight of facilities and release biannual reports; that independent accreditation agencies should develop standards for immigration detention, and that DHS should follow them; and that any contracted facility should comply with standards. ABA Standards § XV. These recommendations build upon prior DHS efforts, such as its recent hiring of 42 on-site detention monitors. These recommendations also begin to address the vexing problems caused by ICE’s overreliance on private companies. Private companies’ profit motive to underspend on detainee care may countermand any improvements in conditions from more robust standards. But, increased contract oversight may address these problems, as some have argued.
All in all, the new ABA standards, if implemented, would provide for “better” detention. We should applaud this, since conditions are current detainees’ most immediate concern. That said, the logical extension of tailoring a detention system to its civil aims is less detention. Subtly, but perhaps most importantly, the ABA standards provide a blueprint for that world as well. If the ABA standards do not answer the question of what is “truly civil” detention, they point up its inherent contradictions in a way that should hopefully foster vigorous debate.
As to the impacts of these reforms, I’ll provide a few preliminary observations here as a coda.
For one, the emergence of a “continuum” of ICE supervision practices might warrant reevaluation of our legal tests governing deprivations of liberty. For example, the Supreme Court has so far held in civil cases that procedurally, “detention is different”–that incarceration triggers a presumption in favor of appointed counsel (albeit rebuttable). What if the U.S. employed “open” check-in centers, with some freedom to come and go, for certain hours? What about alternatives such as electronic tracking bracelets? Home detention? At the least, the emergence of the continuum will require greater clarification of terms such as incarceration, detention, custody, and supervision. (For example, electronic tracking should meet INA § 236(c)’s requirement to take immigrants “into custody,” even though ICE interprets 236(c) as requiring “mandatory detention.”)
For another, from a political standpoint, the impacts of detention reform are unclear. In my forthcoming article, I note that improved immigration detention conditions and greater process (as many advocate, including myself) may help normalize detention in the public’s eye–that since civil detention “isn’t really jail” and is nevertheless “fair,” detention might become the rule, not the exception.
Then again, the public has so far rejected the premise of “civil” detention reform from both sides. On the one hand, immigrant advocates, calling ICE’s new revamped civil facilities like Karnes “prisons,” have blocked ICE from building new facilities in Illinois and Florida. On the other hand, anti-immigrant advocates have complained about purportedly preferential treatment for immigrants, arguing that “ICE detention centers were already softer than those at other federal and local [criminal] facilities.” (Indeed, the only thing these sides agree on may be that immigration detention is jail.) The lack of a political constituency for detention reform may threaten its long-term viability.
Mark Noferi is a legal writing professor at Brooklyn Law School and an avid follower of immigration imprisonment. He has recently written articles about the right to counsel for mandatorily detained individuals and the civil characterization of immigration prisons.
ICE’s new policy regarding prisoner transfers promises to shed more light on decisions to move prisoners from one facility to another, but relies heavily on requirements the agency has long imposed on itself without success and inadvertently identifies major reform obstacles that arise from its heavy reliance on private prison operators. U.S. Immigr. & Customs Enforcement, Policy 11022.1: Detainee Transfers (Jan. 4, 2012).
The policy announced in January 2012 makes some significant improvements by recognizing the impact of transfers and the reality of immigrant relationships. For example, it recognizes civil unions and domestic partnerships alongside marriages. Detainee Transfers at § 3.3. It requires that medication accompany a detainee when transferred, § 5.11, and requires that the detainee’s attorney of record receive notice of the transfer, § 5.3.
In addition, it sets out specific criteria that militate against transfer: immediate family or an attorney of record nearby, pending or on-going removal proceedings, or a bond or scheduled bond hearing. Detainee Transfers at § 5.2(1).
These are all common sense considerations. So common sense that some have been part of ICE’s requirements for years. In a 2011 article I wrote about DHS’s policy of informing attorneys of all transfers. “ICE’s detention standards require ICE staff to notify a detainee’s attorney-of-record of an impending transfer, notify the attorney again when the detainee has arrived at the new location, and provide the attorney with contact information for the new facility,” I wrote in Due Process and Immigrant Detainee Transfers: Moving LPRs to Isolated Prisons Violates Their Right to Counsel, 21 Berkeley La Raza Law Journal 17, 42 (2011). “All this must be done as soon as practicable, but no later than 24 hours after the transfer.”
I then went on to list several violations of this policy. According to a 2009 report that I discussed, “the DHS Inspector General, reviewing ICE’s compliance with the current transfer policy, reported that ICE staff interviewed at the sites visited said they did not notify the detainee’s legal representative because they considered the notifications to be the detainee’s responsibility. Indeed, the Inspector General found that the Detainee Transfer Notification form, a one-page form that ICE officials are required to fill out upon any transfer, was not properly completed for 143 of the 144 transfers we tested. As the Inspector General added, ‘[a]gency staff interviewed generally considered completing and providing copies of the transfer forms to detainees a low priority.’”
My concern isn’t that DHS has adopted faulty policies. It hasn’t. Rather, my concern is that, without an effective accountability measure, DHS field officials won’t bother to comply with departmental mandates. This is what’s been happening for years and the new directive doesn’t seem to change the status quo. As we’ve seen in the context of prosecutorial discretion, DHS headquarters and DHS field offices don’t always see eye-to-eye. And, much like the prosecutorial discretion context, prisoner transfer policy is an area in which it’s crucial that everyone be on the same page.
Another feature of DHS’s policy that concerns me is its subtle but clear failure to apply to contractors. “This Directive,” the document states, “establishes responsibilities and procedures for ICE employees who perform detainee transfers and does not govern contract staff.” Policy 11022.1: Detainee Transfers at 1. The lines between ICE and contract employees working for the private prison companies that DHS pays millions of dollars to run its prisons—the Corrections Corporation of America, GEO Group, and Management Training Corporation, among others—are frequently fuzzy. As such, it’s unclear to me exactly how common it is to have contract staff “perform detainee transfers.” My hunch is that there is no shortage of contract staff doing this work, but I would love to hear from others with more insight into this. If my guess is correct, then this policy might not mean very much to the 360,000 people who find themselves in an immigration prison every year because the people actually moving prisoners from one location to another don’t work directly for DHS.
Thanks to Mark Noferi (Brooklyn Law) for sharing his thoughts on immigration imprisonment and, specifically, this detention policy with me.
