CrImmigration.com is effectively a one-person operation, which means that updates sometimes take a back seat to life. The next few weeks are one of those moments. With a newborn at home and a cross-country move planned for late June to take a year-long visiting professor position at the University of Denver Sturm College of Law, I’m giving myself a blogging paternity leave of sorts through the July Fourth holiday. Updates will resume on July 9.

To be sure you don’t miss any updates, I encourage you to visit the blog’s home page and subscribe (free). You’ll be joining 277 other people who have done so and now receive every update in their inbox so they can read it whenever is convenient.

Until then, I’ll continue updating my Facebook page and Twitter account with crImmigration news, job postings, and more.

The BIA held that sponsoring or exhibiting an animal in an animal-fighting venture is a crime involving moral turpitude. Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA March 8, 2013) (Grant, Malphrus, and Mullane, Board members). Board member Malphrus wrote the panel’s decision.

This case involved an individual who was not admitted or paroled. He conceded removability and sought cancellation of removal for non-LPRs. The IJ denied his cancellation application due to the animal fighting conviction, a violation of 7 U.S.C. § 2156(a)(1). Matter of Ortega-Lopez, 26 I&N Dec. at 99-100. On appeal to the Board, Ortega-López argued that the conviction is not a CIMT.

The BIA began by repeating its traditional formulation of moral turpitude: “[m]oral turpitude refers generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Matter of Ortega-Lopez, 26 I&N Dec. at 100. This definition, the Board went on, consists of two requirements: “a culpable mental state and reprehensible conduct.” Matter of Ortega-Lopez, 26 I&N Dec. at 100.

There was no doubt that the animal fighting offense involved a culpable moral state. The statute clearly requires “knowingly” engaging in an animal-fighting venture. 8 U.S.C. § 2156(a)(1).

The trickier issue was whether the offense was inherently morally turpitudinous. To answer this question, the Board spent much of its opinion distinguishing animal fighting from hunting. Animal fighting, the Board approvingly quoted the IJ as explaining, “is a spectacle of animal suffering engaged in purely for entertainment, ‘the entire purpose of which is the intentional infliction of harm or pain on sentient beings that are compelled to fight, often to the death.’” Matter of Ortega-Lopez, 26 I&N Dec. at 101. The Board later described these animals as victims. Matter of Ortega-Lopez, 26 I&N Dec. at 102.

That sounds a lot like what happens in hunting too—the point being to kill animals—except perhaps for the rare hunter who needs to hunt to subsist. Of course, the IJ and BIA saw it differently. In support, the Board cited two dissenting opinions—one from Justice Alito and another from Judge Cowen on the Third Circuit—describing the “deadly” (in Alito’s words) or “grisly” (in Cowen’s) nature of dog fighting. Matter of Ortega-Lopez, 26 I&N Dec. at 101 (citing United States v. Stevens, 130 S. Ct. 1577, 1601-02 (2010) (Alito, J., dissenting); United States v. Stevens, 533 F.3d 218, 245 (3d Cir. 2008) (Cowen, J., dissenting)).

Since Ortega-López’s conviction apparently involved cockfighting, the Board moved to explain that the moral reprehensibility of dog fighting is indistinguishable from cockfighting. Every state and Washington, DC prohibits both types of animal fighting. Matter of Ortega-Lopez, 26 I&N Dec. at 103. Moreover, the federal crime that Ortega-López was convicted of violating does too. Matter of Ortega-Lopez, 26 I&N Dec. at 103. Consequently, the offense involves moral turpitude and because Ortega-López did not show a realistic probability that he was or could be convicted of this crime without engaging in morally turpitudinous conduct, the Board concluded that the offense is inherently a CIMT. Matter of Ortega-Lopez, 26 I&N Dec. at 103.

As an interesting aside, the Board explained in a footnote that this is a good example of why the CIMT definition should be flexible. Animal fighting wasn’t a federal crime until 1976 so if we were to fix the definition of moral turpitude to social standards that existed when it was added to immigration law in 1891, it would exclude animal fighting. Instead, the flexible CIMT definition the Board uses allows it to account for “the evolving nature of what conduct society considers to be contrary to accepted rules of morality as reflected in criminal statutes.” Matter of Ortega-Lopez, 26 I&N Dec. at 101 n.2.

Jason Cade

On Tuesday I posted about the need to narrow the aggravated felony grounds of removal to exclude misdemeanors, which are increasingly unreliable evidence of wrongdoing. Today I’ll be writing about another piece of the proportionality problem in immigration law: deportation on the basis of “convictions” that have been pardoned, expunged, deferred, or that are still pending on direct appeal.

Before the Gang of Eight came up with a comprehensive immigration bill in the Senate (S. 744), the Obama Administration prepared its own draft legislation, leaked by the Miami Herald back in February. Although some provisions from that earlier proposal have analogues in S. 744, one reform that has not shown up yet in the current draft being debated in the Senate would be to clarify the definition of “conviction” for immigration purposes. First, as previously noted by César, President Obama’s draft proposal would have prohibited DHS from using criminal judgments that have been “dismissed, expunged, deferred, annulled, invalidated, withheld, or vacated” as the basis for removal. See Title I—Enforcement § 123. The bill also would have established that a conviction becomes final – thus triggering immigration consequences – only once all direct appeals end. Id. Finally, the proposal would not count any portion of a sentence that has been suspended as part of the term of imprisonment or sentence used for triggering immigration consequences. See Title I – Enforcement § 122(a)(2)(B).

Those who do not study immigration law are often surprised to learn that lawfully present noncitizens are sometimes deported on the basis of state convictions that are still pending on direct appeal, judicially expunged, or treated as a deferred adjudication or suspended sentence under state law. See Matter of Pickering, 23 I. & N. Dec. 621, 624 (B.I.A. 2003), rev’d on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). Similarly, the Board of Immigration Appeals and some federal courts have held that even full gubernatorial pardons do not remove the immigration consequences of many deportation categories. See, e.g., Matter of Suh, 23 I&N Dec. 626 (BIA 2003).

Deportations that ignore these kinds of criminal justice processes impinge interests at the heart of state autonomy. See Jason A. Cade, Deporting the Pardoned, 46 U.C. Davis L. Rev. 355 (2012). Pardons, appeals, deferred adjudications, and expungements comprise integral components of the states’ administration of their general criminal laws. Individually and collectively, these processes work to ensure systemic integrity, correct errors, calibrate punishment, encourage rehabilitation, and conserve judicial and penal resources. Such tools are of increasing importance, especially in minor, mostly public-order cases, where, as recent studies and scholars have shown, convictions often are produced en masse in a system driven more by efficiency than evidence.

Steven Jansen, who is vice president of the Association of Prosecuting Attorneys, recently published an Op-Ed echoing some of these concerns. Jansen urged Congress to provide clearer guidelines for state prosecutors and judges, for instance by bringing the definitions of “conviction” and “sentence” in line with what those terms mean in state criminal court. As Jansen explains, an increasing number of localities are recognizing the benefits of alternatives to criminal sentences like drug and mental health courts and other community diversionary alternatives. He doesn’t cite it, but a study by the Vera Institute of sentencing policies from 2001 to 2010 supports Jansen’s claim by showing that states find it “increasingly difficult to justify using the most expensive intervention – prison – for people convicted of low-level property and drug offenses.” But by treating many of these incarceration alternatives as convictions for immigration purposes, current law takes them off the table for noncitizen defendants, undermining effective prosecution, conservation of vital state resources, and in many cases, a just outcome.

