michael j. wishnie, supervising attorney anne lai ... · brief in support of r- m- l-’s motion...
TRANSCRIPT
Michael J. Wishnie, Supervising Attorney
Anne Lai, Supervising Attorney
Jason Glick, Law Student Intern
Danielle Lang, Law Student Intern
Trudy Rebert, Law Student Intern
Sirine Shebaya, Law Student Intern
Matthew S. Vogel, Law Student Intern
Jerome N. Frank Legal Services Organization
Yale Law School
P.O. Box 209090
New Haven, CT 06520-9090
Counsel for Respondent
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
HARTFORD, CONNECTICUT
______________________________
)
In the Matter of: )
)
R- M- L-, ) File No.: A XXX XXX XXX
Respondent )
)
In removal proceedings ) March 16, 2012
______________________________ )
Immigration Judge Michael W. Straus
Merits Hearing: May 1, 2012 at 8:30 a.m.
BRIEF IN SUPPORT OF R- M- L-’S MOTION FOR
TERMINATION OF REMOVAL PROCEEDINGS AND
OBJECTION TO THE ENTRY OF A FINAL ORDER OF REMOVAL
i
TABLE OF CONTENTS
STATEMENT OF THE CASE .................................................................................................... 1
STATEMENT OF FACTS AND PROCEEDINGS ................................................................... 2
ARGUMENT ................................................................................................................................. 4
I. RESPONDENT’S PROCEEDINGS SHOULD BE TERMINATED BECAUSE ICE
COMMITTED STATUTORY AND REGULATORY VIOLATIONS IN THE COURSE
OF PLACING HIM IN PROCEEDINGS. ................................................................................. 5
A. Termination Is Required When ICE Commits Statutory and Regulatory Violations, and
Where the Violations Result In the Deprivation of Fundamental Rights. .................................. 6
B. Proceedings Must Be Terminated Because ICE’s Issuance of An Immigration Detainer
Against Respondent Violated INA § 287(d), 8 U.S.C. § 1357(d). ........................................... 10
C. Proceedings Must Be Terminated Because ICE Failed to Follow Its Own Regulations. . 17
1. ICE Violated 8 C.F.R. § 287.7 By Issuing a Detainer Against Mr. L- Even Though He
Was Not Charged With a Controlled Substance Violation. .................................................. 17
2. ICE Violated 8 C.F.R. § 287.7 By Issuing a Detainer Without Determining That It
Would Be “Impracticable or Impossible” to Gain Custody of Mr. L-. ................................. 19
D. ICE’s Regulatory Violations, Individually and Together, Deprived Mr. L- of
Fundamental Rights. ................................................................................................................. 20
1. Detention on the Basis of an Immigration Detainer Violates the Fourth Amendment. 21
2. Detention on the Basis of an Immigration Detainer Violates the Fifth Amendment.... 23
3. The Use of Immigration Detainers Violates the Tenth Amendment. ........................... 25
4. If ICE’s Interpretation of 8 C.F.R. § 287.7 Is Adopted, the Proceedings Should Be
Terminated Because the Regulation is Ultra Vires, Thereby Violating the Constitutional
Principle of Separation of Powers and Depriving Mr. L- of His Right To Be Free From the
Arbitrary Exercise of Government Power. ........................................................................... 29
II. THE COURT SHOULD NOT ENTER A REMOVAL ORDER BECAUSE
RESPONDENT’S REMOVAL IS DISPROPORTIONATE TO THE UNDERLYING
IMMIGRATION STATUS OFFENSE UNDER THE PROPORTIONALITY REVIEW
REQUIRED BY INA § 240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A). ............................................ 30
A. INA § 240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A) Requires Proportionality Review as Part
of the Immigration Judge’s Decision of Whether to Enter and Order of Removal. ................. 30
1. Proportionality Review is Required in the Immigration Context. ................................ 31
a. The Supreme Court has Long Recognized that a Penalty Must be Proportionate to
the Underlying Offense. .................................................................................................... 31
ii
b. Removal is a Drastic Measure and a Severe Penalty. ............................................. 33
c. The Constitution Requires that the Penalty of Removal be Proportionate to the
Underlying Offense. .......................................................................................................... 34
2. Proportionality Review is Incorporated into the Immigration Judge’s Removal
Decision Through INA § 240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A)..................................... 35
a. The Canon of Constitutional Avoidance is a Standard Method of Statutory
Interpretation. .................................................................................................................... 35
b. The Canon of Constitutional Avoidance is Appropriately Employed in Immigration
Court. ................................................................................................................................ 36
c. The Immigration Judge’s Duties Under INA § 240(c)(1)(A), 8 U.S.C. §
1229a(c)(1)(A) Incorporate Proportionality Review. ....................................................... 38
3. Proportionality Review in Immigration Court Under INA § 240(c)(1)(A), 8 U.S.C. §
1229a(c)(1)(A) Include Both Case-By-Case and Categorical Review. ................................ 38
a. Case-By-Case Proportionality Review in Immigration Courts. ............................. 38
b. Categorical Proportionality Review in Immigration Courts. .................................. 40
B. Entry of a Removal Order Would Be Disproportionate in Violation of INA §
240(a)(1)(C), 8 U.S.C. § 1229a(a)(1)(C). ................................................................................. 42
1. Removal of Respondent R- L- Fails Case-By-Case Proportionality Review. .............. 42
2. Removal of Respondent R- L- Fails Categorical Proportionality Review. .................. 44
C. This Court Should Not Enter an Order of Removal in Respondent’s Case Because
Removal Would be Disproportionate to the Underlying Offense; Alternatively, Respondent’s
Removal Proceedings Should Be Terminated. ......................................................................... 48
CONCLUSION ........................................................................................................................... 49
iii
TABLE OF AUTHORITIES
Cases
Ashwander v. Tenn. Valley Auth., 297 U.S. 288 (1936) .............................................................. 35
Atkins v. Virginia, 536 U.S. 304 (2002) ................................................................................. 41, 42
Atl. City Elec. Co. v. FERC, 295 F.3d 1 (D.C. Cir. 2002) ......................................................... 6, 8
Auer v. Robbins, 519 U.S. 452 (1997) ......................................................................................... 18
Benham v. Edwards, 678 F.2d 511 (5th Cir. 1982) ...................................................................... 24
BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) ............................................................. 32, 40
Bond v. United States, 131 S. Ct. 2355 (2011) ............................................................................. 28
Cevilla v. Gonzales, 466 F.3d 658, 661 (7th Cir. 2006) ............................................................... 12
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ............................................................................ 29
Clark v. Martinez, 543 U.S. 371 (2005) ........................................................................... 36, 37, 38
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) ....................................................... 24
Colonnade Catering Corp. v. United States, 397 U.S. 72, 74 (1970) ........................................... 21
Columbia Broad. Sys. v. United States, 316 U.S. 407 (1942) ........................................................ 6
County of Riverside v. McLaughlin, 500 U.S. 44 (1991)............................................................. 22
Crowell v. Benson, 285 U.S. 22 (1932) ........................................................................................ 35
Dada v. Mukasey, 554 U.S. 1 (2008) ............................................................................................ 33
Delgadillo v. Carmichael, 332 U.S. 388 (1947) ........................................................................... 33
Dolan v. City of Tigard, 512 U.S. 374 (1994) ........................................................................ 32, 33
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg & Constr. Trades Council, 485 U.S. 568
(1988) ........................................................................................................................................ 36
Enmund v. Florida, 458 U.S. 782 (1982) ...................................................................................... 41
Erick Rodolfo Oliva Ramos, A088231019, 2010 WL 3780675 (BIA Aug. 31, 2010) ................ 10
Fong Haw Tan v. Phelan, 333 U.S. 6 (1948) ................................................................................ 33
Ford v. Wainwright, 477 U.S. 399 (1986) .................................................................................... 42
Francis Eduardo Patarroyo-Sanchez, A42279463, 2004 WL 1739093 (BIA June 18, 2004) ...... 36
Gerstein v. Pugh, 420 U.S. 103 (1975) ......................................................................................... 22
Graham v. Florida, 130 S. Ct. 2011 (2010) ........................................................................... passim
Haitian Ctrs. Council, Inc. v. Sale, 823 F.Supp. 1028 (E.D.N.Y. 1993) ...................................... 29
Harmelin v. Michigan, 501 U.S. 957 (1991) ................................................................................ 39
In Re Fuentes-Campos, 21 I. & N. Dec. 905 (BIA 1997)............................................................. 18
In Re Masri, 22 I. & N. Dec. 1145 (BIA 1999) ............................................................................ 37
In Re W-F-, 21 I. & N. Dec. 503 (BIA 1996) ............................................................................... 37
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) ...................................................................... 16, 17
INS v. St. Cyr, 533 U.S. 289 (2001) ....................................................................................... 35, 37
Jex v. Holder, No. 09-74038 (9th Cir. Feb. 6, 2012) .................................................................... 40
Jones v. United States, 463 U.S. 354 (1983) ................................................................................ 23
Jose Zacaria Quinteros, A088239850, 2011 WL 5865126 (BIA Nov. 9, 2011) .......................... 34
iv
Juarez-Ramos v. Gonzales, 485 F.3d 509 (10th Cir. 2001) .......................................................... 34
Kennedy v. Louisiana, 554 U.S. 407 (2008) ................................................................................. 41
La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355 (1986) ......................................................... 6, 8, 18
Malone v. Cnty. of Suffolk, 968 F.2d 1480 (2d Cir. 1992) .......................................................... 21
Martinez v. U.S. Attorney General, 413 Fed.Appx. 163 (11th Cir. 2011) ................................... 39
Mata-Farsado v. Holder, No. 10-71869 (9th Cir. Feb. 6, 2012) ................................................... 40
Mathews v. Eldridge, 424 U.S. 319 (1976) .................................................................................. 24
Matter of Barcenas, 19 I. & N. Dec. 609 (BIA 1998)................................................................... 10
Matter of Fuentes-Campos, 21 I. & N. Dec. 905 (BIA 1997) ...................................................... 36
Matter of Garcia-Flores, 17 I. & N. Dec. 325 (BIA 1980) ............................................................. 7
Matter of Hernandez-Puente, 20 I. & N. Dec. 335 (BIA 1991) ...................................................... 9
Matter of Sanchez, 20 I. & N. Dec. 223 (BIA 1990) .................................................................... 24
Matter of Tang, 13 I. & N. Dec. 691 (1971) ................................................................................. 10
MCI Telecom. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218 (1994) ............................................. 19
Montilla v. INS, 926 F.2d 162 (2d Cir. 1991) ....................................................................... passim
Natural Res. Def. Council v. Abraham, 355 F.3d 179 (2d Cir. 2004) ........................................ 6, 8
New York v. United States, 505 U.S. 144 (1992)................................................................... 26, 28
NLRB v. Catholic Bishop of Chi., 440 U.S. 490 (1979) .............................................................. 35
Padilla v. Kentucky, 130 S. Ct. 1473 (2011) .......................................................................... 33, 43
Pocasangre v. Holder, No. 10-70629 (9th Cir. Feb. 6, 2012) ....................................................... 40
Printz v. United States, 521 U.S. 898 (1995) .......................................................................... 26, 27
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008).................................................................... passim
Rodriguez v. Holder, Nos. 06-74444, 06-75524 (9th Cir. Feb. 6, 2012) ...................................... 40
Roper v Simmons, 543 U.S. 551 (2005) ........................................................................... 41, 42, 47
Rust v. Sullivan, 500 U.S. 173 (1991) .......................................................................................... 38
San Agustin v. Holder, No. 09-72910 (9th Cir. Feb. 6, 2012) ...................................................... 40
Singh v. U.S. Dep’t of Justice, 461 F.3d 290 (2d Cir. 2006) ............................................ 5, 7, 8, 10
Solem v. Helm, 463 U.S. 277 (1983) ...................................................................................... 31, 32
State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003)......................................... 31, 32
Tapia Garcia v. I.N.S., 237 F.3d 1216 (10th Cir. 2001) ............................................................... 34
TRW Inc. v. Andrews, 534 U.S. 19 (2001) .................................................................................. 12
TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443 (1993) ................................................... 34
United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) ................................ 7, 8, 9, 25
United States v. Arizona, 641 F.3d 399 (9th Cir. 2011) ............................................................... 13
United States v. Bajakajian, 524 U.S. 321 (1998) ............................................................ 32, 39, 40
United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979) .................................................. 7
United States v. Jin Fuey Moy, 241 U.S. 394 (1916) ................................................................... 36
United States v. Witkovich, 353 U.S. 194 (1957) ........................................................................ 37
Vega Alvarez v. Holder, No. 08-71383 (9th Cir. Jan. 7, 2011) .................................................... 40
Waldron v. INS, 17 F.3d 511 (2d Cir. 1993) .................................................................... 7, 8, 9, 10
v
Zadvydas v. Davis, 533 U.S. 678 (2001) .......................................................................... 23, 34, 37
Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. 2004) ................................................................... 34
Statutes
8 U.S.C. § 1252c ........................................................................................................................... 13
8 U.S.C. § 1259 ............................................................................................................................. 41
18 U.S.C. § 3571(b) ................................................................................................................ 39, 43
INA § 103(a)(10), 8 U.S.C. §§ 1103(a)(10) ................................................................................. 13
INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) ..................................................................... 42
INA § 212(a)(9)(A), 8 U.S.C. § 1182(a)(9)(A) ............................................................................ 41
INA § 212(a)(9)(A)(i), 8 U.S.C. § 1182(a)(9)(A)(i) ..................................................................... 33
INA § 212(a)(9)(A)(ii)(II), 8 U.S.C. § 1182(a)(9)(A)(ii)(II) .................................................. 33, 44
INA § 236(a), 8 U.S.C. § 1226(a) ................................................................................................. 12
INA § 240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A) .................................................................... passim
INA § 274(c), 8 U.S.C. 1324(c) .................................................................................................... 13
INA § 275(a), 8 U.S.C. § 1325(a) ........................................................................................... 39, 43
INA § 275(b)(1), 8 U.S.C. § 1325(b)(1) ................................................................................. 39, 43
INA § 287(d), 8 U.S.C. § 1357(d) ................................................................................................... i
INA § 287(a), 8 U.S.C. § 1357(a) ................................................................................................. 12
INA § 287(g), 8 U.S.C. § 1357(g) ................................................................................................ 13
Other Authorities
Christopher Lasch, Enforcing the Limits of the Executive’s Authority to Issue Immigration
Detainers, 35 Wm. Mitchell L. Rev. 164, 186 (2008) .............................................................. 14
Dep’t of Justice, Immigration and Naturalization Service, 8 C.F.R. Parts 242 and 287, 56 Fed.
