Tag Archive for: Asylum Seekers

David Isaacson

Lock Up Falsely Arrested Adjustment Applicants and Teenage Shoplifters, or Be Sued: the House’s “Laken Riley Act”

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On March 7, 2024, the Republican-led U.S. House of Representatives passed the “Laken Riley Act”, H.R. 7511. The bill was named after a murder victim from Georgia, whose “alleged murderer”, as the bill describes him, had been paroled into the United States from Venezuela and had previously been arrested for driving a scooter without a license (with a child who was not wearing a helmet) and for shoplifting. The bill describes its primary purpose as “To require the Secretary of Homeland Security to take into custody aliens who have been charged in the United States with theft”.

Perhaps because the Laken Riley Act has little chance of passing the Senate or becoming law, there has been little public analysis of its details, although its initial passage by the House was covered by major media such as the New York Times and CNN. At least one press release has correctly observed that “Under the Laken Riley Act, a Dreamer who lives in a hostile state could be subject to indefinite detention simply because someone says they suspect them of a petty crime.” As it turns out, however, some of the details are even worse than that press release suggests.

The text of the Laken Riley Act would add a new paragraph (1)(E) to the list of those subject to mandatory detention during removal proceedings in INA § 236(c), 8 U.S.C. § 1226(c), covering “any alien who . . .

(i) is inadmissible under paragraph (6)(A), (6)(C), or (7) of section 212(a), and
(ii) is charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, or shoplifting offense,”

H.R. 7511, § 3(1). It would require that “The Secretary of Homeland Security shall issue a detainer for an alien described in paragraph (1)(E) and, if the alien is not otherwise detained by Federal, State, or local officials, shall effectively and expeditiously take custody of the alien.” Id. § 3(3). In addition, it would allow lawsuits by “The attorney general of a State, or other authorized State officer” to file lawsuits challenging the release of aliens in alleged violation of INA § 236 and various other sections of law relating to immigration. Id. at § 4(a.)-(f.).

The most obvious problem with this new language would be that, as the above-quoted press release flagged, it does not require a conviction, only that one be “charged with” or “arrested for” the crimes in question. Mandatory detention following an arrest or charge that need not even lead to a conviction would be bad enough if it only applied to people who one would otherwise reasonably expect to be placed in removal proceedings, since even they are entitled under the Constitution to due process of law—and there has been at least one recent and notorious incident of an asylum-seeker being accused of a more serious crime than shoplifting before being exonerated. But for reasons that may be less obvious, the Laken Riley Act would go significantly farther even that that.

One problem is the breadth of the inadmissibility grounds which, together with any charge or arrest for burglary, theft, larceny or shoplifting, would trigger the mandatory detention. The reference to one “inadmissible under paragraph (6)(A). . . of section 212(a)” would cover anyone who entered without inspection, even if they have since been, for example, granted asylum, at least as the law has been interpreted by the Board of Immigration Appeals. INA § 212(a)(6)(A)(i) states that “An alien present in the United States without being admitted or paroled . . . is inadmissible”, and the BIA held in Matter of V-X-, 26 I&N Dec. 147 (BIA 2013), that a grant of asylum is not an “admission” for these purposes, leaving asylees subject to the grounds of inadmissibility (although with the proviso that they cannot be removed unless their asylum status is terminated). That scenario would at least bear some distant, tenuous resemblance to the cases that the authors of H.R. 7511 presumably thought they were trying to address, although the thought of an asylee, granted permission to stay in the United States for safety from persecution, being subject to mandatory detention due to potentially false charges of theft or shoplifting, is nonetheless horrifying. But the reach of H.R. 7511’s cited grounds of inadmissibility is even broader, and stranger, than this.

The ground of inadmissibility under INA § 212(a)(7), which applies to documentation requirements such as having a proper immigrant or nonimmigrant visa or passport, was presumably included in the Laken Riley Act order to capture parolees, as Laken Riley’s alleged murderer had been paroled into the United States. While the bill’s authors may have had in mind those who first arrive in the United States on parole, however, the language of the bill is broad enough to cover those who use advance parole to leave and re-enter the United States while they have a pending application for an immigration benefit, most commonly an application for adjustment of status to that of a Lawful Permanent Resident (green card holder). They, too, will upon their return be technically inadmissible for lack of an immigrant visa, until their applications for adjustment of status are granted, and so INA § 212(a)(7) is the ground of inadmissibility under which they would be charged if placed in removal proceedings. Under the Laken Riley Act, therefore, an applicant for adjustment of status who travels on advance parole, and is later incorrectly charged with or arrested for theft or shoplifting, would need to be detained by immigration authorities until the completion of those removal proceedings. If visa numbers had become unavailable since the filing of that adjustment application (what is commonly known as “retrogression”), the proceedings could potentially drag on for years until a visa number became available again, and during all of that time, the Laken Riley Act would mandate detention of the adjustment applicant.

