US Supreme Court Holds That Immigrants Do Not Have a Statutory Right to Bail

February 28th, 2018

On February 27, 2018, in Jennings v. Rodriguez, the US Supreme Court ruled that certain immigrants detained for deportation do not have a statutory right to periodic bond hearings. This is a setback for immigrants’ rights advocates, but they are positioned to attack detention on constitutional grounds instead.

The Supreme Court reversed the judgment of the Ninth Circuit Court of Appeals, holding that INA §§235(b), 236(a), and 236(c) do not give detained immigrants the right to a bond hearing after six months and periodic bond hearings after that. The Court remanded the case to the Ninth Circuit and instructed it to consider the respondents’ constitutional arguments, which the Ninth Circuit did not previously consider.

The Court’s ruling is narrow in scope, since it only found that under the INA statute detained aliens do not have the right to a bond hearing after six months and then periodic bond hearings after that. The Court did not hold that immigrants may be detained indefinitely or that protracted detention is constitutional. Detained immigrants still have the right to a review of their detention. Also, there are other appellate decisions that still hold sway, including Reid v. Donelan, Sopo v. AG, and Chavez-Alvarez v. Warden York County Prison, where detention was found to be constitutionally suspect in individual cases.

Three of the Justices dissented and one recused herself. Justice Stephen Breyer wrote an impassioned dissent Tuesday invoking the Declaration of Independence and the storied practice of English common law.

President’s Creation of a National Vetting Center for Immigrants

February 9th, 2018

President Trump issued a memo to streamline and optimize the use of federal government information in the national vetting process.  It directs the Department of Homeland Security (DHS) to establish the center and streamline the vetting and flow of information within six months.  The presidential directive does not provide for any funding or new powers.  It remains unclear what will actually change in the immigration process.

The Center will focus mostly on applicants for visas outside the US, with a secondary focus on vetting foreign nationals already in the US and subject to deportation.  The potential for making decisions about immigrants in the US subject to removal is particularly controversial.  Anticipating this and other privacy concerns, the memo also calls for the establishment of a civil liberties panel, which will have some oversight over the National Vetting Center’s activities.

Trump has often mischaracterized and disparaged US vetting procedures, especially during the campaign when he stated that some individuals had entered the US without proper vetting.  In decrying the diversity visa lottery program, he wrongfully claimed that the randomly selected applicants do not undergo background screening procedures.

The Brennan Center for Justice has warned that extreme vetting involving the use of computer software that would allegedly predict the likelihood of immigrants committing terrorism runs the risk of denying entry to innocent immigrants and refugees. The Center noted that we already rigorously vet people traveling to the US and that this could be a pretext for excluding certain groups from the US, such as Muslims.

Deportation of Half a Million People to Mexico in the 1930s Did Not Create Jobs

December 25th, 2017

In a report on the employment effects of repatriation of people of Mexican descent, economists surveyed the forced repatriation of people of Mexican descent to determine if immigrants really did take American jobs and drive down wages. They found that the mass expulsion didn’t create jobs and in fact did the opposite. The job markets shrank more in places that had expelled more Mexicans and Mexican-Americans and there was actually higher unemployment for the remaining residents in those places.

From 1929 to 1937, the US forced out between approximately 400,000 and 500,000 people of Mexican descent, in an attempt to protect American jobs during the Great Depression. Scholars estimate that at least a quarter or a third of them were American citizens — born in the US. Such compelled repatriation amounted to a period of odious civil rights violations, involving raids, checking public employee rolls for Mexican-sounding names and guards accompanying mentally ill patients to the border.

These expulsions reduced the labor force by one third in El Paso, Texas and by 15 to 20 percent in southern California. However, no tests were performed to determine if this ameliorated the local economy, according to Giovanni Peri, one of the economist authors. Therefore, the report’s authors evaluated census data from 1930, 1940, and 1950 to examine 893 cities around the US.

Their findings suggest that the mass expulsion didn’t create jobs but either had no effect or reduced employment and depressed wages. The Trump administration has pursued increased deportations from the US with Trump alleging that it would help boost jobs and wages for native Americans. Peri’s studies have disproved the perennial argument scapegoating immigrants as exacerbating unemployment.

You can read the full report: “The Employment Effects of Mexican Repatriations: Evidence From the 1930s”, By Jongkwan Lee, Giovanni Peri, and Vasil Yasenov.

Everyone Is Fair Game for Deportation

November 9th, 2017

The Independent reports that everyone is fair game for deportation (removal) under the Trump administration. Arrests of undocumented immigrants have jumped compared to last year and there has also been a shift in who is being picked up for deportation.

US Immigration and Customs Enforcement (ICE) has arrested up 30,000 aliens more between January and September of this year compared to in 2016. ICE states that it is prioritizing aliens who pose a threat to national security or public safety. However, many of the aliens arrested had committed only immigrant-related offenses like illegally reentering the US or falsifying documents.
Of the 97,482 immigrants ICE arrested between January and September of 2017, 28,011 of them (around 28%) were non-criminals. For the same period last year, this was 16%.