Reg. 33204 (July 19, 1991) ....................................................................................................... 11
Dep’t of Justice, Immigration and Naturalization Service, 8 C.F.R. Parts 242 and 287, 59 Fed.
Reg. 42406 (Aug. 17, 1994)...................................................................................................... 11
Hearing of the House Judiciary Committee, Full Committee Mark Up, 104th Cong. (Sept. 19,
1995) ......................................................................................................................................... 34
Immigration Reform and Control Act—Conference Report, 132 Cong. Rec. S. 16879 (Oct. 17,
1986) ......................................................................................................................................... 12
Laurence H. Silberman, The D.C. Circuit Review—Foreword: Chevron—The Intersection of
Law & Policy, 58 Geo Wash L Rev 821, 822 (1990) ............................................................... 19
Stella Burch Elias, Good Reason to Believe: Widespread Constitutional Violations in the Course
of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wis. L. Rev.
1109........................................................................................................................................... 17
Regulations
8 C.F.R. § 287.7 ..................................................................................................................... passim
8 C.F.R. § 287.7(a).............................................................................................................. 6, 19, 20
vi
Constitutional Provisions
U.S. Const. amend. V.................................................................................................................... 32
U.S. Const. amend. VIII................................................................................................................ 32
1
Respondent R- C- M- L- (A XXX XXX XXX) submits this brief in support of his Motion
for Termination of Removal Proceedings and Objection to the Entry of an Order of Removal.
Respondent requests that he be scheduled for an individual hearing on the merits of his motions
for termination and his objection to the entry of an order of removal.
STATEMENT OF THE CASE
The removal proceedings against Respondent R- L- should be terminated and an order of
removal should not be entered. R- L- is in removal proceedings as a result of his illegal detention
on the basis of an unlawful immigration detainer. Mr. L- was arrested and charged with
shoplifting less than $50 of merchandise, a charge which was subsequently withdrawn by the
prosecutor. Instead of being released when the charges were dropped, Mr. L- was detained,
solely on the basis of an immigration detainer issued in violation of the immigration statute and
regulations, and the U.S. Constitution, until U.S. Immigration and Customs Enforcement (“ICE”)
decided to come and take him into its custody. This detention deprived Mr. L- of his
fundamental rights to liberty and due process.
By issuing the detainer, ICE caused Mr. L- to be detained in violation of its own statutes
and regulations, which require, inter alia, that a detainer issue only where it is impracticable or
impossible to obtain custody of the individual; and that a detainer issue only against individuals
who are arrested for controlled substance violations. ICE’s regulatory and statutory violations
resulted in a deprivation of Mr. L-’s fundamental right to be free from arbitrary arrest and
detention without any basis in law; of his fundamental right to be free from deprivation of liberty
without due process of law, which requires notice and an opportunity to be heard; and in
violation of his right to be free from the arbitrary exercise of government power. The only
2
reason Mr. L- is before this Court is because of this unlawful conduct on the part of ICE
deprived him of his fundamental rights. Thus, termination of his removal proceedings is
appropriate and necessary.
Further, Mr. L-’s removal would contravene the proportionality review required of
immigration courts by the immigration statutes and the U.S. constitution. The removal of Mr. L-
—a seven-year Waterbury, Connecticut resident who arrived in the United States when he was
only fifteen years old and came of age in that community, has developed close ties to the
community, works and attends church and some school there, and who has had only minor
contact with law enforcement—would be severely disproportionate to the single, non-violent
underlying immigration status offense with which he is charged. In light of the illegal action
ICE took in order to initiate these proceedings, and the plain disproportionality of removal in this
case, Mr. L- requests that this Court terminate removal proceedings and decline to enter an order
of removal.
STATEMENT OF FACTS AND PROCEEDINGS
R- L- was born in 1989 in Honduras. He entered the United States without inspection in
2005, when he was fifteen years old, and has lived in Waterbury, Connecticut since a month or
two of his entry. Exhibit B, Mot. to Reopen and Rescind In Absentia Order of Removal,
Declaration of R- L-, at ¶¶ 1, 21 (hereafter “L- Decl., Nov. 16, 2011”). He is now 22 years old.
Id. at ¶ 1. He works ten-hour days, six days a week, in construction, installing drywall in
residential and commercial properties throughout Connecticut to support his U.S.-citizen partner
and her one-and-a-half year-old U.S.-citizen daughter, who are totally dependent upon his
earnings. See Exhibit C, Declaration of R- L-, at ¶¶ 12 (hereinafter “L- Decl., March 15, 2012”).
The three of them live together and they regularly attend Iglesia Smirna Misionera, a Baptist
3
church in Waterbury. Id. at ¶ 13. In the past, Mr. L- has attended evening English classes at a
local school in Waterbury, and he plays soccer in a local league there in the summer. Id. at ¶¶
11, 13. Waterbury, Connecticut has been his home since he was fifteen years old, for nearly a
third of his life, and that is where he has built his life. “Waterbury is [his] home now.” Ex. B, L-
Decl., Nov. 16, 2011, at ¶ 21.
On October 1, 2011, Mr. L- was arrested in Waterbury and changed with a single
misdemeanor count of larceny arising from an allegation of shoplifting. The merchandise alleged
to have been stolen was worth less than $50. See Exhibit D, Waterbury Police Report. The
State’s Attorney withdrew this sole charge on November 9, 2011. See Exhibit E, Connecticut
Superior Court Disposition. Other than this single arrest, Mr. L- has no other criminal history.
After his arrest on October 1, 2011 and before the shoplifting charge was withdrawn on
November 9, 2011, Mr. L- was detained by the Connecticut Department of Correction at the
New Haven Correctional Center. See Exhibit F, Connecticut Judicial Branch Pending Case
Detail; Ex. C, L- Decl., March 15, 2012, at ¶ 2. When the single charge against him was
withdrawn, he was held for an additional day, solely on the basis of a previously lodged DHS
Form I-247, Immigration Detainer – Notice of Action. ICE took custody of him on November
10, 2011. See Ex. C, L- Decl., March 15, 2012, at ¶ 9. On or about November, 10, 2011, ICE
transferred Mr. L- to the Bristol County Sheriff’s Office in North Dartmouth, Massachusetts. Id.
At approximately the same time, undersigned counsel learned that Mr. L- had previously
been ordered removed in absentia by Immigration Judge (“IJ”) John D. Carté at the Immigration
Court in San Antonio, Texas. Mr. L- had been detained by DHS near Houston, Texas in
approximately 2005, when he was only fifteen years old. Ex. B, L- Decl., Nov. 16, 2011, at ¶ 2.
He did not speak English and had very little understanding of what was happening, and was
4
asked about his personal information and told to sign a number of papers. Id. After being held for
hours, he was released to the custody of his U.S. citizen aunt, S- M-, who at that time lived in
Houston, Texas. Id. at ¶ 3. He was told that he could remain in the United States for a year, and
that a notification for a court date would be sent. Id. at ¶ 4. Mr. L- never received any such
notification regarding his hearing, or even that he had been subsequently ordered removed in
absentia. See id. at ¶ 17, 20. In fact, Mr. L- first learned of this in absentia removal order from
undersigned counsel, after he had been taken into custody in Connecticut. Id. at ¶ 20.
Mr. L- promptly moved to reopen and rescind his in absentia order in the San Antonio
Immigration Court. See Exhibit G, Resp’t’s Mot. to Reopen and Rescind In Absentia Order of
Removal. ICE filed a statement indicating that it did not oppose the motion. Exhibit I, ICE
Notice of Non-Opposition. Based the fact that Mr. L- was a minor at the time of his arrest, and
on the fact that he received inadequate notice of his hearing date, on December 2, 2011,
Immigration Judge Carté granted Mr. L-’s motion to reopen and rescind the earlier in absentia
order. Exhibit H, Order Granting Motion to Reopen and Rescind. IJ Carté also granted Mr. L-’s
unopposed motion to change venue to the Immigration Court at Hartford, Connecticut, on
December 29, 2011. See Exhibit J, Order Granting Motion to Change Venue.
On December 8, 2011, ICE released Mr. L- on his own recognizance from confinement at
the Bristol County Sheriff’s Office, and he returned immediately to his home in Waterbury. See
Exhibit K, Order of Release on Recognizance; Ex. C. L- Decl., March 15, 2012, at ¶11. In
keeping with his responsibilities after release, he has notified the Department of a change of
address and attended a master calendar hearing in this case on January 25, 2012.
ARGUMENT
5
I. RESPONDENT’S PROCEEDINGS SHOULD BE TERMINATED BECAUSE ICE
COMMITTED STATUTORY AND REGULATORY VIOLATIONS IN THE
COURSE OF PLACING HIM IN PROCEEDINGS.
The Court should grant Respondent’s motion to terminate because he is only in removal
proceedings today as a result of ICE’s statutory and regulatory violations causing his unlawful
detention and effectuating his transfer to ICE custody. The Second Circuit has held that removal
proceedings should be terminated when ICE violates its own rules that affect the rights of a
Respondent. Singh v. U.S. Dep’t of Justice, 461 F.3d 290 (2d Cir. 2006). Where the violation
occurs before hearings commence, the Second Circuit has held that termination is proper where
the violation results in deprivation of a respondent’s fundamental rights. Rajah v. Mukasey, 544
F.3d 427 (2d Cir. 2008). Both the regulations and the statute at issue here are designed to protect
Respondent’s fundamental rights, and ICE’s violations resulted in the actual deprivation of
Respondent’s fundamental rights.
In this case, ICE caused Respondent to be needlessly detained by the Connecticut
Department of Correction overnight, even though the state no longer had any reason to keep him
in custody. ICE caused this unnecessary detention, and in doing so, violated both the relevant
statute governing detainers and its own regulations. First, ICE issued an immigration detainer
against Respondent in circumstances not authorized by INA § 287(d), 8 U.S.C. § 1357(d), which
limits the cases in which detainers may be issued. The limitations in INA § 287(d), 8 U.S.C. §
1357(d) are designed to protect Respondent’s due process rights. Second, the implementing
regulation for INA § 287(d), 8 U.S.C. § 1357(d)—8 C.F.R. § 287.7—must be read to incorporate
the limitations of its authorizing statute. Therefore, ICE also violated its own regulation by
issuing the immigration detainer. Finally, ICE issued a detainer against Respondent in violation
6
of the regulatory requirement that detainers only be issued when “gaining immediate physical
custody is either impracticable or impossible.” INA § 287(d), 8 C.F.R. § 287.7(a).
Both the statute and the regulations violated implicate fundamental statutory and
constitutional rights. ICE’s violations resulted in the deprivation of Respondent’s fundamental
Fourth Amendment right to be free from unreasonable seizure and his Fifth Amendment right to
be free from deprivation of liberty without due process of law. As such, Second Circuit law
requires that this Court terminate these removal proceedings. See Rajah, 544 F.3d 427.
A. Termination Is Required When ICE Commits Statutory and Regulatory
Violations, and Where the Violations Result In the Deprivation of
Fundamental Rights.
It is settled law that “the rules promulgated by a federal agency, which regulate the rights
and interests of others, are controlling upon the agency.” Montilla v. INS, 926 F.2d 162, 166 (2d
Cir. 1991); see also Columbia Broad. Sys. v. United States, 316 U.S. 407, 422 (1942). It is also
well-established that agencies are absolutely bound by the statutory limits on their power: “[A]n
agency literally has no power to act . . . unless and until Congress confers power upon it.” La.
Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986); see also Natural Res. Def. Council v.
Abraham, 355 F.3d 179, 202 (2d Cir. 2004); Atl. City Elec. Co. v. FERC, 295 F.3d 1, 8 (D.C.
