⚖️🗽JOIN CHELSEA NAYLOR & FRIENDS FOR THE EQUAL JUSTICE FUND (“EJF”) BENEFIT @ WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY! — March 30, 2023 @ 6:30 pm!

Chelsea Naylor
Chelsea Naylor
NDPA Stalwart
Board Member, Equal Justice Foundation
PHOTO: Linkedin

My friend, NDPA star Chelsea NAYLOR writes:

Today, I’m writing on behalf of an organization on which I sit on the board – WCL’s Equal Justice Foundation (EJF). Each year we raise money to provide stipends for students doing unpaid, public interest, summer internships. This year, we’ll be hosting a networking event with a silent auction so students can meet more professionals in the field/mingle with professors in a different setting, while we also raise those funds!

The event is at WCL’s campus on Thursday, March 30th, 6:30pm-8:30pm and will have food, drinks, trivia, and music!

Here’s the registration link: https://linktr.ee/ejfwcl

WCLEqual Justice Foundation
WCL
Equal Justice Foundation

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Thanks, Chelsea!

🇺🇸Due Process Forever!

PWS

03-13-23

⚖️🗽🦸🏻‍♀️ CONGRATS TO NDPA SUPERSTAR 🌟 PROFESSOR CORI ALONSO YODER ON COVETED APPOINTMENT @ GW LAW!

Here’s the announcement from GW Law:

https://www.law.gwu.edu/10-scholars-join-gw-law-community-teach-first-year-students

Ten Scholars Join the GW Law Community to Teach First-Year Students

August 01, 2022

GW Law is excited to announce the appointment of ten new full-time faculty members to join the Fundamentals of Lawyering Program. The new FL faculty join Interim Director Iselin Gambert and Associate Director Anita Singh as full-time members of the GW Law faculty. The FL program introduces first-year students to the skills necessary for a successful transition from the classroom to the law firm, boardroom, courtroom, and the many other settings where law is practiced.

These ten professors join our experienced community of scholars to teach 1Ls the critical lawyering skills they will need in practice.

 

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Cori Alonso-Yoder

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Natalia Blinkova

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Leslie Callahan

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Katya Cronin

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Robin Juni

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Cheryl Kettler

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Brooke Ellinwood McDonough

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Robert Parrish

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Jennifer Wimsatt Pusateri

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Erika N. Pont

 

 

Why GW Law?

 

 

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Cori Alonso Yoder

Associate Professor of Fundamentals of Lawyering

“I am so pleased to be joining GW Law and its community of distinguished scholars, dedicated professionals, and accomplished students. Teaching with the Fundamentals of Lawyering Program to equip students in exploring a sense of place and purpose in the law while developing their professional skills is particularly thrilling to me.”

Learn More

 

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Natalia Blinkova

Acting Writing Center Coordinator; Associate Professor of Fundamentals of Lawyering

“As for why I chose to stay at GW — that part is easy! I love shepherding our wonderfully talented students through their 1L experience, introducing them to the critical lawyering skills they will need in practice, and helping them think through what kind of lawyers they would like to become. I also feel like I’ve found a home among the FL faculty, who are the most collaborative, forward-thinking, and supportive group of professionals I have ever encountered.”

Learn More

 

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Leslie Callahan

Associate Professor of Fundamentals of Lawyering

“I’m thrilled to join GW Law’s innovative ‘Fundamentals of Lawyering Program’ which is at the forefront of our profession in preparing students to excel in the workplace. The Fundamentals program integrates traditional research and writing skills with a broader array of skills such as client counseling, all while providing the opportunity for professional identity formation. GW Law’s program is truly unique among top law schools and I cannot wait to begin working with this extraordinary group of professionals!”

Learn More

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Katya Cronin

Associate Professor of Fundamentals of Lawyering

“GW Law’s Fundamentals of Lawyering Program is on the cutting edge of legal experiential education and I am thrilled to work side by side with its many accomplished and dedicated faculty members who share a commitment to excellence in teaching, student well-being, and rigorous and impactful scholarship.”

Learn More

 

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Robin Juni

Associate Professor of Fundamentals of Lawyering

“GW Law is a special place. I’m thrilled to be teaching Fundamentals of Lawyering, in particular, because the whole community is invested in and supportive of the groundwork we lay in FL that allows students to pursue any of the countless opportunities GW Law offers to become the lawyers they want to be.”

Learn More

 

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Cheryl A. Kettler

Associate Professor of Fundamentals of Lawyering

“I have had the pleasure of teaching at GW Law for six of the last seven years. During that time, I have worked with numerous highly talented and energetic first-year law students. Their enthusiasm for learning has made teaching here very rewarding. Moreover, GW Law has offered me opportunities to work with esteemed faculty, generous adjuncts, dedicated Dean’s Fellows, the Writing Center’s earnestly caring Writing Fellows, our various journals’ many writers, and the Inns of Court student members and advisors. Visitors at other schools are lucky if they engage with a few colleagues. Here, they are part of a larger community.

The fundamentals of lawyering are more than the name of a course at GW Law. They are ingrained in curriculum, extracurricular activity, and the culture of the law school. By bringing people together to support our first-year law students, we ensure they leave here with a network of support and the skills to face the challenges of practice.”

