practical analysis about the immigration consequences of criminal violations

Oregon federal court: Detainer led to Fourth Amendment violation

A federal magistrate judge in Oregon concluded that county officials violated a woman’s Fourth Amendment rights when they kept her in custody solely on the basis of an immigration detainer. Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-ST, slip op. (D. Or. April 11, 2014) (Stewart, Magistrate Judge).

This case involved a woman who was arrested for violating a restraining order. Though county jail officials did not ask her about her immigration status, they somehow learned that she was born outside the United States. Pursuant to a jail policy, they then notified ICE. The next morning ICE issued an immigration detainer. Id. at 2. As is standard these days, the detainer (Form I-247) asked that jail officials “MAINTAIN CUSTODY OF ALIEN FOR A PERIOD NOT TO EXCEED 48 HOURS.” The form added that DHS “had ‘initiated an investigation to determine whether [Miranda-Olivares] is subject to removal from the United States.’” Id. at 3.

The same day that the jail received ICE’s detainer, a judge granted Miranda-Olivares bail. Jails officials, however, repeatedly told Miranda-Olivares and her sister “that she would not be released if she posted bail because of the Jail policy relating to ICE detainers.” Id. at 4. Consequently, Miranda-Olivares did not post bail despite a willingness to do so. Instead, she remained in jail awaiting adjudication of her criminal case. Eventually she pled guilty and was sentenced to 48 hours in jail with credit for time served. Even then, however, she was not released. Due to the immigration detainer, county jail officials kept her confined for an additional 19 hours. Id. at 3-4. She was finally released roughly two weeks after being granted bail.

County officials claimed they had no choice in the matter. Immigration detainers, they argued, are mandatory. Id.5. The court disagreed. Relying in large part on the Third Circuit’s decision in Galarza v. Szalczyk, No. 12-3991, slip op. (3d Cir. March 4, 2014), holding that detainers are merely requests, the court concluded that detainers are not mandatory. To interpret the detainer regulation, 8 C.F.R. § 287.7, as mandatory, the court explained, would come perilously close to violating the Tenth Amendment. As the court put it, “a conclusion that Congress intended detainers as orders for municipalities to enforce a federal regulatory scheme on behalf of INS would raise potential violations of the anti-commandering principle.” Id. at 11. (The court repeatedly references the INS even tough it hasn’t existed since 2003.)

Furthermore, the court concluded that the only reasonable interpretation of the regulation’s text is that detainers are requests. Id. at10. Subsection (a), as the court pointed out, explains that “[t]he detainer is a request” and subsection (d), though it uses the word “shall” does so only with reference to the maximum amount of time that a local law enforcement agency may hold someone pursuant to a detainer (“such an agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays”). Id. at 10 (discussing 8 C.F.R. § 287.7).

Having concluded that detainers are requests, the court added that the county might be liable for any unlawful detention that resulted from its decision to keep Miranda-Olivares confined. Though it rejected her Fourteenth Amendment substantive due process claim and state law false imprisonment claim, it was convinced by Miranda-Olivares’ Fourth Amendment claim.

Miranda-Olivares argued that the county violated her Fourth Amendment right to be free from unreasonable seizure by “refusing to release her during the two weeks when she could have posted bail and by continuing to incarcerate her for 19 hours after her release from the state charges.” Id. 15. The court largely agreed. The county was authorized to hold Miranda-Olivares while her criminal proceedings were ongoing, but it was not allowed to go beyond the limits on that confinement. It did so, the court concluded, by failing to abide by the judge’s bail decision and continuing to incarcerate Miranda-Olivares for 19 hours after the conclusion of her criminal sentence. Id. 17-18. Because the county engaged in these “new” Fourth Amendment seizures without probable cause that she was engaged in criminal activity (aside from the restraining order violation), it violated the Fourth Amendment. The mere existence of the detainer, the court explained, was not sufficient basis for the jail to reasonably conclude that it had probable cause to detain Miranda-Olivares. Id. at 19. The court therefore granted summary judgment in Miranda-Olivares’ favor on the Fourth Amendment claim. Potential damages will be decided at a later date.

The court’s analysis closely tracks arguments that my colleague at the University of Denver Christopher Lasch has made about the Fourth and Tenth Amendments. In Federal Immigration Detainers After Arizona v. United States, Lasch noted the probable cause problems inherent in confinement based on an immigration detainer that states little more than that DHS has “initiated an investigation” of an arrestee’s immigration status. 46 Loyola of Los Angeles Law Review 629, 698 (2013). He then explains that any interpretation of the detainer regulation as mandating compliance by local law enforcement officials would clash with the Tenth Amendment’s anti-commandeering principle and the Supreme Court’s leading case on congressional attempts to enlist local police officials to help enforce federal law, Printz v. United States, 521 U.S. 898 (1997). Lasch, supra, at 699-700.

Interestingly, it suggested that the county engaged in false imprisonment under Oregon state tort law, but ultimately concluded that state law immunizes public entities such as the county jail from false imprisonment performed without malice or bad faith. Because here “[t]here is no contention or evidence that the County was acting in bad faith or with malice,” the court granted summary judgment in the county’s favor on this claim. Id. at 20.

2 Cir: NY sale of controlled substance is aggravated felony

The U.S. Court of Appeals for the Second Circuit held that a conviction under New York law for sale of a controlled substance is categorically an illicit trafficking in a controlled substance type of aggravated felony even though the conviction merely involved an attempt to sell. Pascual v. Holder, No. 12-2798, slip op. (2nd Cir. July 9, 2013) (Jacobs, Kearse, and Carney, JJ.) (per curiam).

This case involved an individual who was convicted of violating New York Penal Law § 220.39, sale of a controlled substance, and on that basis ordered removed by an IJ. The BIA affirmed. In an earlier decision, Pascual v. Holder, 707 F.3d 403 (2d Cir. 2013), the Second Circuit affirmed the BIA’s decision but granted rehearing upon request by Pascual and several prominent legal services agencies as amici. None of the new arguments swayed the court.

