Wednesday, September 14, 2016

TRAC: What Happens When Individuals Are Released On Bond in Immigration Court Proceedings?

Court records show that at least half-and in some years upwards of two-thirds - of those who have been proposed by the Department of Homeland Security (DHS) for deportation in the Immigration Courts are held in ICE detention facilities.

The records further show that as the Immigration Court backlogs and wait times have expanded, the issue of whether these individuals should remain locked up for many months and even years while their cases are pending is garnering increased public and legal attention.

Based on the court's own case-by-case records about each custody hearing that is then matched with parallel records on the outcome in subsequent removal proceedings, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University has undertaken an unusual and very detailed examination of these proceedings over the last 20 years.

TRAC's analysis shows that at the present time - for those who posted bond and were then released - all but a relatively small proportion of them show up for their court hearings. In addition, most of the individuals who are released on bond prevail and are not found to be deportable. During FY 2015, for example, only 14 percent failed to turn up at their subsequent court hearing, and fully two out of every three (68%) of those released won their case and were found not to be deportable.

For the full report on these outcomes, as well as detailed tables tracking results in bond hearings and bond amounts, go here.

This TRAC report seems relevant to the major immigrant detention case pending before the Supreme Court, Jennings v. Rodriguez.

KJ

               

September 14, 2016 in Current Affairs | Permalink | Comments (0)

D List Actress Admits To Marriage Fraud on Conan

Nicole

An actress I've never heard of, Nicole Byer, went on Conan and admitted engaging in marriage fraud. Check out the video.

Nicole says she was young (20) and 30K in debt; he was a "teeny tiny little Indian man who wanted to stay in America." They "went on interviews" and "took pictures together."

The audience laughs throughout the entire interview.

At the end, Conan says: "You're going to be arrested right after this thing now." Sadly, that's unlikely. Remember Oregon's "first lady" Cylvia Hayes who admitted to marriage fraud? What happened to her? Nothing. As Kevin pointed out then, any prosecution was time barred. And any claim under 18 USC § 1001 would also be time barred.

So, Nicole gets to go on national television and tell an amusing anecdote without repercussions. What are the odds that the man she married is walking away scot-free from this admission? Not great.

Color me appalled.

-KitJ

September 14, 2016 in Current Affairs, Teaching Resources | Permalink | Comments (1)

United Nations Summit for Refugees and Migrants - 19 September 2016

Summit_image_slider_graphic_0

Next week, the United Nations General Assembly will host a high-level summit to address large movements of refugees and migrants, with the aim of bringing countries together behind a more humane and coordinated approach.

This is the first time the General Assembly has called for a summit at the Heads of State and Government level on large movements of refugees and migrants and it is a historic opportunity to come up with a blueprint for a better international response. It is a watershed moment to strengthen governance of international migration and a unique opportunity for creating a more responsible, predictable system for responding to large movements of refugees and migrants.

When and where?

The Summit is an all day event on Monday 19 September 2016 at the UNHQ in New York.

Download the full programme or view it below.

Download the Provisional list of speakers for the plenary meetings.

KJ

September 14, 2016 in Current Affairs | Permalink | Comments (0)

At the Movies: Purgatorio: A unique cinematic experience to take us deep into the heart of the US-Mexico border

 

910351_4060234dd2ad4a65a095cb0a9349b774~mv2

Purgatorio:  A unique cinematic experience to take us deep into the heart of the US-Mexico border

Rodrigo Reyes’ provocative essay film re-imagines the Mexico/U.S. border as a mythical place comparable to Dante’s purgatory. Leaving politics aside, he takes a fresh look at the brutal beauty of the border and the people caught in its spell. By capturing a stunning mosaic of compelling characters and broken landscapes that live on the US/Mexico border, the filmmaker reflects on the flaws of human nature and the powerful absurdities of the modern world. An unusual border film, in the auteur tradition of camerastylo, Purgatorio ultimately becomes a fable of humanity, an epic and visceral experience with powerful and lingering images. 