Learn More

 

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Brooke Ellinwood McDonough

Acting Coordinator of Scholarly Writing and Co-Coordinator of Problem Development; Associate Professor of Fundamentals of Lawyering

“For nearly thirty years, GW has been part of my life. In the ‘90s, I was an undergrad. In the ‘00s, a law student. In the ‘10s an adjunct and visiting professor. From those experiences, I have a deeply rooted appreciation for the unique contributions that the school has on its students and the larger community, and seek to carry on that tradition for the next generation as I enter my fourth decade with GW.”

Learn More

 

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Robert Parrish

Professor of Fundamentals of Lawyering

“I chose GW Law because of its Fundamentals of Lawyering program and the unique opportunity it presents to be a small part of an innovative program that has the potential to be a model for law schools across the nation.”

Learn More

 

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Jennifer Wimsatt Pusateri

Associate Professor of Fundamentals of Lawyering

“GW Law students are special. They have a grit and practicality about them that makes them a joy to teach. I’m excited to continue teaching them the skills they need to develop into successful lawyers as part of the Fundamentals of Lawyering program.”

Learn More

 

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Erika N. Pont

Interim Associate Director, Fundamentals of Lawyering Program; Coordinator of the Dean’s Fellow Program; Associate Professor of Fundamentals of Lawyering

“I joke that I “grew up” at GW Law: first as a student and Deans Fellow, then as an adjunct professor for over a decade, and finally as full-time faculty in the Fundamentals of Lawyering Program. I chose to teach at GW Law for many of the same reasons I chose to attend GW Law as a student: an unparalleled location in Washington, DC, a uniquely talented and collegial student body, and an institutional commitment to graduating “practice ready” lawyers. Joining the Fundamentals of Lawyering faculty is a dream come true. I’m grateful for the opportunity to build on GW Law’s rich foundation of professional development and experiential learning. It’s an honor to help develop and teach our 1L students this innovative curriculum that’s designed to prepare our students to serve clients, impact their community, and better their profession — and to be their healthiest happiest selves in the process.”

Learn More

 

Fundamentals of Lawyering

 

At GW Law, the Fundamentals of Lawyering Program introduces first-year students to the skills that will advance them from the classroom to the law firm, boardroom, courtroom, and the many other settings where law is practiced. The FL Program, an innovative yearlong course for 1Ls which works hand-in-hand with Inns of Court, was launched in fall of 2019. The centerpiece of the most significant reform of GW Law’s first-year curriculum in a generation, the six-credit course was designed to reflect the changing practice of law and gives graduates the essential lawyering skills employers value most.

First-year students work with a faculty drawn from law firms of all sizes, governmental agencies, and nonprofits to learn what it takes to succeed in a profession that demands the highest commitment to adherence to the rule of law and delivering justice. Our faculty members bring decades of experience building relationships with clients and meeting their needs with creativity and skill.

 

Fundamentals of Lawyering Program

Program Directors and Faculty

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Here’s Cori’s full bio from the GW Law website:

Cori Alonso-Yoder

Cori Alonso-Yoder
Title:
Associate Professor of Fundamentals of Lawyering
Address:
The George Washington University Law School
2000 H Street, NW
Washington, DC 20052

Ana Corina “Cori” Alonso-Yoder is an Associate Professor in the Fundamentals of Lawyering. Prior to joining the GW Law faculty, professor Alonso-Yoder was a visiting assistant professor at Howard University School of Law. She has also instructed students on lawyering skills in the Immigrant Justice Clinic at American University Washington College and as the former director of the Federal Legislation Clinic at Georgetown University Law Center.

Professor Alonso-Yoder is a nationally recognized scholar on immigration legislation and the impacts of state, local, and federal laws on immigrant communities. As an expert in health policy for immigrants, she has lectured in interdisciplinary settings including at the Pediatric Academic Society, Georgetown University School of Medicine, the George Washington University School of Medicine & Health Sciences, and the Interdisciplinary Association for Population Health Sciences. Professor Alonso-Yoder’s commentary on immigrants’ rights has been featured by ABC News, The Hill, Law360, and the Washington Post, among others. She also regularly comments on Supreme Court decisions that affect the statutory and constitutional rights of noncitizens for the George Washington Law Review online. Her legal scholarship has been published or is forthcoming in Denver Law Review, American University Legislation and Policy Brief, and Rutgers Law Review. 

In her public interest legal practice, Professor Alonso-Yoder has worked on a variety of equal justice issues, with a special emphasis on advocacy for LGBT and HIV-positive immigrants. Prior to teaching, Professor Alonso-Yoder was the supervising attorney at Whitman-Walker Health, the country’s longest serving medical-legal partnership. Early in her legal career, Professor Alonso-Yoder represented low-income immigrants in family law and immigration matters at Ayuda. While there, she established an innovative project to meet the civil legal needs of notario fraud victims and coordinated with local stakeholders to enact legislation to protect consumers. In her work to promote immigrants’ rights, she has collaborated on transnational labor policy and worker outreach in central Mexico, provided legal orientation and advice and counsel to inmates in U.S. immigration detention facilities, and served as an assistant to the chair of the United Nations Committee Against Torture in Geneva. Her service to the Latino community has been recognized with the Hispanic Law Conference’s 2020 Edward Bou Award and the DC Courts’ 2016 Legal Community Award. She is actively involved in board service with the immigrant advocacy organizations La Clínica del Pueblo and Centro de los Derechos del Migrante.  