The court began by noting that a state offense constitutes illicit trafficking in a controlled substance if it punishes conduct that is punishable as a felony under federal law. Pascual, No. 12-2798, slip op. at 4. In its earlier decision, the court concluded that federal law punishes attempts to sell controlled substances (as well as actual or constructive sale), 21 U.S.C. § 841(a), thus “even if Pascual did no more than offer or attempt to sell cocaine, the state offense would be conduct punishable as…an aggravated felony.” Pascual, 707 F.3d at 405.

One of Pascual’s arguments on rehearing appears to have turned on the definition of an “offer to sell.” According to the court, on rehearing Pascual argued that the New York statute is broad enough to potentially punish fraudulent offers to sell narcotics. In an earlier decision involving a Connecticut drug trafficking conviction and the definition of a controlled substance offense included in the U.S. Sentencing Guidelines, the Second Circuit had determined that fraudulent offers to sell are not “offers” for purposes of sentencing enhancements under the Sentencing Guidelines. United States v. Savage, 542 F.3d 959, 965 (2d Cir. 2008). The Savage court noted that an offer to sell the Brooklyn Bridge would not constitute an “offer” for Sentencing Guidelines purposes because this is clearly not something that a particular individual could form the intent to do. Savage, 542 F.3d at 965.

Based on Savage, Pascual apparently claimed that fraudulent offers to sell are outside the scope of what constitutes illicit trafficking under the INA. Pascual, No. 12-2798, slip op. at 5-6. The court had no trouble disagreeing with Pascual’s assertion that such reasoning applies to New York’s sale of a controlled substance statute. “Unlike the Connecticut statute,” the court explained, “NYPL § 220.39 does not criminalize ‘mere offers’ (or fraudulent offers) to sell narcotics. Under New York law, the offer must be ‘bona fide,’ and a bona fide offer is one that is made with the intent and ability to follow through on the transaction.” Pascual, No. 12-2798, slip op. at 6.

The Second Circuit had similarly little trouble dismissing another argument raised by Pascual and amici: “that a conviction under NYPL § 220.39 does not necessarily reflect the ‘substantial step’ in selling drugs that is an element of the analogous federal offense.” Pascual, No. 12-2798, slip op. at 7. As the court explained, an attempt requires engaging in conduct “amounting to a ‘substantial step’ towards the commission of the crime” and doing so “with the intent to commit the crime.” Pascual, No. 12-2798, slip op. at 7 (quoting United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985)). Furthermore, “an attempt entails some ‘overt act’ to carry out the offense.” Pascual, No. 12-2798, slip op. at 7.

Reviewing Pascual’s conviction, the court concluded that there was no question that he engaged in a substantial step toward commission of the crime of selling narcotics and performed an overt act that helped propel that offense—he offered to sell drugs. Pascual, No. 12-2798, slip op. at 7-8.

Consequently, the court concluded that Pascual’s conviction under NYPL § 220.39 categorically constitutes illicit trafficking in a controlled substance for purposes of immigration law.

[Update (April 15, 2014): The Second Circuit's decision takes a different approach to offers to sell under New York law than the Fifth Circuit did in Davila v. Holder, No. 08-60530, slip op. (5th Cir. Aug. 23, 2010) (unpublished). In Davila, the Fifth Circuit concluded, "Because Davila could have been convicted under N.Y. Penal Law § 220.41 for an offer to sell (which is not an offense under the CSA), he has not categorically committed a drug trafficking crime." Davila, No. 08-60530, slip op. at 4. Thanks to Javier Maldonado, who represented Davila before the Fifth Circuit, for pointing out this disagreement. Also, Thomas E. Moseley, who represented Pascual before the Second Circuit, informed me that there is currently a petition for rehearing en banc pending.]

“Looking for immigration problems” and other misunderstandings of crimmigration law

In this month’s The Atlantic, journalist Daniel Bergner chronicles competing views of stop-and-frisk policies. The New York Police Department’s intensive use of stop-and-frisk against black and Latino residents received intense scrutiny, eventually resulting in a federal district court's finding that the department has been hiding under this constitutionally permissible practice to engage in constitutionally impermissible racial profiling.

Bergner discusses New York, but spends most of his reporting in Newark, New Jersey tagging along with local officers on patrol. There he encounters an incident that reveals an important misunderstanding of how criminal law and immigration law policing intersect. Two Newark police officers, Bergner explains, “spotted three Hispanic men standing outside a fence bordering the parking lot…drinking what were surely beers in paper bags while on the street….” The officers approached the men, asked them a few questions, “collected IDs and used their phones to run warrant checks.” Here’s where Bergner exposes his ignorance: “The officers weren’t looking for immigration problems—that’s not part of their mission,” he explained.

Bergner implies that people who interact with police officers might run into immigration problems only if police officers are actively engaged in immigration law enforcement work. It is certainly true that many local law enforcement agencies think of immigration as one of their responsibilities. Local officers are essentially deputized to investigate immigration law in 37 jurisdictions across the country under 287(g) agreements. In other communities, police officers make a point to ask about immigration status and contact the Department of Homeland Security if they have an inkling of suspicion that a person they encounter might not be a United States citizen.

Where Bergner goes wrong, though, is in suggesting that people who encounter police officers outside of these jurisdictions don’t have anything to worry about. Nothing could be further from the truth. Though ICE credits 287(g) programs with having identified 309,283 potentially removable individuals since January 2006, this represents only a fraction of the total number of people who find themselves in immigration problems because of a run-in with local cops.

The reason for this is that DHS operates an alphabet soup of programs that tack immigration investigations onto the criminal justice system. For most of these, it doesn’t matter whether the individual officer or department considers immigration “part of their mission.” DHS does and that’s all that matters because the programs run on autopilot. Once the federal government gets a hold of key information obtained by local cops on the street, the federal government pushes it through its enormous immigration databases whether the local cops want them to or not.