Cir. 2002) (noting that an agency is “a creature of statute, having no constitutional or common
law existence or authority, but only those authorities conferred upon it by Congress”) (internal
quotation marks and citation omitted) (emphasis in original).
The Supreme Court has determined this principle—that agencies must be bound by their
own rules—to be so fundamental that it created the remedy of termination of proceedings
through the Accardi doctrine. In United States ex rel. Accardi v. Shaughnessy, the Supreme
Court vacated a deportation order on the grounds that the proceeding below violated the agency’s
7
own regulations. 347 U.S. 260 (1954). Since the rule was first announced in Accardi, the
doctrine has been applied in many other contexts. See Montilla, 926 F.2d at 167 (noting the
doctrine’s application to vacate discharges of employees and overturn convictions, among other
applications).
The Second Circuit has recognized and consistently applied the Accardi doctrine to
removal proceedings. It has stated that where ICE violates one of its own rules that implicates
“fundamental rights derived from the Constitution or federal statutes,” any violation of a
regulation renders a removal proceeding “invalid[]” without respect to proof of actual prejudice.
Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1993); see also Singh, 461 F.3d at 296.1 The Second
Circuit has confirmed that the doctrine applies to regulations even where they “require[] more
than would the specific provision of the Constitution or a federal statute that is the source of the
right,” so long as they were “promulgated to protect a fundamental right.” Waldron, 17 F.3d at
518; see also Singh, 461 F.3d at 296 (holding that an agency’s failure to follow its own
regulations is “reversible error”) (“If the agency wishes to rescind or revise these regulations . . .
it has the authority and the means to do so.”).
1 The Second Circuit has explicitly departed from BIA precedent with regard to the
consequences of regulatory violations, ruling instead that no showing of prejudice is necessary.
In Matter of Garcia-Flores, 17 I. & N. Dec. 325 (BIA 1980), the BIA adopted the Ninth Circuit’s
standard which requires a showing of prejudice in order to invalidate removal proceedings. See
United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979). The Second Circuit, however,
specifically rejected the Calderon-Medina test: “We . . . decline to adopt the Calderon-Medina
approach, which requires a demonstration of prejudice irrespective of whether the subject
regulation was designed to protect a fundamental right derived from the Constitution or a federal
statute.” Waldron, 17 F.3d at 518. While the Second Circuit has applied a more rigorous test for
pre-hearing violations, of which proof of prejudice or deprivation of a fundamental right is a
sufficient condition to terminate, Rajah, 544 F.3d 427, the Second Circuit has never made
prejudice a necessary condition for termination of removal proceedings.
8
To avoid unduly burdening the agency with termination of cases on the basis of
“harmless, non-egregious pre-hearing regulatory violations,” the Second Circuit has set forth
additional guidelines for termination. Rajah, 544 F.3d at 448 (emphasis added). In such cases,
termination is appropriate if the violation meets one of three conditions: the violation must (1)
result in “prejudice that may have affected the outcome of the proceeding”; (2) involve
“conscience-shocking conduct”; or (3) result in “a deprivation of fundamental rights.” Id. at 447.
The violations that ICE committed in this case were all pre-hearing. Therefore, if this Court finds
that the illegal detention of Mr. L- upon the basis of an improperly issued ICE detainer deprived
him of fundamental rights, including his Fourth and Fifth Amendment rights against
unreasonable seizure and deprivation of liberty without due process of law, this Court must
terminate the proceedings against him.
While much of the foregoing case law focuses on regulatory violations, the basic
principle—that agencies must be bound by their own rules—should apply with even greater
force to statutory violations. An agency is a “creature of statute” that has “no power to act”
except within the parameters of its statutory authorization. Abraham, 355 F.3d at 202 (quoting
La. Pub. Serv. Comm’n, 476 U.S. at 374 and Atl. City Elec. Co, 295 F.3d at 8). In other words,
an authorizing statute supplies the primary rule for all agency conduct. Therefore, the Accardi
doctrine, adopted in Montilla, Waldron, and Singh, which holds that agencies may be penalized
by termination of proceedings when they violate their own rules, applies with particular force
when an agency acts in violation of an authorizing statute.
Indeed, courts have held agencies to strict compliance with rules established through
statute. The Waldron court described a hierarchical relationship between those regulations
“promulgated to protect a fundamental right derived from the Constitution or a federal statute”
9
and those which are “merely provisions created by agency regulations.” 17 F.3d at 518. It noted
that “a court’s duty to enforce an agency regulation is most evident when compliance with the
regulation is mandated by the Constitution or federal law.” Id. at 517 (quoting United States v.
Caceres, 440 U.S. 741, 749 (1979)) (internal quotation marks omitted). Likewise, Rajah stressed
the severity of statutory violations by agencies. Whereas the Rajah court held that pre-hearing
regulatory violations did not merit termination unless accompanied by one of the three factors
listed above, it explained that a remedy would be required if the agency’s actions ran afoul of the
statute:
Petitioners argue that the Attorney General had no statutory authority to enact the
Program. If the Program was in fact simply rogue conduct by immigration
authorities, some remedy, the dimensions of which we need not address, would be
called for. Cf. Montilla v. INS, 926 F.2d 162, 169 (2d Cir.1991) (noting that
agencies that exhibit carelessness in complying with their own rules undermine
public confidence). However, statutory authorization for the Program is abundant.
544 F.3d at 434-35. Thus, the Second Circuit has recognized that the rule of Accardi—that
agencies must follow their own rules—applies with particular force where an agency violates its
organic statute.
It is well within the jurisdiction of this Court to determine whether an agency has violated
the INA or internal regulations. Matter of Hernandez-Puente, 20 I. & N. Dec. 335, 339 (BIA
1991) (“[T]his Board is empowered to find that a violation of the statutes or regulations has
infringed upon an alien's procedural rights, which may in turn affect determinations regarding
deportability, exclusion, relief from deportation or exclusion, or other benefits under the
immigration laws.”). To establish an agency violation, the BIA has held that it is the “[o]ne who
raises the claim” bears the initial burden of “com[ing] forward with proof establishing a prima
facie case.” Matter of Tang, 13 I. & N. Dec. 691, 692 (1971); see also Erick Rodolfo Oliva
10
Ramos, A088231019, 2010 WL 3780675 (BIA Aug. 31, 2010) (applying this standard to
termination); Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA 1998) (applying this standard to
suppression).
Once Respondent has presented a prima facie case of a violation, ICE then must justify
the manner in which it acted. Therefore, Respondent must only: (a) present a prima facie case
that ICE violated its statutory and regulatory rules, and (b) in the case of pre-hearing regulations,
establish a prima facie case that the violation deprived him of a fundamental right, prejudiced his
case, or involved conscience-shocking conduct. If the government can then neither demonstrate
compliance with its regulations and the authorizing statute under which it acts, nor show that the
violation did not deprive Respondent of a fundamental right, prejudice his case, or involve
conscience-shocking conduct, then termination is appropriate and required under Waldron,
Singh, and Rajah.
B. Proceedings Must Be Terminated Because ICE’s Issuance of An Immigration
Detainer Against Respondent Violated INA § 287(d), 8 U.S.C. § 1357(d).
On November 9, 2011, the Connecticut State’s Attorney entered a nolle prosequi in Mr.
L-’s case, ending the state’s lawful justification for detaining Mr. L-. See Ex. E, Connecticut
Superior Court Disposition. However, because ICE had lodged an immigration detainer against
him, Mr. L- was not released. ICE caused Mr. L- to be held solely on the basis of the
immigration detainer until ICE could effectuate his transfer into ICE custody. The immigration
detainer issued by ICE against Mr. L- violated the statutory scheme for immigration detainers in
the INA.
INA § 287(d), 8 U.S.C. § 1357(d) is the only section of the INA that addresses
immigration detainers. It provides:
11
In the case of an alien who is arrested by a Federal, State, or local law
enforcement official for a violation of any law relating to controlled substances, if
the official (or another official)--
(1) has reason to believe that the alien may not have been lawfully admitted to the
United States or otherwise is not lawfully present in the United States,
(2) expeditiously informs an appropriate officer or employee of the Service
authorized and designated by the Attorney General of the arrest and of facts
concerning the status of the alien, and
(3) requests the Service to determine promptly whether or not to issue a detainer
to detain the alien,
the officer or employee of the Service shall promptly determine whether or not to
issue such a detainer. If such a detainer is issued and the alien is not otherwise
detained by Federal, State, or local officials, the Attorney General shall
effectively and expeditiously take custody of the alien.
INA § 287(d), 8 U.S.C. § 1357(d) (emphasis added). The statute places at least two unambiguous
limitations on ICE’s authority to issue detainers: (1) ICE may issue a detainer only when the
subject has been arrested for a violation “relating to controlled substances”; and (2) ICE may
issue a detainer only if the law enforcement official, after developing “reason to believe” the
alien is not lawfully present, initiates contact with ICE and “requests” a detainer determination.
At times, ICE has contended that it has plenary authority to issue detainers irrespective of
the limitations delineated in INA § 287(d), 8 U.S.C. § 1357(d). See Dep’t of Justice, Immigration
and Naturalization Service, 8 C.F.R. Parts 242 and 287, 56 Fed. Reg. 33204 (July 19, 1991)
(“[T]he ability to place detainers on aliens by the Immigration and Naturalization Service existed
prior to passage of the Immigration Reform and Control Act (IRCA) in 1986.”); Dep’t of Justice,
Immigration and Naturalization Service, 8 C.F.R. Parts 242 and 287, 59 Fed. Reg. 42406 (Aug.
17, 1994) (asserting broad authority to issue a detainer against “any individual subject to
exclusion or deportation proceedings”).
However, this broad claim of extra-statutory authority is inconsistent with legislative
history, traditional canons of statutory construction, and the structure of the INA. First, the
legislative history of INA § 287(d), 8 U.S.C. § 1357(d) demonstrates that legislators understood
12
themselves to be creating new authority to issue detainers, not codifying a portion of extant
detainer authority. The conference report explains that the section “finally ma[de] it possible for
the INS to respond effectively when aliens are convicted for the manufacture and distribution of
opium and cocaine derivatives and ‘designer drugs.’” Immigration Reform and Control Act—
Conference Report, 132 Cong. Rec. S. 16879 (Oct. 17, 1986); see also Cevilla v. Gonzales, 466
F.3d 658, 661 (7th Cir. 2006) (in determining congressional intent, the “report of a conference
committee is one of the more reliable forms of legislative history”).
Further, ICE’s claim of an “inherent,” extra-statutory detainer authority would render the
statute setting forth authority to issue detainers in limited circumstances meaningless and thus
violates the “cardinal principle of statutory construction that a statute ought . . . to be
so construed that . . . no clause, sentence, or word shall be superfluous, void, or insignificant.”
TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted). The only
interpretation that makes sense is the one suggested by the legislative history: that §1357(d)
granted new detainer authority. However, even if ICE did have extant detainer authority—which
it did not—§1357(d) must be read, in order to not be superfluous, as limiting that authority from
the moment of its enactment.
Finally, ICE’s interpretation is not plausible in light of the structure of the INA taken as
a whole. Congress has carefully delineated the limited circumstances under which individuals
can be arrested and held for immigration enforcement purposes. It has limited when ICE agents
may make immigration arrests. See INA §§ 236(a), 287(a), 8 U.S.C. §§ 1226(a), 1357(a)
(authorizing immigration arrests only upon a warrant from the Attorney General, when an
immigration officer views an individual entering the United States unlawfully, or has reason to
believe that the immigrant is “likely to escape” before the issuance of a warrant, and providing
13
for review of warrantless arrests without “unnecessary delay”). Congress has also limited state
and local police authority to arrest and detain individuals for immigration purposes to very
narrow circumstances. INA § 103(a)(10), 8 U.S.C. §§ 1103(a)(10) (allowing the Attorney
General to deputize local law enforcement to enforce immigration in the event of an “actual or
imminent mass influx of aliens”); 8 U.S.C. § 1252c (allowing local law enforcement arrests of
individuals unlawfully present with felony convictions if they have proper confirmation from
INS), INA § 274(c), 8 U.S.C. 1324(c) (allowing law enforcement arrests for those who violate
the prohibition on “bringing in and harboring certain aliens”), INA § 287(g), 8 U.S.C. § 1357(g)
(allowing the Attorney General to contract with individual local law enforcement agencies to
allow them to effectuate immigration arrests); see also United States v. Arizona, 641 F.3d 399
(9th Cir. 2011) (holding that Congress carefully limited state authority to enforce immigration
law and state efforts to expand that authority are preempted), cert. granted, 132 S. Ct. 845
(2011). Therefore, when read in light of the INA as a whole, the power of ICE to issue
immigration detainers is, like its other arrest powers, far from plenary, but can flow only from
express statutory authorization. See also Exhibit L, Letter from Omar C. Jadwat, Glenn M.
Katon, & Ira Kurzban, ACLU of Florida, to Daniel Giustino, Chief of Police (July 16, 2009)
(“The use of detainers in non-controlled substance cases contravenes this statutory scheme.”).
Notwithstanding clear statutory language to the contrary, ICE routinely violates INA §
287(d), 8 U.S.C. § 1357(d) by (1) issuing detainers where there is no controlled substance arrest,
and (2) initiating the detainer process in the absence of a specific request by local law
enforcement after the local agency develops “reason to believe” the subject is unlawfully present.