March 24, 2014
ICE says detainers are requests: In a letter to several members of Congress, ICE acknowledges that detainers are mere requests. The letter explicitly states that "they are not mandatory as a matter of law." This is a potentially significant turn of events as it makes it much more difficult for local officials to claim that detainers are mandatory, as they sometimes do in response to activists' calls to limit compliance with detainers.
January 30, 2014
Fifth Circuit Rejects Silva-Treviño: The Fifth Circuit Court of Appeals rejected the Attorney General's decision in Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008), allowing immigration judge's to go beyond the record of conviction when determining whether a conviction constitutes a crime involving moral turpitude. Silva-Treviño v. Holder, No. 11-60464, slip op. (5th Cir. Jan. 30, 2014). In doing so, the Fifth Circuit joined the Third, Fourth, Ninth, and Eleventh Circuits in rejecting the AG's approach. A detailed analysis of the Fifth Circuit's decision is to follow on crImmigration.com next week.
January 27, 2014
USCIS Guidance Regarding Provisional Unlawful Presence Waivers: The USCIS issued a two-page document instructing field officers about how to handle applications for provisional unlawful presence waivers when an applicant has a conviction other than for a minor traffic offense. Specifically, this document requires field officers to continue processing the application if a conviction appears to fall within the petty offense exception or youthful offender exception of INA 212(a)(2)(A)(ii) or if it appears that the offense is not a CIMT.
January 23, 2014
Mistaken deportation: The U.S. Court of Appeals for the Ninth Circuit released an opinion today indicating the following: 1) an LPR on active duty in the Marines was convicted of using his government computer to watch child porn; 2) ICE launched removal proceedings, claiming this crime constituted an aggravated felony; 3) the immigration judge and Board of Immigration Appeals agreed; 4) the court issued a stay of removal while it considered the Marine's appeal; 5) ICE "mistakenly" (the court's language not mine) deported him despite the existence of the stay of removal; 6) it turns out the crime isn't an aggravated felony which likely means he's not deportable. Aguilar-Turcios v. Holder, No. 06-73451, slip op. (9th Cir. Jan. 23, 2014).
January 22, 2014
Latest news on use of immigration detainers: ICE issued about 23% fewer immigration detainers during fiscal year 2012 than in previous years, the Transactional Records Access Clearinghouse reported. That said, ICE continued to issue about 19,000 detainers each month. Except for two months for which TRAC could not obtain data, the fewest number of detainers issued during FY 2012 came in June 2013 when 16,899 detainers were issued. The largest number during this period was 21,031 issued in October 2012. During the 2013 calendar year, ICE issued, on average, 17,691 detainers each month. The greatest number of detainers issued during FY 2012 came from the Los Angeles ICE area office which issued 3,167 on average each month. Because of the LA office, California led the states in the number of detainers issued.
Especially interesting was the breakdown of detainers issued by detention facility. Most of the 10 named facilities whose inmates received detainers were not surprising--places like the Los Angeles, Maricopa, or Harris County Jail. These are jails in huge metropolitan areas with large immigrant populations. I was, however, surprised to see the Hidalgo County (Texas) Jail listed as number 6 (5,334 detainers issued between October 2011 and August 2013) given that Hidalgo County does not count a population that is anywhere near the size of most of the other areas in the top 10.
January 15, 2014
Prosecutorial discretion's use in immigration courts: A rising number of immigration court cases are being closed due to immigrant-favorable exercises of prosecutorial discretion, data newly analyzed by the Transactional Records Access Clearinghouse shows. TRAC, Once Intended to Reduce Immigration Court Backlog, Prosecutorial Discretion Closures Continue Unabated (Jan. 15, 2014). According to TRAC's report, 7.0% of all immigration court cases closed thus far in the 2014 fiscal year resulted from PD exercises. Such closures were especially prominent in Seattle, Tucscon, LA, Omaha, and Phoenix, all of which saw more than 20% of closures result from favorable uses of ICE's PD authority. In contrast, immigration courts in Houston (1.7%), New York City (3.7%), and Chicago (5.0%) saw few favorable exercises of PD. Overall, 6.6% of immigration court cases closed nationwide since the courts announced a PD initiative have cited PD as the basis for closure.
December 12, 2013
HIV treatment in UK immigration prisons: A new report documents how immigration prisons in the United Kingdom (termed "immigration removal centres") deal with inmates who have HIV. National AIDS Trust & British HIV Association, HIV Care in Immigration Removal Centres (December 2013). Overall, the report concludes that there is significant variation in the quality of monitoring and treatment of HIV-positive detainees. This, the report adds, is in large part because government regulations do not reflect best practices for treating HIV-positive detainees.
December 11, 2013
Crime is decreasingly frequent basis of removal: According to data newly analyzed by the Transactional Records Access Clearinghouse at Syracuse University, DHS is initiating removal proceedings on the basis of criminal activity less often. So far in fiscal year 2014, 13.5% of new removal cases have been based on criminal activity. TRAC, Nature of Charge in New Filings Seeking Removal Orders Through November 2013 (updated December 11, 2013). This is down from 14.2% in the whole of FY 2013 and 15.5% in FY 2012. Interestingly, 42.69% of removal proceedings initiated thus far in FY 2014 were based on alleged entry without inspection, while only 3.6% were based on a claimed conviction for an aggravated felony.
November 22, 2013
Forensic anthropology pairs dead migrants with surviving relatives: The radio program Here and Now released a well-done story about forensic anthropologist Lori Baker from Baylor University and her work trying to identify the remains of migrants who died making their way into the United States and returning them to their surviving family members. This story, "Anthropologist Works to Return Migrants' Remains" (November 21, 2013), is well worth listening to.
November 13, 2013
Practice Advisory on Motions to Suppress Related to CBP Actions: The American Immigration Council has released another in a series of practice advisories about motions to suppress in removal proceedings. AIC, Motions to Suppress in Removal Proceedings: Fighting Back Against Unlawful Conduct By U.S. Customs and Border Protection. This advisory is specifically focused on potentially unconstitutional actions performed by Customs and Border Protection agents. According to the announcement that accompanied release of this advisory, "The LAC’s new practice advisory discusses some of the factual scenarios that may give rise to successful motions to suppress evidence obtained unlawfully by CBP officers, including CBP inspectors stationed at ports of entry and Border Patrol agents, who operate between ports of entry. It also addresses some of the legal issues specific to motions to suppress evidence obtained at and near the border. If successful, a motion to suppress can prevent the government from using unlawfully obtained evidence to prove alienage, which may result in the termination of removal proceedings."