Our current immigration scheme relies heavily on state and local law enforcement and criminal justice systems to identify, prosecute, and sentence noncitizens. (In part this is because the volume of state prosecutions far eclipses the number brought by federal prosecutors.) Through this choice, which represents huge resource-saving benefits to the federal government, Congress has incorporated generally applicable state laws into the federal regulatory scheme. It’s troubling, then, that immigration enforcement often fails to respect the few error-correcting and justice-calibrating tools available in the states’ criminal systems.

Removing noncitizens on the basis of criminal history that isn’t considered a conviction under the law of the jurisdiction that brought the prosecution contributes to the current proportionality problem in immigration law. Congress should enact immigration legislation that gives clear preclusive effect to state criminal justice mechanisms that remove (or defer) the continuing validity of convictions under state law.

Jason Cade is a former NYC immigration lawyer and a newly minted Assistant Professor at the University of Georgia Law School.

Jason Cade

The fact that a bipartisan comprehensive immigration bill has now advanced to the floor of the Senate is cause for some celebration, but the present bill (S. 744) contains many disappointments, including a failure to address the disproportionate immigration consequences imposed on lawful permanent residents with minor convictions. That failure is all the more apparent when contrasted with the White House’s draft immigration proposal, leaked by the Miami Herald back in February. The Obama Administration’s proposed legislation contained important limitations on some of the harshest aspects of contemporary crimmigration enforcement. In my guest posts this week, I will touch on two such limitations that are relevant to the proportionality problem in immigration law. Today I’ll discuss the importance of narrowing the aggravated felony ground of removal; on Thursday I’ll turn to the Obama plan’s proposed clarification of the definition of “conviction” for immigration purposes.

***

Immigration law has a zero-tolerance policy for aggravated felons. Noncitizens convicted of aggravated felonies are subject to mandatory detention, presumptively mandatory deportation, and a permanent bar on lawful reentry. Immigration judges are not authorized to set aside an aggravated felon’s deportation for discretionary reasons (including eligibility for asylum). That the noncitizen may have been a lawful permanent resident since childhood does not make a difference. Nor do mitigating factors surrounding the circumstances of the crime, positive equities such as the noncitizens’ contributions to society, or the hardship their families would experience if they were deported. Commit an aggravated felony as a noncitizen and you are out of the country, for life.

What are these aggravated felonies? Unsurprisingly, they include serious offenses such as murder, child pornography, racketeering, and firearms trafficking. But the category also sweeps in lesser crimes that are neither aggravated nor felonies under the penal laws where they are prosecuted. For example, misdemeanor convictions for selling ten dollars worth of marijuana, petty theft of items worth less than twenty dollars, and misdemeanor battery resulting in a year’s probation have all been held to constitute aggravated felonies. Even misdemeanor marijuana possession can be classified as an aggravated felony under federal immigration law if charged as a recidivist offense.

That our current immigration laws impose the most severe immigration penalty possible – permanent banishment – on the basis of misdemeanor offenses has troubled far more legal commentators than I could possibly cite here. But I’ll briefly point out the work of Mike Wishnie, Angela Banks, and Juliet Stumpf, who have (separately) written articles that propose legal challenges or legislative reforms to address the proportionality concerns raised by the INA’s inclusion of minor crimes within the aggravated felony ground of removal.

Proportionality is the principle that “the severity of the sanction should not be excessive in relation to the gravity of the offense.” Michael J. Wishnie, Immigration Law and the Proportionality Requirement, 2 U.C. Irvine L. Rev. 101 (2012). Using metrics for proportionality established in both the criminal sentencing and civil punitive damages context, Professor Wishnie argues that immigration courts should set aside removal orders where the penalty is grossly disproportionate to the underlying misconduct. Although it’s still unclear whether any judges will agree that immigration consequences are constrained by the Supreme Court’s constitutional proportionality doctrines, Padilla v. Kentucky, 130 S. Ct. 1473 (2010), certainly bolsters the argument by recognizing deportation as a “penalty” (and one that automatically follows many criminal convictions, including misdemeanors). In The Normative & Historical Cases for Proportional Deportation, which is forthcoming in the Emory Law Journal, Angela Banks makes the historical case that proportionality was a foundational principle in immigration law. Professor Banks argues that the removal of green-card holders on the basis of minor crimes is excessive, and urges legislation returning proportionality norms to immigration law. Juliet Stumpf’s article on the subject sensibly proposes the enactment of a graduated range of immigration penalties according to the seriousness of the underlying immigration offense. Fitting Punishment, 66 Wash. & Lee L. Rev. 1683, 1732-40 (2009).

In The Plea Bargain Crisis for Noncitizens in Misdemeanor Court, which will be published this month in volume 34 of the Cardozo Law Review, I argue that this proportionality critique, while powerful, actually underappreciates the scope of the problem. Imposing permanent banishment, with little or no consideration of a lawful permanent resident’s individual equities, is not just an excessive penalty for having committed relatively minor convictions. Rather, there is often little guarantee that noncitizen misdemeanants are legally or even factually guilty of the offenses later used to justify their removal from the United States. This is because the institutional dynamics of state and local misdemeanor courts significantly hamper the ability of noncitizens to plea bargain effectively or challenge the merits of their arrests or charges.

As documented in a nascent but vibrant body of literature, the actors in the misdemeanor system spend precious little time actually screening, investigating, or negotiating the merits of individual cases, and the system exerts significant pressure on misdemeanor defendants to plead guilty as early as possible to off-the-rack plea offers. Following a recent explosion in arrests for low-level offenses, prosecutors now file approximately ten million misdemeanor prosecutions each year, dwarfing the number of felony cases. Robert C. Boruchowitz et al., Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts 11 (2009). The system copes with this enormous volume by processing defendants quickly, categorically, and sometimes en masse. See Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313, 1328-29 (2012). Efficiency is the central systemic norm in misdemeanor courts, outstripping due process, adversarial adjudication, and evidence. See Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1701-02 (2010); John D. King, Procedural Justice, Collateral Consequences, and the Adjudication of Misdemeanors in the United States, in The Prosecutor in Transnational Perspective 20, 23 (2012).

Despite Padilla v. Kentucky’s holding that the Sixth Amendment requires defense counsel to accurately advise clients about the immigration consequences of a guilty plea, there is very little reason to conclude that noncitizens in misdemeanor court consistently receive such information. Throughout the country, many misdemeanor defendants proceed without any assistance of counsel. Even where attorneys are appointed, crushing caseloads reduce the likelihood of individualized attention, relegating their role to advising clients to accept going-rate plea offers as early in the process as possible. See Jenny Roberts, Why Misdemeanors Matter, 45 UC Davis L. Rev. 277 (2011). Prohibitively high bail, continuances and delays, language and cultural obstacles, and other process costs work to diminish the likelihood that misdemeanor cases will go to trial, or be successful if they do. My article also explains how the current integration of immigration enforcement with criminal justice systems exacerbates some of these problems and creates additional complexities for noncitizens charged with minor crimes. See 34 Cardozo L. Rev. at 1796-1803.