Another problem with the structure of the Laken Riley Act is that while a “conviction” under immigration law has been defined to exclude many juvenile delinquency proceedings, as explained by the BIA in Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), there is no such case law regarding an arrest or charge, nor does the text of the Laken Riley Act include any such carve-out. Thus, the Laken Riley Act would apparently subject even a teenager charged with shoplifting under juvenile delinquency procedures to mandatory immigration detention, if that teenager had previously entered without inspection or traveled on advance parole, and had not yet become a Lawful Permanent Resident.

It gets worse. If state authorities had not considered it worthwhile to detain the falsely accused adjustment applicant or teenage shoplifter while sorting out a minor criminal charge, section 3(3) of the Laken Riley Act would mandate that DHS “effectively and expeditiously take custody of the alien.” And if DHS did not do this, according to section 4(b) of the Laken Riley Act, the attorney general of any state that could claim at least $100 in damage could sue them “to obtain appropriate injunctive relief.” So an attempt by DHS to be somewhat reasonable in enforcing these overly broad criteria under unjust circumstances would simply lead to litigation, and possibly a court order to more rigorously enforce the Laken Riley Act’s peculiar requirements.

The author’s own Representative in Congress, Jerrold Nadler, was quoted by CNN as having described the actions of Republicans in putting forward the Laken Riley Act as “exploiting [Laken Riley’s] death for a partisan stunt” and “throwing together legislation to target immigrants in an election year.” That description appears accurate. The legislation having been thrown together hastily, to exploit Laken Riley’s tragic death for partisan purposes, may help explain why the House would have passed legislation mandating the indefinite detention of falsely accused adjustment applicants and teenage shoplifters. But it does not excuse it.

Cyrus Mehta

Asylum Seekers are Legally in the US Notwithstanding the Political Stunts of Governors Abbott and DeSantis

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By Cyrus D. Mehta and Kaitlyn Box*

In a reprehensible political stunt, Governor Greg Abbott of Texas and Governor Ron DeSantis of Florida sent around 150 immigrants to liberal states by bus and plane last week. Some of these individuals were abruptly dropped out outside Vice President Harris’ residence in Washington, D.C., while others were transported to Martha’s Vineyard. These immigrants, many of whom had come from Central American countries, had recently presented themselves at the southern border to request asylum. Reports have emerged that some of the asylum seekers were promised that they would receive work authorization more easily if they agreed to be sent to one of these locations. Some individuals believed they were going to Boston, only to be transported to Martha’s Vineyard instead.

Abbott and DeSantis’ action caused untold harm, placing individuals who were already vulnerable in a situation that was undoubtedly terrifying. Many of the asylum seekers were dropped off on the side of the road with nowhere to stay and few possessions. Some individuals had not been given food for hours. Because some of the asylum seekers had been issued Notices to Appear for immigration proceedings in Texas, Abbott and DeSantis effectively ensured that these individuals would have more difficulty attending their court dates by transporting them to a different part of the country. They also risk missing their court dates and be subjected to in absentia removal orders.

The governors’ cruelty stands in sharp contrast to the warm welcome the asylum seekers were given by the communities in Martha’s Vineyard and other locations. Individuals and community organizations rallied to provide the immigrants with food, clothing, and shelter. Immigration attorneys have also sprung into action to provide legal services. This heartwarming response illustrates that most Americans, unlike Abbott and DeSantis, want to welcome and support immigrants.