November 12, 2013
Frequency and timeliness of relief in immigration courts: New data analyzed by TRAC indicates that immigration judges granted some form of relief from removal 27,783 cases during FY 2013, 27,783. The organization expects that number to rise this year. Other data indicate that immigration judges situated in Nebraska took longest (1,349 days on average) to decide cases where relief was ultimately granted. Nebraska judges were followed by immigration judges in Oregon (1,178 days), then Illinois (1,149 days). Nationwide, it took immigration judges 898 days to decide cases where relief was granted thus far in FY 2014.
November 11, 2013
Special journal issue on immigration detention: The European Journal of Criminology released a special issue on immigration detention recently. Contributions focus on France, Norway, Greece, and Italy. I'm excited to review these articles because in some ways Europe is following in the footsteps of the United States, while in other ways it appears to have taken a drastically different approach when it comes to using detention as a means of enforcing immigration law.
Critical Report on Greek Migration Controls: The German NGO Pro Asyl recently released a report that takes a harsh look at border control measures that Greece has implemented along its border with Turkey and along its coastal border. Pushed Back: Systematic Human Rights Violations Against Refugees in the Aegean Sea and at the Greek-Turkish Land Border. According to the report, "The major finding of our investigation is that illegal push-backs from Greek sea and land borders occur systematically. Greece has been accused of such blatant human rights violations before. However, the brutality and the extent of violations found in this report are shocking. Masked Special Forces officers are accused of ill-treating refugees upon apprehension, detaining them arbitrarily without any registration on Greek soil and then deporting them back to Turkey, in breach of international law. In act, there are “grey” zones where refugees are detained outside any formal procedure; in practice these refugees don’t exist."
Given Greece's geographic position at the edge of the EU, its recent political move to the right, and its upcoming ascendancy to the EU presidency (beginning in January 2014), staying up on what is happening in Greece is worthwhile.
November 5, 2013
CCA To Announce Latest Earnings: On the heels of a similar announcement by the GEO Group (see November 4, 2013), the Corrections Corporation of America, the largest private prison operator in the USA, plans to announce its third quarter earnings on Thursday, November 7 at 11:00 am EST. Information about how to join a conference call on which the announcement will occur is available on CCA's web site here
November 4, 2013
GEO Group To Announce Latest Earnings: The second largest private prison operator in the United States, the GEO Group, plans to announce its third quarter 2013 earnings by conference call on Wednesday, November 6 at 11:00 am EST. Information about how to participate in the call is available on GEO's web site here. The company recently announced that it will pay a quarterly cash dividend of $0.55 per share in late November. According to a company press release, this "represents a ten percent increase from our previous regular dividend and is indicative of our company’s continued growth and commitment to return value to our shareholders.”
Naturalization Trends: The Migration Policy Institute reports that 757,434 people were naturailzed in the United States during the 2012 fiscal year. This is a 9% increase from FY 2011. Another 65,874 naturalization applications were denied in FY 2012. Meanwhile, there were approximately 390,000 naturalization applications pending at the end of FY 2012. The largest contingent of people who naturalized in FY 2012 were born in México (13.5%) followed by the Philippines (5.9%) and India (5.7%).
October 25, 2013
Immigration court backlog grows: An analysis of EOIR data released by the Transactional Records Access Clearinghouse indicates that the immigration court backlog continues to grow. Currently, TRAC's analysis indicates, there are 344,230 cases pending in immigration courts nationwide. The largest number of these cases are in California (77,246), New York (50,818), and Texas (48,626) immigration courts. Across the country, it is currently taking an average of 562 days to adjudicate an immigration case.
October 17, 2013
Immigration courts back on schedule tomorrow: The EOIR announced today that the immigration courts will resume normal operations tomorrow, Friday, October 18, 2013. Detained cases scheduled for today (Thursday, October 17) will go on as scheduled, but non-detained hearings will be rescheduled as they were during the government shutdown.
October 15, 2013
TRAC: Drop in number of removal filings based on crime: According to a new analysis of filings in immigration courts, about 14.4% of deportation cases filed were based on the noncitizen's alleged involvement in criminal activity. This is a smaller percentage than every year since 2007. In FY 2012, for example, about 15.5% of filings were based on criminal involvement. The bulk of deportation proceedings initiated in FY 2013--51.49%--were based on alleged entry without inspection. Another 30.37% were based on some other claimed immigration activity. Only 4.07% were based on allegations that a noncitizen was convicted of an aggravated felony and 10.36% on a claim that the noncitizen was involved in another type of crime. TRAC's report is available here.
October 9, 2013
Post-Departure Victory: The Post-Deportation Human Rights Project at Boston College along with the Criminal Justice Institute at Harvard claimed a wonderful victory recently when they successfully vacated a conviction based on faulty evidence, then used that win to convince DHS to join a motion to reopen removal proceedings despite the fact that the noncitizen had already been removed. An immigration judge subsequently granted the joint motion and later dismissed the removal allegations. More information is available in this press release.
September 9, 2013
GEO Group announces new 400-bed facility: The GEO Group, the country's second largest private prison operator, announced that it won a contract with ICE to build and operate a new 400-bed transfer facility in Alexandria, Louisiana. According to the company's press release, "GEO will finance, develop and manage the $20.0 million company-owned Center, which is expected to be completed during the fourth quarter of 2014. GEO’s contract with ICE is expected to generate approximately $8.5 million in annualized revenues."
September 6, 2013
ICE Policy on Segregated Detention: After much criticism for its use of segregated confinement, ICE issued a policy that standardizes use of this contested practice. The policy explains that "placement in administrative segregation due to a special vulnerability should be used only as a last resort and when no other viable housing options exist." U.S. Immigration and Customs Enforcement, Review of the Use of Segregation for ICE Detainees (September 4, 2013). This limitation does not apply to "disciplinary segregation," which the policy explains can be "authorized only pursuant to the order of a facility disciplinary panel, following a hearing in which the detainee is determined to have committed serious misconduct in violation of a facility rule, and only consistent with the Disciplinary Severity Scale from the applicable ICE detention standards, and only when alternative dispositions would inadequately regulate detainee behavior." Detainees placed in administrative segregation "because he or she was alleged to have been a victim of sexual assault, ensure the detainee is not held in administrative segregation on that basis for more than five days, except in highly unusual circumstances or at the detainee's request."