While commentators have proffered various justifications for using criminal convictions as a basis for imposing immigration consequences, the core of each theory is that convictions are a proxy for social desirability. See generally Allegra M. McLeod, The U.S. Criminal-Immigration Convergence and Its Possible Undoing, 49 Am. Crim. L. Rev. 105, 125–30 (2012). But whatever the merits of that proxy in general, the reliability of convictions as indicia of culpability sufficient to warrant banishment begins to crumble when applied to misdemeanants. Today’s misdemeanor convictions largely reflect unchallenged assumptions of criminality rather than actual guilt or the strength of the prosecutor’s evidence. Aggravated felony categories that include minor offenses simply cannot be relied upon to delineate the most undesirable noncitizens, because petty convictions now convey little to nothing about whether the immigrant did something normatively wrong.

The Obama Administration’s proposed legislation would have ameliorated this proportionality problem in two ways. First, the proposal narrowed the definition of several aggravated felony categories – “crimes of violence,” theft, burglary, obstruction of justice, perjury, and others – to exclude misdemeanors. While under current law these crimes qualify as aggravated felonies if punished by one year’s incarceration (even if suspended or served as probation), the proposal would have treated them as such only if they resulted in a term of imprisonment of more than five years. Title I – Enforcement § 122(a). Second, the proposal would have made lawful permanent residents convicted of any aggravated felony eligible for discretionary cancellation of removal except where punished by at least five years imprisonment. Id.

The current draft of S. 744 contains no similar provisions. But my hope, as reforms are debated in the months to come, is that the Senate, and ultimately the entire Congress, will amend the bill in ways that restore proportionality to our immigration laws. Narrowing the definition of at least some aggravated felonies to exclude misdemeanors would be a good place to start.

Jason Cade is a former NYC immigration lawyer and a newly minted Assistant Professor at the University of Georgia Law School.

Last week Human Rights Watch released a damning report on the federal government’s sustained effort to use criminal law and procedure to sanction immigration law violations. The report, Turning Migrants into Criminals: The Harmful Impact of U.S. Border Prosecutions (May 2013), documents the many ways in which the criminal justice system has been employed to punish conduct that previously was largely dealt with through the civil immigration system or that didn’t often register on the government’s radar.

Though the 83-page report has much to offer, there were a few aspects worth highlighting. First, it does a remarkable job tracking the increased reliance on the criminal offenses of illegal entry, INA § 275, and illegal reentry, INA § 276. Though both have been federal crimes for many decades, neither was used much until 2007. A graph that the report’s author, U.S. Program researcher Grace Meng, included on page 13 vividly displays the Obama Administration’s fondness for criminally punishing immigration law violations that could just as well be sanctioned through the civil immigration court system. From about 11,000 prosecutions for illegal entry and another 12,000 or so for illegal reentry in fiscal year 2007, last year (FY 2012) the federal government pursued 48,032 illegal entry prosecutions and another 37,196 illegal reentry prosecutions. One federal magistrate judge “who estimates he has presided over 17,000 [illegal entry] cases, described his role as ‘a factory putting out a mold.’” HRW, Turning Migrants into Criminals, at 35. Not exactly the picture of justice.

Given these numbers, it’s no surprise that “[i]mmigration cases now outnumber all other types of federal criminal cases filed in US district court.” HRW, Turning Migrants into Criminals, at 14. In the federal district court for the Southern District of Texas—a mammoth district that covers Houston to the Río Grande Valley along the border—a full 45% of district court cases concerned illegal entry and roughly another 11% dealt with illegal reentry a full 65% of cases primarily involved illegal entry, illegal reentry, or other immigration offenses. HRW, Turning Migrants into Criminals, at 21. Viewed through another lens, "45% of illegal entry cases and 11% of illegal entry nationwide are filed in South Texas" Meng explained in response to my original post. With case loads so heavily flooded with immigration cases, these courts are on the brink of being unable to deal with any other type of federal criminal prosecution. This is particularly concerning given more than a quarter of people prosecuted for illegal entry in FY 2011 had no prior convictions that merited a sentencing enhancement, suggesting that these are not people who are particularly prone to engaging in criminal conduct. HRW, Turning Migrants into Criminals, at 27.

Not only is the pursuit of immigration crime changing the character of federal courts’ criminal docket, it’s also changing the face of federal criminal prosecutions. About 30% of all inmates who entered the federal prison system in FY 2010 were placed there because of an immigration offense conviction, a big jump from 1998 when they accounted for 18% of new federal prisoners. HRW, Turning Migrants into Criminals, at 73. Meanwhile, an estimated 88% of people convicted of immigration offenses in 2012 were Latinos. HRW, Turning Migrants into Criminals, at 17. If this trend continues, the historically low rate of imprisonment for immigrants could change, fueling claims by immigration restrictionists that immigrants commit a lot of crime and fill prison cells.

The report places much of the criticism for this expanding criminalization on Operation Streamline, an initiative through which dozens of people are simultaneously prosecuted for immigration crimes. “A single proceeding may include two dozen defendants or more than 100, depending on the district.” HRW, Turning Migrants into Criminals, at 36. Though individual judges and the Ninth Circuit have expressed concerns about the constitutionality of such proceedings, they continue nonetheless. HRW, Turning Migrants into Criminals, at 38.

Criminal defense attorneys, not surprisingly, have a tough time devising individualized defense plans for each defendant. According to the report, “the amount of time they [defendants] spend with their attorney before they plead guilty may be as little as 5 to 10 minutes.” HRW, Turning Migrants into Criminals, at 37. Consequently, in the words of a magistrate judge quoted in the report, defense attorneys function as “‘ushers on the conveyor belt to prison’.” HRW, Turning Migrants into Criminals, at 38.

There’s much more that could be said about the report, but I’ll leave it to the author to do that in her own words. The full report is available here and a press release and other information is available here. A Huffington Post article about this report is available here.

[Update: I updated paragraph 3 in light of Meng's correction in the comment below.]

Jennifer Chacón

When I read about the recent controversies over Jason Richwine, formerly of the Heritage Foundation, and learned that Christopher Jenks was one of three Harvard faculty members who signed off on Richwine’s controversial dissertation, I immediately thought about an article by Jenks published by the New York Review of Books in 2007 entitled “The Immigration Charade.” That article includes a review of Patrick Buchanan’s State of Emergency: The Third World Invasion and Conquest of America. I read the review a long time ago, and the book is not on my list of favorites, but the memory of the review came flooding back to me because the similarities between the arguments that Richwine made in his doctoral dissertation and those that Buchanan makes in his book are striking in this regard: both provide policy recommendations that flow directly out of their own deeply troubling assumptions about race in general, and “Hispanics” in particular. Christopher Jenks provides a sort of common thread that allows me to consider Buchanan and Richwine simultaneously, while also questioning the role of scholars in confronting the misuses of “race” and “culture” in policy debates.

Jenks’ 2007 review of Buchanan’s book unfolds through an introduction and four sections. In his introduction, Jenks asserts that “America’s ongoing argument about immigration has followed a fairly consistent sequence for three decades.” He breaks the sequence down as follows: a rash of reports concerning illegal settlement, which lead to charges that the U.S. is overrun by foreigners, which lead to Congressional hearings, which lead to employers and legal immigrants pushing back on large-scale restrictions, which lead to legislation that includes a combination of legalization of unauthorized migrants, workplace enforcement and reconfigured – and generally expanded – channels of lawful immigration, which leads to widespread legalization and expanded legal immigration channels, but no enforcement of the worksite provisions. This summary appears reasonably accurate, although it may be a stretch to call this a “consistent sequence for three decades,” since it describes a “sequence” that has happened precisely once over the course of the past 30-odd years. Jenks then briefly chronicles the sad travails of comprehensive immigration reform in the waning days of the second Bush administration.