Click here for  more on the film.

KJ

September 14, 2016 in Current Affairs, Film & Television | Permalink | Comments (0)

Immigration Article of the Day: Safe and Voluntary Refugee Repatriation: From Principle to Practice by Jeff Crisp & Katy Long

2f53edaa-b07e-4960-9a63-617e037e508c

Jeff Crisp

Safe and Voluntary Refugee Repatriation: From Principle to Practice by Jeff Crisp (University of Oxford) & Katy Long (University of Edinburgh), Journal on Migration and Human Security 

EXECUTIVE SUMMARY

The article discusses the principles of voluntariness, safety, and dignity in the context of refugee repatriation. It begins by setting out the applicable legal framework, and discusses how that framework has been elaborated upon and refined since 1951. The article then discusses how the principles of voluntariness, safety, and dignity have, in practice, been applied (or, in a few unfortunate cases, ignored). After noting that we are now living in an era of protracted refugee emergencies, the article concludes with a number of recommendations regarding alternatives to repatriation and the conditions under which repatriation can take place without offense to the principles of voluntariness, safety, and dignity.

KJ

September 14, 2016 in Current Affairs | Permalink | Comments (0)

The Immigration Consequences of Marijuana Convictions

Esquivel-Quintana v. Lynch: The Potential Sleeper Case of the Supreme Court Term, by David Feder

Feder_David_MTO

On Notice and Comment (Esquivel-Quintana v. Lynch: The Potential Sleeper Case of the Supreme Court Term), David Feder previews important issues in a cert petition currently pending before the Supreme Court:

"You might never have heard of Esquivel-Quintana v. Lynch, but it’s potentially the darkhorse case of this year’s Supreme Court Term. Judge Gorsuch’s recent concurrence in Gutierrez-Brizuela v. Lynch questioned the soundness of the Chevron doctrine itself—and in doing so kicked the hornet’s nest of administrative law scholars. Yet Esquivel-Quintana threatens to take a big bite out of Chevron—and has gone almost entirely under the radar. It’s worth your attention.

At issue in Esquivel-Quintana v. Lynch is whether a conviction for consensual sexual intercourse between a twenty-one-year old and a seventeen-year old constitutes the “aggravated felony” of “sexual abuse of a minor” under the Immigration and Nationality Act—thereby trigging the Act’s mandatory removal provision. Under federal law, the Model Penal Code, and the laws of forty-three states (plus Washington D.C.), this conduct would not even be illegal—let alone an aggravated felony.

A divided panel of the Sixth Circuit, however, concluded otherwise. Under the Immigration and Nationality Act, a noncitizen may not seek discretionary relief from removal when he or she has been convicted of a crime that the Act classifies as an “aggravated felony.” The Act defines “aggravated felony,” in turn, to include the “murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). And the Board of Immigration Appeals, in turn, interpreted “sexual abuse of a minor” to include California Penal Code § 261.5(c), which makes it a crime for an adult to have sex with an individual “under the age of 18 years” whenever the age difference between the parties is more than 3 years.

Although acknowledging that this civil statute also had criminal applications, the majority deferred to the Board’s interpretation under Chevron based on a footnote in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), which explained that the Court had “never suggested that the rule of lenity should provide the standard for reviewing facial challenges to administrative regulations whenever the governing statute authorizes criminal enforcement,” id. at 704 n.18.

On this point, Judge Sutton dissented. He would have applied the rule of lenity rather than Chevron deference and construed the ambiguity in the term “aggravated felony” in favor of Mr. Esquivel-Quintana, rather than against him—as the Board did. There are two pillars to his analysis. First, Chevron deference is inappropriate when it comes to criminal statutes, which “are for courts, not for the Government, to construe.” Abramski v. United States, 134 S. Ct. 2259, 2274 (2014). Second, statutes have only one meaning, whether in a criminal or civil context. See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004). As Judge Sutton memorably put it in an earlier case, “[s]tatutes are not ‘chameleons’ that mean one thing in one setting and something else in another.” Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 730 (2013) (Sutton, J., concurring). Putting these two principles together, he concluded that Chevron deference was inappropriate to a hybrid civil-criminal statute."

