A Conversation on ImmigrationThe Ohio State University

Proportionality: The Struggle for Balance in Immigration Law

Michael J. WishnieWilliam O. Douglas Clinical Professor of Law

Yale Law School

Part I: StruggleImmigration Politics in Danbury, New Haven,

Hartford, and East Haven

The Danbury 11

• 2004-06 Mark Boughton, only Republican mayor of major Connecticut city, leads anti-immigrant campaign against new Ecuadoran population

• Police harass day-laborers and Ecuadoran volleyball games, Mayor seeks 287(g) MOU

Arrest

• September 19, 2006 – Danbury police officer disguised as contractor collects three loads of day-laborers, drives them to parking lot where other officers and 3 ICE agents arrest then question 11 men.

• Taken to Danbury Police HQ for booking, but charged with no criminal offenses

• Then taken to ICE in Hartford, served NTAs, no-bond set for each, before transfer to MA

Aftermath

• Community protest in Danbury• Clinic and private counsel file emergency bond

motions. 4 bond out in Boston, rest transferred to Texas while motions pending

• Eventually, 9 of 11 men bond out and return to home and families

• Clinic files suppression motions, litigates removal cases to Second Circuit

Resolution

• Community groups file state and federal FOIA actions, secure records for defense of removal cases, depose ICE officials, win $16K in fees

• Nine men file civil rights action. Settle in 2011 for $650,000 ($400,000 from Danbury, $250,000 from United States)

• ICE agrees to deferred action and work authorization for men still in US

New Haven Prologue:Elm City Resident Card

• Winter 2005-06: community meetings, suggestion of ID card• Spring 2005: Students draft “A City to Model” on behalf of

Unidad Latina en Accion and Junta for Progressive Action• Fall 2005: Mayor endorses municipal ID proposal• Dec 2006: Police Order 06-02 – don’t ask/tell/arrest• June 4, 2007: BoA overwhelmingly approves municipal ID

The Raids

•June 6 and 11, 2007

• Mostly early morning arrests in private homes

• 32 persons in all• 5 with old orders• 27 bystanders

(“collaterals”); all Latino

• ICE declares it will return in days to continue operation

Bond

• June 11-12 – 5 persons post full bond; motions filed for nearly all rest of 22 bond-eligible persons

• Motions adjudicated, total bonds due reduced from $350,000 to $185,000 • St. Rose, ULA, Junta, GAVA raise bond funds

Forestalling ICE return

• Active collaboration among community groups, church, city

• Demand for ICE investigation of alleged misconduct by agents

• June 11 – Congressional letter; Sec. Chertoff announces suspension of ICE enforcement in New Haven

Queue for Elm City Resident CardJuly 2007

Immigration Court • 3 motions to reopen: 1 in absentia order vacated,

client released on bond, eventually wins A/S; 1 in absentia order declared legal nullity; second in absentia order for same client vacated based on asylum claim & changed country conditions, client released on bond, wins W/H; 1 MTR asylum case denied by BIA, CA4 PFR dismissed; 2d MTR denied, PFR dismissed; D.Conn. mandamus, I-130 granted; client released on order of supervision; ICE joins third MTR, BIA grants, IJ terms; application for A/S pending with CIS

• 17 motions to suppress; evidentiary hearings in all 17 cases, fall 2008; IJ requests ICE testimony in 6 cases; ICE refuses; IJ denies 12 motions, grants 5

BIA appeals• 5 motions to suppress granted, BIA affirms all• 12 MTS denied• 1 client proceeds to asylum hearing, wins• 1 client departs• 10 clients appeal to BIA, of whom• 7 win order vacating, remanding– 3 terminated– 4 pending [3-4 likely to be terminated]

• 3 affirmances, of whom–2 clients file PFRs in CA2–1 client departs

FOIA casesDocuments obtained by Nov 30 include

• Pre-operation plan (Nov 6)• Email between State Police and ICE• Email between AUSAs and ICE• Effect on ICE-State Police cooperation?

Policy Advocacy

• “Collateral Damage” FOT report Feb 2009– Front page, NYT– Hundreds of

articles/editorials– ICE abandons FOT quotas

w/in days

• Washington Colala rule, June 2011

Federal Civil Rights Suit

• Damages action filed fall 2009 by 11 Plaintiffs

• District Court denies MTDs in large part

• Supervisory Defendants file interlocutory appeal (Qualified Immunity) in CA2

Settlement

• Announced Feb. 14, 2012

• Immigration Relief or Termination of Removal Proceedings

• Money Damages: $350,000

Hartford

• On behalf of coalition of community groups, draft and advocate strongest confidentiality protection in nation

• In 2008, Hartford Common Council passes and mayor signs

• “don’t ask/don’t tell/don’t arrest”

East Haven

• Decades-long history of police violence and racial profiling against African-Americans, including 1997 shooting death of Malik Jones

• In 2008, increasing reports of police harassment of Latino shopkeepers, residents, and motorists

• January 2009, St. Rose of Lima Church in New Haven asks clinic to assist in documentation

Arrest & Investigation

• Feb 2009 Fr. James Manship arrested filming harassment of Latino store-owners

• Spring 2009 charges dismissed, documentation converted to complaint to US DOJ Civil Rights Division