With this setup, Jenks proceeds to the first section of his review, in which he discusses the soft nature of both public support for and opposition to legalization for unauthorized migrants. He observes, with apparent sympathy, that opponents of “amnesty” see little evidence that the federal government has any intention of enforcing immigration law. Jenks also notes that the federal government has favored a strategy of symbolic border enforcement over potentially more effective enforcement strategies largely for political reasons.

In the second section of the article, Jenks attacks the argument that immigrants are merely taking jobs that “Americans” won’t do, suggesting instead that employers just don’t want to pay wages that would attract “poorly educated natives” to these positions. Respected studies raise questions about whether these groups actually are pitted against one another in this way, but Jenks appears to side with those (including his colleague George Borjas) who generally believe that it does. Jenks then proceeds to the third section of his article: a review of Buchanan’s State of Emergency.

So far, Jenks’ review offers a relatively stock liberal story about immigration, politics and the U.S. labor market. I disagree with some of what Jenks says in these first sections, but it all seems reasonably defensible to me.

I begin to grow uneasy, though, when I turn to the third section of the article.

In the third section, Jenks provides a summary of Buchanan’s basic arguments: immigration is bad, Republicans should awaken to the fact that they are doomed if they support immigration reform, Mexicans are angling for a reconquista of the American southwest through mass immigration, and the mass influx of crime-prone immigrants who do not demonstrate a deep love of the United States and who refuse to assimilate is a disastrous proposition for the nation. Jenks, unsurprisingly, makes short work of Buchanan’s alarmist claims, pointing out, for example, Buchanan’s deceptive deployment of statistics concerning migrant criminality.

Oddly, however, Jenks never calls Buchanan out for the pseudo-scientific claims that the he makes about race in his book. This oversight is problematic considering the extent to which such claims effectively form the foundation for the book’s policy arguments. To take just one example, at page 135 of his book, Buchanan asserts that “[n]ot only do Mexicans come from a different culture, they are, 85 percent of them, mestizo or Amerindian. History teaches us that separate races take even longer to integrate.” I am not sure what “history” Buchanan is referring to, nor can I figure out what he means by “race.” The term is never defined and evidence to substantiate his claim about race and assimilation is never offered. These sorts of statement pepper the book and drive Buchanan’s argument to its logical conclusion: not only should we crack down on illegal immigration but we should also impose a widespread moratorium on legal immigration.

Jenks challenges Buchanan’s assertion that today’s immigrants fail to assimilate, but he oddly never mentions the pseudo-scientific claims about race that undergird the argument. While Jenks clearly does not take many of Buchanan’s arguments particularly seriously, he also fails to take the author to task for what I see as the most disturbing aspect of the book – its unsupported claims about the behaviors and propensities of certain (presumptive) racial groups. Buchanan treats race and culture as variously distinct and interchangeable, depending on his claim. His problematic deployment of both “race” and “culture” beg for interrogation, but it does not come in this review.

In part four of the review, Jenks effectively weaves Buchanan’s arguments into a legitimate conversation on immigration policy by returning to his argument that legalization in the absence of workplace enforcement “has had huge costs,” namely, “exacerbat[ing] popular distrust of the federal government” and “increase[ing] hostility to foreigners, especially Mexicans.” Jenks’ claims seem intuitively appealing. I am not sure they are true. In the late 1990s and very early 2000s, few were calling out the federal government for failing to raid workplaces even though workplace enforcement was at its lowest ebb. In contrast, at a time that the federal government was deporting 400,000 people a year, and spending $16 billion a year on enforcement measures, Arizona voters passed legislation designed to do the immigration enforcement job that the federal government was purportedly refusing to do. The relationship between distrust and federal enforcement is not a simple one.

Similarly, distrust of foreigners (and particularly Mexicans), while a disturbing feature of American life for over a century now, hardly seems to turn on the strength of federal immigration enforcement. Moreover, the highly visible, criminalizing workplace enforcement strategies of the Bush administration actually seemed to fuel xenophobia, which suggests to me that enforcement strategies can either increase or decrease distrust, depending on how they are deployed.

It seems more likely to me that the state of the economy does a better job of accounting for levels of distrust of the federal government and “foreigners” (actual or perceived) than does the efficacy of immigration enforcement. And as Jenks himself noted, distrust can be strategically mobilized. Jenks points to the Minutemen and NumbersUSA as examples of organizations that worked hard to do just this in order to defeat immigration reform in 2007. Buchanan is another sower of distrust.

In the current battle over immigration reform, the Heritage Foundation recently has assumed such a role, advancing the dubious claim that the Senate’s immigration reform package carries a $6.3 trillion dollar pricetag.

One of the authors of the study – Jason Richwine – resigned from Heritage after it became public knowledge that he wrote his doctoral dissertation at Harvard on “IQ and Immigration Policy.” In his dissertation, he argues that “Hispanics” have lower IQs than Asians and Europeans (page 60), and he ultimately concludes that immigration policy should favor immigrants with high IQs. Like Buchanan’s claims about race and assimilation, the racial terms are amorphously defined and, as in Buchanan’s book, the policy conclusions are insufficiently supported by the evidence.

Christopher Jenks signed off on Richwine’s doctoral dissertation. I don’t know if Jenks pushed back on the problematic ways that Richwine defined his “racial” categories and deployed his evidence concerning race. I hope that he did. But in his review of State of Emergency, Jenks never really called out Buchanan for some of the same sorts of manipulations. I think he should have. Because when scholars fail to confront racial pseudo-science and call it by its name, it becomes much easier for dedicated opponents of almost any social policy to generate opposition by sowing the seeds of racial distrust amongst U.S. citizens already overwhelmed by job losses, wage stagnation and general economic uncertainty.

Jennifer Chacón is a professor at the University of California Irvine School of Law.

Jennifer Chacón

On April 18, 2013, César did a masterful job of describing the “crimmigration provisions” of the behemoth comprehensive immigration reform bill that is currently wending its way through the Senate. He summarized the various sections of the bill, which begins with a sweeping set of provisions relating to “border policing and prosecution.” As César noted, the legalization provisions of the bill will not go into effect until certain “border security” benchmarks are met. The bill as initially drafted focused a significant portion of its security initiatives on the U.S.-Mexico border, requiring, among other things: 1) that DHS certify “effective control” – translated into a 90% apprehension rate for unauthorized crossers – in certain “high-risk” areas along the U.S.-Mexico border; 2) that $1.5 billion be allocated for a Southern Border Fencing Strategy; 3) a significant increase in funding for illegal entry and felony re-entry prosecutions along the Southern border, particularly in the Tucson sector; and 4) increased funds for “Operation Stonegarden,” which are used to pay state, local and tribal officials to participate in border security efforts. Of course, the bill’s drafters do have security concerns that extend beyond the Southern border, but the bulk of the resources and rhetoric are focused on that region. Subsequent amendments to the bill have hammered this home.