Christopher Lasch, Enforcing the Limits of the Executive’s Authority to Issue Immigration
14
Detainers, 35 Wm. Mitchell L. Rev. 164, 186 (2008) (“DHS grossly exceeds the limits of its
[statutory] authority to issue detainers.”).
In Mr. L-’s case, ICE violated INA § 287(d), 8 U.S.C. § 1357(d) by issuing a detainer
even though Mr. L- was not arrested for a controlled substance violation. Further, there is no
evidence that the Waterbury Police Department issued any “request” for a detainer. Nowhere in
the police report, nor in any other record in evidence before this Court, is there any indication
that local law enforcement requested the issuance of a detainer against Mr. L-. See Ex. D,
Waterbury Police Report. Therefore, ICE had no authority to issue the immigration detainer.
Moreover, ICE not only issues detainers in cases where it is not authorized to do so, but
also purports to require local law enforcement to detain individuals after other detention
authority has expired, solely on the basis of a detainer.2 The statutes discussed above, which
establish the standards for the arrest and detention of individuals for immigration purposes,
authorize neither continued detention on the basis of a detainer nor a requirement that local law
enforcement agencies expend local resources to carry out a federal enforcement program.3
In Mr. L-’s case, ICE issued a Form I-247 that stated:
2 ICE has interpreted its authority so broadly as to have the ability to authorize and require local
law enforcement officials to hold individuals even after independent state authority for the
detention ends. See 8 C.F.R. § 287.7 (“Upon a determination by the Department to issue a
detainer for an alien not otherwise detained by a criminal justice agency, such agency shall
maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays,
and holidays in order to permit assumption of custody by the Department.”) (emphasis added). 3 If Congress did authorize ICE to impose this requirement on state and local law enforcement
agencies, which Congress has not done, then even the statute would violate the Tenth
Amendment prohibition against federal commandeering of state officers. See Printz v. United
States, 521 U.S. 898 (1995). However, the statute does not contemplate such a requirement, and
the agency’s effort to claim such extra-statutory authority is ultra vires and violative of the Tenth
Amendment. The statute allows for the issuance of a detainer only when local law enforcement
initiates a request.
15
Under Federal Regulation 8 C.F.R. 287.7, DHS requests that you maintain
custody of this individual for a period not to exceed 48 hours (excluding
Saturdays, Sundays, and Federal holidays) to provide adequate time for DHS to
assume custody of the alien. Please notify this Office at least 30 days prior to this
inmate’s release by calling [this number] during business hours or [this number]
after hours in an emergency.
Exhibit M, DHS Form I-247. Although the form presents the detainer as a “request,” it cites to 8
C.F.R. § 287.7, which states:
Upon a determination by the Department to issue a detainer for an alien not
otherwise detained by a criminal justice agency, such agency shall maintain
custody of the alien for a period not to exceed 48 hours, excluding Saturdays,
Sundays, and holidays in order to permit assumption of custody by the
Department.
8 C.F.R. § 287.7(d) (emphasis added). It was on the basis of this immigration detainer from
ICE—citing the regulatory language that it “shall maintain custody of an alien”—that the New
Haven Correctional Center, a facility of the Connecticut Department of Correction, continued to
hold Mr. L- on November 9, 2011, after any state authority for detention had expired.
In Rajah, the Second Circuit explained that its termination jurisprudence seeks “to strike
a balance between protecting the rights of aliens, deterring government misconduct, and enabling
reasonably efficient law enforcement.” 544 F.3d at 447. The court determined that forcing an
agency to litigate every “harmless, nonegregious, pre-hearing violation[]” would present a
“substantial drain on agency resources” with “little deterrent effect” given the infrequency of
formal hearings. Id. However, these rationales do not apply where the challenged violation is not
an isolated event but rather a system-wide policy of statutory violations. Once the legality of
ICE’s policy is thoroughly adjudicated a single time, the agency would be encouraged to realign
its practices to conform to statutory requirements. In the case of a widespread practice of
16
statutory violations, therefore, the principles of Rajah addressing termination, and of INS v.
Lopez-Mendoza, 468 U.S. 1032 (1984), addressing suppression, demand a remedy.
The unlawful detainer ICE issued against Mr. L- was not a simple one-off violation of the
agency’s statutory authority. Cf. Rajah, 544 F.3d at 447. Instead, it was the result of a
widespread ICE practice of issuing detainers that violate the statute’s limits. See Exhibit N,
Department of Homeland Security, FY 2012 Budget-in-Brief, available at
http://www.dhs.gov/xlibrary/assets/budget-bib-fy2012.pdf, at 79 (239, 523 detainers issued by
the Criminal Alien Program alone in fiscal year 2010). ICE has interpreted its detainer regulation
to grant agency officials expansive authority to issue detainers for any individual without any
standards or process irrespective of the statutory limitations of INA § 287(d), 8 U.S.C. § 1357
(d). Terminating this case would therefore have a meaningful deterrent effect and help ensure
that agency practice conforms to the statute Congress wrote.
The rationales for termination are particularly strong in this case. Since at least Montilla,
the Second Circuit has recognized that discouraging agency violations through termination is
essential to promoting public confidence and thus ensuring agency effectiveness. 926 F.2d at 169
(“Careless observance by an agency of its own administrative processes weakens its
effectiveness in the eyes of the public. . . .”). Where an agency systematically and openly
violates the limitations on its authority, the danger to public confidence in the agency is at its
greatest. The Rajah court recognized this distinction between technical one-off violations and
system-wide statutory violations and concluded that remedial action was appropriate in the latter
case: “If the [NSEERS] Program,” rather than the single ICE action in that case, “was in fact
simply rogue conduct by immigration authorities, some remedy . . . would be called for.” 544
F.3d at 434 (emphasis added). Cf. Montilla (noting that agencies that exhibit carelessness in
17
complying with their own rules undermine public confidence). The Second Circuit’s reasoning
tracks Fourth Amendment suppression law in the immigration context. While isolated non-
egregious violations do not merit suppression because they would burden the agency with little
deterrence effect, the courts have held otherwise where the violations are either egregious or
widespread. See Lopez-Mendoza, 468 U.S. 1032; Stella Burch Elias, Good Reason to Believe:
Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case
for Revisiting Lopez-Mendoza, 2008 Wis. L. Rev. 1109.
Finally, the circumstances of Mr. L-’s case meet the criteria for termination because
ICE’s violation of the statute governing immigration detainers resulted in the violation of Mr. L-
’s fundamental rights against unreasonable seizure and deprivation of liberty without due process
of law under the Fourth and Fifth Amendments, respectively.
C. Proceedings Must Be Terminated Because ICE Failed to Follow Its Own
Regulations.
1. ICE Violated 8 C.F.R. § 287.7 By Issuing a Detainer Against Mr.
L- Even Though He Was Not Charged With a Controlled
Substance Violation.
ICE violated not only the statute but also its own regulation by issuing a detainer against
Mr. L-, who was not charged with violating any controlled substance law. By its own terms, 8
C.F.R. § 287.7 is intended to operate pursuant to the statutory authorization provided in INA §
287(d), 8 U.S.C. § 1357(d). The regulation is titled “Detainer provisions under § 287(d)(3) of the
Act [8 U.S.C. § 1357(d)],” clearly restricting its scope to that of the referenced statutory
provision. Nowhere does the regulation suggest that it purports to ignore the limitations of the
referenced statute, which clearly and explicitly cabins the issuance of immigration detainers to
“violations of any law relating to controlled substances.” INA § 287(d), 8 U.S.C. § 1357(d); see
18
supra at pp. 9-12. The only plausible interpretation of the regulation is that it implements the
statute, not that it amends the statute to eliminate restrictions imposed by Congress.
The Court should rely on the canon of constitutional avoidance to interpret the regulation
so to incorporate the limitations of the statute because the regulation would otherwise be ultra
vires and violate the constitutional principle of separation of powers. As discussed above, an
agency “literally has no power to act . . . unless and until Congress confers power upon it.” La.
Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). The Board of Immigration Appeals has
recognized that the traditional canon of constitutional avoidance is an appropriate instrument in
discharging its obligation to interpret regulations and statutes. See In Re Fuentes-Campos, 21 I.
& N. Dec. 905, 912 (BIA 1997) (recognizing “the canon of statutory interpretation stating that
constructions of doubtful constitutional validity should be avoided where possible”).
In light of the foregoing, the Court should find that the ordinary canons of construction
favor the conclusion that the regulation only authorizes detainers in cases set forth in INA §
287(d), 8 U.S.C. § 1357(d). In federal courts, agency interpretations of their own regulations are
given substantial deference. Auer v. Robbins, 519 U.S. 452, 461 (1997) (an agency’s
interpretation of its own regulation is controlling unless “plainly erroneous or inconsistent with
the regulation”) (internal quotation marks and citations omitted). However, the deference that
Article III courts owe administrative decisions should not apply here. This Court, as an agency
adjudicative body and organ of the executive branch, plays a different structural role vis-à-vis the
enforcement of the immigration laws than Article III courts. This Court’s actions do not raise the
separation of powers concerns driving the deference cannons. Laurence H. Silberman, The D.C.
Circuit Review—Foreword: Chevron—The Intersection of Law & Policy, 58 Geo Wash L Rev
821, 822 (1990) (“Chevron’s rule . . . is simply sound recognition that a political branch, the
19
executive, has a greater claim to make policy choices than the judiciary.”). Therefore, the Court
has the power to interpret the agency regulation, unfettered by the deference that Article III
courts must apply.
Nonetheless, even under the most deferential standard, ICE’s apparent interpretation of 8
C.F.R. § 287.7 to apply in non-controlled substances cases fails. It is plainly erroneous because
it is contrary to the plain text of the regulation and statute, going beyond the scope of the
authorization articulated in the title of the regulation itself. ICE’s interpretation therefore cannot
be controlling. See MCI Telecom. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 229 (1994)
(“[A]n agency’s interpretation of a statute is not entitled to deference when it goes beyond the
meaning that the statute can bear.”). Thus, the regulation should be interpreted as limited to the
statutory terms, authorizing the issuance of detainers only in controlled substance cases. ICE
violated the regulation by issuing a detainer against Mr. L-.4
2. ICE Violated 8 C.F.R. § 287.7 By Issuing a Detainer Without
Determining That It Would Be “Impracticable or Impossible” to
Gain Custody of Mr. L-.
ICE also violated its own regulations by failing to make a determination, in advance of
issuing the detainer, of whether it would be impracticable or impossible to gain custody of Mr.
L- without a detainer. The regulation addressing the issuance of detainers specifically states that
detainers should be issued “in order for the Department to arrange to assume custody, in
situations when gaining immediate physical custody is either impracticable or impossible.” 8
C.F.R. § 287.7(a). Thus, ICE may not routinely and reflexively rely on the continued detention
of individuals by local law enforcement agencies beyond the expiration of local custodial
4 Indeed, on ICE’s interpretation, the regulation would be ultra vires of the authorizing statute
and would therefore violate the separation of powers. See infra section I.D.4.
20
authority, and should reserve detainers for those situations where gaining immediate custody “is
either impracticable or impossible.” Id.
There is no evidence before this Court demonstrating that it would have been
impracticable or impossible for ICE to gain immediate physical custody of Mr. L- on November
9, 2011. ICE certainly does not seem to have made any such determination. The State of
Connecticut released Mr. L- from its criminal custody on November 9, 2011, when the
prosecutor entered a nolle prosequi on all charges at Superior Court in Waterbury. That
courthouse is only 30 miles from ICE’s offices at 450 Main Street in Hartford. Nothing
prevented ICE from having taken custody of Mr. L- immediately following his Superior Court
hearing. But instead, ICE waited until the next day to pick up Mr. L- from the New Haven
Correctional Center, just over 40 miles from its office – in other words, over 10 miles further
away than the Waterbury courthouse. The agency cannot contend, and offers no evidence that, it
was impracticable or impossible to take custody of Mr. L- at a location closer to its offices than
where it eventually collected him.
D. ICE’s Regulatory Violations, Individually and Together, Deprived Mr. L- of
Fundamental Rights.
By causing Mr. L- to be detained past the end of the period authorized by state law in
violation of the limited statutory authorization for detainers and absent a warrant or a probable
cause determination, ICE deprived him of his fundamental right to liberty without any basis in
law. Specifically, ICE deprived Mr. L- of his Fourth Amendment right to be free from
unreasonable seizures and his Fifth Amendment right not to be deprived of his freedom without
due process of law. Moreover, ICE practice regarding detainers commandeers state personnel in
violation of the Tenth Amendment, and the issuance of detainers for individuals who have not
committed any controlled substance violations exceeds the scope of the agency’s statutory
21
authorization and is therefore ultra vires. By causing Mr. L- to be held on the basis of an
immigration detainer, ICE thus violated his rights under the Fourth, Fifth, and Tenth
Amendments of the Constitution. His detention pursuant to the immigration detainer resulted in a
deprivation of fundamental rights, and accordingly, the proceedings against him should be
terminated. See Rajah 544 F.3d at 447; see supra Section I.A.