Professor Alonso-Yoder holds an AB magna cum laude from Georgetown University and a JD cum laude from American University Washington College of Law, where she was awarded a full-tuition public interest merit scholarship. Born in Mexico, she grew up in Denver, Colorado and speaks English, French, and Spanish.

Education

AB, Georgetown University; JD, American University Washington College of Law

Congrats, Cori, my friend! What a great use of your skills as a practical scholar and nonprofit law “guru.” And, what a great step for GW to focus first-year students on the practical skills needed to practice law (and lead a successful life) and the many, diverse, critically important opportunities for improving our nation and defending and advancing our democracy that effective, ethical, values-based lawyering presents!

Values like fairness, scholarship, timeliness, respect, and teamwork should be at the core of legal education! Cori and the other “practical scholars” described above are the embodiment of those values!

I have suggested that a legal education system that turned out some of the grossly dishonest and unethical lawyers behind Trump’s “big lie” and cowardly far-right politicos who advocate for the destruction of democracy and for “the new Jim Crow” needs to take a hard internal look — particularly in the area of legal ethics. Exposing students to those like Cori who used their skills to interact with and help some of the most vulnerable in society — and thereby to improve rather than undermine our nation — is a significant step toward “values-based” legal education.

It’s also important that a versatile immigration and human rights practical scholar like Cori be part of this innovative, forward-looking approach to legal education.

🇺🇸 Due Process Forever!

PWS

08-18-22

⚖️🧑🏽‍⚖️ WHY BETTER IMMIGRATION JUDGES MATTER — New Study Shows That Who Your Judge Is, Where He Or she Is Located, & What Administration Is In Power Makes A Big Difference In Favorable Outcomes For Migrants — Even Universal Representation Might Not Be Able To Overcome Bad Judging At EOIR!

 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3885995

Represented But Unequal: The Contingent Effect of Legal Representation in Removal Proceedings

Law & Society Review

63 Pages Posted: 15 Jul 2021

Emily Ryo

University of Southern California Gould School of Law

Ian Peacock

University of California, Los Angeles (UCLA)

Date Written: July 13, 2021

Abstract

Substantial research and policymaking have focused on the importance of lawyers in ensuring access to civil justice. But do lawyers matter more in cases decided by certain types of judges than others? Do lawyers matter more in certain political, legal, and organizational contexts than others? We explore these questions by investigating removal proceedings in the United States—a court process in which immigration judges decide whether to admit noncitizens into the United States or deport them. Drawing on over 1.9 million removal proceedings decided between 1998 and 2020, we examine whether the representation effect (the increased probability of a favorable outcome associated with legal representation) depends on judge characteristics and contextual factors. We find that the representation effect is larger among female (than male) judges and among more experienced judges. In addition, the representation effect is larger during Democratic presidential administrations, in immigration courts located in the Ninth Circuit, and in times of increasing caseload. These findings suggest that the representation effect depends on who the judge is and their decisional environment, and that increasing noncitzens’ access to counsel—even of high quality—might be insufficient under current circumstances to ensure fair and consistent outcomes in immigration courts.

Keywords: access to justice, immigration courts, removal proceedings, judicial decisionmaking

Suggested Citation:

Ryo, Emily and Peacock, Ian, Represented But Unequal: The Contingent Effect of Legal Representation in Removal Proceedings (July 13, 2021). Law & Society Review, Available at SSRN: https://ssrn.com/abstract=3885995

Download This Paper

Open PDF in Browser

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Some things to consider:

  • Sessions and Barr appointed over half of the current approximately 550 U.S. Immigration Judges; 
  • Many of those appointed had little or no immigration experience — almost none had actual experience representing asylum seekers or any other migrants in Immigration Court;
  • With 27 IJ appointments since taking office, AG Garland now has appointed approximately 5% of the Immigration Judiciary;
  • Only one of Garland’s first 27 appointments has impressive progressive immigration credentials and experience;
  • The balance of Garland’s appointees to date profile much like Sessions’s and Barr’s — not surprising, because Garland used the same flawed recruiting and selection criteria that Barr had been using;
  • The average U.S. District Judge completes approximately 250 civil matters annually (including immigration matters), https://trac.syr.edu/tracreports/judge/501/;
  • An Immigration Judge is required to complete 700 cases annually, just too retain his or her job;
  • Unlike most civil cases in U.S. District Courts, lives and futures are at stake in almost all Immigration Court cases, with the family, communal, economic, and societal effect of each decision often extending far beyond the individual migrant whose life and/or future is at stake.

Members of the NDPA, let AG Garland, VP Harris, and President Biden know that we need a better and more aggressively progressive system for recruiting (virtually “null” right now — “Sir Jeffrey” Chase and I, along with other members of our Round Table, do more “recruiting” among “practical scholars and progressive experts” in the private sector than the Administration!), selecting, training, and retaining Immigration Judges for these life or death determining positions that, in a better functioning and wiser Administration, would be the door to, and training ground for, a better, more diverse, more representative, more progressive Article III Judiciary!

