Tuesday, December 13, 2011

Coroleo update: overruled by Judulang v. Holder (U.S. Dec. 12, 2011)

In Judulang v. Holder (U.S. Supreme Court Dec. 12, 2011), the Supreme Court seems to have overruled the Third Circuit's 2007 ruling in Coroleo.

The BIA's view on when a legal permanent resident can use section 212(c) relief while being charged with a ground of deportability is invalid. Because the BIA's rule is arbitrary and capricious, the Supreme Court struck it down. I believe this overruled how the Third Circuit accepted the BIA's view in 2007 in Coroleo.

It is arbitrary to allow some people whose crime could trigger a ground of inadmissibility to seek section 212(c) relief but not others, based on the BIA's peculiar view of whether a ground of deportability has a comparable enough ground of inadmissibility to allow section 212(c) relief.

Wednesday, December 07, 2011

Diop: Mandatory Detention Limited To A Reasonable Period

In Diop v. ICE, the Third Circuit limited mandatory detention to a reasonable period. Sounds like a reasonable decision!

The ACLU has just come out with a practice advisory. You can find it at this link:

Below is an explanation by the ACLU about its advisory and Diop:

Prolonged Mandatory Detention and Bond Eligibility: Diop v. ICE/Homeland Security

This advisory concerns the Third Circuit’s decision in Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011). Diop addresses whether the government may subject individuals to mandatory immigration detention for a prolonged period of time. The Court held that the Due Process Clause of the Fifth Amendment permits mandatory detention for only a “reasonable period of time,” and construed the mandatory detention statute, 8 U.S.C. § 1226(c), as authorizing mandatory detention only for a reasonable period. When detention exceeds that reasonable period, the noncitizen is entitled to an individualized hearing where the government must show that continued detention is necessary to prevent flight or danger to the community. Id. at 223.
This practice advisory discusses how certain detainees can use Diop to obtain bond hearings. Notably, although the Court held that reasonableness is a “function of the length of the detention,” id. at 232, it declined to adopt a presumptive period of time at which mandatory detention becomes unreasonably prolonged. Instead, the Court held that “[r]easonableness . . . is a fact-dependent inquiry requiring an assessment of all of the circumstances of any given case.” Id. at 234. Nonetheless, the Court recognized that reasonableness is largely a function of time, and that the more mandatory detention exceeds the periods contemplated by the Supreme Court in Demore v. Kim, 538 U.S. 510 (2003)—45 days to complete removal proceedings before the immigration judge (IJ), and five months for those who appeal their cases to the Board of Immigration Appeals (BIA)—the constitutionality of detention without a bond hearing becomes increasingly “suspect.” Id. Thus, your client’s right to a bond hearing will turn on showing that detention has become “unreasonable” in his or her case, with a significant—but not sole—factor being the length of detention.
The ACLU will be monitoring the implementation of Diop on an ongoing basis. Should you have questions or require technical assistance regarding a detention challenge under Diop, please contact Michael Tan at the ACLU Immigrants’ Rights Project, mtan@aclu.org / 212-284-7303.