August 16, 2013
Practice Advisory on Motions to Suppress: The American Immigration Council released a practice advisory yesterday on suppressing illegally obtained evidence in removal proceedings. According to the advisory, "When state and local law enforcement officers have violated the Fourth Amendment, a noncitizen may move to suppress evidence obtained through that violation. If successful, such a motion would prevent the evidence from being used in removal proceedings against the noncitizen and, in some cases, may result in the termination of proceedings. In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Supreme Court limited the exclusion of evidence in immigration proceedings to “egregious” or “widespread” violations of the Fourth Amendment by federal immigration officers. Id. at 1050-51. However, as discussed herein, there are compelling arguments that evidence obtained through any constitutional violation by state or local officers should be suppressed in removal proceedings and that the limitations in Lopez-Mendoza should be reconsidered."
July 25, 2013
ICE Issuing Fewer Detainers: Averages 18,427 Per Month: Data analyzed by the Transactional Records Access Clearinghouse at Syracuse University indicate that ICE issued fewer detainers during the first four months of the 2013 fiscal year (October-December 2012 and January 2013) than in previous fiscal years. TRAC reported that, on average, ICE issued 18,427 detainers per month during that period, down from 22,832, on average, per month of the FY 2012. The largest number of detainers were issued through ICE's Criminal Alien Program followed by the 287(g) program.
June 13, 2013
CCA Loses Three Contracts: The Corrections Corporation of America, the nation's largest private prison operator, announced that it lost contracts on three facilities--two in Texas and one in Mississippi. Combined, the three prisons contain about 5,319 beds. According to CCA, the Texas prisons were shut down due to state "budget reductions." It added that it was "not selected for the continued management" of the Mississippi facility.
June 10, 2013
House Judiciary Committee Hearing: On June 13 at 2:00 p.m., the House Judiciary Committee will hold a hearing on H.R. 2278, the "Strengthen and Fortify Enforcement Act" (The SAFE Act). The SAFE Act is sponsored by Republican Trey Gowdy (South Carolina) and cosponsored by 19 other Republican members of the House.
Border Patrol Apprehensions of Unaccompanied Kids Go Up: Border Patrol data indicate that 24,481 unaccompanied children (between ages 0 and 17) were apprehended in fiscal year 2012. This is an increase from 16,056 apprehended in FY 11; 18,634 in FY 10; 19,668 in FY 09; and 8,041 in FY 08. Most of the children apprehended in FY 2012 were from México (13,974), with Guatemala, El Salvador, and Honduras following far behind. The Pew Charitable Trusts Stateline News Service distributed an informative article about this trend.
June 7, 2013
TRAC Reports Over 100,000 Removals: The Transactional Records Access Clearinghouse at Syracuse University reported today that 107,538 removal orders have been issued by immigration judges thus far in FY 2013 and that the immigration courts are on track to issue 189,267 removal orders this year. According to TRAC, "The top five nationalities against which removal orders were being sought were: Mexico, Guatemala, El Salvador, Honduras, and China."
Practice Advisory on ICE Detainer Guidelines: The National Lawyers Guild's National Immigration Project and the Immigrant Legal Resource Center issued a practice advisory for interpreting the detainer guidelines ICE distributed in December 2012. According to the Practice Advisory, " This practice advisory analyzes the new guidance, including who is and is not likely to be subject to ICE detainers under the new policy, the significance of these changes, and what problems remain."
June 6, 2013
Updated Immigration Court Practice Manual: The EOIR updated the Immigration Court Practice Manual to reflect the new eRegistry requirement that kicks in June 10, 2013 and new page numbering. (More about the eRegistry is available in the May 14, 2013 post below.) The updated manual is available on the EOIR's web site. Specific provisions changed in this version are listed here.
May 20, 2013
Scholars Denounce Grassley Amendment 53 as Unconstitutional: I was proud to join about 65 other immigration law scholars in urging the Senate Judiciary Committee to reject Amendment 53 offered by Senator Grassley. The amendment would authorize long-term detention pending removal proceedings and indefinite detention after a removal order has been issued. Both provisions clash with Supreme Court precedent, as explained in the letter. I wrote an op-ed in opposition to a similar amendment that Republican members of the House of Representatives promoted in 2011.
Updated DACA Statistics
USCIS issued updated statistics on DACA applications, approvals, and denials current through April 30, 2013. According to the data, there have been 497,960 applications accepted; 2,352 denied; and 291,859 approved. There were approximately 10,000 fewer applications approved in April 2013 than in March 2013.
May 14, 2013
Attorney Registration Requirement: The EOIR announced today that it will require attorneys and accredited representatives appearing before the immigration courts or BIA to register with the EOIR beginning June 10, 2013. Attorneys and accredited reps must be registered with the EOIR to appear before immigration courts or the BIA after December 10, 2013. Registration will be free and done through a web-based form. According to the final rule published in the Federal Register, "EOIR intends to require all attorneys and accredited representatives who practice before immigration judges or the Board to register online. EOIR will require that attorneys and accredited representatives provide the following information when registering: full name; date of birth; business address(es); business telephone number(s); email address; bar admission information (for attorneys); and recognized organization (for accredited representatives). As noted above, EOIR will require an attorney or accredited representative to create a unique UserID and password for online access to the registry." More information, including registration instructions, are available on the EOIR's web site here.
May 10, 2013
TRAC: Federal Criminal Immigration Prosecutions At Record Pace: Here's the latest from the Transactional Access Records Clearinghouse at Syrcause University: "Very timely Justice Department data show that during the first six months of FY 2013, the rate of federal criminal prosecutions for immigration offenses is up 9.8 percent over the previous year, with 50,468 such prosecutions reported as of the end of March. If this pace continues, more individuals will have faced criminal immigration charges this year than at any other time in United States history. Regionally, the Southern District of Texas (Houston) now leads the nation with 17,022 immigration prosecutions so far this year. The Western District of Texas (San Antonio) is in second place with 13,379 prosecutions. Arizona, the district with the most immigration prosecutions in FY 2012, has slipped to third place with 11,476. Arizona is also recording the largest decline -- 22 percent -- of any district in the nation."