Lack of creative and aggressive recruiting for a better and more diverse expert Immigration Judiciary is a particular sore point! We now have our first immigrant family, African-American, AAPI, female Vice President, Kamala Harris, a talented lawyer! She has an important immigration and human rights portfolio!

So why  isn’t she out there aggressively encouraging diverse, well-qualified, progressive “practical scholars and immigration advocates,” many of whom might not have seen themselves as potential Immigration Judges and BIA Members to apply for these critical jobs? Why aren’t the recruiting and selection criteria for IJs and Board Members both more transparent and involving of some outside expert input!  

As VP Harris knows, the key to changing the composition of the power structure is for progressives, particularly female progressives of color, to see others like them in these positions to act as role models. It’s going to take aggressive positive actions by individuals like VP Harris, AAG Gupta, and Assistant AG Clarke to “change the face” of the Immigration Judiciary and the power structure for the better!

With the recent hiring of NDPA superstar Professor Cori Alonso Yoder, VP Harris’s alma mater, Howard University Law, now has it’s most high-profile “immigration and human rights presence” ever! Why isn’t VP Harris over there aggressively encouraging Howard Law grads to seek careers in immigration and human rights, eventually aspiring to the the Federal Judiciary, including the Immigration Judiciary? That’s how real change in the power structure happens!

This is becoming a totally inexcusable “blown opportunity” for progressives! Who knows if or when it will come again?

🇺🇸Due Process Forever! 

PWS

07-30-21

HISTORY/POLITICS — STRUCTURAL RACISM IS DEEPLY INGRAINED IN OUR IMMIGRATION SYSTEM — “DRED SCOTTIFICATION” IS STILL ALIVE & WELL IN TODAY’S DYSFUNCTIONAL IMMIGRANT “JUSTICE” SYSTEM!

Julissa Arce
Julissa Arce
NATIONAL BEST SELLING AUTHOR, SPEAKER, SOCIAL JUSTICE ADVOCATE AND FORMER WALL STREET EXECUTIVE
PHOTO: JulissaArce.com

This video short by Julissa Arce, Activist, Writer, and Producer says it all:

https://blog.unidosus.org/2021/07/01/the-structural-racism-of-our-immigration-system/

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In my Georgetown Law Immigration Law & Policy class, we recently talked about the racist roots of naturalization policy set forth in the Naturalization Act of 1790 with my friend and colleague Professor Cori Alonso Yoder. Obviously, the racism of our “Founding Fathers” went well beyond the institution of slavery. 

Cori Alonso Yoder
Professor Cori Alonso Yoder
PHOTO: Google Scholar

Naturalization was a “whites only” proposition that transcended status as free or enslaved. White foreign nationals who had resided here for two years could be citizens. Free African Americans, Native Americans, and other free people of color could not become U.S. Citizens even if they had been born here and lived here for their entire lives. Yup, you don’t have to think too deeply to recognize the overt racism there!

Not to mention that America was literally built on the backs of enslaved African Americans whose free labor also supported a number of the white Founding Fathers, their white families, their often lavish lifestyles, and their sometimes endemic fiscal irresponsibilities. See, e.g., T. Jefferson, drafter of the Declaration of Independence whose estate had to sell off slaves to pay his debts.

No wonder White Supremacists, including many ignorant and dishonest pols, don’t want the truth of our nation’s history taught. The truth isn’t always pretty. And, it often has little to do with the various White Nationalist myths and skewed narratives foisted upon us.  

Since those bogus myths exclude or distort the roles of the majority of today’s Americans, the “truth deniers” are going to have a tough time shoving their “whitewashed” version of American history down our throats in the long run! (That’s true, even though the “forces of ignorance, racism, bias, and thought suppression” on the right have been quite active lately and, shamefully, have succeeded in writing some of their racist nonsense into state and local laws). An honest reckoning with our past, including our past mistakes, is necessary for us to move forward into a better future. 

One has only to look at Justice Alito’s mythologized version of America set forth in his recent majority opinion suppressing the voting rights of African Americans and other minorities, and to read Justice Kagan’s cogent rebuttal of his legal sophism, to see that “Dred Scott” is still alive at the Supremes! Sad, but true and something we all have to deal with. https://www.thenation.com/article/politics/voting-rights-arizona-court/

It’s not the first time our legal system has refused to carry out the clear mandate of the 15th Amendment against attacks by states trying to suppress the political power of their African-American citizens. One would like to think it will be the last. But, that’s unlikely given the current composition of the Supremes, Congress, and many state legislatures.

There might be no immediate solution for the Supremes, Congress, and state legislatures. The political process simply takes time, and the forces of regression have found and exploited all of the “anti-democratic seams” in our institutions that give them political power beyond their numbers.

However, there is one potentially powerful court system out there that progressives could reform and reconstitute NOW into a judiciary committed to due process, fundamental fairness, best practices, and equal justice for all persons in the United States regardless or race, creed, or status. So far, the Biden Administration and AG Garland have been both tone deaf and remarkably inept at transforming the Immigration Courts into the better judiciary needed for our future! Progressives need to “raise hell” until the Biden Administration fixes the one now-dysfunctional Federal Court system that they actually control!