Though the asylum seekers who unwittingly become pawns in Abbott and DeSantis’ stunt happily found safety and compassion in the communities they were dropped into, this ploy was, at the very least, inhumane and could carry legal consequences for the two governors. California Governor Gavin Newsom has asked the Justice Department to investigate whether fraudulently inducing the asylum seekers to be transported across state lines could support charges of kidnapping under state law. Deliberately lying to and misleading vulnerable people could also render Abbott and DeSantis liable for fraud or severe emotional distress under the relevant state laws. It has even been suggested that luring the asylum seekers onto planes and buses with the false promise of work could constitute labor trafficking. Recently obtained documentary evidence confirms that idea that the asylum seekers were lured to Martha’s Vineyard and other locations with false promises. Lawyers for Civil Rights (LCR), a Boston-based legal organization that represents some of the asylum seekers, provided a brochure that was given to some migrants. The brochure erroneously states that the asylum seekers who were sent to Massachusetts would be eligible for numerous benefits, including “8 months cash assistance,” “assistance with housing,” “food,” “clothing,” “transportation to job interviews,” “job training,” “job placement,” “registering children for school,” and “assistance applying for Social Security cards”.

At first blush, one may also wonder whether the governors have violated INA § 274(a)(1)(A)(ii), which imposes severe criminal penalties on persons for knowingly or in reckless disregard transporting a noncitizen who has come to, entered, or remains in the US in violation of law. However, invoking this provision may be less than helpful, as it pertains only to individuals who have come to, entered, or remained in the U.S. in violation of law, and thus feeds into the narrative that asylum seekers like the ones transported by Abbott and DeSantis are in the United States “illegally”. It is important to recognize that it is not illegal for individuals to enter the United States to seek asylum. These individuals were lawfully released into the United States to pursue their asylum claims after an initial interview and processing by the Department of Homeland Security at the border. The asylum seekers involved in this situation did nothing wrong by seeking protection under U.S. asylum laws. Rather, it is Abbott and DeSantis who engaged in a despicable, and possibly illegal, act.

It is clear that the poisonous attitudes of Trump, who catapulted himself to the presidency while calling migrants “criminals” and “rapists”, are now being borrowed by his apprentices like DeSantis and Abbott as a ploy to whip up anger against Democrats prior to the midterm elections. This strategy is unlikely to succeed as the American tradition of welcoming immigrants remains robust, as demonstrated by the Martha’s Vineyard community. While the pathway for people seeking asylum should remain, our immigration laws need to be radically overhauled to provide more pathways for people to come to the U.S. legally to work and to unite with family members. Asylum should not be the only option for those seeking to come to the U.S. If asylum is the sole option, the system will get overburdened as it has already and will also encourage spurious claims, which in turn undermine genuine claims of persecution.  Both Democrats and Republicans need to work together in order to forge new pathways for immigration.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

AG Barr Cannot Ignore the Constitution: The AG’s Latest Attack on Asylum Seekers in Matter of M-S-

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By: Sophia Genovese*

The Attorney General cannot selectively choose when to apply the rule of law. Yet when it comes to immigrants, the government feels emboldened to ignore the constitutional protections that are afforded to immigrants.

In his most recent self-certification, Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019), the Attorney General unilaterally decided that asylum seekers who entered without inspection and who have been found to have a credible fear of persecution or torture are ineligible for release from detention on bond. Notably, in footnote 1, AG Barr proclaims “[t]his opinion does not address whether detaining transferred aliens for the duration of their removal proceedings poses a constitutional problem, a question that Attorney General Sessions did not certify and that is the subject of ongoing litigation.” 27 I&N Dec. at 509. In addition, because the ruling affects a “sizeable population” of asylum seekers, and also because it would have a significant impact on detention operations, the Attorney General ordered his ruling to take effect 90 days after his order, which falls on July 15, 2019. Id. at note 8.

Matter of M-S- overruled Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), which held that an asylum seeker who is initially placed in expedited removal proceedings under INA § 235(b)(1)(A), but who then is placed in INA § 240 proceedings after a positive credible fear determination, is eligible for a bond hearing before an Immigration Judge. Matter of X-K- did not apply to “arriving aliens,” i.e. those individuals who presented at a port of entry and claimed asylum; instead, it applied to the class of foreign nationals who have entered without inspection and who have been present for fewer than 14 days within 100 miles of the border. In Matter of X-K-, the Board found that Immigration Judges have custody jurisdiction over foreign nationals in INA § 240 proceedings, “with specifically designated exceptions” as outlined in 8 C.F.R. § 1003.19(h)(2)(i). 23 I&N Dec. at 731. Because 8 C.F.R. § 1003.19(h)(2)(i) does not exclude asylum seekers who are placed in INA § 240 proceedings after a positive credible fear determination, the BIA concluded that Immigration Judges have jurisdiction over their bond proceedings.