May 7, 2013
New Immigration Judges: Attorney General Eric Holder appointed five new immigration judges this week. Four will be posted at the Los Angeles immigration court and the other at the Tacoma, Washington immigration court. Notably, three judges have experience in the immigrants' advocacy community. Biographies are available here.
May 6, 2013
Removal Orders Down: According to a new report issued by Syracuse University's TRAC, immigration judges are issuing removal orders 18% less often than last year and 35% less often than two years ago. If IJs maintain the pace they've set during the first 7 months of of the 2013 fiscal year, fewer removal orders will be issued this year than in any year since at least 1998 (as far back as TRAC's data goes). It's entirely possible that people are being removed from the USA through other means--for example, reinstatement of removal or increased use of returns, but TRAC's report only addresses removal orders.
May 3, 2013
Moncrieffe Practice Advisory: The American Immigration Council released a practice advisory on the Supreme Court's decision in Moncrieffe v. Holder, No. 11-702, slip op. (U.S. April 23, 2013). crImmigration.com hosted an online symposium on Moncrieffe that provides extensive analysis of the arguments and decision.
May 1, 2013
Apparent suicide in immigration prison: ICE reported that a woman in its custody at the Eloy Detention Center in Arizona died from an apparent suicide on Sunday, April 28, 2013.
April 22, 2013
Senate Judiciary Committee Hearing: The Committee is holding a hearing on the immigration legislation released last week and streaming it live here.
British Report on Immigration Detention: The British organization Bail for Immigration Detainees recently released a report detailing the impact of detention on children. Among other things, "[t]he BID report makes a number of specific recommendations, including calling for a time limit to be placed on immigration detention in part so that prolonged periods of separation from families cannot occur, and for the best interests of children to be a primary consideration in decisions which affect them. The bigger message from the report is that children should not be separated from their parents as a result of immigration controls."
April 18, 2013
House Hearing on DHS Budget
The House Committee on Homeland Security is holding a hearing on the president's budget request for FY 2014 at 9:00 am EST on April 18. Video is available here.
April 17, 2013
Senate Judiciary Committee Hearing: The Senate Judiciary Committee will hold a hearing on immigration law reform on April 19, 2013, at 10:00 am EST. More information is available here.
Comparison of 2006, 2007, and 2013 immigration proposals
The MPI released a helpful side-by-side comparison of the immigration legislation proposed in 2006, 2007, and 2013.
April 15, 2013
Updated DACA Statistics
USCIS issued updated statistics on DACA applications, approvals, and denials current through March 31, 2013. According to the data, there have been 472,004 applications accepted, 1,377 denied, and 268,361 granted.
April 5, 2013
ICE Revises Investigation Procedure
In response to a lawsuit brought by LatinoJustice and the Center for Constitutional Rights, ICE agreed to revise its procedure for searching homes. According to the district court's order in Aguilar v. ICE, the agency's personnel will be required to seek consent to search from residents of a targeted home in a language they understand, where "feasible" to do so; refrain from entering a home's curtilage or other area in which there is a reasonable expectation of privacy; and engage in protective sweeps of a home only where there is a reasonable, articulable suspicion of danger. Aguilar v. ICE, No. 1:07-CV-08224, slip op. at 5-6 (S.D.N.Y. April 4, 2013) (Forrest, J.). A New York Times article about this settlement appeared on April 5, 2013.
April 4, 2013
TPS Renewed for Nicaragua and Honduras
MPI Report: Mexican Migration to the United States
A pair of economists issued a report under the auspices of the Migration Policy Institute about projected Mexican migration to the USA. Here's part of the MPI's description: "The baseline scenario in the report — which assumes overall US economic growth of 2.5 percent, prerecession growth rates in wages, and a lower supply of Mexican labor due to strong economic performance in Mexico — suggests that net inflows from Mexico to the United States through 2017 could be on the order of 260,000 yearly. This figure — which includes legal and unauthorized migrants, workers of all skill levels, and those not in the labor force — is similar to the net inflow of 280,000 Mexicans per year during 2000-07, but is significantly lower than the net inflows recorded during 1990-2000, which amounted to around 466,000 annually."
March 26, 2013
UK immigration detention stats:
The UK's Home Office released statistics on its immigration detention population recently. According to its data, 28,909 people were in detention in the 2012 calendar year. This was an increase from the previous year's 27,089. More stats on migration and asylum are available here.
March 19, 2013
Senate Judiciary Committee Hearing
The Senate Judiciary Committee will continue its ongoing series of hearings on immigration law tomorrow (March 20, 2013) at 2:00 pm. The hearing will be webcast live on the committee's web site.
House Judiciary Committee
The March 19, 2013 House Judiciary Committee hearing on the release of individuals kept in immigration prisons is available here
Updated DACA Statistics
According to USCIS, between August 15, 2012 and March 14, 2013 there were 453,589 DACA applications accepted for processing, 442,041 biometric services appointments scheduled, and 245,493 requests approved. Another 15,941 were rejected. Tanya Golash-Boza wrote a short insightful analysis of these latest figures on her blog Social Scientists on Immigration Policy.
March 18, 2013
Immigration Court Backlog Grows
The backlog of immigration court cases has grown from where it stood when ICE began its prosecutorial discretion initiative in FY 2011. According to TRAC, "[a]s of the end of February 2013, the backlog has reached a new all-time high of 325,296. According to the very latest data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC), that total rose by 1,571 just during February. The court backlog is now 9.3 percent higher than it was at the end of FY 2011 when ICE Director John Morton announced a review of cases designed to reduce both the backlog and wait times. Instead, the backlog has increased, and the average time cases have been waiting to be heard has jumped to 553 days, compared with 489 days at the end of FY 2011 when the review began." TRAC's data is available here.
March 13, 2013
The Office of Management and Budget distributed this document providing the funding amounts that each of the federal government's agencies is slated to lose due to sequestration. According to the document, Customs and Border Protection will lose $512 million (page 28), ICE $294 million (page 28), CIS will have to do with $151 million less (page 27), and the U.S. Attorneys' Office will lose $99 million (page 38). CBP released more specific information on this web site.