The future will belong to those unafraid to face the sometimes unattractive realities of our collective past, to respect and honor those who fought through the mistreatment and injustice inflicted upon them, and learn from our history rather than denying or rewriting it! It will also belong to those wise, courageous, and bold enough to take advantage of opportunities for improving American justice that are staring them in the face. So far, Dems have shown themselves not up to the job in the Immigration Courts. Until they are, racial justice and sustained progress in America are likely to remain illusions.

 🇺🇸Due Process Forever!

PWS

07-02-21

PROFESSOR CORI ALONSO-YODER EXPLAINS NIELSEN v. PREAP (Indefinite Immigration Detention)

https://www.gwlr.org/defining-the-in-nielsen-v-preap-the-court-relies-on-language-arts-to-justify-detention-of-immigrants/

Nielsen v. Preap, 586 U.S. ___ (2019) (Alito, J.).
Response by Cori Alonso-Yoder
Geo. Wash. L. Rev. On the Docket (Oct. Term 2018)
Slip Opinion | SCOTUSblog

Defining “the”: In Nielsen v. Preap the Court relies on language arts to justify detention of immigrants

What does “when” mean? Is it evident what the definition of “the” is? If you are generally comfortable that these words are clear and unlikely to generate controversy, please spare a few moments to consider the Court’s recent opinion in Nielsen v. Preap.1

At issue in the case was the meaning of 8 U.S.C. § 1226, a provision that addresses the detention and apprehension of noncitizens.2The titular respondent, Mony Preap, represented a class of individuals certified in the District Court for the Northern District of California whose case was joined to a separate class action out of the Western District of Washington (collectively, “the respondents”). Preap, a lawful permanent resident of the U.S., was detained by immigration officials in 2013, seven years after he had been released from criminal custody. Preap’s claim on behalf of the class challenged the government’s denial of an opportunity to seek bail under § 1226(c)(1), the so-called mandatory detention provision of 8 U.S.C. Under that provision, the Secretary of Homeland Security (“the Secretary”) “shall take into custody” certain categories of individuals who fall within four subsections set out at § 1226(c)(1)(A)–(D). Further, § 1226(c)(2) limits the opportunity of those described in section (c)(1) to seek release on bail to only a small category of individuals whose release is necessary for witness protection or cooperation with an investigation.3

Perhaps the only point on which all parties to Preap agreed was that the (c)(2) exception was not at issue here. Instead, Preap et al. argued that § 1226(c) was wholly inapplicable to them, and that their immigration proceedings should instead be viewed under 8 U.S.C. § 1226(a) which establishes the Secretary’s discretionary detention authority while also providing that she “may release the alien on . . .bond . . .or [] conditional parole.”4 While the respondents did not dispute that they fell under one of the categories set out at § 1226(c)(1)(A)–(D) (describing individuals who have committed certain crimes, who have engaged in certain terrorist activities, or who share certain family relationships with those who have engaged in terrorist activities), they argued before the lower courts that the description of whom is governed by § 1226 includes additional modifying language outside of the (A) through (D) subparagraphs.

Namely, the respondents argued that those subsections flow to and incorporate the remainder of the statutory language at (c)(1) which states that, “[t]he [Secretary] shall take into custody any alien who – [sets forth the classifications at (c)(1)(A)–(D)] when the alien is released.”5 Because the respondents were not detained until years after they were released from criminal custody, they contended that—and the lower courts up through the Ninth Circuit Court of Appeals agreed—they were not governed by § 1226(c). This decision resulted in a circuit split with four other Courts of Appeals, leading the Supreme Court to grant review.

In a 5–4 decision authored by Justice Alito, the Court applies a theory of statutory construction heavily reliant on grammar and dictionary definitions to hold that the Ninth Circuit’s reading of § 1226(c) is not supported in the plain language of the statute. In a highly pedantic analysis likely to evoke images of AP English for some, the Court concludes, “[s]ince an adverb cannot modify a noun, § 1226(c)(1)’s adverbial clause ‘when . . .released’ does not modify the noun ‘alien,’ which is modified instead by the adjectival clauses appearing in subparagraphs (A)–(D).”6 Confident that the “‘rules of grammar govern’ statutory interpretation ‘unless they contradict legislative intent or purpose’”7 the Court proceeds to the dictionary to support its construction of § 1226(c). In holding that the respondents are brought under the authority of § 1226(c) the Court looks to the Webster’s definition of “describe” to discern its meaning. In so doing, the Court finds that the provision at (c)(2) narrows the opportunities for individuals “described” in (c)(1) to be considered for release to the exception for witness protection. The Court then finds support in Merriam-Webster’s definition of “the” to establish that (c)(1)’s reference to “when the alien is released” refers to the definite categories listed in (A)–(D), thereby refuting the respondents’ argument that this phrase functions as an additional modifier on whom (c)(1) reaches.8

Yet, when it comes to deciphering the meaning of the temporal aspect of that key phrase, the Court slams the dictionary shut. Instead, in a part of the decision joined only by a plurality of the Court, Justice Alito concludes that the meaning of “when” in “when the alien is released” was intended by Congress to set a temporal starting point, not a statute of limitation, establishing the earliest possibility during which the Secretary could detain a noncitizen (any time after release from criminal custody, but no sooner).