1. Detention on the Basis of an Immigration Detainer Violates the Fourth Amendment.
INA § 287(d), 8 U.S.C. § 1357(d) authorizes the issuance of immigration detainers only
under a carefully circumscribed set of circumstances—specifically, where individuals are
arrested for controlled substance violations and where law enforcement authorities request the
issuance of a detainer. See supra at pp. 9-10. Thus, ICE’s issuance of immigration detainers
outside of those parameters exceeds the authority Congress granted the agency. Id. The Supreme
Court has recognized that the reasonableness of warrantless administrative arrests depends on
compliance with congressionally mandated standards. See, e.g., Colonnade Catering Corp. v.
United States, 397 U.S. 72, 74, 77 (1970) (seizure that did not comport with the search and
seizure standards fashioned by Congress was constitutionally unreasonable); see also Michigan
v. Tyler, 436 U.S. 499, 506 n.5, 508 (1978) (regarding administrative searches enforcing local
codes, probable cause exists if officers satisfy “reasonable legislative or administrative standards
for conducting” the search in question) (quoting Camara v. Mun. Court, 387 U.S. 523, 538
(1967)). Where a detention occurs without any basis in law—as it did here—the seizure clearly
does not accord with any legally enforceable standards and is not reasonable. See Malone v.
Cnty. of Suffolk, 968 F.2d 1480 (2d Cir. 1992) (“Judge Spatt correctly looked to New York law
to determine the status of the police officers as it may have affected the constitutionality of the
arrest . . . If, as the district court held, they were de facto officers, then the arrest was lawful
22
under state law and did not offend the Fourth Amendment. If they were mere usurpers, then all
their police actions, including the arrest, were invalid.”) (internal citations omitted). The issuance
of a detainer in cases not involving controlled substance charges or where local law enforcement
authorities did not request a detainer therefore violates the Fourth Amendment. As discussed
above, no other provision grants ICE the authority to cause an individual to be detained on the
basis of a detainer. See supra Section I.B.
It is undisputed that Mr. L- was not arrested for a controlled substance violation but was
nonetheless held on the sole basis of an immigration detainer in violation of the statute. His
continued detention was therefore without any basis in law and deprived him of his Fourth
Amendment right to be free from unreasonable seizures.
Moreover, ICE practice regarding detainers violates well-established Fourth Amendment
standards. The Fourth Amendment prohibits warrantless arrest and detention absent probable
cause. See Gerstein v. Pugh, 420 U.S. 103, 105 (1975); County of Riverside v. McLaughlin, 500
U.S. 44, 56-57 (1991). Yet, ICE issues immigration detainers routinely and as a matter of policy
to effectuate the detention of individuals on the basis of the initiation of an investigation only,
see Ex. M, DHS Form I-247, without requiring a probable cause determination or indeed any
legal standard of suspicion at all. See 8 C.F.R. § 287.7 (failing to specify any legal standard of
suspicion); Ex. N, DHS, FY 2012 Budget-in-Brief (239,523 detainers issued by the Criminal
Alien Program alone in fiscal year 2010). Moreover, the regulation governing the issuance of
detainers allows for detention longer than 48 hours, since it excludes holidays and weekends
from the calculation. 8 C.F.R. § 287.7; see County of Riverside v. McLaughlin, 500 U.S. 44, 56-
57 (1991) (establishing the 48-hour rule for probable cause determinations). As evidenced by
the frequency with which individuals are held well beyond 48 hours, ICE practice is to routinely
23
detain individuals in excess of the constitutionally mandated limit. See Exhibit O, NGO
Comments on U.S. Immigration and Customs Enforcement Draft Detainer Policy 8-9 (2010),
available at www.nilc.org/document.html?id=246; Exhibit P, National Immigration Forum,
Immigrants Behind Bars: How, Why, and How Much? (2011), available at http://www.
immigrationforum.org/images/uploads/2011/Immigrants_in_Local_Jails.pdf (“Public defenders
and immigration attorneys report that local jails routinely fail to release immigrants held on
detainers after a detainer has expired.”).
Because ICE caused his warrantless arrest and detention without any basis in law, and
pursuant to an ICE policy that routinely ignores these Fourth Amendment requirements, Mr. L-’s
detention pursuant to an immigration detainer deprived him of his fundamental right to be free
from unreasonable seizure under the Fourth Amendment.
2. Detention on the Basis of an Immigration Detainer Violates the Fifth Amendment.
The statutory and regulatory violations in this case led to the deprivation of Mr. L-’s
freedom from physical restraint, one of the most fundamental liberties protected by our
Constitution, without due process of law: “Freedom from imprisonment—from government
custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due
Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Deprivation of this basic
liberty without any authorization in law goes to the heart of the protection of the Due Process
Clause. Where the state deprives an individual of his liberty, it must have “a constitutionally
adequate purpose for the confinement.” Jones v. United States, 463 U.S. 354, 361 (1983)
(internal quotation marks omitted). In this case, not only did ICE lack a “constitutionally
adequate purpose,” it had no statutory authority whatsoever. See supra Section I.B. Where
detention exceeds statutory authorization, the government actor clearly cannot meet the
“constitutionally adequate purpose” test and the deprivation of liberty violates due process of
24
law. See, e.g., Benham v. Edwards, 678 F.2d 511, 531 (5th Cir. 1982), vacated on other grounds,
Ledbetter v. Benham, 463 U.S. 1222 (1983) (“The continued detention of such an acquittee, in
the absence of statutory authorization for such restraint, would violate due process of law.”).
Such a fundamental deprivation arising out of a statutory violation is grounds for termination.
Rajah, 544 F.3d at 447.
Moreover, the regulatory program created by 8 C.F.R. § 287.7 violates well-established
Fifth Amendment standards for the process that an individual is due when the government seeks
to deprive him of a fundamental right. It is well-settled that the Fifth Amendment requires notice
and an opportunity to contest the validity of one’s detention. See Mathews v. Eldridge, 424 U.S.
319 (1976); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential
principle of due process is that a deprivation of life, liberty, or property be preceded by notice
and an opportunity for hearing . . . .”) (internal citation omitted). Further, fundamental principles
of fairness require that detention be based upon a clear legal standard, in the absence of which
deprivation of liberty is always, by definition, arbitrary.
Yet, detainers are completely standardless authorizations for the continued deprivation of
individuals. They are governed by no threshold probable cause requirement, or even reasonable
suspicion; they provide no avenue for administrative appeal; and they fail to require notice of the
basis for continued detention. See 8 C.F.R. § 287.7; DHS Form I-247; see also Matter of
Sanchez, 20 I. & N. Dec. 223, 225 (BIA 1990) (holding that the Immigration Judge did not have
jurisdiction to hold custody hearing for individual held on immigration detainer). Indeed, on
information and belief, until very recently, individuals held on an immigration detainer past the
period authorized by state law were routinely not served with the DHS Form I-247, and thus
25
deprived of adequate notice as to the basis for their detention. Without knowing why they were
detained, they certainly had no means to challenge the basis of their detention.5
In the instant case, Mr. L- had to submit Freedom of Information Act requests in order to
even obtain a copy of the document that served as the basis of his continued detention, the DHS
Form I-247. The form did not require notice to Mr. L-. See Ex. M, DHS Form I-247. At no point
before or during his detention was he ever provided with a copy of the immigration detainer or
informed of any right to challenge his detention or to retain a lawyer. See Ex. C, L- Decl., March
15, 2012, at ¶¶ 6-7. Instead, he was held in jail overnight without any understanding of the basis
for his detention, without a hearing, and without any administrative procedures by which to
challenge his detention. Id. at ¶¶ 6-9. As discussed above, ICE does not base the issuance of
detainers on probable cause determinations or any legal standard of suspicion. This standardless
detention in the absence of a warrant, notice, hearing, or any process at all violated Mr. L-’s Fifth
Amendment right not to be deprived of his freedom without due process of law.
ICE’s failure to comply with its statutory and regulatory requirements, see supra Sections
I.B-I.C, further deprived Mr. L- of procedural protections supposed to be due to civil
immigration detainees and therefore itself constitutes a violation of due process. See Accardi v.
Shaughnessy, 347 U.S. 260 (1954) (agency’s obligation to observe its own procedural rules may
be enforced through the due process clause of the Fifth Amendment). ICE therefore deprived Mr.
L- of his fundamental right not to be deprived of liberty without due process of law.
3. The Use of Immigration Detainers Violates the Tenth Amendment.
5 In an apparent acknowledgment of the constitutional problems raised by the absence of notice
to individuals against whom a detainer is issued, ICE recently changed Form I-247 to require that
a copy be provided to the detainee. See DHS, FY 2013 Budget in Brief at 97, available at
http://www.dhs.gov/xlibrary/assets/mgmt/dhs-budget-in-brief-fy2013.pdf. Respondent was
subjected to the prior version of the form and was not served with it.
26
ICE issues detainers even when they are not requested by local law enforcement. See
supra at p.12; cf. INA § 287(d), 8 U.S.C. § 1357(d). In doing so, the agency purports to require
state and local law officials to hold individuals past the period of their state-authorized detention.
8 C.F.R. § 287.7(d) (“such agency shall maintain custody of the alien”) (emphasis added); see
also Exhibit Q, Ana Radelat & Mark Pazniokas, Malloy stirs up feds with immigration policy,
February 28, 2012, CT Mirror, available at http://www.ctmirror.org/story/15591/malloy-stirs-
feds-immigration-policy?quicktabs_1=1 (In response to Governor Dannel Malloy’s statement
that he will decide which immigration detainers to honor, “‘[w]e expect all local law
enforcement to honor all of our detainers,’ said Ross Feinstein, spokesman for U.S. Immigration
and Customs Enforcement, or ICE.”).
This use of immigration detainers violates the Tenth Amendment. Under Printz v. United
States, “the Federal Government may not compel the States to implement, by legislation or
executive action, federal regulatory programs.” 521 U.S. 898, 925 (1997) (striking down a
federal mandate for local law enforcement officers to conduct background checks) (emphasis
added); see also New York v. United States, 505 U.S. 144 (1992) (striking down a provision of a
federal radioactive waste statute as commandeering the state legislature to either regulate in
conformity with congressional dictates or accept ownership of radioactive wastes). The anti-
commandeering principle applies not only to states themselves but also to officers of the state.
See Printz, 521 U.S. at 928 (rejecting the argument that the Tenth Amendment prohibits
Congress only from commandeering state legislatures, not state executive officials).
The structure of dual sovereignty protected by the Tenth Amendment disperses power,
protects against tyranny, and ensures the liberty of individuals. See Printz, 521 U.S. at 921-22.
In the context of law enforcement, these protections are critical. As the Court noted in Printz,
27
“[t]he power of the Federal Government would be augmented immeasurably if it were able to
impress into its service—and at no cost to itself—the police officers of the fifty States.” Id. at
922. Commandeering state and local law enforcement and correctional officials to enforce
immigration detainers represents a significant expansion, and abuse, of federal immigration
enforcement powers.
Indeed, the Court in Printz highlighted the particular danger of federal commandeering of
local law enforcement. Id. at 922. The principle of dual sovereignty protected by the Tenth
Amendment recognizes that state and local authorities are accountable to local communities. Id.
at 920. This local accountability is distorted when the federal government effectively requires
local authorities to undertake activities that may not reflect the choices of the local community.
See id. at 930 (noting that in such a situation the federal government takes “credit” for the
program, while local officials take the “blame” for associated costs). In comparison to the local
costs associated with background checks in Printz, the local costs associated with holding
individuals in state custody on immigration detainers are significantly greater. Local authorities
must shoulder the financial burden of detention, incur potential legal liability, and incur potential
political costs to participating in a locally unpopular federal program. See generally Exhibit R,
Nancy Morawetz and Alina Das, Legal Issues in Local Police Enforcement of Federal
Immigration Law, The Role of Police: Striking a Balance Between Immigration Enforcement
and Civil Liberties 69 (2009), available at http://www.policefoundation.org/strikingabalance;
Exhibit S, ACLU of Northern California, Costs and Consequences: The High Price of Policing
Immigrant Communities 25-26 (2011), available at http://www.aclunc.org/docs/criminal_
justice/police_practices/costs_and_consequences.pdf.
28
The Tenth Amendment protects fundamental interests of individuals; individuals
therefore have standing to raise Tenth Amendment claims. Only last year, in Bond v. United
States, the Supreme Court noted that “[a]n individual has a direct interest in objecting to laws
that upset the constitutional balance between the National Government and the States when the
enforcement of those laws causes injury that is concrete, particular, and redressable.” 131 S. Ct.
2355, 2364 (2011). It went on to hold that in certain circumstances, private individuals may
therefore invoke the rights guaranteed by the Tenth Amendment. Id. at 2365-67. In New York
v. United States, the Court noted that “[t]he Constitution does not protect the sovereignty of
States for the benefit of the States or state governments as abstract political entities, or even for
the benefit of the public officials governing the States. To the contrary, the Constitution divides
authority between federal and state governments for the protection of individuals.” 505 U.S.
144, 154 (1992) (holding that state consent does not cure Tenth Amendment defect). Under both
Bond and New York, ICE’s exercise of its claimed authority to issue a detainer compelling the
State of Connecticut to confine Respondent violated the Tenth Amendment anti-commandeering
principle and harmed Mr. L-. He may therefore challenge ICE’s practice on Tenth Amendment
grounds as an individual.
