Emails, Kari Hong, assistant professor, Boston College Law School, Aug. 27-28, 2015
Sent: Thursday, August 27, 2015 4:11 PM
To: Selby, Gardner (CMG-Austin)
Subject: Re: Texas reporter, inquiry on government releasing individuals with criminal convictions
Hi Gardner,
Thanks for calling. I am writing with a couple of thoughts and quick responses to the reports you sent.
(1) I'm attaching a legal guide that supports ICE's claim that certain individuals in detention are ordered released by immigration judges who review their cases. In the Immigration and Nationality Act, Congress has defined who is subject to mandatory detention and who is not. The problem is that many parts of the statute is ambiguous, and something to keep in mind is that immigration detention is civil detention and not the exercise of state power over criminal law breakers. As a result, there have been lawsuits that have established that ICE cannot subject non-citizens to indefinite detention. There has to be a reason and finite time for the detention. (If you want to me summarize those reasons for a general audience, let me know.)
If people disagree with the releases, all they have to do is to rewrite the federal law to sweep in more people than those who are there. There is an easy fix. In my opinion, though, ICE is balancing its mandate to remove individuals alongside the constitutional requirements limiting how, when, and why the government can subject people to civil detention.
(2) I do not agree with the criticisms you sent. Detention does not result in deportation. No one can be forced out of the country without a hearing before an immigration judge or officer to determine if there is evidence to remove them or remedies available to them. Most studies show that of the 400,000 people we detain each year, 15%--or 60,000---have a right to stay in this country.
If people want to expedite the removal process, they need to push Congress to hire more immigration judges. Locking people up in detention---especially those who are not violent---makes no sense. It is coming at a cost of $5 million each day, which is going directly to for-profit prisons. For $5 million, we could have hired paid for an annual salary for 25 new immigration judges who are the ones who determine who stays and who goes. Instead, the immigration courts have backlogs of at least 3 years (I have one case from California that is well over 7 years in wait time) and Congress has a hiring freeze on hiring more immigration judges. In the past 5 years, the detention policies, facilities, and operations exceed over a 1 billion tax payer dollars---money that does not help get people--who have no reason to here---out of the country or keep those who deserve to be here, resolve their case so they can return to being productive members of their communities.
For people who want to remove more people from this country, they should support hiring immigration judges. For people who want to protect the rights of immigrants, they too should support hiring immigration judges. Hiring immigration judges to speed along the process is the common ground everyone ultimately wants. Instead, we are throwing away money on detention---for which the majority of the population is non-violent---instead of directing resources to make the wheels of justice turn.
I hope that helps. Let me know if I can provide any information to you.
Kari
The memo I sent is just case law from the Ninth Circuit that interprets
Kari E. Hong
Assistant Professor
Boston College Law School
On Thu, Aug 27, 2015 at 4:43 PM, Selby, Gardner (CMG-Austin) <wgselby@statesman.com> wrote:
Those center reports:
Reports from Center for Immigration Studies, "Catch and Release," March 2014; "ICE Document Details 36,000 Criminal Alien Releases in 2013," May 2014
On Thu, Aug 27, 2015 at 5:42 PM, Selby, Gardner (CMG-Austin) <wgselby@statesman.com> wrote:
What do you make of the center’s reports?
g.
5:36 p.m.
The upshot is that the reports are plagued with many inaccuracies. The main inaccuracies include how crimes are classified and the reasons for people's release.
The meaning of whether a particular conviction has immigration consequences is a very difficult, complicated question. There is enormous nuance in this legal determination, which the report collapses into conclusory foregone conclusions.
I also see red flags in how the report describes the reasons for detainee's release. In my practice experience and research, I have never found ICE at all subject to the motivations and political pressures subscribed to the agency. Again, in practice, the question of who can be detained and why is determined by a scalpel, cutting through a web of constitutional protections, statutory provisions, and individual hearings relating to the specifics of the person being detained. The report instead uses a sledgehammer to assign blame and describe non-existent problems and solutions, which in essence promotes indefinite civil detention.
Please let me know if I can provide any more information.
Kari
Kari E. Hong
Assistant Professor
Boston College Law School
5:49 a.m.
Aug. 28, 2015
To take you up on additional thoughts, may I add the following:
My only concerns about the ICE release numbers is that they are too low. We are detaining 400,000 non-citizens each year. That number is much too high. For the first 100 years of our history, we did not detain immigrants. From 1917 to 1988--a period of 70 years---we detained a total of 55,000 non-citizens with criminal convictions. Since 2009, that number grew to 400,000 each year. There is no reason to detain that many people. Especially, since the vast majority are not violent. Many are elderly, families, and children. Releasing people from ICE detention is not a jail break. ICE detention is civil detention, which absent court oversight, could have turned into indefinite civil detention for some. Of course immigration reform is needed. BUt rounding up more people is not productive or needed.
Kari E. Hong
Assistant Professor
Boston College Law School