What the plurality of the Court declines to look up, the dissent is pleased to crack open. Writing for the four dissenting judges, Justice Breyer looks to the Ninth Circuit’s understanding of “when” to include the definitions “[a]t the time that,”9 or “just after the moment that.”10 But the dissent discards these meanings of “when” and their connotations of immediacy, relying instead on Oxford English Dictionary’s recognition that the word “only ‘[s]ometimes impl[ies] suddenness.’”11

Instead, the dissent largely avoids the debate on grammar, and focuses its discussion on the constitutional implications of the majority’s approach.12 Invoking his dissent in last term’s Jennings v. Rodriguez, Justice Breyer reaffirms his concern that immigration detention without the possibility for periodic bond review violates the Fifth Amendment’s guarantee of due process.13Drawing on Jennings and on the Court’s opinion in Zadvydas v. Davis,14 Justice Breyer would read a six month limit (as interpreted in Zadvydas and found in comparable parts of the immigration statute) into the meaning of the government’s authority to detain these individuals “when they are released.” In this way, Breyer would bring the individuals set out at §§ (A)–(D) within the ambit of § 1226(c)(1) only if they are detained within six months of release from criminal custody. Breyer explains that to interpret the statute otherwise would create a constitutional question that must be avoided. “The issue may sound technical,” Justice Breyer observes, but “[t]hese are not mere hypotheticals.”15 While the majority focuses on grammar and avoiding a potential burden to the government, the dissent is concerned about the immediate harms to individuals facing unreviewable prolonged detention for possibly minor offenses.

Having recently returned from providing legal services to immigrant detainees with the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI), Justice Breyer’s concerns are particularly salient for me. In rural Georgia, SIFI staff work with individuals detained at the Stewart Detention Center.16 While SIFI aims to meet the needs of nearly two thousand individuals cycling in and out of the facility at any given time, the program’s pro bono legal representation is narrowly focused on securing bond or parole for eligible individuals. This narrow scope is still incredibly fraught, with routine denials of applications for bond and parole.17Even where immigrants appearing before the Stewart Immigration Court in Lumpkin, Georgia are afforded an opportunity for a bond hearing, only 34% of applications for release were granted between 2007 and 2018.18 Nationwide, the number is higher, but still less than 50%.19

As Justice Breyer observes, his outcome would not provide guaranteed release on bail, it would simply afford a noncitizen the opportunity to demonstrate why he should be released. The immigration court is then free to approve or (more likely) deny the application. The Preap majority declines to provide this opportunity, interpreting the statute to foreclose the possibility for these individuals to even try for release. The Court’s majority takes care to avoid deciding the constitutional issues that the dissent so gamely tackles head on. The result, long term detention of several categories of individuals without the opportunity for judicial review, should be justified with some stronger stuff than the mere diagramming of sentences.


Ana Corina “Cori” Alonso-Yoder is the Practitioner-in-Residence and Clinical Professor of Law with the Immigrant Justice Clinic at the American University Washington College of Law. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Atlantic, Washington Monthly, and The National Law Journal & Legal Times among others.


    1. No. 16-1363 (U.S. Mar. 19, 2019).
    2. 8 U.S.C. § 1226 (2012).
    3. Id. § (c)(2).
    4. Id. §§ (a)(2)(A)–(B).
    5. Id. § (c)(1) (emphasis added).
    6. Preap, slip op., at 2 (syllabus of the Court).
    7. Id. at 14 (majority opinion). Here the Court quotes A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts140 (2012) (which in turn cites Costello v. INS, 346 U.S. 120, 122–26 (1964)).
    8. Preap, slip op. at 14 ((“‘the’ is ‘a function word . . . indicat[ing] that a following noun or noun equivalent is definite or has been previously specified by context’” (quoting Merriam-Webster’s Collegiate Dictionary 1294 (11th ed. 2005))).
    9. Id. at 15 (Breyer, J., dissenting) (citing American Heritage Dictionary, at 1971).
    10. Id. (citing Webster’s Third New International Dictionary, at 2602).
    11. Id. (citing Oxford English Dictionary 209 (2d. ed. 1989)).
    12. Perhaps as an expression of his view on the level of grammatical expertise required to decide this case, Breyer refers to the individuals who fall under § 1226’s mandatory detention scheme as “‘ABCD’ aliens.” Id. at 3.
    13. Id. at 12 (citing U.S. Const. amend. V; Jennings v. Rodriguez, 583 U.S. ___ (2018) (dissenting opinion)).
    14. 533 U.S. 678 (2001).
    15. Preap, slip op. at 4 (Breyer, J., dissenting).
    16. See Southeast Immigrant Freedom Initiative (SIFI),Southern Poverty Law Center, https://www.splcenter.org/our-issues/immigrant-justice/southeast-immigrant-freedom-initiative-en.
    17. See Syracuse University, Report on Immigration Bond Hearings and Related Decisions for Lumpkin Immigration Court, TRAC Immigration Project, https://trac.syr.edu/phptools/immigration/bond/.
    18. Id.
    19. Id. (searching bond data from all immigration courts between 2005 and 2018 which reflects that of 73,785 only 35,449 or roughly 48%, were granted).