On May 17, 2013, the Washington Post published a summary of the various amendments that the Senate Judiciary Committee made to the immigration bill during its first three days of hearings. A few of the amendments relating to these “border security” provisions caught my eye. Here is a representative sample:

• -First, S.B. 744 initially would have required “effective control” of “high risk” areas of the Southern border. An amendment by Senator Grassley of Iowa, which passed by voice vote, strikes all references to “high risk” sections of the border, and requires that 90% of unauthorized entries along the entire U.S.-Mexico border (but no other border or port of entry) be stopped before the legalization provisions go into effect.
  
• -Second, as Dylan Matthews of the Washington Post notes, Senators Leahy and Cornyn proposed an amendment, which also passed by voice vote, and which would require DHS to “consult with the Secretaries of Interior and Agriculture, as well as state and local governments, in determining where on the Mexican border to place fencing.” Notably, the provision also “clarifies that no fencing will be placed on the Canadian border.”
  
• -Third, by voice vote, the Committee approved an amendment by Diane Feinstein that limited the use of border patrolling aerial drones to within to three miles of the border in California.

The quality of life of U.S.-Mexico border residents has been sacrificed on the altar of border security since the mid-1990s, notwithstanding the lack of empirical evidence that the ongoing militarization strategies are effective, cost-effective or desirable. The recent amendments to the border security bill point out the degree to which the needs of these border residents continue to be traded off to achieve larger political and immigration policy goals.

These amendments suggest that we need “effective” control of the border – but only if that border is with Mexico. These amendments also assure us, lest we be worried that northerners and Canadians might have to confront the unsightly fences that already mar the landscape in California, Arizona and Texas, that this eyesore is reserved for the residents of southern border states and Northern Mexicans. As someone who grew up along the U.S.-Mexico border, I was struck by the fact that the Senators clearly recognize the harm of fencing when they passed these amendments; hence, their desire to shield certain geographies from fences and quotas. Yet, at the same time, the harms seem to be systematically underweighted when the conversation turns to the U.S.-Mexico border. These discussions reminded me of Pratheepan Gulasekaram’s article Why a Wall?, 2 U.C. Irvine Law Review 147 (2012), in the second issue of the U.C. Irvine Law Review, in which he chronicles the ways in which the southern border fence is an act of political theater with insufficient mooring to the realities of migration or border life.

Like the Grassley, Leahy and Cornyn amendments discussed above, Senator Feinstein’s drone limits acknowledge implicitly the costs of border militarization. But the drone limits that the Senate has thus far enacted will not do much for the people who live close to the border in cities outside of California. And even limiting the drones to three miles of the border still leaves hundreds of thousands of residents along the southern border exposed to the noise of drones, the eyesore of border fencing and floodlights, and the disruption and unease generated by the constant presence of Border Patrol trucks and armed guards. This is a sort of a geographically determined criminalization that extends far beyond those prosecuted, detained and deported for immigration offenses. In reading S.B. 744 and these recent amendments, I was reminded of my 2007 visit to the museum at the infamous Checkpoint Charlie in Berlin, Germany, where I snapped a photo of a poster that proclaimed that “walls aren’t built for an eternity.” Here’s hoping.

Jennifer Chacón is a professor at the University of California Irvine School of Law.

Mark Noferi

Last week, I wrote about the due process and detention provisions of the S. 744 immigration bill, and specifically the possibility of a right to appointed counsel in immigration proceedings (or at least for detainees, as I wrote about in Slate Wednesday). (The Senate Judiciary Committee seems ready to consider those provisions today). Subsequently, Robert Koulish and I wrote about ICE’s use of risk assessment for detainees—since if ICE’s risk tool is faulty, detention reforms will be naught.

Today, I’ll write about another forward-looking issue. In the coming decade, the U.S. Supreme Court will not only likely consider the right to a lawyer in immigration proceedings, but as a fallback, the right to a non-lawyer representative. The argument is far from hypothetical. Non-lawyers are already widely representing immigrants in the U.S. And as non-lawyer immigration representatives are subjected to increasing professionalization, standards, and oversight, an established “non-lawyer immigration bar” is developing, as already exists in Canada, the U.K., and Australia.

A future Court’s right-to-counsel decision will raise (at least) three sets of questions: constitutional, pedagogical, and empirical. I’ll set out some background, and then briefly summarize these arguments below.

I’ll speak on this issue twice this summer: at the AALS Midyear Meeting in San Diego on a panel with U.C. Davis' Kevin Johnson (editor of the essential ImmProf Blog), and at the Law and Legal Education in the Americas Conference at University of Detroit-Mercy School of Law. Previously, I spoke about this at the University of the District of Columbia’s Expanding the Civil Right to Counsel: 50 Years After Gideon symposium, with the University of New Hampshire’s Erin Corcoran, and excellently moderated by UDC’s Kristina Campbell, director of their Immigration and Human Rights clinic. (Here’s a video link). I also submitted a comment to the ABA’s Task Force on the Future of Legal Education on the implications of non-lawyer representation on legal education. Thanks also to Linus Chan of DePaul’s immigration clinic, who informed my thoughts. DePaul does great work with accredited representatives in Chicago. Thanks also to Brooklyn Law students Mary Bruch, Molly Kammien, Timothy Poodiack, Elana Rodman, and Tung Sing Wong for excellent research assistance.

***

Background. The use and professionalization of U.S. non-lawyer immigration accredited representatives is growing, as advocates seek to increase immigrants’ access to justice. (See Erin Corcoran’s and Careen Shannon’s work). In the U.S., non-lawyers currently provide fairly full legal services in civil immigration proceedings—essentially, everything except an appeal to the federal Circuit. The Board of Immigration Appeals (“BIA”) authorizes over 1,200 “accredited representatives” to represent noncitizens on behalf of “recognized organizations” before the Department of Homeland Security and the Executive Office of Immigration Review (“EOIR”).

The BIA accreditation system essentially encourages on-the-job learning through apprenticeship. To qualify for recognition by the BIA, a non-profit organization may charge no more than nominal fees for immigration services, and must “[have] at its disposal adequate knowledge, information and experience.” Once recognized, an organization may sponsor its employees for accreditation if they demonstrate “good moral character” and “experience and knowledge of immigration and naturalization law and procedure.”

From an access to justice perspective, the question is whether non-lawyers are better than no representation, or whether, as Careen Shannon noted, non-lawyers may “do more harm than good.” Public interest advocates have generally favored non-lawyer representation—in part in reaction to the traditional economic protectionism of the lawyers’ bar, and in part to increase access to justice for the indigent unrepresented. James Greiner and Molly Jennings described the latter rationale as “the idea that every little bit helps, and each little bit helps a little more.” Yet “[p]erhaps, like a small dose of antibiotics, a small amount of lawyering can be ineffective, or even harmful….”

At times, accredited representatives have indeed acted inadequately or negligently. For example, the infamous “Father Bob” Vitaglione took on 761 cases at once, hundreds in which he failed to show or showed up unprepared. U.S. scholars have thus recently emphasized enhanced licensing standards and oversight to encourage higher professionalism and skill in non-lawyer representation. Careen Shannon proposed a model unauthorized practice-of-law statute that would, inter alia, define the practice of immigration law and who can engage in it, strengthen enforcement provisions, encourage BIA accreditation, and establish a trust fund to fund training for accredited representatives. Shannon also suggested a “competency exam” similar to a bar exam, and ongoing training similar to CLE training, in addition to the existing requirements. Erin Corcoran highlighted the BIA requirement that a qualified organization must nominate an individual representative, so as to provide extra layer of oversight over and above an immigration law test.

