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. 


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