A key aspect of this “interoperability”—as the government likes to describe information sharing across governments and from one federal agency to another—is that local cops are in constant communication with the federal government sending identification information, primarily fingerprints, to the FBI. Most of the time immigration law does not motivate the local cops. What they want to know is whether they guy they stopped has a criminal record or outstanding warrant. There’s no better source of this information than the federal government. The FBI’s main criminal records database, the National Crime Information Center (NCIC), includes more than 11 million records gathered from over 90,000 government agencies. Its Integrated Automated Fingerprint Identification System (IAFIS) contains information about more than 100 million subjects. See Anil Kalhan, Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 Ohio State Law Journal 1105, 1123-27 (2013). Local police departments would be hard pressed to replace this wealth of information if they stopped relying on the FBI.

Once in the FBI’s hands, the federal government takes the position that it can share the information it obtained from local cops with other federal law enforcement units. In recent years, the chosen unit has been DHS. Under the Secure Communities program started in 2008 and now active in every jurisdiction in the United States, the federal government takes the identification information that the local cops sent to the FBI and runs it through DHS immigration databases.

Just like the FBI’s criminal history repositories, DHS lays claim to massive information vats. Its Automated Biometric Identification System (IDENT) database in particular includes records on over 148 million people. Id. at 1127. This closes the process that Anil Kalhan calls “automated immigration policing”—the use of “interoperable database systems and other technologies [that] automate and routinize the identification and apprehension of potentially deportable noncitizens in the course of ordinary law enforcement encounters and other moments of day-to-day life.” Id. at 1108.

But for migrants caught in the criminal justice system, this is only the beginning. DHS frequently issues an immigration detainer on people flagged as potentially removable. Indeed, ICE issued 436,478 detainers between October 2011 and August 2013. Migrants (and the occasional United States citizen mistakenly thought not to be a U.S. citizen) are frequently then incarcerated for up to five days waiting to see if immigration officials show up to take them into custody. If immigration officials do show up, immigration problems—including the ever-present threat of removal—follow.

As Kalhan explains, this is an automated process. It doesn’t turn on the policies of particular police departments or the goals of individual officers. Instead, it happens because the federal government wants it to happen. Obama Administration officials are well aware that local police departments are fully dependent on the FBI’s criminal records databases and have decided to build their aggressive immigration law enforcement policies on top of that dependency. They have in effect created a single punitive spectrum of governmental control over migrants whether local officials want it or not.

This is not to say that local government’s are powerless. They can, for example, refrain from running background checks prior to an arrest or they could refuse to arrest and book suspects for minor offenses. If an arrest happens, they could refuse to abide by immigration detainers (which, as the Third Circuit recently held, are not mandatory upon local officials). Indeed, that’s what the Newark officers in Bergner’s story did. They issued summonses for public consummation of alcohol and moved on. Many migrants, however, aren’t so lucky, and it has nothing to do whether the cops who they encountered were “looking for immigration problems.”

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SCOTUS: Affirms that “crime of violence” requires use of violent force

The U.S. Supreme Court affirmed its ten-year-old interpretation of the “crime of violence” type of aggravated felony in a case about domestic violence. United States v. Castleman, No. 12-1371, slip op. (U.S. March 26, 2013) (Sotomayor, Roberts, Kennedy, Ginsburg, Breyer, and Kagan, JJ.). Justice Sotomayor wrote the Court’s opinion. Justice Scalia wrote a separate opinion concurring in part with the reasoning and concurring with the judgment. Justice Alito concurred in the judgment, which Justice Thomas joined.

This case involved a man who was convicted of “intentionally or knowingly causing bodily injury to” the mother of his child in violation of Tennessee state law. Tenn. Code Ann. § 39-13-111(b) (Supp. 2002). Years later he was caught selling guns and prosecuted for violating the federal prohibition against possession of a firearm by someone who has been convicted of a “misdemeanor crime of domestic violence.” 18 U.S.C. § 922(g)(9). Federal law defines a “misdemeanor crime of domestic violence” as one that, in relevant part, “has, an element, the use or attempted use of physical force.” 18 U.S.C. § 921(a)(33)(A). The key, then, was whether Castleman’s state conviction involved “the use…of physical forced” and thus constituted a “misdemeanor crime of domestic violence.”

To figure this out, the Court had to grapple with its existing interpretations of “physical force.” Over the last ten years, the Court has twice addressed this language in similar statutes. In Leocal v. Ashcroft, 543 U.S. 1, 11 (2004), the Court held that the “force” envisioned by the phrase “use of force” involves “a category of violent, active crimes.” The Court reiterated this definition of “force” six years later in Johnson v. United States, 559 U.S. 133 (2010). Relying on those decisions, the U.S. Court of Appeals for the Sixth Circuit concluded that Castleman’s Tennesee conviction “did not qualify as a ‘misdemeanor crime of domestic violence’ because Castleman could have been convicted for ‘caus[ing] a slight, nonserious physical injury with conduct that cannot be described as violent.’” Castleman, No. 12-1371, slip op. at 4 (quoting 695 F.3d 582, 590 (2012)).

The Supreme Court took a different approach. Leocal and Johnson, the Court explained, may have addressed similar language as is at issue in Castleman’s case, but in a substantially different context. Those cases concerned whether an individual had been convicted of a “crime of violence” (Leocal) or “violent felony (Johnson). Castleman’s case, in contrast, asked the Court to consider the definition of a “misdemeanor crime of domestic violence.” Castleman, No. 12-1371, slip op. at 5. By definition, misdemeanors are less serious offenses than felonies. Moreover, many misdemeanor offenses can be committed without violence. It would be odd, the Court noted, for Congress to have defined “force” to require violence given that such a definition would exclude many misdemeanor offenses from the “misdemeanor crime of domestic violence” category. As the Court explained its interpretation, “whereas the word ‘violent’ or ‘violence’ standing alone ‘connotes a substantial degree of force,’ that is not true of ‘domestic violence.’ ‘Domestic violence’ is not merely a type of ‘violence’; it is a term of art encompassing acts that one might not characterize as ‘violent’ in a nondomestic context.” Castleman, No. 12-1371, slip op. at 6-7. In effect, the Court holds that the phrase “domestic violence” has a specialized meaning that includes offenses committed without engaging in the kind of physical force we ordinarily describe as violence.