One of Trump’s first executive orders overhauled how ICE agents perform their jobs and it discarded Obama-era rules prioritizing some immigrants over others. The Obama administration focused on criminal aliens and Trump’s directive sets its sights on anyone here illegally and they are all at equal risk of being deported.

Immigration Judge Finds Racial Profiling in Detention Case

May 2nd, 2017

The Atlanta Journal-Constitution reported on April 28, 2017, that an immigration judge (IJ) in Atlanta found unconstitutional racial profiling in an immigration detention case in ruling against US Immigration and Customs Enforcement (ICE) agents. The IJ held that two ICE agents committed “egregious” racial profiling when arresting a man walking from his apartment to catch a ride to work, and that the US Department of Homeland (DHS) attorneys committed “willful misconduct” by advising the agents to ignore the IJ’s subpoena. See

US ICE agents arrested and took into custody Osvaldo Menese Chavez on March 6, 2017, as he walked away from his apartment complex to get a ride to work. DHS sought to deport Chavez on grounds he is an unauthorized immigrant. The ICE agents said that they were at Chavez’s location to arrest another individual. The agents asked to speak with Chavez because he looked like the other suspect and when he tried to run away they arrested him. The IJ noted at the initial court hearing that the agents had used similar reasons to support its other detentions. The IJ then asked DHS to bring the officers to court to testify but the DHS attorneys instructed the agents not to appear and refused to bring the officers to court.

The IJ held that DHS’s conduct thwarted Chavez’ ability to make his case and found the agents’ conduct to be an “egregious violation” of the Fourth Amendment’s protection against unreasonable searches and seizures. “The fact that this judge was so offended by the government’s conduct sends a strong message. It says no one is above the Constitution,” said AILA member Carolina Antonini, who teaches immigration law at Georgia State University.

US DHS Memo on Trump’s Executive Orders on Immigration and Removal

March 3rd, 2017

The U.S. Department of Homeland Security issued a memo implementing President Trump’s two executive orders issued in January 2017 on immigration and removal, which expand the administration’s enforcement targets, requests more border officers and alludes to a new policy on expedited removals.

The DHS prioritizes for removal aliens who:

• Have been convicted of any criminal offense;
• Have been charged with any criminal offense that has not been resolved;
• Have committed acts that constitute a chargeable criminal offense;
• Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
• Have abused any program related to receipt of public benefits;
• Are subject to a final removal order but have not complied with their legal obligations to depart the US; or
• In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

What is extremely concerning about this new set of priorities is its glaring denigration of values serving as the bulwark for justice, fairness and democracy in the US. Agents are now able to seek to remove aliens who have “committed” criminal acts or who are charged with them before being found guilty by a tribunal. What happened to the presumption of innocence in our country? How are agents to determine if someone has committed an illegal act? Who are these agents who are making these critical decisions that will substantially impact a person’s life, and his immediate family’s lives? These priorities are ominous and foretell institutional abuse and lack of transparency.

The expanded use of expedited removal may be unconstitutional, since the US Supreme Court has held that the Due Process Clause applies to undocumented immigrants. Expedited removal has been used since 1996. It circumvents the immigration court system by allowing federal agents to determine if the person should be deported. If the undocumented immigrant claims a fear of persecution or torture then the immigrant is interviewed by US Citizenship and Immigration Services to see if there is a credible fear of persecution and the immigrant should be allowed to apply for asylum in the US. The undocumented immigrant has no right to an attorney and appeals are limited.

Expedited removal is usually only for those caught within 100 miles of the US-Mexican border and who appear to have entered the US within the previous two weeks, although the law allows for it to be used for removal of those who have entered the country within the past two years. Trump’s order increases the range. The Department of Homeland Security has not formally expanded the expedite removal process. It first must publish the policy in the Federal Register and give time for comment from the public.

Department of Homeland Security Rescinding NSEER Program

December 26th, 2016

The US Department of Homeland Security (DHS) is rescinding its (National Security Entry-Exit Registration) NSEER program that was used in the past to screen men between the ages of 16 and 45 from countries with large Arab and Muslim populations. This obsolete program was harmful to individuals and US businesses, a waste of billions of dollars of taxpayers’ money and counterproductive in preventing terrorism. The exigency of repealing it now was a result of the concern of civil rights groups and politicians that the Trump administration could use it to create a registry for Muslims. According to the Guardian newspaper, approximately 80,000 men from 25 countries were forced to provide fingerprints and a photograph and periodically report to the DHS in in-person interviews. This discriminatory program resulted in 14,000 men being placed in removal proceedings with none having been found to have any links to terrorist or violent activities.