Recommended Citation
Cori Alonso-Yoder, Response, Defining “the”: In Nielsen v. Preap the Court relies on language arts to justify detention of immigrants, Geo. Wash. L. Rev. On the Docket (Apr. 1, 2019), https://www.gwlr.org/defining-the-in-nielsen-v-preap-the-court-relies-on-language-arts-to-justify-detention-of-immigrants/.

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Thanks, Cori, for this very clear and understandable analysis of this important case involving so-called “civil” immigration detention.

PWS

04-03-19

 

PROFESSOR CORI ALONSO-YODER ANALYZES SUPREME’S JENNINGS V. RODRIGUEZ

https://www.gwlr.org/jennings-v-rodriguez-against-the-backdrop-of-executive-enforcement-and-legislative-inaction-the-court-revisits-the-issue-of-prolonged-immigration-detention

Mar. 5, 2018


Jennings v. Rodriguez, 583 U.S. ___ (2018) (Alito, J.).
Response by Cori Alonso-Yoder
Geo. Wash. L. Rev. On the Docket (Oct. Term 2017)
Slip Opinion | New York Times | SCOTUSblog

Jennings v. Rodriguez: Against the Backdrop of Executive Enforcement and Legislative Inaction, the Court Revisits the Issue of Prolonged Immigration Detention

Today marks President Trump’s deadline to Congress for addressing the question of Deferred Action for Childhood Arrivals, known as DACA. In the months since the Administration announced the end of the DACA program, the debate on immigration reform has expanded from the initial ultimatum to create a legislative alternative to the program, to new issues of restriction on current legal immigration, including the elimination of certain family-based categories and the repeal of the visa lottery system. After months of opportunity to address these questions, congressional efforts to reform immigration appear stalled beyond salvation, in no small part due to a clear lack of direction from the President himself. As a result, DACA seems destined to expire today due to inaction from leaders at the legislative and executive levels.

Onto this backdrop, the Supreme Court handed down its decision in Jennings v. Rodriguez1 on February 27th. Writing for a five-to-three majority on issues related to immigration detention, Justice Samuel Alito reversed the Ninth Circuit Court of Appeals’ decision granting semiannual bond hearings to certain categories of immigrant detainees. Only Chief Justice Roberts and Justice Kennedy joined the Alito opinion in full, with Justices Gorsuch and Thomas declining to endorse the plurality’s view of a jurisdictional question in the case (for which Justice Thomas authored a concurrence). In the dissent, Justices Sotomayor and Ginsburg signed onto Justice Breyer’s passionate and lengthy opinion arguing for bail provisions to be extended to these detainees.

At issue in Jennings are conditions of detention and related questions of bond eligibility for individuals falling within three statutory categories, all of whom have been detained longer than six months. Lead plaintiff, Alejandro Rodriguez, represents the class as a whole as well as the category of individuals detained under 8 U.S.C. § 1226(c) (individuals who have been convicted of certain crimes or engaged in terrorist activities). The class also includes individuals detained under § 1225(b)(1)(B)(ii) (asylum seekers), and under § 1225(b)(2)(A) (applicants for admission who are not clearly entitled to be admitted, otherwise known as “arriving aliens”).

In its opinion, the Court rejected the Ninth Circuit’s construction of §§ 1225(b), 1226(a), and 1226(c) as requiring a six-month periodic review to save the statutory framework from constitutional nullification. Relying on the Court’s decision in Zadvydas v. Davis2 and the canon of constitutional avoidance, the lower court reasoned that a six-month bond review must be interpreted into the relevant provisions in order for the framework to survive constitutional scrutiny under the Fifth Amendment’s Due Process Clause. The Court found this interpretation “implausible,” holding that the clear language of those statutory provisions is susceptible to only one interpretation that does not contemplate a periodic custody review, and that the canon of constitutional avoidance only applies where more than one plausible interpretation of the statute is available.3 The Court also distinguished its decision in Zadvydas by underscoring the ambiguity of the potential length of detention in the statute at issue in that case. By contrast, in Jennings the Court reasons that Congress left no room for similar interpretation in this case, having explicitly provided for conclusion of detention of these individuals only in certain circumstances clearly expressed in the relevant statutes.

The majority proceeds to reverse the Ninth Circuit’s construction of the detention statutes, but declines to reach the Fifth Amendment and Due Process arguments raised by the respondents. Instead, the Court remands the case to the Court of Appeals for further proceedings to consider the constitutional merits of those claims, while simultaneously suggesting that a class action may not be the appropriate vehicle for those individualized claims.

The opinion of the Court is striking because the dissenting justices feel no such compunction to reserve the constitutional questions. In fact, Justice Breyer’s opinion rests almost exclusively on Due Process and, to a lesser extent, Eighth Amendment jurisprudence, spending little time relative to the majority in interpreting the relevant statutory provisions. Instead, Justice Breyer points to numerous factors to argue why the majority’s reading of the detention statutes cannot survive constitutional scrutiny and must be reconstructed to include a bond provision. Among these factors, he notes the sheer number of individuals detained under §§ 1225 and 1226, the increasingly lengthy terms of their detention, and the high likelihood of success on the merits for many within these categories in their claims for immigration relief.