This has important implications for crimmigration law. The Court’s opinion takes pains to distinguish its reasoning from Leocal and Johnson, two cases with enormous significance to crimmigration law. Leocal sets out the interpretive framework that guides “crime of violence” analyses for purposes of INA § 101(a)(43)(F). Likewise, it guides analyses of the “crime of domestic violence” basis of removal, INA § 237(a)(2)(E)(i), because that definition references the “crime of violence” definition. Johnson is important to crimmigration law for the simple reason that it relies on Leocal so any limitation on Johnson could affect Leocal. But Castleman did nothing of the sort. Not only did the Court distinguish Leocal and Johnson, it added that “[n]othing in today’s opinion casts doubt on…holdings” by courts of appeals and the Board of Immigration Appeals applying Johnson’s understanding of “physical force.” Castleman, No. 12-1371, slip op. at 6-7 n.4.

In the end, Castleman represents an important example of statutory interpretation, but one that has little bearing on crimmigration law.

Note: Practitioners may want to read the excellent practice advisory on Castleman written by the folks over at the National Immigration Project of the National Lawyers Guild and the Immigrant Defense Project.

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Crimmigration talks at Yale & Indiana Tech

CrImmigration is on the schedule for audiences in New Haven, Connecticut and Fort Wayne, Indiana on Friday and Saturday.

Yale Law School will host a conference on Saturday (April 5) that will include a discussion of immigrants' rights in the context of critical race theory. The conference, titled "Re-Envisioning Race in a 'Post-Racial' Era: New Approaches in Critical Race Theory," features a stellar cast of academics and practitioners. Saturday morning from 10:15-11:45, Dean R. Kevin Johnson, Stephen Lee (assistant professor, University of California-Irvine School of Law), Loreli Salas (legal director, Make the Road New York), and I will team up for a panel that will address the racial dynamics of immigration law and potential legislative reforms. My talk will be based off my article "Creating Crimmigration" (BYU Law Review 2013) about how crImmigration law developed as a backlash to the civil rights reforms of the 1960s. Registration information is available here.

Tomorrow (Friday, April 4), I'll also be speaking at the Indiana Tech Law School in Fort Wayne, Indiana about immigration imprisonment. Part of the Midwest People of Color Legal Scholarship Conference, I'll discuss how imprisonment came to be viewed as a "normal"--even necessary--feature of immigration law enforcement. This is a talk based off my current research project, tentatively titled "Naturalizing Immigration Imprisonment."

5 Cir: Drug trafficking aggravated felony requires knowing substance was illicit

The U.S. Court of Appeals for the Fifth Circuit held that Florida’s cocaine delivery offense is not a drug trafficking type of aggravated felony because, unlike federal law, it does not require, as an element of the crime, showing that the defendant knew that the substance was a controlled substance. Paez Sarmientos v. Holder, No. 13-60086, slip op. (5th Cir. Feb. 12, 2014) (Reavley, Prado, and Owen, JJ.). Judge Owen wrote the panel’s opinion.

This case involved an LPR who pleaded guilty to delivering cocaine in violation of Florida Statute § 893.13(1)(a)(1). After finding that Paez Sarmientos was inadmissible because his conviction constitutes a controlled substance offense under INA § 212(a)(2)(A)(i)(II), the immigration judge denied his application for cancellation of removal on the basis that his conviction also constitutes a drug trafficking aggravated felony. Paez Sarmientos, No. 13-60086, slip op. at 2. An aggravated felony conviction precludes cancellation eligibility. INA § 240A(a)(3).

The IJ and BIA rejected Paez Sarmientos’s argument “that the Florida offense of cocaine delivery was broader than a federal drug trafficking offense under 8 U.S.C. § 1101(a)(43)(B) [INA § 101(a)(43)(B)], which is an aggravated felony, because the Florida statute did not have the same mens rea requirement as the federal law.” Id. at 3.

Unlike the IJ and BIA, Paez Sarmientos managed to sway the Fifth Circuit. The court first noted that a state crime constitutes a “drug trafficking” aggravated felony if it punishes conduct punishable as a felony under the federal Controlled Substances Act. Id. at 5. The federal crime that most resembles Florida’s cocaine delivery offense, according to the BIA, is distribution of a controlled substance under 21 U.S.C. § 841(a)(1). Id. at 7. “Federal law is clear,” the Fifth Circuit then explained, “that, to be convicted under § 841(a)(1), the prosecutor must prove beyond a reasonable doubt that the defendant knew that the substance he manufactured, distributed, dispensed, or possessed was a controlled substance of some kind.” Id.

Though the Florida Supreme Court came to much the same conclusion about the state possession offense back in 1996 and again in 2002, the Florida legislature responded by explicitly stating that that was not so. As the Fifth Circuit put it, Florida Statute § 893.101, enacted in 2002, “‘thus expressly eliminates knowledge of the illicit nature of the controlled substance as an element of controlled substance offenses and expressly creates an affirmative defense of lack of knowledge of the illicit nature of the substance.’” Id. at 9 (quoting Florida Statute § 891.101). Though the government pointed to the fact that lack of knowledge remains an affirmative defense, the court noted that this is not synonymous with being an element of the crime since a defendant can be convicted if he “either fails to raise the affirmative defense or fails to meet his burden of persuasion.” Paez Sarmientos, No. 13-60086, slip op. at 10-11.

Removing knowledge from the offense’s elements means that “the least of the acts criminalized by the delivery of cocaine crime under Florida Statute § 893.13(1)(a)(1) does not necessarily violate the federal cocaine distribution statute since the federal offense requires the prosecution to prove beyond a reasonable doubt an element that the state offense does not: knowledge of the illicit nature of the substance.” Paez Sarmientos, No. 13-60086, slip op. at 10. As a result, the court concluded, “Paez Sarmientos’s state conviction is thus not categorically an aggravated felony.” Id. at 10.