 

Here is the punchline:

"I think that it is likely that the Supreme Court will grant certiorari in Esquivel-QuintanaProfessor Jeff Fisher has written an excellent certiorari petition, there are a two independently certiorari-worthy issues, and the Supreme Court needs more cases which aren’t likely to split 4-4."

KJ

September 14, 2016 in Current Affairs | Permalink | Comments (0)

California Gov. Jerry Brown expands overtime pay for California farmworkers

About02

Edmund_G_Brown_Jr

California Governor Jerry Brown

As the Los Angeles Times reports, California Governor Jerry Brown signed historic legislation Monday that would gradually require California farmworkers to the be paid overtime after eight hours on the job or 40 hours in a single week.  The bill signing closed out one of the year’s most intense political battles in Sacramento.

Gonzalez_headshot

Assemblywoman Loren Gonzalez

Leaders of the United Farm Workers of America, which sponsored the overtime bill, called Brown’s decision a victory for farm workers. Growers lobbied heavily against the bill, saying the new law would hurt a valuable state industry on the decline.

Assembly Bill 1066 (see the text), authored by Assemblywoman Lorena Gonzalez (D-San Diego), calls for a phase-in of new overtime rules over four years beginning in 2019.

KJ

 

September 14, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, September 13, 2016

From the Crimmigration Blog: Judge Dana Marks on Independence in Immigration Courts

The Crimmigration blog is currently featuring a video of a lecture given by Immigration Judge Dana Marks (President of the National Association of Immigration Judges) at the University of Denver Sturm College of Law on the merits of restructuring the immigration courts, specifically to make immigration courts an Article I entity (as opposed to belonging to the Executive Office of Immigration Review, a sub-agency of the Department of Justice).  Congratulations to César Cuauhtémoc García Hernández, who helped organize the talk (and runs the Crimmigration blog).

-JKoh

September 13, 2016 | Permalink | Comments (0)

Immigration Article of the Day: Mathis, Descamps, and the End of Crime-Based Deportation by Kari E. Hong

Kari%20Hong%20Cropped%20tight

Mathis, Descamps, and the End of Crime-Based Deportation byKari E. Hong, Boston College - Law School September 2, 2016 UC Davis Law Review, Forthcoming 2017 Boston College Law School Legal Studies Research Paper No. 413

Abstract: The belief that immigrants are crossing the border, in the stealth of night, with nefarious desires to bring violence, crime, and drugs to the United States has long been part of the public imagination. Studies and statistics overwhelmingly establish the falsehood of this rhetoric. The facts are that non-citizens commit fewer crimes and reoffend less often than citizens. But facts do not stop the myth. Even supporters of immigration reform often will point out that they will help deserving immigrants but will deport those with criminal convictions, or at least those who committed violent crimes.

My Article counters that there will be — and should be — an end to crime-based deportation. It is already happening quickly and quietly in federal courts. Beginning in 2013, the Supreme Court decided United States v. Descamps, and in 2016, Mathis v. United States. These cases are highly technical decisions relating to the federal Armed Career Criminal Act (“ACCA”) and immigration law’s Illegal Immigration and Immigrant Responsibility Act (“IIRIRA”).

This Article draws upon empirical data to show that, as predicted by the Justices, a faithful adherence to Descamps and Mathis will be eliminating numerous offenses from having ACCA and IIRIRA consequences on a case-by-case, statute-by-statute basis.