March 5, 2013
Rep. Luis Gutierrez Podcast
AILA Advocacy Director Greg Chen and U.S. Representative Luis Gutierrez (D-IL) appear on this podcast discussing immigration reform prospects.
March 4, 2013
USCIS Begins Accepting Provisional Waiver Applications
USCIS began accepting applications for the provisional waiver of unlawful presence today. This process does not change the requirements for obtaining a waiver--extreme hardship to a United States citizen spouse or parent is still required. This new process simply adjudicates applications while the applicant is in the USA. More information is available from USCIS here.
February 20, 2013:
USCIS: Provisional Unlawful Presence Waiver Process Teleconference
U.S. Citizenship and Immigration Services (USCIS) and the Department of State invite you to participate in a joint stakeholder teleconference to discuss the final rule establishing a new process for certain individuals to apply for provisional unlawful presence waivers while they are still in the United States. The final rule published in the Federal Register on January 3, 2013 and will be effective on March 4, 2013.
The new process allows certain immediate relatives of U.S. citizens, who are physically present in the United States and are seeking permanent residence, to apply for and receive provisional unlawful presence waivers before departing the United States for consular processing of their immigrant visa applications abroad. This process change will reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the immigrant visa process to become lawful permanent residents.
The teleconference will provide an overview of the provisional unlawful presence waiver eligibility criteria and process. Representatives from USCIS and the Department of State will respond to questions related to procedural and operational matters.
Please note that this new process will not be effective until March 4, 2013, and USCIS will not accept any applications until the effective date. This final rule is separate and distinct from the Form I-601 centralization process.
Date/Time: Tuesday, February 26, 2013, at 1:00 pm EST
To Join the Session: Please use the information below to join the session. We recommend calling in 15 minutes before the start of the teleconference.
Toll Free Call-In Number: 1-800-369-2065
Toll Number for Outside the U.S.: 1-212-547-0425
January 30, 2013:
Call for Papers: “Mexico-NY: Thirty Years of Migration”
Call for papers:
The CUNY Institute of Mexican Studies invites abstracts for our annual conference on Mexican studies. The 2013 conference focus is on “Mexico-NY: Thirty Years of Migration”. Abstracts of 250 words along with a 150 word bio are invited in all disciplines. Abstract submission deadline is Feb. 15, 2013. Please email abstract to email@example.com. As many as ten abstracts will be selected for participation and other presenters will be invited to participate. Selected participants will be notified by February 28, 2013 and will be expected to submit finished manuscripts of conference papers by April 15, 2013. Please specify if work is eligible for publication (original research, not previously published). Limited funding for travel and accommodations may be available.
Friday May 10, 2013
Organized by the CUNY Institute of Mexican Studies
Hosted at John Jay College/CUNY
524 W 59th St New York, NY 10019
The CUNY Institute of Mexican Studies will host a one-day conference on May 10, 2013, “Mexico-NY: Thirty Years of Migration.” This conference will be a major gathering of scholars from Mexico and the United States to disseminate research on three decades of migration between Mexico and New York. The proceedings will be simultaneously available on the web and then will be archived and available on the Institute of Mexican Studies website. Additionally, an edited volume of selected papers will be prepared and published to further disseminate the results of the conference.
The conference will build on the accomplishments of the 2012-2013 yearlong Mexico-NY interactive web based seminar, or Virtual Seminar Series the CUNY Institute of Mexican Studies is coordinating between Benemérita Universidad Autónoma de Puebla (BUAP) and the City University of New York (CUNY).
Our primary goal is to promote a dialogue on research related to diverse aspects of transnational migration between Mexico and New York by creating a forum where US and Mexican academics can engage with one another. Mexican migration to New York originated three decades ago and this conference will be a landmark event, reflecting on the growth of a community, its contributions to New York, and challenges that persist. While scholars in Mexico and the US have studied this population, to date there has been no academic conference that has deliberately sought to draw together the pioneering and emerging scholars who have worked specifically on Mexico-NY migration in a binational dialogue.
The Need for Dialogue on Migration between Mexico and New York and information on the Institute of Mexican Studies. To more fully understand migration issues between Mexico and New York, a transnational perspective needs to be employed since communities are changing on both sides of the border.
Mexicans constitute the fastest growing national sub-group in New York City, due to high rates of immigration and high births. If these rates remain the same, the Mexican population will surpass that of other Latino groups in New York City by the year 2024. The number of Mexicans living in New York City has grown 57.7% in the last decade. The Mexican population in New York City is 319, 126 according to U.S. Census data for the most recent year available, 2010. 2 However, due to undercounting, the population is much greater.
The newly created CUNY-wide Institute of Mexican Studies at Lehman College (launched Spring 2012) serves to bridge scholarly networks in Mexico and the United States who share related research agendas.
Dissemination of Results
Video and audio of the conference proceedings will be broadcast live via web and then be archived on the CUNY Institute for Mexican Studies website. Additionally, a volume of selected papers from the conference will be published.
Alyshia Gálvez, Ph.D.
Director of the CUNY Institute of Mexican Studies
Leslie A. Martino-Velez
Associate Director, CUNY Institute of Mexican Studies
With conference planning team: Isabel Martínez, David Badillo, Jesús Pérez, Lisandro Pérez.
With support from Lehman College, John Jay College, and Senior Vice Chancellor for University Relations, Jay Hershenson
January 22, 2013:
Immigration Law & Border Enforcement Course: Hofstra University is hosting its 3rd annual Immigration Law and Border Enforcement Program from Sunday-Sunday, May 19-26, 2013 in El Paso. The faculty running this are great and one of my students participated last year and hasn't stopped raving about it.
January 15, 2013:
January 14, 2013:
Napolitano to Remain DHS Secretary: DHS announced today that Janet Napolitano will stay on as secretary of the department charged with primary enforcement of immigration law. The National Day Laborers Organizing Network, a leading activist group, criticized this decision.
January 9, 2013
Practice Advisory on Post-Departure Returns: Several organizations teamed up to release a practice advisory to help attorneys whose clients have won a motion to reopen or reconsider but are no longer in the USA.
USCIS Policy Manual: The USCIS issued a Policy Manual volume on citizenship and naturalization. Eventually the Policy Manual will replace the Adjudicators' Field Manual.
December 28, 2012
Immigrant dies in ICE custody:An immigrant detained at the Eloy Detention Center in Arizona died on December 23, ICE announced this week. According to one news report, more than 125 individuals have died while in immigration prisons since 2003.