Thus, U.S. non-lawyer immigrant representation is moving towards the model in place in Canada, the U.K., and Australia. Each has regulated immigration non-lawyer representation, with standards governing practice (for example, ethical rules and requirements of indemnity insurance); oversight mechanisms, such as disciplinary proceedings; and professional organizations, similar to bar associations. (Nor is the U.S. trend towards non-lawyer representation limited to immigration law. For example, Social Security disability and patent and trademark hearings also provide regulated non-lawyer representation, as Erin Corcoran pointed out.)

Constitutional Questions. Constitutionally, the Court will consider whether immigrants (particularly detainees) have a right to counsel. The cases are coming. The ACLU recently hired a Fellow to “help establish a right to appointed counsel for immigration detainees.” And at least for lawful permanent resident noncitizens, it is settled they possess due process rights.

These cases will also raise the sub-question whether nonlawyers suffice for due process. The U.S. Supreme Court has essentially sanctioned non-lawyer representation as a potential “middle ground” between no and full representation, in civil Gideon cases which deprive one of liberty. Recently, in Turner v. Rogers, 131 S. Ct. 2507 (2011), the Court allowed that a non-lawyer social worker might suffice for due process in a civil contempt proceeding—but in a way that opened the door to wider use of non-lawyer representation.

Previously, the Court had sanctioned specialized non-lawyer representation, such as a medical professional, where the particular factual issues were specialized rather than general. Thus, in Vitek v. Jones, 445 U.S. 480, 499-500 (1980), the concurring fifth vote sanctioned specialized non-lawyer representation in psychiatric commitment hearings (i.e. a mental health professional). In Washington v. Harper, 494 U.S. 210 (1990), the Court extended this reasoning to hearings regarding forced medication of mentally disordered prison inmates. But the Turner Court extended this rationale to factual issues more generally, in suggesting that a social worker might suffice to assist the “straightforward” factual determination of indigence.

U.S. immigration proceedings, in which professionalized non-lawyers already practice, may be a candidate for this new middle ground. As I, Ingrid Eagly, Kevin Johnson, and Laura Abel point out, Turner v. Rogers may well support a right to counsel for immigration detainees. Immigration removal proceedings deprive liberty through detention and deportation. And unlike Turner and Vitek, immigration proceedings often involve incredibly complex legal questions, with Government counsel on the other side unlike Turner. That said, the potential politicization of a ruling that provides counsel to immigrants may be the strongest motivation for a “middle ground” approach of non-lawyers. (The Court’s decision not to retroactively extend Padilla v. Kentucky may have been motivated more by politics than law. Denver’s Christopher Lasch suggested as much on this blog.) And practically, if non-lawyers are already practicing in immigration court, the precedent has been set.

The Court may consider the nuances of non-lawyer representation and due process. For example, even though immigration proceedings typically involve much evidence, there are few formal evidentiary rules—which, among other things, may raise the question as to which lawyers’ skills are necessary to ensure due process. (I.e. having taken Evidence in law school, or the ability to test evidence in court?)

Pedagogical Questions. More broadly, the Court’s question might be: If the salient difference between lawyers and non-lawyer representatives is law school, then what does law school add that ensures due process? Or, another way: Does legal education provide value to representation that apprenticeship does not? How much value, regarding what skills? Pedagogically, these questions are old, but constitutionally, they are new.

Pedagogically speaking, the answers to these questions will have profound implications at this time of intense debate regarding the value of law school. If a future Court constitutionally sanctions the current practice of non-lawyer accredited representatives, even in immigration proceedings involving complex legal and evidentiary issues, that might essentially invite a return to the apprenticeship model of legal training and de-emphasize the value of law school. After all, if one desiring to represent immigrants can do so by working for an immigration services organization, without law school debt—why law school?

That said, the development of pedagogically sound skills-based legal education, spurred by the Carnegie report, may train better lawyers today in a way that mere apprenticeship could not, and traditionally did not. For example, the recent trend towards teaching client-centered lawyering, through pedagogically sound experiential and clinical education, may give law school graduates training in advising clients that apprenticeship could not. Law school clinics, given their traditional social justice mission, could also provide specified training to future immigration lawyers—i.e. “soft” skills beyond legal analysis—in a way apprenticeship historically did not.

As these observations suggest, the difference between lawyers and non-lawyers may not be so much “knowing the law,” i.e. traditional legal analysis of statutes. Most lawyers might not know “the [immigration] law” anyway. After all, law schools don’t require immigration law. Even if a lawyer took Immigration I, that could hardly prepare that lawyer for the incredible complexities of applying immigration law to facts in actual practice. Rather, anecdotally, the difference between lawyers and non-lawyers seemingly owes more to inculcated cultural, professional, and ethical norms of being a lawyer. Lawyers, it seems, more often give more complete answers covering all possibilities and satisfying ethical norms, rather than simply giving a solitary answer. Those skills could be learned through apprenticeship. But it’s possible as well that skills-based education, with pedagogically developed self-reflection, teaches those skills better today.

Back to legal education. So, as I put it in March to a room of University of District of Columbia law students: What parts of your legal education made you a better lawyer today than when you entered law school? And what parts are necessary to effectively represent a client in court, to a minimum standard of due process? Was it learning legal analysis? Oral argument? Taking Evidence and learning the Federal Rules, or learning how to test evidence upon cross-examination in your clinical course? Learning how to counsel clients and resolve ethical questions in your clinic or internships? When did you learn that skill – upon doing, or reflecting?

And as legal education moves away from a one-size-fits-all model, could legal education short of three years do the trick, in the Court’s eyes? Some schools are already incorporating two-year J.D.’s. Could a specialized one-year “immigration J.D.,” skills training, and passage of an “immigration bar exam” suffice for due process, even if non-lawyer representation does not?

Empirical Questions. To inform these constitutional and pedagogical questions, there is a real need for empirical research to begin to define and test the adequacy of non-lawyer representatives and legal education programs to train them. Put simply, empirical research is needed as to whether non-lawyers can perform as well as lawyers in immigration proceedings, and which proceedings, in what ways. I.e. of the “three A’s” of lawyers’ skills—analysis, advocacy, and advice—which non-lawyers perform just as well without law school, and which they do not.

Quantitative empirical analysis of outcomes in immigration proceedings—i.e. comparing success rates for those represented by lawyers versus non-lawyers—is an essential first step to test the adequacy of professionalized non-lawyer representation. Recent studies, such as Judge Robert Katzmann’s New York Immigrant Representation Study, have made it clear that representation matters greatly to success in immigration proceedings, at the least. It is surprisingly unclear, though, whether and how much non-lawyer representation matters compared to traditional lawyer representation and pro se attempts to litigate. No one yet has studied whether a non-lawyer accredited representative wins as much in immigration court as a lawyer. (In the Social Security context, as Erin Corcoran noted, older empirical data showed little difference in the success rate for clients represented by a non-lawyer versus a lawyer.)