As a normative matter, I contend that this result is the proper one. Prosecutors, judges, and policy makers are embracing this reality in the ACCA context, in part because the federal court can tailor the sentence to the type of conduct underlying the offense without regard to prior crimes. The same result should be embraced in the immigration context. IIRIRA’s reliance on crimes to serve as immigration grounds is too arbitrary, too unjust, and simply out of proportion to how the criminal courts considered the seriousness (or lack thereof) of the crime. For example, a man who had been in the United States with a green card for 40 years was deported over stealing a $2 can of beer. Although a federal court reversed the deportation, the case illustrates that figuring out who is dangerous and who isn’t based on a criminal record is not an efficient or effective method of immigration enforcement.

KJ

September 13, 2016 in Current Affairs | Permalink | Comments (0)

Haitian Migrants Seeking Asylum at San Ysidro Port of Entry

One story that doesn't seem to have received much media attention (but caught my attention on my social media feed) is the sharp increase in Haitian migrants seeking asylum at the US-Mexico border. 

KPBS has a video covering the work of migrant shelters in Tijuana that unpacks some of this recent development: 

 

-JKoh

September 13, 2016 | Permalink | Comments (0)

Fun With Derivative Citizenship

6750277557_46e0d98551_o
Ireland from space, courtesy of NASA

BBC reporter Simon Maybin recently set out to discover just how many how many Britons might be entitled to Irish citizenship. He'd heard estimates as high as 1-in-4 but, as it turns out, that number tracks a Guinness pool about whether folks had any Irish ancestry or saw themselves as Irish. Since everyone sees themselves as a little bit Irish after a Guinness or two, that wasn't the most accurate assessment of citizenship.

So Maybin called Ireland's Citizens Information service. He learned that he himself was qualified for Irish citizenship because his mother was born in Ireland - despite the fact that she never held an Irish passport herself. Her very birth in Ireland made her a citizen. Maybin further found that "The same rules apply if you have a grandparent born on the island of Ireland." Though, he qualified: "There are a few other subtleties to the rules on getting Irish citizenship, including a change for people born after 2005."

With this broad legal knowledge under his belt, Maybin set out to estimate how many Britons had a parent or grandparent born in Ireland. Some maths later, Maybin concluded that nearly 6.7 million people in the UK might quality for Irish citizenship. That's well in excess of Ireland's 4.6 million population and nearly 10% of Brits.

It's an in-class problem on steroids! Super fun.

-KitJ

September 13, 2016 in Current Affairs, Teaching Resources | Permalink | Comments (0)

Mexican Senator Questioning Donald Trump's Immigration Status During Visit to Mexico

Th

Here is one from Snopes and The Daily Caller that falls into the "what goes around, comes around" category. A Mexican senator is demanding that the country's federal government look into whether U.S. presidential candidate Donald Trump legally traveled to Mexico in August 2016.

Luis Humberto Fernández Fuentes, who is with Mexico's Partido de la Revolución Democrática (Party of the Democratic Revolution, or PRD), says that Trump's lightning-turnaround trip to Mexico City to meet with President Enrique Peña Nieto before traveling back to the United States, all on 31 August 2016, may have violated Mexico's immigration laws by entering the country without the proper documentation

Senator Fernández Fuentes explained that Article 37 of the Migration Act provides that in order for aliens to enter the country, they must be submitted through an immigration filter before the INM [the National Institute for Migration] and submit their documents — in this case a passport, since U.S. citizens do not require a visa for a stay of less than 180 days in our country.

He said that in the case of Trump's visit, it is important to clarify whether the Republican bypassed Mexico's mandatory migratory filters or if he was given a waiver to land his private plane at the presidential hangar, and if so, in what capacity.

KJ

September 13, 2016 | Permalink | Comments (0)

Monday, September 12, 2016

Stand As One Exhibition

Are you in London for a few days? If so, head over to 4 Holywell Lane to check out the Stand as One Exhibition, an "immersive film and photography exhibition in support of refugees worldwide."

The event is free and sponsored by Oxfam. 

The Guardian has published several of the photos from the event. Check out this one by Sam Tarling.

5760

You can see a few more via BBC to get the virtual experience.