Because immigration detainers commandeer state and local law enforcement and
correctional officials into holding individuals past the period authorized by state law, they violate
the principle of state sovereignty protected by the Tenth Amendment. Their use is therefore
unconstitutional per se. Their use against Mr. L- is a fortiori unconstitutional and deprived Mr.
L- of his fundamental right to be free from the arbitrary exercise of government power.
29
4. If ICE’s Interpretation of 8 C.F.R. § 287.7 Is Adopted, the Proceedings Should Be
Terminated Because the Regulation is Ultra Vires, Thereby Violating the
Constitutional Principle of Separation of Powers and Depriving Mr. L- of His Right
To Be Free From the Arbitrary Exercise of Government Power.
INA § 287(d), 8 U.S.C. § 1357(d), the only statutory provision of the INA that authorizes
immigration detainers, and the provision on which 8 C.F.R. § 287.7 is based, limits the issuance
of immigration detainers to individuals arrested for controlled substance violations, and in cases
where a local law enforcement agency initiates a request for a detainer determination. See supra
Section I.B. Section 287.7 should therefore be interpreted as being subject to the same limitation.
See supra Section I.C.
However, assuming arguendo that ICE may interpret the regulation as authorizing
detainers in circumstances where the statutory requirements are not met, see supra at pp. 17-18,
then § 287.7 is ultra vires of the authorizing statute, INA § 287(d), 8 U.S.C. § 1257(d), and
violates the constitutional principle of separation of powers. See Haitian Ctrs. Council, Inc. v.
Sale, 823 F.Supp. 1028, 1046 (E.D.N.Y. 1993), vacated as moot, Sale v. Haitian Ctrs. Council,
509 U.S. 918 (1993) (“Agency actions that do not fall within the scope of a statutory delegation
of authority are ultra vires and must be invalidated by reviewing courts); Chrysler Corp. v.
Brown, 441 U.S. 281, 302 (1979) (“The legislative power of the United States is vested in the
Congress, and the exercise of quasi-legislative authority by governmental departments and
agencies must be rooted in a grant of such power by the Congress and subject to limitations
which that body imposes.”). ICE’s interpretation of the regulation and the use of immigration
detainers against individuals such as Mr. L- is therefore unconstitutional. This violation deprives
individuals such as Mr. L- of their right to be free from the arbitrary exercise of government
power.
* * *
30
ICE’s failure to comply with its own governing statutes and regulations resulted in a
deprivation of Mr. L-’s fundamental rights. Proceedings against him should be terminated.
Rajah, 544 F.3d at 447.
II. THE COURT SHOULD NOT ENTER A REMOVAL ORDER BECAUSE
RESPONDENT’S REMOVAL IS DISPROPORTIONATE TO THE
UNDERLYING IMMIGRATION STATUS OFFENSE UNDER THE
PROPORTIONALITY REVIEW REQUIRED BY INA § 240(c)(1)(A), 8 U.S.C.
§ 1229a(c)(1)(A).
Removal of Respondent, who arrived in the United States as a fifteen year-old boy, has
lived in Waterbury, Connecticut for nearly seven years and developed close ties to the
community, working long hours to support his family, attending church and some school there,
and even playing in a local soccer league, would be severely disproportionate to the single, non-
violent underlying immigration status offense with which he is charged – entry without
inspection. Mr. L-’s only contact with law enforcement consists of a single arrest for a minor
misdemeanor shoplifting charge which was later dropped and a prior contact with immigration
authorities when he was a fifteen year-old unaccompanied minor, resulting in an in absentia
removal order which has now been rescinded. His removal would therefore be disproportionate
and fails both the categorical and case-by-case proportionality review required under proper
interpretation of INA § 240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A). See supra, Statement of Facts
and Proceedings.
A. INA § 240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A) Requires Proportionality Review as
Part of the Immigration Judge’s Decision of Whether to Enter and Order of
Removal.
INA § 240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A) provides that “[a]t the conclusion of the
[removal] proceeding, the immigration judge shall decide whether an alien is removable from the
United States.” This statute must be read to incorporate proportionality review since any
31
interpretation of INA § 240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A) that would allow an
immigration judge to enter a removal order disproportionate to the underlying conduct would
raise serious constitutional doubt. Construing statutes to avoid constitutional problems is a
bedrock canon of statutory interpretation, and a canon which the BIA confirms this Court is
empowered and obligated to deploy in construing the INA.
1. Proportionality Review is Required in the Immigration Context.
The well-established and long-standing principle that a penalty be proportionate to the
underlying offense applies in the immigration context just as it does in the civil or criminal
context. The Supreme Court has long recognized that a penalty must be proportionate to the
underlying offense and immigration judges are also bound by this requirement.
a. The Supreme Court has Long Recognized that a Penalty Must
be Proportionate to the Underlying Offense.
Proportionality, the principle that a penalty should be proportionate to the underlying
offense, is a long-standing legal principle which dates back to at least the Magna Carta and is
“deeply rooted and frequently repeated in common-law jurisprudence.” Solem v. Helm, 463 U.S.
277, 284 (1983) (invalidating a life sentence for passing a bad check as constitutionally
disproportionate). The Supreme Court has explicitly recognized the constitutional principle of
proportionality for more than a century. Id. at 286 (citing Weems v. United States, 217 U.S. 349
(1910)).
In both the criminal and civil contexts, the Constitution requires that penalties be
proportionate. See id. at 290; Graham v. Florida, 130 S. Ct. 2011, 2021 (2010) (“The concept of
proportionality is central to the Eight Amendment.”; Graham, 130 S. Ct. at 2036 (Robert, C.J.,
concurring in the judgment); State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 416
(2003) (setting aside punitive damages award and holding that courts “must ensure that the
32
measure of punishment is both reasonable and proportionate to the amount of harm to the
plaintiff and to the general damages recovered”); BMW of N. Am., Inc. v. Gore, 517 U.S. 559
(1996) (setting aside civil punitive damages award as disproportionate in violation of the Due
Process Clause); Dolan v. City of Tigard, 512 U.S. 374, 391-92 (1994) (applying “rough
proportionality” test to determine constitutionality of compensation for land use exaction under
the Takings Clause); United States v. Bajakajian, 524 U.S. 321, 334 (1998) (invalidating fine as
violating proportionality requirement of Excessive Fines Clause).
The Court’s recognition of this principle limits the government’s power to penalize and
requires substantive changes in the types of penalties that can be imposed, whether in a civil or
criminal matter. In the criminal context, the Eighth Amendment guarantees that criminal
punishments are not cruel and unusual and this has been understood to bar certain types of
punishments as disproportionate to the underlying offense. U.S. Const. amend. VIII. See also
Graham, 130 S. Ct. at 2034 (holding unconstitutional a sentence of life in prison without parole
for a juvenile offender who committed a non-homicide crime); Solem, 463 U.S. at 284 (holding
that a life sentence for passing a bad check is disproportionate and therefore a violation of the
Eighth Amendment). Additionally, the Fifth Amendment and the Fourteenth Amendment protect
against excessive punishment in other contexts. U.S. Const. amend. V. See BMW, 517 U.S. at
568 (invalidating a civil punitive damages award of $2 million for failing to disclose that the car
had been repainted prior to delivery as “grossly excessive” and a violation of the Fourteenth
Amendment), State Farm Mut. Auto Ins. Co., 538 U.S. at 429 (holding that a civil punitive
damages award was not proportionate and violated the Fourteenth Amendment).
The Supreme Court utilizes both a “narrow proportionality review” to examine cases on
an individual case-by-case proportionality analysis, and a categorical proportionality test to
33
determine whether entire classes of punishment are unconstitutional. While “[n]o precise
mathematical calculation is required,” proportionality does require the adjudicator “make some
sort of individualized determination” that the penalty is proportional to the underlying offense.
Dolan v. City of Tigard, 512 U.S. at 391.
b. Removal is a Drastic Measure and a Severe Penalty.
Removal is not only a “particularly severe ‘penalty,’” Padilla v. Kentucky, 130 S. Ct.
1473, 1481 (2011) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)), but also
a “drastic measure,” id. at 1478, that at times can be “the equivalent of banishment of exile,”
Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947); see also Fong Haw Tan v. Phelan, 333 U.S.
6, 10 (1948). At no time in our nation’s immigration history has that been more true than today.
Once the penalty of removal is imposed on an individual, he is also banned from returning to the
United States for five years or more, depending on individual circumstances: five years, if the
removal case begins upon a foreign national’s arrival to the United States, INA § 212(a)(9)(A)(i),
8 U.S.C. § 1182(a)(9)(A)(i); ten years, if the removal case begins after one’s initial entry, INA §
212(a)(9)(A)(ii)(II), 8 U.S.C. § 1182(a)(9)(A)(ii)(II); twenty years if the removal order is a
second or subsequent order, INA § 212(a)(9)(A)(i), 8 U.S.C. § 1182(a)(9)(A)(i); or a lifetime ban
if the person is convicted of an aggravated felony. Id.
Removal and the subsequent re-entry bars clearly constitute a penalty. As the Supreme
Court has recognized, Graham, 130 S.Ct. at 2028-30, sanctions may serve a variety of goals.
Retribution, deterrence, incapacitation, and rehabilitation are all legitimate penological goals. Id.
Removal is intended to be punitive. Indeed, Congress had no doubt that deportation was a
penalty, as illustrated in the judicial and legislative history of the re-entry bars. See, e.g., Dada v.
Mukasey, 554 U.S. 1, 11 (2008) (listing the re-entry bars as the first “penal[ty] attendant to
34
deportation”); Zalawadia v. Ashcroft, 371 F.3d 292, 298 (5th Cir. 2004) (characterizing the re-
entry bar as a “penalty”); Tapia Garcia v. I.N.S., 237 F.3d 1216, 1218 (10th Cir. 2001) (re-entry
bars are a “concrete disadvantage imposed as a matter of law”); Juarez-Ramos v. Gonzales, 485
F.3d 509, 511 (10th Cir. 2001) (re-entry bars “reflect a congressional intent to sever an alien’s
ties to this country”); Hearing of the House Judiciary Committee, Full Committee Mark Up,
104th Cong. (Sept. 19, 1995) (Rep. Elton Gallegly, emphasizing the importance of the re-entry
bars, commented “if we don’t have penalties for illegal immigration, for heaven’s sake, how are
we ever going to deal with the issue?”); id. (Rep. Berman argues that re-entry bars for unlawful
presence would create “a very harsh penalty”).
c. The Constitution Requires that the Penalty of Removal be
Proportionate to the Underlying Offense.
In the immigration context, the Due Process clause of the Fifth Amendment undisputedly
applies, and the Eighth Amendment is, at minimum, highly instructive, given the punitive nature
of deportation. See, e.g., Jose Zacaria Quinteros, A088239850, 2011 WL 5865126 at *2 (BIA
Nov. 9, 2011) (“This Board has also recognized that . . . suppression is appropriate where the
evidence was obtained in a manner so egregious that its use would violate due process by
offending the requirements of fundamental fairness.”); Zadvydas v. Davis, 533 U.S. at 689-90
(applying Due Process Clause to the immigration context). While immigration law proceedings
are formally “civil” in nature, the Constitution requires proportionality analysis in both the
criminal and civil contexts. Further, this civil-criminal distinction is not dispositive.
Under the Fifth and Eighth Amendments, the Constitution specifically requires that
penalties be proportionate to the underlying offense. TXO Prod. Corp. v. Alliance Res. Corp.,
509 U.S. 443, 454 (1993) (“the Due Process Clause of the Fourteenth Amendment imposes
substantive limits ‘beyond which penalties may not go’”). As a constitutional matter, therefore,
35
deportation may only be imposed where proportionate to the gravity of the underlying offense.
Removal in situations where it would be disproportionate to the underlying offense raises serious
constitutional questions. Because proportionality review does not occur elsewhere in the
immigration adjudication process, it must be accounted for in an immigration judge’s decision of
“whether an alien is removable from the United States.” INA § 240(c)(1)(A), 8 U.S.C. §
1229a(c)(1)(A).
2. Proportionality Review is Incorporated into the Immigration Judge’s
Removal Decision Through INA § 240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A).
Because the Constitution’s Fifth and Eighth Amendment proportionality requirements
apply in the immigration context, the order of a penalty—in this case, removal—by an
immigration judge cannot be grossly disproportionate to the underlying offense without raising,
at the very least, serious doubts as to the statute’s constitutionality. In order to avoid this serious
constitutional problem and preserve Congressional intent, courts must employ the statutory
interpretation canon of constitutional avoidance to read INA § 240(c)(1)(A), 8 U.S.C. §
1229a(c)(1)(A) to require proportionality review prior to the entrance of a removal order.
a. The Canon of Constitutional Avoidance is a Standard Method
of Statutory Interpretation.