Secondly, delineation of the lines described above—i.e. which cases require “lawyer’s skills,” and which skills a non-lawyer specialist might capably perform—may be more achievable through long-term qualitative research. This research would follow Laura Abel’s suggestion to conduct “process analysis,” and go beyond traditional access-to-justice research on case outcomes to more specifically research “the tasks involved in litigating a particular case.” Such research might be achieved through more neutral observational vehicles.

Once these empirical questions are answered, further empirical research may inform legal educators’ questions as to whether and how to provide the “limited license” programs described above—i.e. a specialized one-year “immigration J.D.” Legal educators might seek preliminary answers to some of these questions by conducting empirical research on immigration accreditation programs (or others), along the lines of the research proposed above.

*** This will be my last post of my guest blogging stint for now. Thank you, César, for giving me this opportunity. It’s great to contribute.

While I have a public forum, I’d like to thank as well the Brooklyn Law students in my inaugural Constitutional Civil Rights and Immigration seminar. These students— Setenay Akdag, Venus Bermudez, Scott Foletta, Gillian Kosinski, Beile Lindner, Erin McKeever, Ari Rosmarin, Svetlana Turova, Rachel Weissman, Tung Sing Wong, Linda Yu, and Liat Zudkewich—considered the most contentious and difficult issues in civil rights and immigration today, and produced a set of groundbreaking papers that push the boundaries of the debate even further. Their papers examined topics like interdisciplinary “crimmigration” and “fammigration” courts; the impact of Secure Communities on domestic violence and school policing; comparisons of detention to international human rights law, or modern immigration law to Jim Crow; and the constitutionality of drivers’ licenses for DACA recipients, inadequate translation in immigration proceedings, poor religious dietary access in detention, deportation for probation violations, English-only laws, and relitigation of criminal facts in immigration courts. As I told them all, teaching a class with students like them in it is what made me want to be a teacher. Thank you all.

Mark Noferi teaches immigrants’ rights and legal writing at Brooklyn Law School.

Mark Noferi and Robert Koulish

[Ed. Note: Today, Mark Noferi is joined by Professor Robert Koulish, a political scientist in the Department of Government and Politics at the University of Maryland who also teaches immigration law at Maryland’s Carey School of Law. Professor Koulish’s most recent book is “Immigration and American Democracy: Subverting the Rule of Law,” in which he examined immigration control as a laboratory for post-9/11 expansion of U.S. executive power, and he is co-editing “Immigration Detention, Risk and Human Rights—Studies on Immigration and Crime” (2014 release). His recent article is “Entering the Risk Society: A Contested Terrain for Immigration Enforcement,” published in the volume Social Control and Justice. Along with Professor Noferi, and other law professors and social scientists, he is a member of the CINETS Crimmigration Control international research consortium, founded by Juliet Stumpf and Maria João Guia.

Together, Professors Koulish and Noferi are studying Immigration and Customs Enforcement’s (ICE’s) use of its new automated risk assessment tool. They discussed the issue in Baltimore Sun and Newark Star-Ledger op-eds, and will discuss further in forthcoming pieces under review.]

***

If S. 744 passes, DHS has an opportunity to significantly reduce unnecessary over-detention of immigrants. DHS will make an “individualized determination” perhaps further, support outright repeal regarding detention for all. For those mandatorily held under INA § 236(c) for certain prior crimes, DHS will have explicit authority to place those individuals into “custody” rather than detention, “custody” now interpreted to include electronic tracking bracelets. For those discretionarily held under INA § 236(a), bond hearings must be provided within a week. At these hearings, DHS will have to demonstrate to an immigration judge that "no conditions, including ... alternatives to detention" will "reasonably assure" appearance at hearings and public safety. DHS will have to establish alternatives to detention that provide a "continuum of supervision,” including community support, case management, and appearance assistance services. DHS will be required to review an individual’s level of supervision monthly, and detainees will receive a custody review at least every 90 days.

Left unspoken in S. 744, however, is the process that will underlie DHS’ “individualized determination”—risk assessment. On March 19, ICE Director John Morton announced to Congress that ICE had deployed nationwide its new automated “Risk Classification Assessment” tool. Using this computerized tool—akin to a “point system”—ICE will collect information about an immigrant; ask its databases for a recommendation as to risk of flight or to public safety; and based on that recommendation, decide whether to detain or not. We think the information collected will include criminal history, family history, community ties, and vulnerabilities such as disability or crime victim status.

Risk assessment has drawn bipartisan support for its utility in criminal bail recommendations, especially in reducing cost. As Rep. Spencer Bachus (R-Ala.) recently asked Morton, “Are you overusing detention? Why don’t you do a risk assessment?” Alternatives to detention cost a tenth of detention or less—$14 per day as opposed to $164. Helpfully too, ICE's systems can produce statistical reports and trend analysis of its risk assessments to "better assess situations where [noncitizens] with similar characteristics seem to have different detention outcomes."

Thus, ICE risk assessment data has the potential to empirically support S. 744’s proposed reforms to reduce detention, and further reforms (as we wrote in the Baltimore Sun). First, ICE's risk practices and data may support ending mandatory detention. Risk data might show that individualized release determinations would not appreciably increase risk of flight or danger, especially regarding detainees with U.S. family ties. It may support S. 744’s revision of mandatory detention into mandatory “detention or custody,” and perhaps further, support outright repeal of mandatory custody altogether.

Second, ICE's risk practices and data may help Congress reform ICE's over-detention relative to U.S. criminal systems. For example, NYU’s Insecure Communities report found that in New York from 2005 through 2010, 80 percent of ICE arrestees were denied bond, with fewer than 1 percent released with no bond. By comparison, in criminal cases continuing past arraignment, 1 percent of defendants were denied bail, with 68 percent released with no bail. Congress should provide that DHS and immigration judges consider clear criteria regarding flight or danger, as criminal judges do, based on the risk data ICE now collects. Moreover, at the very least, individualized risk assessments should negate any need for Congress to continue its “bed quota” requiring 34,000 detainees at any one time (as the New York City Bar also advocated).

Third, comprehensive, accurate risk assessments should help reduce the severity of ICE detention. Dora Schriro, author of ICE's 2009 oversight report on detention, called immigrant detainees "appreciably different" from criminal detainees—often with intact families and jobs, well-developed life skills and nonviolent conduct. Yet, as the American Bar Association documented, immigrants largely remain in facilities "designed to hold criminal offenders," many actual jails. Even ICE's new civil detention standards are still modeled after jail standards. The ABA's model immigration detention standards provide a forward-thinking blueprint for both less and less restrictive detention, tailored to civil immigrant detainees. Congress should adopt the ABA standards into law (as the New York City Bar also advocated).

Yet risk assessment, along with its potential to support reform, poses potential concerns. Transparency is one (as we wrote in the Newark Star-Ledger). ICE has not released its risk assessment criteria. So, as things stand, ICE’s computers now determine immigrants’ liberty based on secret algorithms, which ICE officers must presumptively follow. There appears “no opportunity for immigrants to change or review information,” as New York City Bar wrote. All the more concerning, human rights advocates previously criticized the risk assessment tool for being weighted toward over-detention. If the risk tool says all immigrants are risky, detention reforms will be for naught. Since ICE refuses to release information related to RCA algorithms, it is unclear how risk will be measured, which variables will be used and how they will be weighted. Further, without having access to the risk assessment summary the immigration judge will have no evidentiary basis for a bond hearing. Congress should require immediate disclosure of ICE's risk assessment criteria, and require that the risk assessment summary, currently placed in DHS' file on an immigrant (the "A-File"), be reviewed in immigration court (as City Bar recommended as well).