-KitJ

September 12, 2016 in Current Affairs, Photos | Permalink | Comments (0)

Immigration Policy for a Post-Brexit Britain

Brexit

Photo courtesy of Don Roth

By now, we have fully absorbed the implications of the Brexit vote.  The question now is what the United Kingdom's immigration policy will be. 

The Bloomberg editorial board notes that the UK should adopt immigration policy that makes sense for the English economy. 

Theresa_May_UK_Home_Office_(cropped)

A key demand of Brexit voters was to take back control of the U.K.’s immigration policy. Prime Minister Theresa May has promised that she will -- but hasn’t said what she’ll do with this control once she has it.

Many Brexit supporters are hoping for a severely restrictive system. However, the Bloomberg editorial board thinks that this would be a mistake, and May ought to say so. Liberal rules on immigration, exercised at Britain’s discretion, would best serve Britain’s interests. As things stand, the ruling Conservative Party is pledged to bring net migration down to the “tens of thousands.” A figure in the lower part of that range would certainly be too tight. Even if such a policy were feasible, which it isn’t, it would injure the economy and make friendly post-Brexit relations with the European Union all the harder. Control doesn’t require, and shouldn’t mean, excessively tight restrictions.

KJ

September 12, 2016 in Current Affairs | Permalink | Comments (0)

NY Times Room for Debate: Is Any Immigration Reform Possible in This Political Climate?

330px-Donald_Trump_March_2015

Donald Trump:  Advocate for Immigration Reform?

Today's New York Times Room for Debate focuses on immigration reform.  Last week, Donald Trump laid out a hardline immigration plan and promised to achieve it in “a matter of months” after taking office. In reality, immigration reform has been stymied, with no major reforms passed in decades. Multiple bills have failed to make it through Congress, and the courts have blocked President Obama’s executive actions to shield unauthorized immigrants from deportation and allow them to work.  With congressional and executive actions stalled, what immigration reform can be accomplished in the U.S.?

Kanstroom_daniel_12

Professor Dan Kanstroom

Six commentators offer their opinions, several of which focus on the need for governmental action to help assist the integration of immigrants into civil society.  Law Professor Dan Kanstroom advocates an end to the removal of immigrants for minor criminal offenses.

KJ

September 12, 2016 in Current Affairs | Permalink | Comments (0)

George Borjas: Neither Candidate is Telling the Whole Immigration Truth

90

Illustration by Brian Stauffer

Economist George Borjas in Politico, who has made a career out of highlighting the costs of immigration on certain segments of the American labor market, has critical words for the positions of both major Presidential nominees in Election 2016:

"Here’s the problem with the current immigration debate: Neither side is revealing the whole picture. Trump might cite my work, but he overlooks my findings that the influx of immigrants can potentially be a net good for the nation, increasing the total wealth of the population. Clinton ignores the hard truth that not everyone benefits when immigrants arrive. For many Americans, the influx of immigrants hurts their prospects significantly."

Click the link above to read the rest of Borjas' article.

KJ

September 12, 2016 in Current Affairs | Permalink | Comments (0)

Call for Papers: Law and Society Annual Meeting 2017, Mexico City

2017Mex_375_nodate
We invite you to participate in the panels sponsored by the Citizenship and Immigration Collaborative Research Network at the Law and Society Annual Meeting in 2017. The Citizenship and Immigration CRN seeks to bring together law and society scholars across a range of fields who are interested in immigration, broadly defined. In past years, we have been one of the largest and most prolific CRNs. Information about the Law and Society meeting is available.
 
This year’s meeting is unique in that it brings us to together in Mexico City, one of the largest metropolitan areas in North America, and it invites us to explore the theme Walls, Borders, and Bridges: Law and Society in an Inter-Connected World. The locale and theme are particularly relevant to our CRN. We are interested in proposals that explore immigration both in the US and abroad, with a special interest in sessions engaging cross-border activities and migration in the Global South. All stages of production are welcome, as are papers from multiple disciplines and career stages – indeed, we encourage you to pair graduate students and junior faculty with senior faculty on panels. We are also interested in papers that will permit us to collaborate with other CRNs, such as the Critical Research on Race and the Law CRN, Feminist Legal Theory CRN, and other sections.
 