The canon of constitutional avoidance is a “cardinal principle” of traditional statutory
interpretation. Crowell v. Benson, 285 U.S. 22, 62 (1932); see NLRB v. Catholic Bishop of Chi.,
440 U.S. 490, 500 (1979); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936)
(Brandeis, J.). According to this bedrock interpretive canon, where “an otherwise acceptable
construction of a statute would raise serious constitutional problems, and where an alternative
interpretation of the statute is ‘fairly possible’ [a court] is obligated to construe the statute to
avoid such problems.” INS v. St. Cyr, 533 U.S. 289, 299-300 (2001) (internal citations omitted).
36
The canon thus serves as “a tool for choosing between competing plausible interpretations of a
statutory text, resting on the reasonable presumption that Congress did not intend the alternative
which raises serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381 (2005). Accord
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg & Constr. Trades Council, 485 U.S. 568, 575
(1988). Significantly, there need be no determination of whether the statute is actually
unconstitutional, for as Justice Holmes has explained, the canon requires that a statute be
construed “so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts
upon that score.” United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916) (emphasis added).
The canon of constitutional avoidance is a regular tool of statutory interpretation.
b. The Canon of Constitutional Avoidance is Appropriately
Employed in Immigration Court.
Adjudicative bodies reviewing immigration court decisions, from the Board of
Immigration Appeals to the U.S. Supreme Court, have repeatedly recognized the applicability of
the canon of constitutional avoidance in the immigration context. Immigration courts can and
should employ this valuable tool for statutory interpretation in removal proceedings.
The Board of Immigration Appeals has recognized the applicability of the canon of
constitutional avoidance. In Matter of Fuentes-Campos, 21 I. & N. Dec. 905, 908 (BIA 1997),
though it ultimately declined to rely on the principle, the Board “recognize[d] the canon of
statutory interpretation stating that constructions of doubtful constitutional validity should be
avoided where possible.” In another decision, the Board noted that, “[i]t is axiomatic that
statutory interpretations of doubtful constitutional validity should be avoided where possible.”
Francis Eduardo Patarroyo-Sanchez, A42279463, 2004 WL 1739093 at *4 (BIA June 18, 2004).
The Supreme Court has consistently applied the canon of constitutional avoidance in
order to narrow the range of discretionary action seemingly open to immigration authorities
37
under the immigration statutes in cases involving substantive due process claims under the Fifth
Amendment. In statutory challenges similar to that raised by Respondent here – Zadvydas v.
Davis, 533 U.S. 678 (2001), its companion case, Clark v. Martinez, 543 U.S. 371 (2005), and
United States v. Witkovich, 353 U.S. 194 (1957) – the Supreme Court has considered Fifth
Amendment substantive due process concerns and interpreted the relevant statutory provisions
under the canon of constitutional avoidance to include limits on the government’s powers
regarding detention and supervision of those ordered deported, respectively. In INS v. St. Cyr,
533 U.S. 289 (2001), the Supreme Court applied this canon to an immigration statute, the plain
language of which would have foreclosed all judicial review of some deportation orders. To
avoid conflict with the Suspension Clause, the Court allowed for review through habeas actions.
Immigration Judges interpret the INA using the traditional canons of statutory
interpretation when questions of statutory construction arise. See, e.g., In Re W-F-, 21 I. & N.
Dec. 503, 506 (BIA 1996) (recognizing that IJs engage in statutory interpretation); In Re Masri,
22 I. & N. Dec. 1145, 1147-48 (BIA 1999) (citing several traditional canons of statutory
construction). These canons include the canon of constitutional avoidance, which does not
require, and in fact, explicitly seeks to avoid, a determination on the constitutionality of a statute.
The canon operates merely when constitutional doubts arise. See supra at p.35. Thus, though
immigration courts may not have jurisdiction to decide constitutional questions, they are
empowered to recognize constitutional problems and make use of traditional statutory
interpretation tools to interpret statutes to avoid them. The canon of constitutional avoidance
exists, not to decide constitutional questions, but, rather, to give full effect to Congressional
intent, which is presumed to respect constitutional requirements. Clark v. Martinez, 543 U.S. at
38
381; see also Rust v. Sullivan, 500 U.S. 173, 191 (1991) (“This canon is followed out of respect
for Congress, which we assume legislates in the light of constitutional limitations.”).
c. The Immigration Judge’s Duties Under INA § 240(c)(1)(A), 8
U.S.C. § 1229a(c)(1)(A) Incorporate Proportionality Review.
The canon of constitutional avoidance, the Supreme Court has observed, “comes into
play only when, after the application of ordinary textual analysis, the statute is found to be
susceptible of more than one construction; and the canon functions as a means of choosing
between them.” Clark v. Martinez, 543 U.S. at 385 (emphasis in original). Since INA §
240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A) is silent with respect to which factors should guide
Immigration Judges in their decision about whether an Immigration Judge should enter an order
of removal against a particular respondent found to be removable, it is both appropriate and
necessary for immigration courts to use the interpretive canon of constitutional avoidance to
require proportionality review prior to the entrance of a removal order and save the statute from
constitutional infirmity.
3. Proportionality Review in Immigration Court Under INA § 240(c)(1)(A),
8 U.S.C. § 1229a(c)(1)(A) Include Both Case-By-Case and Categorical
Review.
Traditional proportionality review encompasses both a categorical and a case-by-case
review. In undertaking the proportionality review required by INA § 240(c)(1)(A), 8 U.S.C. §
1229a(c)(1)(A), immigration courts should adhere to these established principles.
a. Case-By-Case Proportionality Review in Immigration Courts.
Immigration courts should conduct a case-by-case proportionality review. The inquiry
has two prongs. First, courts compare the penalty to the underlying offense to determine whether
there can be an inference of “gross disproportionality.” Harmelin v. Michigan, 501 U.S. 957,
39
1005-06 (1991). Then courts undertake inter- and intra-jurisdictional comparisons to see how
other jurisdictions have imposed penalties for similar offenses.
While immigration courts may well conclude that the penalties of removal and a bar to
re-entry in particular circumstances are proportional to the underlying offense, that may not
always be so. For example, in Martinez v. U.S. Attorney General, 413 Fed.Appx. 163, 168-69
(11th Cir. 2011), the Eleventh Circuit wrestled with the “heartbreaking” case of a young mother
of six U.S. citizen children, who had herself come to the U.S. as a child, and subsequently
escaped two abusive marriages, but was not eligible for cancellation of removal. The court
concluded that, “[s]imply put, this case calls for more mercy than the law permits this Court to
provide.” Id. Cases such as that one, which raise an inference of “gross disproportionality,”
would meet the first prong. Objective factors to consider include the seriousness of the
underlying offense, the length of time in the United States, the presence and strength of family
and community ties, whether the individual is a veteran, whether and to what extent the
individual has cooperated with law enforcement regarding a criminal investigation, and whether
the individual is a threat to the health or safety of society.
The second prong’s comparative analysis asks the immigration court to inquire into other
penalties typically imposed, as the Supreme Court did in United States v. Bajakajian, 524 U.S.
321, 338-39 (1998). For example, such review conducted in the case of a noncitizen without
lawful authorization to be in the United States might look to the criminal and civil penalties
imposed for entry without inspection: a maximum sentence of six months, INA § 275(a), 8
U.S.C. § 1325(a); a civil fine of $50 to $250, INA § 275(b)(1), 8 U.S.C. § 1325(b)(1); and a
criminal fine of $5,000, 18 U.S.C. § 3571(b). The immigration court can also look to sentencing
and enforcement practices, as the Supreme Court did in Graham when it examined state
40
sentencing practices regarding life-without-parole sentences for juveniles and ultimately held
such practices unconstitutional. Graham, 130 S. Ct. at 2034. The Ninth Circuit recently took a
similar approach in the immigration context when it ordered the Attorney General to assess the
implications of ICE enforcement priorities “on the government’s continued prosecution of the
action . . . given that petitioners do not fall within any of the categories of aliens deemed
priorities by ICE for deportation.” Vega Alvarez v. Holder, No. 08-71383 (9th Cir. Jan. 7, 2011),
ECF No. 24. See Rodriguez v. Holder, Nos. 06-74444, 06-75524 (9th Cir. Feb. 6, 2012), ECF
No. 26 (“[T]he government shall advise the court . . . whether the government intends to exercise
prosecutorial discretion in this case and, if so, the effect, if any, of the exercise of such discretion
on any action to be taken by this court . . . .”); San Agustin v. Holder, No. 09-72910 (9th Cir.
Feb. 6, 2012), ECF No. 20 (same); Jex v. Holder, No. 09-74038 (9th Cir. Feb. 6, 2012), ECF No.
32 (same); Pocasangre v. Holder, No. 10-70629 (9th Cir. Feb. 6, 2012), ECF No. 22 (same);
Mata-Farsado v. Holder, No. 10-71869 (9th Cir. Feb. 6, 2012), ECF No. 20 (same).
Finally, the re-entry bars may themselves, in some circumstances, result in
disproportionality when triggered by removal, under this case-by-case proportionality review,
since they can represent a penalty greater than any criminal sentence either actually or potentially
imposed. The Supreme Court, in both Bajakajian, 524 U.S. at 338-39 and BMW, 517 U.S. at
584, undertook a similar analysis when comparing the fine imposed and punitive damages
awarded, respectively, to the criminal penalties available for the underlying conduct.
b. Categorical Proportionality Review in Immigration Courts.
Like other courts, immigration courts should conduct a categorical proportionality
review. The Supreme Court, in the Eighth Amendment context, has made use of categorical
proportionality review to determine whether a punishment can be considered proportional for
41
entire classes of people, given the particular characteristics of the class. See, e.g., Enmund v.
Florida, 458 U.S. 782, 797 (1982) (death penalty impermissible for aiding and abetting felony
murder); Roper v Simmons, 543 U.S. 551, 568-71 (2005) (death penalty impermissible for those
under eighteen); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (death penalty impermissible for a
mentally retarded offender); Kennedy v. Louisiana, 554 U.S. 407, 413 (2008) (death penalty
impermissible for child rape not resulting and not intended to result in death).
Immigration courts conducting categorical proportionality review should undertake the
same three-step inquiry courts perform in the Eighth Amendment context: First, immigration
courts should look to “objective indicia of society’s standards,” particularly laws and
government practices. Graham, 130 S. Ct. at 2022. Second, they should examine “the culpability
of the offenders at issue in light of their crimes and characteristics, along with the severity of the
punishment in question.” Id. at 2026. Third, courts should assess whether the penalty “serves
legitimate penological goals.” Id. at 2028-30.
Noncitizens who came to the United States at a young age, along with juveniles and the
mentally ill, would meet these criteria.6 For each of these groups, ICE’s practice is generally not
to seek removal,7 culpability is diminished,
8 and, while removal may incapacitate these
6 Other groups may meet these criteria as well. For example, the bars to reentry found in INA §
212(a)(9)(A), 8 U.S.C. § 1182(a)(9)(A), particularly the ten-year, twenty-year, and permanent
bars, may also make removal of certain long-time residents with strong community and family
ties to the United States categorically disproportionate. In light of the registry provisions of 8
U.S.C. § 1259, which allow certain long-time residents of good moral character to obtain lawful
permanent resident status, removal of such persons may be categorically disproportionate.
Finally, automatic removal of those convicted of aggravated felonies consisting of low-level
and/or nonviolent misdemeanors may also be categorically disproportionate under these criteria. 7 See Exhibit T, John Morton, Asst. Sec’y, DHS, June 17, 2011, Exercising Prosecutorial
Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the
Apprehension, Detention, and Removal of Aliens available at http://www.ice.gov/doclib/secure-
communities/pdf/prosecutorial-discretion-memo.pdf.; Exhibit U Susan Carroll, Immigration
42
individuals, it does not serve the other penological goals of deterrence, rehabilitation, or
rehabilitation.9
B. Entry of a Removal Order Would Be Disproportionate in Violation of INA §
240(a)(1)(C), 8 U.S.C. § 1229a(a)(1)(C).
Mr. L- entered the United States without inspection in 2005 and has conceded he is
removable as charged pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Removal
of Mr. L- would be disproportionate to this underlying offense, failing both case-by-case and
categorical proportionality review. This court should therefore decline to enter an order of
removal in his case. In the alternative, Respondent seeks termination of the proceedings for the
same reasons.
1. Removal of Respondent R- L- Fails Case-By-Case Proportionality
Review.
Removal of Mr. L- would fails a traditional case-by-case proportionality analysis. This
analysis proceeds along two steps, first comparing removal to the underlying offense to assess
cases being tossed by the hundreds: Docket review pulls curtain back on procedure by Homeland
Security, Houston Chronicle (Oct. 16, 2010) available at http://www.chron.com/news/article/
Houston-immigration-cases-tossed-by-the-hundreds-1711874.php. 8 Regarding juveniles, see Roper, 543 U.S. 551, 569-71 (2005) and Graham, 130 S.Ct. at 2026
(recognizing that juveniles have a “lack of maturity and an underdeveloped sense of
responsibility”). Regarding the mentally impaired, see Ford v. Wainwright, 477 U.S. 399, 406-10
(1986) and Atkins, 536 U.S. at 317-18. Finally, certainly, those who were brought to the United
States as minors cannot be thought to have the same culpability as those who have chosen to
enter the United States in violation of the law. 9 Regarding juveniles, see Graham, 130 S. Ct. at 2028-30 (recognizing that penological
considerations do not apply in the same way to juveniles). Similar reasoning is applicable to the
mentally ill. Further, removal alone is not likely to lead to rehabilitation for immigration
offenses. Finally, the extent to which retribution is even available for a victimless immigration
offense is questionable, and, because of this, it cannot be said that removal serves retribution.