The main bone of contention in Matter of M-S- is one of statutory interpretation. In Matter of X-K-, the Board explained that, “the Act provides for the mandatory detention of aliens who are being processed under section 235(b)(1) proceedings ‘pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.’” 23 I&N Dec. at 734. The BIA reasoned that because the regulations are silent on the bond eligibility of asylum seekers after there has been a final credible fear determination, authority over custody re-determinations vests with the Immigration Judge since the asylum seekers are placed INA § 240 proceedings and because they do not fit under any of the exceptions outlined in 8 C.F.R. § 1003.19(h)(2)(i).

The AG in Matter of M-S-, in contrast, looks to INA § 235(b)(1)(B)(ii), which states that, if it is determined that an asylum seeker possesses a credible fear of persecution “the alien shall be detained for further consideration of the application for asylum.” 27 I&N Dec. at 510. The AG reasons that the plain language of the Act provides for the mandatory detention of asylum seekers, but that they remain eligible for release on humanitarian parole under INA § 212(d)(5)(A). Id.

Although the BIA does not opine on constitutional matters, it cannot issue unconstitutional rulings. The Attorney General’s ruling in Matter of M-S- runs afoul of the Fifth Amendment of the US Constitution. Although asylum seekers will still be eligible for release on humanitarian parole under INA § 212(d)(5)(A), the standards are far different than bond eligibility where the asylum seeker must demonstrate that their parole is for urgent humanitarian reasons or significant public benefit. This is distinct from, and far more limited than, parole eligibility for arriving aliens under ICE Directive 11002.1, “Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture.” As a reminder, under Matter of Guerra, 24 I&N Dec. 37 (BIA 2006), the BIA interpreted INA § 236(a) to require an asylum seeker to establish that he or she does not present a danger to others, is not a threat to the national security, and is not a flight risk in order to be released on bond. As a result of Matter of M-S-, far fewer asylum seekers will be able to obtain release from detention.

Padilla v. ICE

After then-Attorney General Sessions referred Matter of M-S- to himself, but before AG Barr rendered his decision, the United States District Court for the Western District of Washington issued a preliminary injunction in Padilla v. US Immigration & Customs Enf’t, No. C18-928 MJP (W.D. Wash. Apr. 5, 2019). The Honorable Marsha J. Pechman ordered that by May 5, 2019, the EOIR must conduct bond hearings for class members (defined as all detained asylum seekers who entered the US without inspection, were initially placed in expedited removal proceedings, and who were determined to have a credible fear of persecution) within seven days, and place the burden of proof on DHS in those bond proceedings to demonstrate why they should not be released on bond, among other holdings. In so ordering injunctive relief, Judge Pechman found that Padilla and class members were likely to succeed on the merits, that they would suffer irreparable harm in the absence of the injunction, that a balance of equities favored the moving party, and that the injunction was in the public interest. Id. at 4.

Judge Pechman relied on Zadvydas v. Davis, 533 U.S. 678 (2001) and Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2019) in analyzing Padilla’s likelihood of success on the merits. In particular, she noted that “it has been long recognized that immigration detainees have a constitutionally-protected interest in their freedom” and that “freedom from imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’” Padilla at 6. Judge Pechman rejected the government’s arguments that the class was not entitled to due process under Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953), finding that Shaughnessy only applied to “excludable” immigrants. Id. Rather, she relied on United States v. Raya-Vaca, 771 F.3d 1995 (9th Cir. 2014) and Zadvydas in finding that “once an individual has entered the country, [she or] he is entitled to the protection of the Due Process Clause […] including their right to be free from indeterminate civil detention.” Padilla at 7.

Where Do We Go From Here?

Going forward, practitioners should first keep in mind the effective dates of both Padilla v. ICE and Matter of M-S-. The Padilla injunction takes effect on May 5, 2019, and accordingly, practitioners should fully argue their bond motions under such authority. Matter of M-S- does not take effect until July 15, 2019. However, practitioners should be prepared to remind Immigration Judges that basing their bond denials on Matter of M-S-, or ‘the spirit of Matter of M-S-,’ is inappropriate. Indeed, several practitioners have already reported that Immigration Judges have cited to Matter of M-S- as reason for bond denial, despite the fact that it would have been appropriate for the IJs to find that they do not have jurisdiction over such motions in light of the decision.