Regarding the number of detainees affected by this decision, the dissent notes that nearly 20,000 individuals, 7500 asylum seekers, and 12,220 noncitizens who have completed terms of confinement for criminal convictions, fall within two of the three categories of detainee considered by the Court. The dissenting opinion also cites the length of detentions at issue, noting that they are now considerably longer than six months, and distinguishing this from the short-term detention of immigrant detainees addressed by the Court in Demore v. Kim.4 In concluding that the respondents should have access to a more flexible opportunity to apply for bond, the dissent is also persuaded by statistics showing that nearly two-thirds of the asylum seekers and 40% of those detained following criminal confinement ultimately prevail in applications to remain in the United States.

Also present in the dissent, but not in the opinion of the Court, is limited reference to increased immigration enforcement by the Trump Administration. While the politics of enforcement are not met head on, Justice Breyer’s dissent alludes to current events by citing President Trump’s Executive Order5 directing parole of detainees only under certain limited circumstances.6

As the lower court is left to address the constitutional questions, the Breyer dissent proves instructive by reaching elements of those arguments that the Court declines to take up in its majority opinion. Among the issues previewed in the dissent that are likely to arise on remand is the Government’s assertion that many of the respondents in Jennings cannot claim the protection of the Fifth Amendment because “the law treats arriving aliens as if they had never entered the United States; hence they are not held within its territory.”7 The dissent roundly dismisses this interpretation as “of course, false,”8 but the question will become an increasingly important one for the courts to address, especially as Jennings continues its trajectory through the federal appellate courts.

Indeed, the unsettled nature of the Jennings decision foreshadows a future in which the courts are likely to wrestle with increased calls to address these issues of detention and enforcement. For example, 8 U.S.C. § 1357(a)(3) gives Customs and Border Protection Agents broad powers of search and seizure without a warrant to enforce immigration laws within a broad reach of an international border,9 generally held to reach within 100 miles of the U.S. interior.

In addition, the Trump Administration has signaled an intent to aggressively enforce the nation’s existing immigration laws, while also expanding the reaches of the law to further restrict legal immigration. Along with Executive Order No. 13,767, cited in the Jennings dissent, the Trump Administration also published Executive Order No. 13,768, “Enhancing Public Safety in the Interior of the United States.”10 Taken together (and issued the same day within the first week of the new administration), these two Executive Orders enshrined the campaign promises of the new President to act aggressively and expansively to secure the border and enforce immigration law within the interior of the United States.

According to Immigration and Customs Enforcement data, these efforts have proven effective, with immigration officials charting an increase of 42% in administrative arrests.11 Meanwhile, the immigration courts’ backlogs continue to grow, expanding from approximately 212,000 cases at the beginning of fiscal year 2006 with a median wait pending time of 198 days, to approximately 437,000 cases in fiscal year 2015 with a median pending time of 404 days.12 These numbers reflect a judiciary crippled by backlog and increased enforcement even before the injection of the new administration’s revamped and expanded priorities for enforcement. In the current climate of legislative inaction, it is likely the courts will continue to be the explainers and problem solvers for a system desperately in need of reform. As with questions of immigration reform, the Jennings remand means that we are likely to be revisiting these issues again not long from now.


Ana Corina “Cori” Alonso-Yoder is the Practitioner-in-Residence and Clinical Professor of Law with the Immigrant Justice Clinic at the American University Washington College of Law. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Atlantic, Washington Monthly, and The National Law Journal & Legal Times among others.


  1. Jennings v. Rodriguez, No. 15–1204, slip op. (U.S. Feb. 27, 2018).
  2. 533 U.S. 678 (2001) (requiring a custody review hearing after six months of detention in order to avoid unconstitutional indefinite detention where an individual cannot be removed from the United States).
  3. Jennings, slip op. at 12–13.
  4. 538 U.S. 510, 530 (2003) (noting that the detention at issue in that case “lasts roughly a month and a half”).
  5. Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 30, 2017).
  6. Jennings, slip op. at 25 (Breyer, J., dissenting).
  7. Id. at 7.
  8. Id.
  9. 8 U.S.C. § 1357(a)(3) (2012).
  10. Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 30, 2017).
  11. Immigration & Customs Enf’t, ICE Impact in FY 2017 (2018), https://www.ice.gov/topics/fy2017.
  12. U.S. Gov’t Accountability Off., GAO-17-438, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges (2017).

Recommended Citation Cori Alonso-Yoder, Response, Jennings v. Rodriguez:Against the Backdrop of Executive Enforcement and Legislative Inaction, the Court Revisits the Issue of Prolonged Immigration Detention, Geo. Wash. L. Rev. On the Docket (Mar. 5, 2018), https://www.gwlr.org/jennings-v-rodriguez-against-the-backdrop-of-executive-enforcement-and-legislative-inaction-the-court-revisits-the-issue-of-prolonged-immigration-detention.

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Thanks for a great article, Cori!

Here are links to previous posts on Jennings:

https://wp.me/p8eeJm-2e8

https://wp.me/p8eeJm-2cL

https://wp.me/p8eeJm-1wI

The third of these posts illustrates how Constitutionally required bond hearings change and save lives and how the majority’s short-shrifting of Constitutional Due Process could actually cost lives.

PWS

03-07-18