Detention

This resource includes an update regarding the ongoing Gonzalez v. ICE federal litigation. On September 11, 2020, the Ninth Circuit issued a decision which includes some important changes to the February 2020 Central District of California federal court order. We have included an update on the first page which discusses what has changed, followed by information from our April 2020 resource. Please note that some of the information in our April 2020 resource related to the previous district court order is no longer applicable.

On October 30, 2020, ILRC filed a comment opposing an EOIR proposed rule that would have a substantial negative impact on legal orientation programs operated by non-profit immigration legal services programs.

California is in the midst of an historic reform of its youth prisons, known as the Division of Juvenile Justice (DJJ). Failed DJJ facilities will close, creating an opportunity for youth to be cared for close to home through community-based programs and services. This short resource describes steps that community-based advocates must take to ensure that the closure addresses the needs of ALL impacted communities, including immigrant youth. 

AB 32, codified at Cal. Pen. Code §§ 5003.1, 9500 et. seq., was authored by Assembly member Bonta and passed in partnership with the California Dignity Not Detention Coalition. AB 32 stops the use of for-profit prisons by the California Department of Corrections and Rehabilitation. The las also bans the operation of private detention facilities in both the civil and criminal context, aside from specific exemptions. The GEO Group and the Federal government have sued the state of California, alleging the law to be an unconstitutional attempt to regulate immigration enforcement, and requesting a preliminary injunction to stop the law from going into effect. In October 2020, Judge Sammartino largely denied this request, largely finding the law constitutional. The ILRC, along with Human Rights Watch, and Freedom for Immigrants, submitted an amicus brief in this case. Litigation is ongoing. Select documents relevant to this suit are provided below.  

SB 29, the Dignity Not Detention Act, codified at Cal. Civ. Code § 1670.9, was authored by Senator Lara, co-sponsored by the ILRC and Freedom for Immigrants, and passed in partnership with the California Dignity not Detention Coalition.  Among other things, SB 29 was passed to ensure that the community would have a voice on an issue which so critically impacts them; immigration detention.  Prior to the approval of any permit for any immigration detention center, SB 29 requires that the public be provided with 180 days notice and two public hearings where public testimony is taken and heard. The ILRC and Freedom for Immigrants, in partnership with local community groups, have sued the City of McFarland and GEO whom we believe approved permits to convert two CDCR facilities into immigration jails in violation of SB 29. Litigation is ongoing. Select documents relevant to this suit are provided below.

On September 25, ILRC submitted comments in opposition to EOIR's proposed rule regarding court procedures. The proposed rule is an unlawful attempt to curb Immigration Judges’ authority, limit case review, and drastically restrict due process for immigrants. The rule undermines the appellate process and curtails the efficient adjudication of the courts. 

California is in the midst of an historic reform of its Division of Juvenile Justice (DJJ). Under current plans, failed DJJ facilities will close, creating an opportunity for youth to be cared for close to home through community-based programs and services. But if DJJ closes, it must close justly. Any closure must divest from carceral solutions and invest in restorative and transformative justice rooted in community wellness and safety. Any closure must take into account the needs of all impacted communities, including immigrant youth. This resource highlights the two main ways that noncitizen youth may be impacted by the DJJ closure and makes recommendations to ensure that DJJ closes justly for all.

On July 30, 2020, Attorney General Barr issued Matter of Reyes, 28 I&N Dec. 52 (A.G. 2020), a case involving a longtime lawful permanent resident with a single conviction for violating a larceny statute that criminalizes both theft and fraud, and is indivisible as between these means of commission. She had been sentenced to over one year in prison and there was an established loss amount of greater than $10,000. This practice alert provides a summary of the decision and potential practice tips for both immigration practitioners and criminal defense attorneys representing noncitizens in criminal and immigration cases. These tips focus on challenging the correctness of the AG's new theory of removability, challenging any judicial deference to the AG's opinion, fighting DHS efforts to file new NTAs or motions to reopen past proceedings, contesting retroactive application of the new decision, and criminal defense strategies for avoiding its reach in advising noncitizens on resolving open criminal matters.  

In October 2019, Attorney General Barr issued Matter of Thomas & Matter of Thompson, altering the standard for when immigration law will recognize a criminal sentencing modification. Since then, government attorneys from ICE and adjudicators from DHS and DOJ have misused and exploited the decision to incorrectly impose immigration consequences on vacated and modified past convictions and sentences. Immigrant rights advocates have pushed back by attacking this decision in the federal courts. In this amicus brief submitted to the Seventh Circuit Court of Appeals, immigration law experts directly challenge the AG's decision, arguing it is incorrect as a matter of law, is not entitled to any level of deference, and if permitted to stand cannot be applied retroactively. These arguments build on a growing body of case law refusing to offer deference to the DOJ on interpretation of immigration provisions that have both civil and criminal application. E.g., Valenzuela Gallardo v. Barr, --- F.3d ---, 2020 WL 4519085 (9th Cir. Aug. 6, 2020). Advocates challenging Thomas/Thompson in agency and court proceedings can use the arguments in this brief to attack the case on the merits and to resist its retroactive application.