This article originally appeared on Law360: https://www.law360.com/immigration/articles/972810/assessing-constitutional-constraints-on-immigrant-detention
Starting in July 1999, Hoang Minh Ly, a refugee and permanent resident of the United States, spent 564 days in detention by U.S. immigration authorities who sought his removal to his native Vietnam.[i]
He was released from detention only after a U.S. District Court in September 2000 ordered that an immigration judge provide him with a bond hearing. That order was the result of an August 1999 petition for a writ of habeas corpus filed by Ly.
On October 6, 2014, the U.S. Court of Appeals for the First Circuit issued a decision in Castañeda v. Souza
that greatly limits the ability of Immigration & Customs Enforcement to subject individuals to mandatory detention during their removal proceedings. In Castañeda
, the First Circuit interpreted the not very confusing language “when the alien is released” and rejected the Board of Immigration Appeals’ formulation, articulated in Matter of Rojas
that the “when released” means “any time after release.
Earlier this month, Benach Collopy authored a brief on behalf of the American Immigration Lawyers Association in the case of Michael Sylvain v. Attorney General before the U.S. Court of Appeals for the Third Circuit.
the court must decide whether the Immigration & Nationality Act (INA) requires the detention of individuals convicted of certain offenses regardless of how long it has been since they were released from criminal custody.
The Migration Policy Institute
recently released a study
documenting that the U.S. government spent $18 billion on immigration enforcement, dwarfing the $14 million spent on other federal law enforcement agencies. The FBI, the DEA and the ATF, combined, received $14 billion. Immigration & Customs Enforcement’s budget, alone, is $6 billion.
Something is seriously out of whack here.
None of this is surprising to immigration attorneys. ICE runs a gulag archipelago
of detention centers across the country
, holding immigrants
who have overstayed visas, entered without inspection, seek asylum, and committed minor offenses.
A persistent and fair criticism
of the current administration is that while it has made grand pronouncements of focusing its enforcement efforts on violent criminals and threats to the national security, programs like 287(g) and Secure Communities
have scooped far more benign immigrants in their overboard nets. While the administration has put forward numerous memoranda
and made extensive public statements about focusing limited resources on the dangerous and the recidivist immigration violators, the reality has been that, as a result of Secure Communities, immigrants without status and without serious criminal issues encountered by the police either due to a minor offense, while reporting a crime, or while the police look for another individual have been swept into the immigration dragnet, detained and deported.
It is very true that the immigration laws need a wholesale revision. Congress needs to make substantial changes, regulations need to be re-written, precedent decisions scrapped and new guidance forthcoming. But another change is needed and this change may the hardest of all. It is a change of attitude within the agencies. We have written in this space on multiple occasions about the hostility that elements within ICE
have for their political leadership and the “culture of no” within CIS has been well-documented.
This morning, we won bond for our client, who is mandatorily detained under 236(c)
and hence, subject to mandatory detention. The Government lawyer, flanked by his supervisor, strenuously contended that mandatory is mandatory, but the Immigration Judge (“IJ”) found it in his jurisdiction to grant bond due to our creative lawyering and excellent grasp of recent case law.
Most attorneys never challenge the detention of a client under 236(c).