• Fall 2009 DOJ announces it has opened investigation into allegations of anti-Latino profiling and violence

Intenstifying scrutiny

• St. Rose litigates multiple FOIA actions, uses data to analyze traffic stops, release report

• 2010: DOJ releases preliminary findings; next day chief is put on administrative leave; civil rights action filed

• 2011: federal grand jury convened; former Republican mayor re-elected; first act is to reinstate Chief Gallo

Federal intervention

• Dec 2010 DOJ Criminal Rights Division final report finds pattern and practice of racial profiling, gives 60 days to negotiate plan

• Jan 2011 Four officers indicted, arrested; “taco” comment

• Civil rights action stayed• St. Rose calls for appointment of special

prosecutor to review prosecutions since 2008 based on arrests made by indicted officers

State-level efforts• In-state tuition passed 2007, but Gov. Rell vetos;

passed again 2011, Gov. Malloy signs• Push for (1) driver’s licenses (2) financial aid for

undocumented students and (3) occupational and professional license reform in 2012, all tabled for 2013

• S-Comm launched Feb 2012, challenged in class-action habeas and by coalition, Gov agrees to make CT first state in nation to disregard detainers, policy released Mar 2012

Part II: Balance

• Proportionality is the notion that the severity of a sanction should not be excessive in relation to the gravity of an offense.

• The principle is ancient and nearly uncontestable, and its vitality is well established in numerous areas of criminal and civil law, in the United States and abroad.

Proportionality in Criminal Law

• Case-by-case review• Step 1: Inference of gross disproportionality?• Step 2: Comparative analysis

• Categorical review• Characteristics of offender (youth, mental

incapacity) or offense (nonhomicide). • Graham v. Florida (2010) (no life without

parole for juvenile, nonhomicide offenders).

Proportionality in Punitive Damages

• BMW v. Gore (1996). Courts must look to: 1. Reprehensibility of the underlying conduct2. Ratio of punitive damages to harm to plaintiff and

other victims (compensatory damages)3. Comparison of punitive damages award to other

civil and criminal penalties that could be imposed for similar conduct.

• State Farm v. Campbell (2003): “[F]ew awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”

What constitutes punishment for proportionality purposes?

• “The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law.” United States v. Halper (1989).

• A “civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” Id.

• Compare United States v. Ursery (1996) (civil forfeiture not punishment for Double Jeopardy Clause) with United States v. Bajakajian (1998) (civil forfeiture is punishment subject to proportionality review under Excessive Fines Clause)

Removal as Punishment• “[D]eportation is an integral part . . . of the

penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Padilla v. Kentucky (2010).

• Removal of LPRs “bristles with severities.” Harisiades v. Shaughnessy (1952).

• Termination of LPR status serves retributive and deterrent purposes, not solely remedial

• Removal of non-LPRs deprives one of social citizenship in service of retributive goals

Re-entry Bars as Punishment• First instituted as deterrent. Immigration Act of 1917.

• Congress intends bars to serve retributive and deterrent goals:

• “[T]he one strike-and-you’re-out amendment will attach a real penalty to those who have crossed our borders illegally . . . it will prove to be a very effective deterrent.” Rep. Marge Roukema (R-NJ) (discussing Tate Amendment in IIRIRA debate).

• Dada v. Mukasey (2008). Grant of voluntary departure “allows an alien . . .to sidestep some of the penalties attendant to deportation.” Re-entry bar first listed.

Case-by-Case Review in Immigration Law• Step one: Inference of gross proportionality• E.g., young mother of six USC children who

escaped two abusive marriages. “Simply put, this case calls for more mercy than the law permits this Court to provide.” Martinez v. U.S. Att’y Gen. (11th Cir. 2011).

• Step two: Comparative analysis• Other immigration sanctions (short jail sentences,

modest civil & criminal fines) • General enforcement practices. • Penalties for underlying criminal conduct

Categorical Review in Immigration Law

• Characteristics of offenders: • DREAMers, mentally ill, those vindicating civil

and labor rights• Characteristics of the offense: • some agfels

• Courts could also recognize a statute of limitations modeled on the registry statute. 8 U.S.C. § 1259.

Proportionality Review by IJs and BIA

• INA § 240(c)(1)(A): “At the conclusion of the proceeding the immigration judge shall decide whether an alien is removable from the United States.”

• Canon of constitutional avoidance compels interpretation of statutes to avoid constitutional difficulty

• Construction of INA that permitted disproportionate removal violates canon

Proportionality Review by IJs and BIA

• Court has construed INA to incorporate substantive due process norms, notwithstanding plenary power doctrine.• Clark v Martinez (2005); Zadvydas v. Davis (2001);

U.S. v. Witkovich (1957)

Objections• Plenary Power Doctrine• Court appears to be de-emphasizing doctrine and has

interpreted INA to incorporate due process requirements.• As-applied challenges may not implicate sensitive foreign

affairs and national security concerns.

• Continuing Offense • LPRs would otherwise have legal status• No different from termination of removal proceedings for

undocumented immigrants.

• Lack of Comparative Metrics• Exist and can be developed.

Conclusion

• Proportionality as useful organizing principle for constructing immigration laws for 21st century

• Reclaiming narrative space, and demanding stories be heard, recorded, and considered

• Reclaiming meaningful judicial review