December 27, 2012
ICE Detainer Policy Guidance: The Director of ICE, John Morton, issued a memo instructing ICE officers about when they should issue an ICE detainer. The memo provides 8 conditions that the agency deems sufficient basis for issuing a detainer, mostly related to crime-related activity. The memo is titled Civil lmmigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems and was issued December 21, 2012.
MPI Event on Immigration Enforcement: The Migration Policy Institute is hosting what sounds to be an interesting event titled "Immigration Enforcement in the United States: The Rise of a Formidable Machinery" on January 7 in DC. More information is available on MPI's web site.
December 20, 2012:
Justice Dept Sues North Carolina Sheriff: Today the Justice Department's Civil Rights Division announced that it has sued the Alamance County (NC) Sheriff's Office. According to DOJ's press release, "The Justice Department today filed a civil rights lawsuit against Terry S. Johnson, in his official capacity as head of the Alamance County Sheriff’s Office (ACSO) in North Carolina. The complaint alleges that ACSO routinely discriminates against and targets Latinos for enforcement action, in violation of the U.S. Constitution and Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994." The complaint is available here.
AILA Blog on Exclusionary Rule in Removal Proceedings: AILA's Slip Opinion blog has a nice piece on the need for the Supreme Court to consider it's longstanding--and antiquated--position that the exclusionary rule has no place in removal proceedings. Definitely worth reading.
December 18, 2012:
Latest DACA Stats: The latest statistics released by DHS about its Deferred Action for Childhood Arrivals indicate that 102,965 applications have been approved as of December 13, 2012. Another 157,151 remain under review.
Medical Repatriation Study: "The Center for Social Justice (CSJ) at Seton Hall University School of Law and New York Lawyers for the Public Interest (NYLPI) released a report documenting an alarming number of cases in which U.S. hospitals have forcibly repatriated vulnerable undocumented patients, who are ineligible for public insurance as a result of their immigration status, in an effort to cut costs. This practice is inherently risky and often results in significant deterioration of a patient’s health, or even death. The report asserts that such actions are in violation of basic human rights, in particular the right to due process and the right to life. According to the report, the U.S. is responsible for this situation by failing to appropriately reform immigration and health care laws and protect those within its borders from human rights abuses. The report argues that medical deportations will likely increase as safety net hospitals, which provide the majority of care to undocumented and un- or underinsured patients, encounter tremendous financial pressure resulting from dramatic funding cutbacks under the Affordable Care Act." The CSJ and NYLPI also launched a web site for advocates.
December 17, 2012:
Interim Policy Memo on U Visa Age-Outs: The USCIS released an interim policy memo regarding age-out protections for derivative U visa holders. According to the memo, "This policy memorandum (PM) provides guidance relating to certain U-3 derivative nonimmigrant
petitions that are being held for final adjudication or have had their prior approvals limited in time due to the derivative aging-out. This PM also authorizes the approval of U-3 derivative nonimmigrant petitions for the full eligibility period of four years, allowing the U-3 derivative to remain in U nonimmigrant status past his or her 21st birthday, if necessary."
Draft Policy Memo on VAWA Employment Eligibility: USCIS released a draft policy memo regarding employment eligibility for VAWA self-petitioners and battered spouses of certain nonimmigrants.
December 13, 2012:
Global Trends in Migration-Related Detention: Chicago's NPR station, WBEZ, aired a very informative program about worldwide immigration detention practices.
December 11, 2012:
How Immigration Enforcement Affects Families, Schools, and Workplaces: The Center for American Progress is hosting a panel discussion on the effects of immigration enforcement today at noon in Washington, DC. The event will be streamed online live. For more information, visit the CAP's web site.
December 10, 2012:
Immigration Damages Litigation CLE: The National Lawyers Guild and the University of Miami's Immigration Law Clinic are hosting a CLE on immigration damages litigation. This one-day training will focus on using litigation as a tool to hold law enforcement accountable for misconduct and abuse committed against noncitizens in detention facilities, on the border, and during vehicle stops and raids. Topics will include: Litigation under the Federal Tort Claims Act, Bivens, § 1983, and motion and discovery practice. The event is scheduled for Friday, January 11, 2013, from 8:45AM - 5:00PM, at the University of Miami School of Law, 1311 Miller Drive, Coral Gables, FL 33146. More information is available here.
December 8, 2012:
ABA Civil Immigration Detention Standards: The ABA has published its Civil Immigration Detention Standards in book form and updated its web site to include audio and video of a November 14 "dialogue" on civil immigration detention. Mark Noferi (Brooklyn Law) published an outstanding analysis of the ABA's standards on crImmigration.com in August that's available here.
December 6, 2012:
California Attorney General-Secure Communities is Optional: Here is the California Attorney General's "information bulletin" explaining that participation in Secure Communities is not required.
December 5, 2012:
Comparative Analysis of Immigration Detention: The Migration Policy Institute issued a short summary of how several countries, including the USA, are dealing with immigration imprisonment.
December 4, 2012:
USCIS: Immigration Relief for Victims of Human Trafficking: The USCIS is running a web-based training session about relief available to victims of certain crimes, including domestic violence and human trafficking. More information is available on the USCIS web site.
December 3, 2012:
Practice Advisory on Exclusionary Rule in Removal Proceedings: The NYU Immigrants Rights Clinic has put together a helpful practice guide on the Third Circuit's recent decision applying the exclusionary rule in removal proceedings, Oliva-Ramos v. Attorney General (which I blogged about here).
November 15, 2012:
Immigration Court Backlog Drops: The Transactional Access Records Clearinghouse at Syracuse University reports that the backlog of cases in the immigration courts dropped by 1% in October 2012 from the previous month to 321,633 cases. This is the first drop in years, TRAC added. October's figure remains "8.1 percent higher than it was at the end of September 2011, and 22.4 percent higher than at the end of September 2010."
September 19, 2012:
AILA argues prostitution isn't CIMT: In an amicus brief submitted to the BIA, AILA urged the Board to conclude that engaging in prostitution is not a crime involving moral turpitude.
Racial profiling in Alamance County, North Carolina: The Civil Rights Division of the U.S. Department of Justice has found that the Alamance County (North Carolina) Sheriff's Office engages in a pattern or practice of unconstitutional policing targeting Latina/os. Alamance County has a 287(g) agreement with the Department of Homeland Security.