This decision comes on the heels of the Eleventh Circuit’s very similar holding in Donawa v. United States, 735 F.3d 1275 (11th Cir. 2013), dealing with a different Florida drug crime. I blogged about Donawa here.

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Obstacles to finding out what’s happening inside private prisons

A report by the government watchdog Citizens for Responsibility and Ethics in Washington (CREW) lays out the many obstacles to finding out what’s happening inside privately owned or operated prisons. CREW, Private Prisons: A Bastion of Secrecy (February 2014).

The report notes that the main federal law promoting government transparency, the Freedom of Information Act, doesn’t apply to private prisons. I make a similar point in a forthcoming essay in the Howard Law Journal:

That statute requires disclosure of all “agency records” except those specifically enumerated in the statute. Documents are “agency records” only if they were created or obtained by an agency subject to FOIA. According to the Court of Appeals for the District of Columbia Circuit—which disposes of 38% of FOIA cases and thus has an outsized impact on the development of FOIA law nationwide—documents created and maintained by a private entity are not “agency records” subject to FOIA’s disclosure requirements. Wolfe v. Dep’t of Health and Human. Servs., 711 F.2d 1077, 1082 (D.C. Cir. 1983). Applied to the immigration detention context that relies extraordinarily heavily on private prison operators, the D.C. Circuit’s conclusion suggests that documents created and maintained by private prison corporations that contract with ICE to provide immigration detention services are not “agency records” so long as they have not been handed over to DHS. As a result, prison documents related to confinement conditions can be kept from the public simply by not handing them over to DHS officials.

Even when documents about immigration detention centers are considered “agency records”—because they were created or obtained by a federal agency—courts have proven themselves quite reluctant to require disclosure. Despite the statute’s explicit requirement that courts review such decisions de novo, judicial review of agency decisions to withhold information requested under FOIA has been “less than vigorous.” According to an analysis done by Paul Verkuil, district courts affirm agency decisions about FOIA in a full 90% of cases—a far cry from the 60 to 70 percent agency win rate across standards of review. As Margaret B. Kwoka put it in her study of FOIA litigation, “contrary to Congress’s purpose, the judiciary has created a de facto system of deference in its judicial review of FOIA cases, while continuing to pay lip service to the de novo standard of review articulated in the statute.” Margaret B. Kwoka, Deferring to Secrecy, 54 Boston College Law Review 185, 187-88 (2013). The end result is that FOIA too fails to provide the public with a path through which meaningful oversight can result. In affirming agency decisions to withhold government records, the courts have made it more difficult for interested members of the public to learn about what happens inside immigration detention centers, in effect “deferring to secrecy,” as Kwoka characterized the judiciary’s treatment of FOIA litigation.

To ensure that this doesn’t change, the nation’s two largest private prison corporations have lobbied against attempts to expand FOIA’s reach to include private prisons. CREW, Private Prisons: A Bastion of Secrecy at 7.

CREW picks up on FOIA’s shortcomings by noting that advocates have had some success acquiring information about conditions in private prisons under state transparency laws. [Update (3/31/14): See, e.g., Prison Legal News v. Corrections Corporation of America, No. D-1-GN-13-001445 (Tex. Dist. Ct. March 19, 2014 (concluding that CCA is a "governmental body" under the Texas Public Information Act).] Though that is promising, it’s a limited option for people interested in learning about immigration detention because the largest detainee populations are in prisons operated on behalf of the federal government. It’s certainly true that DHS contracts with literally hundreds of county jails and some of those are privately operated. The difficulty for immigrants’ rights advocates is that each of those jails tends to hold a small number of detainees. To get information on a large number of privately run county facilities, therefore, would require a lot of effort.

In addition to shortcomings with transparency statutes intended to provide the public with a means of learning what happens behind closed doors, CREW also notes that private prisons don’t have to disclose information to internal government agencies that often function as de facto watchdogs. The Justice Department’s Bureau of Justice Statistics, for example, cannot require private prisons to provide it with key information about their operations. Id. at 11-12. This means that neither government auditors nor the public has the information necessary to gauge the value private prisons provide—whether measured from a strictly financial perspective or from a broader moral perspective that closely considers conditions of confinement.

Though private prisons aren’t unique to immigration detention, they are certainly very common. Approximately 8% of state and federal prisoners in the United States are held in privately owned or operated facilities, but roughly half to two-thirds of immigration detainees are under private company control.

As I write in the Howard essay, “Leading private prison companies Corrections Corporation of America (CCA) and GEO Group depend on DHS contracts for significant revenue streams, and have developed business models designed to accommodate DHS’s growing incarceration needs while simultaneously devoting substantial resources to lobbying state and federal government officials for policies that help develop their business goals.” CREW reports that “[o]ver the past two years, CCA and GEO Group have lobbied Congress on a number of issues related to their bottom line, such as the construction and management of privately operated prisons and detention facilities, and appropriations for both [the federal Bureau of Prisons] and ICE.” Id. at 6.

Despite the gloomy picture CREW paints about the public’s ability to know what is happening inside private prisons, it closes with hopeful solutions to the lack of transparency. Id. at 21-25. For one, Congress and states could legislatively expand transparency statutes such as FOIA to include private prison operators. They might also require government departments such as DHS to include in contracts with private prison companies disclosure of key data about costs and conditions, or simply authorize the Bureau of Justice Statistics to gather such information. Second, government agencies, especially inspector general offices at DHS and DOJ, could investigate private prison operations themselves.

Lastly, the report acknowledges that advocates “have not done enough to use the tools they possess to shine light on private prisons.” Id. at 24. Access to information held by the private prison companies may not be too promising under FOIA as it’s currently written and interpreted, but government agencies such as ICE might possess illuminating information that is subject to FOIA. “Potentially available information includes contracts these agencies have with the private prisons, communications with the private prisons, and reports and other items submitted to the federal agencies by the private prisons and their corporate parents” Id. at 24.