Additionally, Congress should require ICE to publicize its statistical reports analyzing its new risk assessment practices (as S. 744 Section 3716 requires DHS to publicize other detention oversight activities). These reports could help prevent not only overuse of detention, but overuse of the most restrictive alternatives to detention. Immigrants in tracking bracelets are “freed but not free,” as a recent Rutgers-Newark School of Law study found. Restrictive alternatives should be reserved for the higher-risk, not expanded to nonviolent, long-time residents who should simply be released.

More broadly, the introduction of risk assessment technologies, without concomitant changes to laws requiring mandatory custody or practices resulting in over-detention, may facilitate a societal transformation from mass detention of immigrants to mass supervision. Alternatives to detention may garner wide public support, since the risk decision is purportedly neutral and computerized, and tracking bracelets are relatively cheap. But they also create additional risk for immigrants and society alike. A new risk assessment frame for immigration enforcement will increase the capacity for social control. While more immigrants may be freed from incarceration, for example, they will hardly be free under electronic or community supervision. This future “risk society” raises separate civil liberties concerns and societal inquiries, which we plan to address in forthcoming work.

Mark Noferi

Yesterday, I highlighted the New York City Bar Association immigration committee’s advocacy for universal appointed counsel in immigration proceedings, as well as City Bar’s analysis of Senate Judiciary Committee amendments that would roll back the limited right provided by S. 744. (City Bar’s April 24 letter supporting appointed counsel is available here, and its statement here).

Today, I’ll highlight City Bar’s advocacy for reduced detention, and its analysis of amendments that, similarly, roll back the advances provided by S. 744. (City Bar’s second letter supporting reduced detention is available here). As yesterday, although I summarize here some of City Bar’s positions, I speak in my personal capacity.

***

S. 744, while not dismantling the current system of immigration detention and deportation, took some significant steps to reduce over-detention, as César and myself previously summarized. S. 744 effectively revised mandatory detention without bail, for those with certain prior offenses, into mandatory “detention or custody,” now allowing alternative forms of custody like tracking bracelets. (This would overturn DHS’ interpretation that “custody” requires incarceration, despite opposing authority in criminal law.)

More generally, S. 744 encouraged alternatives to detention such as community-based supervision; provided important due process protections, such as timely bond hearings; and required additional, much-needed oversight and transparency over DHS detention facilities, whether publicly or privately owned. All these reforms would make civil immigration detention more humane, more fair, more cost-effective—and most importantly, there would be less of it. As the City Bar said, citing crImmigration.com, “if the term ‘civil’ detention means anything, it is that ICE should detain not just better, but less.” For those reasons, City Bar urged Congress to repeal mandatory detention or custody entirely, as other organizations repeatedly have.

Subsequently, Senator Charles Grassley (R-IA) proposed three amendments— 47, 51, and 53—that would collectively strike these reforms and reinstate and expand over-detention. Sen. Grassley’s Amendment 47 would entirely strike Section 3717, which provides due process protections such as bond hearings and time limits on detention. Amendment 51 would entirely strike Section 3715, which encourages alternatives to detention. And Amendment 53 would replace these sections with expanded detention, regardless of flight or safety risk.

Reading Amendment 53’s provisions is like inhabiting a parallel universe, in which the current detention system’s worst abuses are considered problems that more detention should fix. Under Amendment 53, mandatory pre-hearing detention would explicitly have no time limits, and apply no matter how long ago an individual completed criminal custody. (Needless to say, mandatory detention would also apply no matter how long one lived in America or whether one had a green card, job, or family.) For discretionary detention decisions, the burden on immigrants to prove their release would worsen, to “clear and convincing evidence.” (S. 744, conversely, shifted the burden to the government to detain, only if “no conditions including… alternatives to detention” would “reasonably assure” appearance at hearings or public safety). Moreover, Amendment 53 explicitly eliminated any ability of immigration judges to review custody status. And Amendment 53 expands mandatory detention after a removal order, as well.

Amendment 53 flies in the face of bipartisan support for detention reform. Nine in ten Americans, of all parties, support a “time limit on how long someone can be held in jail for immigration violations before they see a judge.” Conservative activist Grover Norquist and Rep. Spencer Bachus (R-AL) have questioned whether DHS is over-detaining immigrants. As Rep. Bachus asked ICE Director John Morton, “If these people are not public safety risks, if they are not violent, if they don’t have a criminal history, if they are not repeat offenders, if they’re going to show up for proceedings, why are they detained at all?” Indeed, Rep. Bachus went further: “Are some of those [immigrants] mandatory detentions that [ICE] could recommend to Congress that they not be?”

Moreover, Sen. Grassley’s amendments are likely unconstitutional. Unlimited detention without any judicial review violates due process and fundamental American presumptions of liberty, and raises “serious constitutional concerns,” as the U.S. Supreme Court ruled in Zadvydas v. Davis, 533 U.S. 678, 682 (2001). Lawsuits are already underway to challenge the harshest provisions of Amendment 53: prolonged detention without a bond hearing, the high burden already placed on immigrants to be released, and mandatory detention of those with convictions completed long ago. Undoubtedly more will follow if Amendment 53 is passed. City Bar opposed these Amendments.

Additionally, Sen. Jeff Sessions (R-AL) proposed an amendment (Sessions 12) to increase the bond minimum, from $1,500 to $5,000, to non-Mexican and non-Canadian immigrants (such as asylum seekers) who have not been admitted or paroled, and who are either 1) apprehended within 100 miles of the border or 2) present a “flight risk” as determined by ICE.

City Bar opposed this amendment as well. High bail is unfair to those without money. As the Justice Policy Institute wrote, the “ability to pay money is neither an indicator of guilt nor of risk, and means people are not properly screened for more rational measures of public safety.” Immigration bonds already are unnecessarily high—and far higher than those for criminal defendants, even though immigrants are less dangerous. For New York ICE arrestees, 75% of bond settings are $5,000 or more, and 35% are $10,000 or more. 55% of those ICE arrestees were unable to pay, and one in five of those have children. Conversely, for New York criminal pretrial detainees, 80% of bond settings are $1,000 and below. (These statistics come from the study “Insecure Communities,” authored by the NYU Immigrants’ Rights Clinic, the Immigrant Defense Project, and Families for Freedom.) Indeed, in City Bar’s initial letter, City Bar proposed to entirely eliminate the current $1,500 artificial immigration bond minimum, and make bond determinations more like the criminal system, where judges review bond under clear criteria without artificial restrictions.

As part of a transparent bond review process, City Bar also supported risk assessment as having “promise to reduce over-detention.” That said, City Bar noted that currently, “ICE appears to be making computerized determinations regarding immigrants' liberty based on a secret algorithm with no opportunity for immigrants to change or review information.” City Bar recommended immediate disclosure of ICE's risk assessment criteria, and that risk assessments be reviewed in immigration court. Robert Koulish, a University of Maryland political scientist, and I are writing about the promises and dangers that risk assessment poses (most recently, in the Baltimore Sun and Newark Star-Ledger). We’ll continue this conversation tomorrow.

Mark Noferi teaches immigrants’ rights and legal writing at Brooklyn Law School.