Second, even after July 15th (if there has not already been an emergency stay of the implementation of Matter of M-S- by then), practitioners should argue that Padilla supersedes Matter of M-S-. The Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) held that where there is an ambiguity in the law, courts should generally defer to the decisions of an executive agency charged with administering it. In so doing, courts must interpret the statute and the intent of Congress before engaging in deference. In Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), the Supreme Court held that a prior court’s construction of a statute that is in conflict with an agency’s ruling can only supersede the agency’s ruling if the statute in question is unambiguous. Additionally, under Murray v. Schooner Charming Betsy 6 U.S. 64 (1804), the Supreme Court held that statutes should be construed where possible to avoid conflict with international law.

Practitioners should seek to explain that Padilla is a nationwide injunction, and accordingly has greater judicial weight than a BIA case where this situation is distinguishable from Brand X. Moreover, in Matter of X-K-, although the BIA believed that there was a regulatory gap in jurisdiction over custody redetermination, it found that there was legislative history that suggested Immigration Judges do indeed have authority over bond proceedings. 23 I&N Dec. at 734; see also H.R. Conf. Rep. No. 104-828, at 209 (1996). One may also argue that INA § 235(b)(1)(A)(iii) unambiguously does not apply to asylum seekers who are not arriving aliens, as it refers to “certain other aliens,” and once they are placed in INA § 240 proceedings, they should eligible for bond. Furthermore, under Charming Betsy, one can argue that the detention of asylum seekers in the Padilla class runs afoul of international law, and deference to Matter of M-S- should not be given. See, e.g., Article 31 of the 1951 Refugee Convention (“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees…”); Articles 3 and 9 if Universal Declaration of Human Rights and Article 9 of the International Covenant on Civil and Political Rights (dealing with the fundamental rights to liberty). Practitioners should continue to ponder and challenge Chevron and even Skidmore deference to the Attorney General’s self-certified cases. In so doing, they may find the late Supreme Court Justice Antonin Scalia’s reasoning in his concurring opinion for Crandon v. United States, a criminal case, to be instructive:

[W]e have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference [… Prosecutors have an incentive] to err in the direction of inclusion rather than exclusion—assuming, to be on the safe side, that the statute may cover more than is entirely apparent […] Thus, to give persuasive effect to the Government’s expansive advice-giving interpretation […] would [replace] the doctrine of lenity with a doctrine of severity.

494 U.S. 152, 177-788 (1990).

Lastly, practitioners should continue to argue in their bond motions (and subsequent appeals) that Matter of M-S- violates the Fifth Amendment. Specifically, practitioners can argue that due process requires “adequate procedural protections” to ensure that the government’s justification for physical confinement “outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690–91; see also, Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010). Practitioners should also raise due process concerns where immigration detention has proven to be a major barrier to access to counsel, and where medical and mental healthcare in detention are subpar, which can have a substantial impact on one’s ability to prevail in their immigration proceedings (note, though, that practitioners may also want to seek humanitarian parole if their clients do have any sort of medical hardship in addition to seeking release on bond). Practitioners should be prepared to defend against the government’s assertions that Jennings v. Rodriguez, 583 U.S. __ (2018) allows for the indefinite detention of asylum seekers and that they are not eligible for release. Practitioners may wish to point out that Jennings v. Rodriguez is actually on remand for the Ninth Circuit to consider the plaintiff’s constitutional challenge to indefinite detention, which the Supreme Court did not address, and may also wish to point out that the case deals with a separate class of foreign nationals.

There is no shortage of battles to fight under Trump’s regime. However, practitioners should continue to come together and zealously fight these egregious and unlawful policies. Practitioners are encouraged to check with their local immigration law chapters and litigious nonprofits to ensure that each and every one of our clients is advocated for. If we have learned anything over the past several years, it is that immigration advocates, backed by the power  of the courts, will continue to uphold the law by ensuring that we provide safety and refuge to those fleeing persecution.

 

*Guest author Sophia Genovese is a Direct Services Attorney for the Southeast Immigrant Freedom Initiative (SIFI), a project of the Southern Poverty Law Center. Sophia works exclusively with immigrants and asylum seekers detained at the Irwin County Detention Center in rural Georgia. There, she represents immigrants in their bond and parole proceedings, as well as in their merits cases. Sophia previously worked as an Associate at Cyrus D. Mehta & Partners PLLC, where she gained critical insights into immigration law.