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Crimmigration Law & Policy Workshop at University of Denver

The University of Denver Sturm College of Law, where I teach, is hosting the first “Crimmigration Law & Policy Workshop: Immigration Detainers” on Saturday, March 29. Organized by Professor Christopher Lasch, who has written extensively about detainers (see here, here, here, and here), the day-long event will include leading advocates and academics from around the country. I'll be speaking on the morning's first panel along with Lasch and another of our colleagues, Professor Lisa Graybill. Information about registering for the event is available here.

This workshop gathers leading scholars and advocates to explore the
rise of crimmigration, the impact of crimmigration on Colorado families
and communities, the formation and adoption of immigration detainer
policies limiting local compliance and the litigation sparked by the
widespread use of detainers.

Learn more and register online at



American Civil Liberties Union of Colorado (ACLU of Colorado)
Colorado Immigrant Rights Coalition (CIRC)
Meyer Law Office, PC
Rights for All People (RAP)
University of Denver Interdisciplinary Research Incubator for the Study of (In)Equality (IRISE)
University of Denver Sturm College of Law:
Constitutional Rights & Remedies Program
Criminal Defense Clinic
Latino/a Law Students Association (LLSA)
Office of the Associate Dean of Institutional Diversity and Inclusiveness
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No Evidence that Secure Communities Improves Public Safety or Affects Policing: Preliminary Findings

By Elina Treyger

The launch of the Secure Communities program in 2008, and its subsequent gradual expansion to the entire country, constituted an important development in building up the crimmigration regime. The program, which requires that fingerprints gathered by any local law enforcement agency (LEA) at arrest be automatically checked against the Department of Homeland Security’s (DHS) IDENT database, has ignited considerable controversy. DHS officials and other proponents of the program have claimed that Secure Communities not only facilitates the detection of removable non-citizens, but also that it will improve public safety. Public safety benefits are expected, according to DHS, because automatic screening at an earlier point in the criminal justice process “reduce[s] the risk that an LEA will release a dangerous and removable criminal alien into the community.” Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens Strategic Plan 3 (2009). Opponents of the program cast doubt on any public safety dividends: on the contrary, they have predicted that marrying immigration enforcement to policing will alienate immigrant communities from law enforcement and reduce those communities’ willingness to report crimes and cooperate in investigations. Critics of the program also point to the risk of racial profiling and pretextual arrests. That is, agencies or officers with a preference for more aggressive immigration enforcement might be tempted to target Hispanic individuals for petty arrests, which otherwise would not be made, and even make arrests not supported by probable cause solely for the purposes of screening.

In a current working paper, Estimating the Effects of Immigration Enforcement on Local Policing and Crime: Evidence from the Secure Communities Program, Aaron Chalfin, Charles Loeffler, and I examine the empirical evidence for the effects of Secure Communities on public safety and policing in 335 large and mid-sized cities in 41 states. Both the proponents and critics of the program have suggested that there is some evidence for their views. With regard to public safety, DHS officials point to improved targeting of criminal aliens as evidence of the program’s effectiveness: they note, for example, that the share of criminal aliens among all removed non-citizens has been increasing under Secure Communities, and that the share of the pettiest offenders among the removed criminal aliens is shrinking. See Government Accountability Office (GAO), Report to the Ranking Member, Committee on Homeland Security, House of Representatives, “Secure Communities: Criminal Alien Removals Increased, but Technology Planning Improvements Needed” 20-21 (2012). However, these metrics have, at best, a tenuous relationship to public safety. As the program’s critics point out, the most common crimes of which non-citizens identified through Secure Communities were convicted remain minor.

To examine the effects of Secure Communities on criminal offending that actually threatens public safety, we examine the effects of activating Secure Communities on monthly rates of seven “index crimes” reported by the LEAs to the FBI between 2008 and 2011: murder, rape, robbery, burglary, assault, larceny, and motor vehicle theft. If Secure Communities successfully removed or deterred serious offenders, one might expect that in the months after its activation, the rates of more common crimes such as burglary, assault, and larceny would decrease. We control for national time trends and city-specific trends in these crime rates, and find no evidence that activating Secure Communities delivered a palpable boost to public safety.

We further examined subsets of our 335 cities, focusing on those cities with the most intense targeted enforcement since the activation of Secure Communities (i.e., highest removal rates of criminal aliens), those with the most intense overall enforcement (i.e., highest removal rates of all non-citizens), and those with the largest foreign-born populations. By and large, this analysis produces no robust evidence of public safety dividends. Places with the highest shares of foreign-born – that is, with the highest shares of populations whose behavior is most likely affected by the risk of deportation – did not experience statistically detectable reductions in crime after Secure Communities. The one exception to the general lack of significant effects is the finding that places with the most intense overall enforcement rates experienced a decline in assault rates after the program’s activation. Notably, no such consequences were discernible in the subset of cities with most targeted enforcement. In other words, places that have identified and removed the greatest numbers of criminal aliens (relative to the foreign-born population and adjusted for the time since the program’s activation) did not experience a decline in assault or other crime rates.

With regard to policing behavior, critics worry that easy access to immigration screening incentivizes the kind of behavior that has been overseen by Sheriffs Joe Arpaio of Maricopa County, Arizona and Terry Johnson of Alamance County, North Carolina. Acting unilaterally and under the auspices of 287g programs, these Sheriffs’ Offices were found to have engaged in unconstitutional targeting of Latino individuals. By attaching automatic immigration screening to mere arrests (rather than convictions), Secure Communities may lead officers to make arrests largely for the purposes of screening. We examine two possible manifestations of such effects. First, we examine trends in arrest rates for violent, property, and minor crimes before and after activation of the program. If police are influenced by the availability of automatic screening, they might be tempted to make more arrests for minor crimes, such as drug offenses and liquor law violations, with regard to which they exercise considerable discretion. However, we find no evidence that rates of arrests for any of the crime categories changed in the wake of Secure Communities, suggesting that police officers are not using Secure Communities to raise the stakes of minor crimes.