43
whether removal would support an inference of gross disproportionality, and then comparing
removal in this case to similar cases in other jurisdictions, or other suitable benchmarks.
The assessment of whether removal gives rise to an inference of gross disproportionality
involves comparing the penalty of removal in this case to the underlying offense. Several factors
are relevant, including the length of time in the United States, the presence and strength of family
and community ties, and whether the individual is a threat to the health or safety of society. Here,
removal of an individual who arrived in the United States at a young age, has lived in Waterbury,
Connecticut for nearly seven years, developing close ties to the community, working and
attending church and some school there, with only a single arrest for a minor misdemeanor
shoplifting charge which was itself later withdrawn by the prosecution, must be considered
grossly disproportionate in light of the charge: a single, non-violent immigration status offense.
To undertake the second step, the Court can compare removal in this case to reliable
indicia such as other penalties available for the underlying conduct and ICE removal policy. If
Mr. L- had been criminally charged with entry without inspection, he would have faced a
maximum sentence of six months, INA § 275(a), 8 U.S.C. § 1325(a); a civil fine of $50 to $250,
INA § 275(b)(1), 8 U.S.C. § 1325(b)(1); and a criminal fine of $5,000, 18 U.S.C. § 3571(b), all
of which would likely have been mitigated by his juvenile status at the time and are minor
compared to the “drastic” and “particularly severe ‘penalty,’” of removal. Padilla v. Kentucky,
130 S.Ct. 1473, 1478, 1481 (2011) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740
(1893)). And as detailed below, see infra Section II.B.2, ICE removal policy as articulated in the
Morton Memos would not support removal in this case.
If Mr. L- were ordered removed, he would face a ten-year bar to re-entry into the United
States and would be separated from his family here and the close ties he has developed in the
44
Waterbury community. See INA § 212(a)(9)(A)(ii), 8 U.S.C. 1182(a)(9)(A)(ii). Plainly, in light
of ICE removal practice and the relatively minor criminal and civil penalties available for the
alleged underlying conduct, removal would be disproportionate in Respondent’s case, and thus it
fails case-by-case proportionality review.
2. Removal of Respondent R- L- Fails Categorical Proportionality Review.
Mr. L-’s case also fails the usual three-pronged categorical proportionality analysis,
making his removal categorically disproportionate. Such analysis first looks to societal
standards, particularly laws and government practices, and then examines culpability in light of
the Respondent’s alleged offenses along with the severity of the punishment in question. Finally,
the analysis would conclude with an assessment of how well the penalty serves penological
goals. See supra, Section II.A.3.b.
With regard to the first step, the Court should look to ICE’s current removal practices as
objective evidence of societal standards. DHS Assistant Secretary John Morton, Director of ICE,
recently issued a trio of memoranda outlining ICE removal priorities to be considered in the
Department’s exercise of its prosecutorial discretion, which are directly relevant to this case. See
Ex. T, John Morton, Asst. Sec’y, DHS, June 17, 2011, Exercising Prosecutorial Discretion
Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension,
Detention, and Removal of Aliens available at http://www.ice.gov/doclib/secure-communities/pdf/
prosecutorial-discretion-memo.pdf (hereafter “Morton Memo I”); Exhibit V, John Morton, Asst.
Sec’y, DHS, June 17, 2011, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs,
available at http://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf (hereafter
“Morton Memo II”); Exhibit W, John Morton, Asst. Sec’y, DHS, March 2, 2011, Civil
Immigration Enforcement: Priorities for Apprehension, Detention, and Removal of Aliens,
45
available at http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf (hereafter
“Morton Memo III”). Further evidence illustrating societal standards regarding this conduct can
be gleaned from an examination of the other penalties available for it. As detailed supra, p.42,
the criminal and other civil penalties are slight compared to removal, amounting to no more than
six months imprisonment, a criminal fine of $5,000, and a civil fine not to exceed $250.
In Morton Memo I, Asst. Secretary Morton listed several criteria weighing in favor of
prosecutorial discretion. Id. at 4. These include length of presence in the United States, entry as a
minor, and ties and contributions to the community. Id. All of these factors are present in Mr. L-
’s case: he has been in the United States since 2005, entered when he was a fifteen year-old
child, and has lived in Waterbury, Connecticut since then, working hard to support his family,
attending church and school, and generally making Waterbury his home. See Ex. C, L- Decl.,
March 15, 2012 at ¶¶ 11-13. The memorandum also lists several factors arguing against the
exercise of prosecutorial discretion, Morton Memo I at 5, such as whether the individual is a
national security risk, a serious felon, gang member, “egregious” immigration violator, has a
lengthy criminal record, or otherwise poses a threat to public safety. Not only does Mr. L- not
meet any of these criteria, he has no criminal record; the State withdrew the minor misdemeanor
charge from his only arrest. See Ex. E, Connecticut Superior Court Disposition.
In Morton Memo II, Asst. Secretary Morton explicitly directs that it is against ICE policy
to remove individuals “in the midst of a legitimate effort to protect their rights or civil liberties,”
absent “special circumstances.” Morton Memo II at 2. ICE personnel are urged “to exercise all
appropriate discretion” in making enforcement decisions with respect to this category of
individuals. Id. Indeed, the memorandum states that absent serious negative factors, “exercising
favorable discretion . . . will be appropriate” in such cases. Id.
46
Mr. L- fits squarely within the category of individuals contemplated by Morton’s second
memo. In particular, he has filed and is awaiting decision on a Federal Tort Claims Act
(“FTCA”) claim relating to his unlawful detention solely pursuant to an immigration detainer
between November 9, 2011 and November 10, 2011. See Exhibit X, FTCA Claim for R- L-. He
may also pursue a damages action in federal court if he is unable to obtain redress through the
FTCA administrative process. As discussed above, no negative factors weighing against
prosecutorial discretion apply to him.
Finally, Mr. L- is not an ICE removal priority, according to Morton Memo III, which
outlines ICE’s “civil immigration enforcement priorities.” Morton Memo III at 1. The first
priority for removal addresses individuals viewed as threats to national security or public safety.
Id. Mr. L- is neither. In contrast, Mr. L- only came to the attention of ICE after he was arrested
and charged with a minor shoplifting misdemeanor, a charge which was later withdrawn. He has
no other criminal history or convictions. See supra, Statement of Facts and Proceedings. The
second priority for removal is recent entrants. Morton Memo III at 2. Mr. L- is not a recent
entrant: he has lived, worked, and made his home in Waterbury for seven years. See Ex. B, L-
Decl., Nov. 16, 2011 at ¶ 21. Morton Memo III characterizes the third and final category as
“aliens who are fugitives or otherwise obstruct immigration controls.” Id. Mr. L- does not fall
into this priority category either. While he did have a previous removal order, it was an in
absentia order which has since been reopened and rescinded due to inadequate notice, an action
which was unopposed by DHS. See Ex. G, Respondent’s Motion to Reopen and Rescind In
Absentia Order of Removal; Ex. H, Order Granting Motion to Reopen and Rescind; Ex. I, ICE
Notice of Non-Opposition. Given that none of the criteria arguing for removal in any of Asst.
Secretary Morton’s memoranda apply to Mr. L-, and several of the factors weighing in favor of
47
prosecutorial discretion do apply to him, removal of Mr. L- would therefore be incongruous with
current ICE removal practices and policies.
The next step in categorical proportionality review, the culpability assessment, looks to
culpability at the time of the commission of the alleged underlying offense. Here, Mr. L- was a
fifteen year-old minor at the time he entered the United States. See Ex. B, L- Decl., Nov. 16,
2011 at ¶ 2. The Supreme Court, in Graham, 130 S.Ct. at 2026, recognized that juveniles lack
maturity and have “an underdeveloped sense of responsibility.” A penalty of removal would be
extraordinarily severe for an alleged non-violent immigration offense committed by an
individual so lacking in culpability.
Third, and finally, the Court should assess the penalty of removal in light of the
penological goals of rehabilitation, deterrence, retribution, and incapacitation. Removal serves
no rehabilitative purpose, and the ability of Mr. L-’s removal to deter future juveniles from
committing immigration violations is highly questionable, given that juveniles, with their lack of
maturity, consider future consequences of their actions much less than adults, if at all. See
Graham, 130 S.Ct. at 2028-29. Additionally, there is no retributive value to be gained for a
victimless, non-violent immigration status violation like that with which Mr. L- is charged,
particularly given the diminished culpability of juveniles, and even if there were, removal in this
case is plainly excessive. See id. at 2028 (“the heart of the retribution rationale is that a criminal
sentence must be directly related to the personal culpability of the criminal offender . . . the case
for retribution is not as strong with a minor as with an adult.”) (internal citations omitted); Roper,
543 U.S. at 571. Finally, as the other penological goals cannot support removal in this case,
incapacitation stands alone. The penological purpose of incapacitation is to prevent re-
offending. See Graham 130 S. Ct. at 2029. However, removal of someone solely due to entry
48
without inspection does not serve this goal. Further, any possible incapacitation cannot support
removal in this case, where Respondent entered when he was fifteen and is not a risk to society.
See Graham, 130 S. Ct. at 2028-29 (“Incapacitation cannot override all other considerations, lest
the Eighth Amendment's rule against disproportionate sentences be a nullity.”).
In sum, this analysis confirms that removal would be categorically disproportionate for
individuals such as Mr. L- who entered the United States as juveniles, have no, or only minor,
criminal histories, have been living in the United States for some time, have developed strong
community ties, and are charged with only non-violent immigration status offenses. Objective
indicia of societal norms (in the form of current government practices) show that removal of
such persons is disfavored. Because of their juvenile status at the time of the alleged commission
of the immigration offense, their culpability for the alleged conduct is significantly limited, and
penological goals would not be served were removal to be effectuated. Respondent’s removal
thus does not survive categorical proportionality analysis.
C. This Court Should Not Enter an Order of Removal in Respondent’s Case
Because Removal Would be Disproportionate to the Underlying Offense;
Alternatively, Respondent’s Removal Proceedings Should Be Terminated.
The Court should construe INA § 240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A), according to
the canon of constitutional avoidance, to only allow for an entry of a removal order when
removal would be proportionate to the underlying offense. Because, under both categorical and
case-by-case proportionality review, Respondent’s removal would be disproportionate to the
underlying non-violent immigration status offense, the Court should not enter an order of
49
removal in Respondent’s case.10
Alternatively, for these reasons, the Court should terminate
Respondent’s removal proceedings.
CONCLUSION
For the foregoing reasons, this Court should grant Mr. L-’s motion to terminate and
should decline to enter a final order of removal in his case.
Respectfully submitted,
______________________________
Michael J. Wishnie, Supervising Attorney
Anne Lai, Supervising Attorney
Jason Glick, Law Student Intern
Danielle Lang, Law Student Intern
Trudy Rebert, Law Student Intern
Sirine Shebaya, Law Student Intern
Matthew S. Vogel, Law Student Intern
Jerome N. Frank Legal Services Organization
Yale Law School
PO Box 209090
New Haven, CT 06520-9090
Tel: (203) 432-4800
Fax: (203) 432-1426
Counsel for Respondent
10
Further, because removal in this case would be disproportionate to the underlying offense,
violating the U.S. Constitution’s proportionality requirement, removal of Respondent would be
unconstitutional.
United States Department of Justice
Executive Office for Immigration Review
Immigration Court
Hartford, Connecticut
In the Matter of: R- M- L- A Number: XXX XXX XXX
ORDER OF THE IMMIGRATION JUDGE
Upon consideration of Respondent’s Motion for Termination of Removal Proceedings and
Objection to the Entry of a Final Order of Removal, it is HEREBY ORDERED that the motion
be ____ GRANTED ____ DENIED because:
____ DHS does not oppose the motion.
____ The respondent does not oppose the motion.
____ A response to the motion has not been filed with the court.
____ Good cause has been established for the motion.
____ The court agrees with the reasons stated in the opposition to the motion.
____ The motion is untimely per ______________________.
____ Other:
Deadlines:
____ The application(s) for relief must be filed by ________________________________.
____ The respondent must comply with DHS biometrics instructions by _______________.
____________________________ ____________________________________
Date Michael W. Straus, Immigration Judge
Certificate of Service
This document was served by: [ ] Mail [ ] Personal Service
To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS
Date: ________________________ By: Court Staff________________________
CERTIFICATE OF SERVICE
This is to certify that on March 16, 2012, a true copy of the foregoing Brief in Support of
R- M- L-’s Motion to Terminate and Objection to the Entrance of a Removal Order was hand
delivered by hand to the Office of the Chief Counsel, Immigration and Customs Enforcement,
U.S. Department of Homeland Security, at Room 483, 450 Main Street, Hartford, CT 06103.
_____________________________
Matthew S. Vogel
Law Student Intern
Jerome N. Frank Legal Services Organization
Yale Law School
PO Box 209090
New Haven, CT 06520-9090
Tel: (203) 432-4800
Fax: (203) 432-1426
Counsel for Respondent