Senators Prepare Legislation to Protect Undocumented Immigrants as Trump Prepares to Repeal DACA

December 6th, 2016

The Guardian reports that Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL) are drafting legislation to protect the legal status of undocumented immigrants, called Dreamers, who were granted deferred action under DACA (Deferred Action for Childhood Arrivals). DACA protects certain undocumented immigrants from deportation who came to the US before they turned 16. This is a welcome bipartisan message to President-elect Donald Trump, who has taken a hardline stance on immigration and threatened to repeal President Obama’s executive actions on immigration.

If Trump does repeal DACA it is unclear how he would do so. He could suspend the program and immediately revoke the two-year work authorization permits granted to the recipients. Alternatively, he could grandfather those already here but allow the work authorization permits to remain valid until their expiration.

Supreme Court Declines to Rehear Obama Immigration Case

October 4th, 2016

The US Supreme Court has denied the US Department of Justice’s request to rehear US. v. Texas, the case challenging President Obama’s executive action on Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA).  President Obama’s executive action was appropriate and the Court’s failure to reconsider the decision is legislation from the bench.

Immigration is a leading and contentious issue for Americans and the challenge to DAPA and DACA was a quintessential case to be reviewed by the Court.  Because of the failure to confirm a new Supreme Court Justice, and the ensuing 4-4 tie in voting on whether to rehear the case, key issues are going unaddressed and sowing confusion and division.

Attorney General Finds No Right to Counsel in Removal Proceedings

January 27th, 2009

In the midnight hours of the Bush Administration, former Attorney General Michael Mukasey overruled decades of precedent and ruled that aliens have no constitutional right to challenge the outcome of their deportation hearings based on their lawyers’ errors.   In his 33-page decision,  Matter of Compean, 24 I & N Dec. 710 (A.G. 2009), he overruled the Board of Immigration Appeals’ decisions in Matter of Lozada, and Matter of Assaad, finding that there is no Fifth amendment right to counsel in removal (deportation) proceedings.  This decision drastically undermines an alien’s due process rights under the Constitution in a proceeding that has tremendous life-altering consequences. 

For decades, the BIA and most federal courts have supported the notion that immigrants are guaranteed competent counsel in deportation proceedings based on the Fifth Amendment’s guarantee of due process.  Removal is considered a civil, and not criminal, proceeding.  However, the federal courts have still found a constitutional right to competent counsel based on the guarantee of due process under the Fifth Amendment.  Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir. 2005); Olvera v. INS, 54 F.2d 1372 (5th Cir. 1974). 

In Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), the leading case on claims of ineffective assistance of counsel, the Board held that in order for an alien to reopen his removal proceedings based on the lawyer’s error, the alien must establish that his lawyer’s failings had been “egregious”, and that he had been prejudiced by his lawyer’s performance.  The BIA established three criteria for an ineffective assistance of counsel claim to reopen removal proceedings.  The claim must:  (1) have a motion supported by an affidavit setting forth the agreement and representations by the counsel; (2) inform the counsel against whom the claim is made and give counsel an opportunity to respond; and (3) disclose in the motion whether a bar charge has been filed, and if not, why not. 

In Matter of Compean, the AG states that there was a growing split among federal courts over whether aliens had a right to counsel in removal proceedings and that it was necessary to review the law in this arena.  The AG concluded that aliens in removal proceedings have no right to counsel under the Sixth Amendment because removal proceedings are civil, and not criminal in nature.  Also, the AG found that aliens in removal proceedings have no right to counsel under the Fifth Amendment.  He reasoned that although the Fifth Amendment does encompass removal proceedings, its due process protections do not include a general right to counsel or any other specific right to effective assistance of counsel.  Further, he held that the Fifth Amendment’s due process clause is only violated by state action, not a private attorney’s action.  However, granting some level of relief, the AG stated that the government can, as a “matter of discretion”, reopen removal proceedings where the alien was prejudiced because of egregious actions of a private attorney, which changed the outcome of the case.

According to the AG, this discretion is informed by balancing the speedy disposition of cases with justice:  “There is a strong public interest in ensuring that these [lawyer] deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings. . .  At the same time, it is important to recognize that there is a strong public interest in the expeditiousness and finality of removal proceedings, an interest that Congress has repeatedly emphasized through legislation imposing time limits and curbing discretionary relief.  Groundless and dilatory claims can tie up the system and postpone the alien’s removal for years.” Id. 728-29.

Matter of Compean undermines an immigrant’s right to a fair hearing before the immigration court and thwarts the federal courts’ role in protecting immigrants against abuses in the immigration courts.  This is especially dire in light of the many questions about the integrity of immigration courts’ decisions and allegations of political cronyism against them, according to the American Immigrations Lawyers Association.  Furthermore, because immigration law at its heart is a labyrinth of complicated rules and regulations, it is necessary that immigrants are guaranteed effective legal representation to navigate them.  Unfortunately, oftentimes immigrants are the prey of unscrupulous and fraudulent attorneys, non-attorneys and notaries.   Matter of Compean gives the green light to such schemes and incompetence.