A more worrisome possibility is that police may become more likely to arrest Hispanic individuals relative to others, perhaps without altering the overall rate of arrests. Our ability to investigate this expectation is limited because most LEAs do not reliably report the ethnicity of those arrested. We investigated this possibility indirectly, by looking at the rates of arrests of White suspects relative to arrests of Black suspects, on the assumption that most Hispanic arrestees are typically recorded as White. Here too, we find no evidence that activating Secure Communities was followed by a statistically significant increase in arrests of White relative to Black suspects for any crime category, suggesting that critics’ fears of racial profiling are not being realized.

There is, of course, the possibility that not all officers are equally motivated to arrest potential immigration violators. In fact, many LEAs have stated their opposition to the program and concern that their mandatory involvement harms their relationship with their immigrant communities. Thus, it is probably not sensible to expect clear changes in policing practices across a broad set of LEAs. To explore the possibility that policing patterns changed in the subset of LEAs most likely to embrace involvement in immigration enforcement, we relied on county partisanship measures as a rough indicator of such attitudes. Several studies have found that jurisdictions that lean Republican are more likely to adopt aggressive measures aimed at unlawful immigrants, and those that lean Democratic are more likely to adopt “sanctuary” measures. We then look separately at LEAs serving majority Republican counties and those serving majority Democratic counties, and we find no evidence that arrest patterns were significantly affected by the activation of Secure Communities in either set of LEAs.

Overall, we find that the program has not augmented public safety during the first three or so years of its activity. We suspect that part of the explanation is that the most serious threats to public safety were adequately detected by prior programs, such as the Criminal Alien Program (CAP), and not many such individuals were slipping through the cracks. If correct, our results suggest that the wisdom of a policy involving local police in immigration enforcement in this way should be assessed on criteria other than public safety. Nor do we find evidence of marked changes in the behavior of local law enforcement.

A few thoughts as to why biased and pretextual policing may not be a very likely result of Secure Communities: as scholars and immigrants’ rights advocates have observed in the context of prior immigration enforcement programs involving local police, at least some LEAs altered their practices in response to the prospects of placing immigration violators into the deportation pipeline. It may well be that the LEAs most eager to catch immigration violators have already taken advantage of the previously available mechanisms for identifying and channeling non-citizens into removal proceedings. If so, then the marginal impact of an additional mechanism triggering immigration screening may simply be too faint to be detected, as there may be limited opportunities and high opportunity costs of further adjustments to police tactics. However, we do think that further research is needed – in particular, research focusing on a smaller set of LEAs and employing more finely-grained crime and policing data – before any firm conclusions about the program’s effects are drawn.

Elina Treyger is an Assistant Professor at the George Mason University School of Law; Aaron Chalfin is an Assistant Professor at the University of Cincinnati School of Criminal Justice; Charles Loeffler is an Assistant Professor in the Department of Criminology at the University of Pennsylvania.

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More humane immigration law

Last week, President Obama ordered his administration to review whether immigration law can be enforced in a more “humane” manner. To borrow a refrain from his first campaign for president, “Yes, we can.” First, he can reduce the number of people detained and second he can reduce the number of people removed from the United States. Here are just a few ideas how the Obama Administration can do that without waiting for congressional action.

First, the President should acknowledge that immigration detention is out of control. At last count (fiscal year 2012), 477,523 people saw the inside of an immigration prison. This is a record number of detainees, but only another in a long line of records under President Obama. Administration officials and advocates frequently complain that the “bed mandate” imposed by Congress ties ICE’s hands by requiring them to detain 34,000 people each night. I’m not convinced that that’s true. The budget that Congress passed and the president signed in January says DHS “shall maintain a level of not less than 34,000 detention beds.” There’s no getting around this language; Congress has forced DHS to pay for 34,000 beds.

But the text doesn’t say anything about filling those beds. If President Obama genuinely wants to reduce the human toll of immigration law enforcement, my advice to him and DHS is to pay for the beds, as Congress requires, but don’t fill them. DHS Secretary Jeh Johnson acknowledged this possibility during congressional testimony last week. It is clearly wasteful to pay for prison beds that go unused. It is, however, far less wasteful than to pay for prison beds that even DHS acknowledges it doesn’t need and then go pluck people out of the community to fill the beds with people who don’t present a flight risk or public safety danger. There’s no shame in letting prison beds go unfilled. Even Texas closed two prisons last year because there weren’t enough people getting convicted to fill the beds inside.

Would it violate Congress’s intent to leave beds unfilled? I don’t know. There are enough immigration restrictionists in Congress to make me think that at least some members would like those beds filled even if it means making detainees out of people who aren’t a flight risk or public safety threat, the two criteria traditionally used to gauge whether detention is appropriate. Ultimately, though, congressional intent is irrelevant because there’s no need to try to get into Congress’s mind when their words are so clear. The first tool by which courts interpret statutes is to look at the words themselves. If the text is clear, then courts are required to do what the text instructs. It’s not up to the courts or anyone else to second-guess the language of the laws Congress writes and the president signs. We consider legislative intent only if the words are ambiguous. When it comes to the bed mandate, I think the words are clear: The budget requires DHS to spend as much money as is necessary to ensure that it has 34,000 beds available (Congress gives it about $2.8 billion to do this). Just as clearly, the bed mandate says nothing about detaining 34,000 people. So my advice to President Obama: Tell DHS to follow the bed mandate, but don’t convert it into a people mandate.