September 17, 2012:
Call for Papers: The Forced Migration Review has issued a call for papers related to sexual orientation and gender identity and the protection of forced migrants. More information is available from the journal's web site.
August 31, 2012:
USCIS reports U visas max out but T visas don’t come close: A new statistical compilation produced by USCIS indicates that the federal government already granted the statutory maximum U visas during the 2012 fiscal year. In contrast, only a small percentage of available T visas have thus far been granted.
U visas are granted to some noncitizen crime victims and T visas are available to some noncitizen victims of human trafficking. The INA caps annual U visas at 10,000; 10,088 were approved. INA § 214(p)(A). The statute caps the annual number of T visas at 5,000 and 489 had been approved as of June 2012 when the USCIS data ended. INA § 214(o)(2). In fairness, USCIS reports having received only 689 T visa applications.
July 25, 2012:
New Report on Immigration Imprisonment and Deportation in New York: Three outstanding organizations--the Immigrant Defense Project, Families for Freedom, and NYU Law School's Immigrant Rights Clinic--teamed up to produce a new report, "Insecure Communities, Devastated Families," about the impact of immigration imprisonment and deportation on New Yorkers. According to the report, between October 2005 and December 2010, ICE apprehended 34,000 New Yorkers, 91% of whom were eventually deported. Most of these individuals (77%) were apprehended through the Criminal Alien Program. After imprisonment, ICE transferred 18,000 New Yorkers to immigration prison outside of New York or New Jersey. A full 94.5% of transferred New Yorkers were later deported.
July 23, 2012:
New Data on Prosecutorial Discretion: A new report by the Transactional Records Access Clearinghouse at Syracuse University indicates that 1.9% (5684) of immigration court cases pending at the end of September 2011 were closed through a favorable exercise of prosecutorial discretion. The number has steadily increased and in March, April, May, and June 2012 the government closed approximately 1,000 cases through prosecutorial discretion. Less than 2% (72) of 5,684 cases involved individuals who were charged with removal for a crime-based reason.
July 11, 2012:
New Report on Federal Criminal Prosecutions of Immigration: The Transactional Records Access Clearinghouse at Syracuse University reports that 8,766 new prosecutions for immigration crimes in April 2012. This was a 16.4% increase over the previous month, but 0.4% less than April 2011. "Overall, the data show that prosecutions of this type are up 123.4 percent from levels reported in 2007."
July 6, 2012:
Daniel Kanstroom Interview: Daniel Kanstroom, a professor at Boston College Law School and author of the newly-released "Aftermath: Deportation Law and the New American Diaspora," speaks about current immigration policy in this interview on Public Radio International's The Takeaway. He makes the important point that the 400,000 deportations per year that's frequently mentioned (including by me) is actually a gross undercount. The number is closer to 1 million when we account for expedited removal and other "informal" mechanisms.
July 5, 2012:
New Report on Alternatives to Detention: The Immigrants Rights Clinic at Rutgers University School of Law-Newark and the American Friends Service Committee released a report on alternatives to detention in the immigration context, "Freed But Not Free" (web site available here). Here's how the executive summary describes the report's content:
Despite the proven effectiveness of many alternatives to detention, as this report makes clear, the capacity of the current ATD system is insufficient. At present, many individuals who are released from detention are placed on an Order of Release on Recognizance (ROR) or an Order of Supervision (OSUP), under which participants are required to check in periodically with Immigration and Customs Enforcement (ICE), among other requirements. Some of those individuals are subject to the Intensive Supervision Appearance Program (ISAP), which includes an electronic monitoring component and is administered by a private company.
This report attempts to examine the use, enforcement, restrictions, and human impact of the existing ATD programs in New Jersey and nationally. For the thousands of individuals that ICE places on supervisory programs—many of whom have been determined to be neither a flight risk nor a danger to the community—ATD programs can be both liberating and debilitating. This report highlights the economic, psychological, emotional, and physical toll faced by individuals under ATD programs and proposes some recommendations for reform.
In assessing the options that may be available to the Executive Branch, the threshold question is whether there is executive authority to grant administrative relief. This is the question addressed in this letter. Though your Administration has considered various forms of prosecutorial discretion for individual DREAM-eligible applicants, this letter highlights the administrative authority that is available to potential DREAM Act beneficiaries as a group. We offer no views on the policy dimensions of a decision to exercise or to not exercise this authority. We write only to explain that there is clear executive authority for several forms of administrative relief for DREAM Act beneficiaries: deferred action, parole–in–place, and deferred enforced departure.
S. 1925 contains key provisions that would expand protections and eligibility to foreign national victims of domestic abuse. Among other provisions included in the bill, it would allow children to continue to apply for protections and legal status under VAWA in the case of the death of their self-petitioner parent, a protection currently afforded only to child applicants for lawful permanent status under family-based immigration provisions of the INA. It would exempt VAWA self-petitioners, U visa petitioners, and battered foreign nationals from removal proceedings if their financial circumstances classified them as inadmissible. It would provide foreign nationals with expanded background information on their sponsoring U.S. citizen and LPR spouses. It would also expand the annual number of U visas issued from 10,000 to 15,000 for a limited period.
Two potential concerns for Congress have been emphasized regarding the immigration provisions of VAWA. The first is whether the proposed VAWA reauthorization provides sufficient relief to foreign nationals abused by their U.S. citizen or LPR sponsoring relatives. Advocates for battered immigrants suggest that additional provisions are needed to assist this population in obtaining legal and economic footing independently of their original sponsors for legal immigrant status. Critics of expanding immigration, however, question the extent to which these provisions may increase the number of legal immigrants and cost the U.S. taxpayers.
The second related concern is the degree to which VAWA provisions might unintentionally facilitate marriage fraud. This may occur through what some perceive as relatively lenient standards of evidence to demonstrate abuse; as the unintended result of processing procedures between the District Offices of the U.S. Citizenship and Immigration Services (USCIS), which adjudicate most immigration applications, and the USCIS Vermont Service Center, which adjudicates VAWA petitions; or as an unintended consequence of the structure of current law. While some suggest that VAWA provides opportunities for dishonest and enterprising immigrants to circumvent U.S. immigration laws, reliable empirical support for these assertions is limited.