PANEL PROPOSALS: We strongly encourage you to submit completed panels and to affiliate them with the CRN during submission. A completed panel requires 4-6 papers, a chair, and a discussant (can be the same person). Completed panels tend to be the most coherent and have the best chance of being accepted by LSA. Associating your session with the CRN helps to avoid scheduling conflicts and builds interest across sessions through the linking of related topics. You might find it helpful to use the CRN email list to solicit participants and self-organize in the weeks leading up to the submission deadlines (crn02_citizenmig-l@eur.nl).
·       The duty of the presenter is to submit a paper approximately one month prior to the panel and to make a presentation at the conference. Papers must be in English, though presentations may be in Spanish given the international aspect of this year’s conference and Mexico City locale.
·       The duties of chairs are to organize the panel logistically; including registering it online with the LSA, and moderating the panel. Chairs will develop a 100-250 word description for the session and submit the session proposal to LSA before their deadline of October 18. This will ensure that each panelist can submit their proposal, using the panel number assigned.
·       The duties of discussants are to read the papers assigned to them and to prepare a short commentary about the papers that discusses them individually and perhaps collectively.
 
INDIVIDUAL PAPER PROPOSALS: If you prefer to submit individual papers to the CRN, the Planning Committee will group individual papers into panels based on subject. You can submit individual papers to LSA unaffiliated with the CRN, though again it is advantageous to submit as a CRN panel.
·       Following the LSA format, we will also assign a chair and one or two commentators/discussants for each panel.
·       In exchange for participating as a panelist, we urge you to consider serving as a chair and/or commentator/discussant for another panel or participant. If willing, please let us know of your areas of expertise and topic preferences.
 
OTHER FORMATS. In addition to the paper and panel format, we can also use some of the other formats that the LSA provides: the author meets readers sessions for books published in 2016 (multiple formats available, including the very successful CRN New Book Session to supplement the solo-AMR session and salon-style AMR session option), salon paper session (2-3 participants, 1 facilitator), or roundtable discussion (4-8 participants, 1 chair). If you have an idea that you think would work well in one of these formats, please let us know. Please note that for roundtables, organizers are now required to provide a 500-word summary of the topic and the contributions they expect the proposed participants to make.
 
Please note before making commitments to join a session that LSA rules limit you to participating only once as a paper panelist or roundtable participant. The CRN New Book Session does not count against your program participation. See LSA submissions guidelines for more details on this important rule.
 
CRN SUBMISSION DETAILS: Please send your proposal to Ming, Shannon, and Miranda (emails below):
·       Your name and whether proposing a panel or paper (or both)
·       If panel or roundtable: A 100-250 word panel description and names of other interested participants (specify whether confirmed)
·       Paper titles and abstracts, up to 4-6 total (you will need to include 250-500 word paper abstracts for LSA, not needed for roundtables) [updated from 1000 word abstract previously circulated -- we're matching the LSA requirements, which changed from last year]
·       A list of your areas of interest and expertise within immigration and citizenship (to facilitate selection of additional respondents)
 
LSA SUBMISSION DETAILS: For more details about LSA proposals and constructing abstracts, read both sets of guidelines.
 
Please submit all CRN proposals by Friday, September 30. This will permit us to organize panels and submit them prior to the LSA’s anticipated deadline of October 18. In the past, we have accommodated as many panelists as possible. If we are unable to accept your proposal for the CRN, we will notify you ASAP so that you can submit an independent proposal to LSA.
 
We hope you’ll join us in Mexico City to share and discuss the scholarship in which we are all engaged and connect with others doing work on immigration and citizenship.
 