Second, President Obama could order Attorney General Holder to reconsider the way that the Immigration and Nationality Act’s “mandatory detention” provision, INA § 236(c), is interpreted. The Board of Immigration Appeals, the immigration law appellate tribunal, currently takes the position that § 236(c) requires nothing short of physical detention. According to the BIA, alternatives to detention such as electronic monitoring or intensive supervision do not satisfy § 236(c)’s custody command that DHS “shall take into custody” any migrant who meets any of a long list of specified criteria. That’s not an obvious reading of the statutory text. As I explain in a forthcoming article in the UCLA Law Review:

In Matter of Aguilar-Aquino, the Board rejected the immigration judge’s conclusion that electronic monitoring is “custody” because, for purposes of federal habeas corpus relief, “custody” requires a deprivation of liberty but does not require actual physical restraint or confinement—in effect, that custody includes but is not limited to detention. Instead, the Board reviewed Congress’s 1996 amendments to the detention provision and concluded that Congress “used the terms ‘custody’ and ‘detain’ interchangeably.” When Congress said “custody,” in other words, it meant “detention.” Had the Board not interpreted Congress’s intent in this manner, it could not have addressed the limits of “custody” since the section at issue, § 236(a), refers to detention, not custody.

Importantly, the Board came to this conclusion by relying on the 1996 amendment’s legislative history. Taken in the context of the version of the statutory provision that existed prior to 1996, however, the legislative history to which the BIA turned is quite muddled. Earlier versions of the detention provision stretching to 1952 explicitly permitted habeas review of a decision “concerning detention, release on bond, or parole pending final decision of deportability.... ” Habeas review, of course, is available only to individuals in custody. Congress, it seems, considered detention, bond, and parole to be forms of custody subject to habeas review. In 1996 it not only replaced “custody” with “detention” in the new discretionary detention provision but it also limited habeas review of decisions to detain or not. This suggests that Congress was fully aware that detention is but one form of custody. Indeed, this conclusion is supported by the fact that the provision typically described as the “mandatory detention” provision, also added in 1996, actually requires that the attorney general “shall take into custody” anyone who meets the specified criteria. It would be odd for Congress to require detention of individuals whom it permits an immigration judge to release while allowing immigration judges to impose nondetention forms of custody on individuals whom they cannot let out of government custody. Consequently, whether “custody” is synonymous with “detain” is not as obvious from the legislative history as the board concluded. Just as the BIA concluded that the two terms are interchangeable, the board or attorney general could reconsider in light of other language that existed before 1996, as well as the language of other statutory amendments. Doing this would allow ICE to meet the INA’s demand that large classes of people with criminal history be “taken into custody” without physically confining them in secure environments.

César Cuauhtémoc García Hernández, Immigration Detention As Punishment, 61 UCLA Law Review 5 (forthcoming 2014) (internal citations omitted).

Third, President Obama could order DHS to scale back its policing initiatives. By taking immigration law enforcement down a notch, the President would ensure that fewer people enter the detention and deportation pipeline. Fewer people entering the pipeline means fewer people getting deported.

DHS currently operates an alphabet soup of law enforcement measures that collectively bring hundreds of thousands of people into the detention and deportation pipeline. Some of these are well known. Secure Communities and 287(g) programs, for example, have received a lot of attention by supporters and critics alike, and both have fed the detention and deportation pipeline in recent years. Between October 2008 and May 31, 2011, “more than 260,000 people were…booked into ICE custody as a result of” Secure Communities. National Immigration Forum, Secure Communities 1 (2011). Meanwhile, ICE claims that 309,283 people were identified as potentially removable thanks to 287(g) programs operating since January 2006.

Other immigration policing initiatives tend to fly under the radar but result in similarly large numbers of people being detained and placed into removal proceedings. The Criminal Alien Program (CAP), for example, alone is credited with leading to 1,116,877 arrests between fiscal years 2004 and 2011, making this the ICE program that led to the most arrests during this eight-year period. Marc R. Rosenblum & William A. Kandel, Interior Immigration Enforcement: Programs Targeting Criminal Aliens 25 tbl.6 (2012). Likewise, few people have heard of the National Fugitive Operations Program (NFOP), but the program had a budget of $133 million in FY 2013 and led to the arrest of 30,373 people between fiscal years 2003 and 2006. Another program, the State Criminal Alien Assistance Program (SCAAP) reimburses state, county, and city prisons and jails for incarcerating certain migrants. Meanwhile, the public hadn’t even heard of the Criminal Alien Removal Initiative (CARI) until immigrants’ rights advocates in New Orleans accidentally stumbled upon information revealing its existence.

Some of these programs are fairly new. The last major changes to immigration law happened in 1996. Most initiatives that were created under the presidential administrations of George W. Bush or Barack Obama, therefore, could be scaled back significantly or eliminated without any legal problems. The NFOP, for example, was created in 2002 and first funded in 2003. CARI seems to have come out of nowhere in the last two years. Most significantly, the Secure Communities program was launched in 2008 and has expanded to every jurisdiction in the country thanks to a concerted effort by the Obama DHS.

The Administration could even deemphasize programs that are explicitly authorized by statute. DHS has already shown a willingness and ability to do something similar in the context of a major policing initiative, 287(g) programs. DHS used to operate two types of 287(g) programs. The “task force” model” allowed local police deputized to perform immigration law investigations to arrest potentially removable individuals who they encountered on the streets, while the “jail enforcement” model let deputize police officers flag people already arrested for conduct not related to immigration. Without any fanfare or pushback, DHS chose not to renew the task force models when those agreements expired at the end of 2012.

At the very least, DHS could deemphasize programs that by not asking Congress to fund them. The president’s recent budget proposal, for example, asks for money for the SCAAP as well as a small budget increase for the NFOP. If the President truly wants to reduce the human cost of immigration laws, then he could start by not asking Congress to give him money to fund programs that expand the detention and deportation net. As he said during his most recent State of the Union address, he has a pen and it's enormously powerful.

By no means is this a comprehensive account. The point is merely that DHS has many tools at its disposal to reduce the number of people detained and deported. It’s worth remembering that immigration law enforcement is at historically unprecedented levels. Republican claims that President Obama can’t be trusted to enforce the laws that currently exist are nothing more than tired talking points. Speaker Boehner and others who harp about this are either lying or delusional. No administration in history has enforced immigration laws to the extent that DHS has done under President Obama. The humane consequences of that enforcement are evident everywhere. Just like President Obama’s DHS ramped up the scale of enforcement to unprecedented levels, it can turn back the clock.

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