immigration detention

by SCwpadmin SCwpadmin 687 Comments

January 27th Executive Order Regarding Immigration

On Friday, January 27, 2017, President Trump signed an executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”   The following provides information on the key provisions of this order and any clarifications and updates that are known to date:

·         The order bans entry for 90 days (from January 27, 2017) of immigrants and non-immigrants from the following countries:  Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  (The following visas are exempt from this order: A, G, NATO, C-2 and C-3).  All embassies and consular posts have been instructed to immediately suspend the issuance of non-immigrant and immigrant visas for nationals of those countries.  Other countries may be added to the list in the future.

o   Department of Homeland Security (DHS) has clarified that the order applies to anyone who holds a passport from a designated country, including dual citizens who hold passports from a designated country as well as a non-designated country.

o   Legal Permanent Residents (LPR) may be admitted on a case-by-case basis following security review.  DHS has deemed entry of LPRs to be in the national interest and absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, LPR status will be a dispositive factor in case-by –case determinations.

·         The order suspends the U.S. Refugee Admissions Program for 120 days.   However, there may be exceptions made on a case-by-case basis, based on whether it is in the national interest, the person poses a risk to the U.S., the person is a religious minority facing religious persecution or the admission of the person is required to conform U.S. conduct to an international agreement, or the person faces hardship when already in transit.

o   The order suspends indefinitely the admission of Syrian refugees and reduces the number of refugees allowed to be admitted to the U.S. in 2017 to 50,000.

·         The order further provides for additional security protocols as well as requires that the U.S. consular officers interview everyone who applies for a non-immigrant visa.

On January 28, 2017, the U.S. District Court for the Eastern District of New York in Darweesh v. Trump, signed an emergency order prohibiting the removal of individuals with refugee applications approved by USCIS as part of the U.S. Refugee Admissions program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the U.S.  This emergency order applies to all noncitizens who are detained at U.S. airports because of this January 27, 2017 executive order and will remain in effect until a full hearing is held.

Stern & Curray strongly condemns the President’s executive orders and maintains they are discriminatory and unconstitutional.  We will continue to keep clients and the public apprised of any developments in the immigration laws.

by SCwpadmin SCwpadmin 755 Comments

Will Detained Immigrants be Held Without Bond Hearings?

Today the United States Supreme Court hears an important case concerning the constitutionality of immigrant detention, and in particular, whether immigrants subject to lengthy detention have the opportunity for release on bond.  The case, Jennings v. Rodriguez, is a class-action lawsuit that asks the Court to consider whether detained immigrants must be afforded bond hearings with the possibility of release if they have been detained for six months or more.

In general, indefinite detention without a bond hearing is not allowed under the U.S. Constitution, and it is well established that the Fifth Amendment entitles noncitizens to due process of law in deportation proceedings.  Reno v. Flores, 507 U.S. 292 (1993).  However, under the Supreme Court precedent of Demore v. Kim, 538 U.S. 510 (2003), among other cases, and using the plenary power doctrine, the federal government has defended its ability to detain immigrants during removal proceedings for a “limited time of duration.”  Limited time of duration is undefined.

Jennings v. Rodriguez seeks to clarify this discrepancy.  The lead class representative in Jennings v. Rodriguez is 38 year-old Alejandro Rodriguez.  Mr. Rodriguez is a legal permanent residence who was brought to the United States as a child.  He was convicted of a drug possession charge which resulted in him being placed into removal proceedings.  While in proceedings he was detained for three years without a hearing.  Another class participant, an asylum-seeker who suffered torture in Ethiopia, was detained for nine months without a hearing simply because his proof of identify was deemed insufficient – a Department of Homeland Security officer found that he was not a danger to society.  Had this asylum-seeker been given a bond hearing before an immigrant judge this issue could have been presented and clarified, allowing his release.

These indefinite detentions are unjust and unacceptable.  A bond hearing to assess a noncitizen’s potential flight risk and danger to the community is one of the most basic, fundamental due process requirements for civil detention.  The argument presented in Jennings v. Rodriguez is merely calling for the opportunity to present arguments for release before an immigration judge.  This minimal due process protection should be afforded to noncitizens in civil immigration detention.

A decision from the Court on this case will not be made for several months, and at the latest, by the end of June 2017.  The outcome of Jennings v. Rodriguez will significantly impact President-elect Trump’s strategies and proposals for immigration.

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