Best,
 
2016-17 LSA Citizenship and Immigration CRN 2 Planning Committee
 
Ming Hsu Chen, University of Colorado Law School and Political Science Department (ming.h.chen@colorado.edu)
 
Shannon Gleeson, Cornell Department of Labor Relations, Law, and History and Sociology (smg338@cornell.edu)
 
Miranda Hallett, University of Dayton Department of Sociology, Anthropology, and Social Work (mhallett1@udayton.edu)
KJ
 

September 12, 2016 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: How Robust Refugee Protection Policies Can Strengthen Human and National Security by Donald Kerwin

How Robust Refugee Protection Policies Can Strengthen Human and National Security by Donald Kerwin, Executive Director, Center for Migration Studies of New York

EXECUTIVE SUMMARY

This paper makes the case that refugee protection and national security should be viewed as complementary, not conflicting state goals. It argues that refugee protection can further the security of refugees, affected states, and the international community. Refugees and international migrants can also advance national security by contributing to a state’s economic vitality, military strength, diplomatic standing, and civic values. The paper identifies several strategies that would, if implemented, promote both security and refugee protection. It also outlines additional steps that the US Congress should take to enhance US refugee protection policies and security. Finally, it argues for the efficacy of political engagement in support of pro-protection, pro-security policies, and against the assumption that political populism will invariably impede support for refugee protection.

Here is a special podcast on the report.

KJ

September 12, 2016 | Permalink | Comments (0)

Sunday, September 11, 2016

Demore v. Kim, Immigrant Detention, and Incorrect Data Provided by the U.S. Government to the Supreme Court by Law Student Katie Kelly

On August 25, 2016, Jean C. King, General Counsel for the Executive Office for Immigration Review (EOIR), issued a letter to Acting Solicitor General Ian Gershengorn advising of errors in calculating statistical data sent to the United States Supreme Court and relied upon in Demore v. Kim.  Acting Solicitor General Gershengorn then drafted a letter to the Honorable Scott S. Harris, United States Supreme Court Clerk, advising of the erroneous information.  Click here for details.  The Supreme Court ultimately held in Demore that the Immigration and Nationality Act, which provides that immigrants with certain criminal convictions can be detained without bond pending removal from the United States, does not violate a lawful permanent resident’s liberty.  The Court relied upon and quoted the referenced EOIR report in its decision.

The report relied upon in the 2003 case include incorrect estimates of the length of removal proceedings for aliens who are mandatorily detained during removal proceedings under Immigration and Nationality Act § 236(c), 8 U.S.C. § 1226(c). The original report stated that immigration judges completed removal proceedings for aliens who did not contest their removal orders within an average time of 47 days and a median time of 30 days; however, upon revisiting the data, EOIR found that these numbers should have reflected 34 days and 15 days, respectively. Further, original reports received by the Supreme Court stated that when aliens did challenge their removal orders, proceedings took an average of approximately four months and a median time of 114 days; the corrected estimates are 141 days and 119 days, respectively.  Most important, though, was EOIR’s failure to consider 15,000 applicable cases in its analysis of immigration court completions. 

Also of note is EOIR’s change in defining a “completion.”  For its original report, all changes of venue and case transfers were considered completions, but the updated definition excludes changes of venue and case transfers.  When applying this revised definition to the 2001 data used for the original report, the number of completions decreases by 6%.

In King’s letter, EOIR assured that measures have been placed to prevent similar mishaps going forward.  Acting Solicitor General Gerhsengorn’s letter advised that Demore is relevant to a case for which the Supreme Court granted certiorari in June 2016.  Information from this revised report may affect the court’s treatment of Jennings v. Rodriguez.  There, the Supreme Court will decide, among other issues, whether an immigrant who is mandatorily detained under § 1226(c) for longer than six months is entitled to a bond hearing and release, unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community. 

KJ

September 11, 2016 in Current Affairs | Permalink | Comments (0)