On April 6, Immigration and Customs Enforcement (ICE) announced the death of 61 year-old Salvador Vargas at the Stewart Detention Center in Lumpkin, GA which occurred on April 4. Deaths in ICE custody are far too common, and particularly devastating in detention centers with a history of medical neglect [and falsifying documents to cover up murder] Though this is the first reported death in ICE custody in 2023, this reporting can be misleading. ICE has repeatedly released critically-ill individuals from detention (most often to a hospital) to distance themselves from responsibility for an immigrant’s eventual death. There is an L.A. Times article detailing the practice of releasing people from custody so they can die somewhere that isn’t their property.
Deaths in ICE detention hit a 15-year high in fiscal year 2020, coinciding with the outbreak of COVID-19 and its devastating impact on people held in jails, prisons, and detention centers. While the pandemic contributed to some of the increase in deaths, overall conditions in detention when the Trump administration was detaining a record 50,000+ people, contributed to the high death toll.
It is not just adults dying in immigration custody.
In recent months, at least seven children have either died in custody or after being detained by federal immigration agencies at the border.
The U.S. government has acknowledged these atrocities and they appear in a report released Thursday by the House Oversight and Reform Committee [which appears to have been removed from the government’s website]. It is mentioned briefly in this report by the oversight committee.
This video was taken at the Stewart Detention Center. The Stewart Detention Center, owned and operated by private prison company CoreCivic, is one of the largest immigration jails in the country — and the deadliest. Since 2017, eight people detained at Stewart have died: four from complications with Covid-19 and two by suicide, including Romero. Two others died of pneumonia and a heart attack.
CBP holding facilities are “basically concrete floors with mats and barbed wire fencing and bright lights 24/7,” Linton said. “That can be a very disorienting environment to children.”
This is deeply disturbing as is the lack of news coverage and the lack of outrage.
The number of deaths in ICE custody increased dramatically during the 2020 fiscal year, which ends September 30. Eight of the 21 deaths in ICE custody were linked to Covid-19.
Note: Annual totals are for fiscal years, which run from October 1-September 30.
The Supreme Court held that the States of Texas and Louisianna lacked standing to bring the case. They held in favor of the Biden Administration that they have the ability to set their own enforcement priorities.
Many of the Biden administration’s immigration policies have been subject to protracted litigation. Shortly after taking office in January 2021, the administration directed the U.S. immigration agency, ICE, to stop all deportations except those that posed a threat to “national security, public safety, and border security”.
The act was widely expected to reduce the number of deportations by the agency. Texas filed a lawsuit in the United States District Court for the Southern District of Texas soon after, and Judge Drew B. Tipton issued a temporary restraining order. The state soon dismissed the lawsuit, but filed a new suit with Louisiana in April 2021 after the administration issued modified interim guidance in February. Judge Tipton then issued a preliminary injunction in August 2021. The government appealed to the United States Court of Appeals for the Fifth Circuit, which stayed the injunction in part in September. In November, the 5th Circuit, sitting en banc, vacated the panel opinion. That appeal became moot as the administration had issued a final guidance document in September.
The court held a bench trial in February 2022 about the legality of the final guidance. On June 10, 2022, the court held the final guidance violated the Administrative Procedure Act, and vacated it. On July 6, 2022, a panel of the Fifth Circuit denied a stay pending appeal, holding the Supreme Court’s intervening decision in Garland v. Gonzalez did not deprive the district court of jurisdiction over the suit.
Arizona, Montana, and Ohio separately challenged the permanent guidance in the United States District Court for the Southern District of Ohio. On March 22, 2022, Judge Michael J. Newman issued a preliminary injunction against the guidance, which the United States Court of Appeals for the Sixth Circuit stayed on April 12, 2022, and reversed on July 5, 2022.
HOLDING
After the 5th Circuit denied a stay pending appeal, the federal government sought a stay from the Supreme Court on July 8, 2022. On July 21, 2022, the court denied the application for stay in a 5–4 vote, but granted certiorari before judgment and set the case for argument in the December sitting.[2] Oral arguments were held on November 29, 2022. On June 23, 2023, the Supreme Court reversed the district court in an 8–1 decision.
Find the Court’s FULL DECISION HERE or click the button below to get the PDF.
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Supreme Court Issues Decision on UNITED STATES v. HANSEN
: June 23, 2023
:10:48 pm
:CASE LAWSCOTUS
:2023BIDENCASE LAWSCOTUS
United States v. Hansen, 599 U.S. ___ (2023), was a United States Supreme Court case about whether a federal law that criminalizes encouraging or inducing illegal immigration is unconstitutionally overbroad, violating the First Amendment right to free speech.
ISSUE
Are 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), which ban encouraging or inducing unlawful immigration for commercial advantage or private financial gain, unconstitutionally overbroad in violation of the First Amendment?
Respondent
Facts
Helaman Hansen started his own immigration advising service and began to charge individuals for his services in October of 2012. During the course of the program, Hansen would provide advice to undocumented immigrants on how to obtain United States citizenship. A key component of the program, at Hansen’s instruction, was that citizenship would be granted to undocumented immigrants if they were adopted by a United States citizen and completed some other tasks. However, immigrants cannot become U.S. citizens through adult adoption, and no immigrants had become citizens through Hansen’s program. Nonetheless, Hansen continued to charge individuals for this advice. In addition, Hansen encouraged at least two undocumented individuals to overstay their visas. Hansen provided his services to roughly 471 undocumented immigrants between October 2012 and January of 2016, with the immigrants’ costs ranging from $550 to $10,000 each and profits for Hansen exceeding one million dollars.
The Supreme Court granted certiorari on December 9, 2022. Oral arguments were held on March 27, 2023. On June 23, 2023, the Supreme Court upheld the law in a 7–2 vote, holding that it did not violate the First Amendment right to free speech.
STATUTORY INTERPRETATION OF § 1324(A)(1)(A)(IV)
The Government;’s Position
The United States argues that 8 U.S.C. 1324(a)(1)(A)(iv), which criminalizes “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States,” does not violate the First Amendment because it only bars the solicitation or facilitation of illegal acts. The United States notes that solicitation and facilitation of illegal acts is not protected by the First Amendment, because it is speech “integral to criminal conduct.” The United States maintains that, in the criminal law context, “encourage” and “induce” are terms of art, which have been historically understood to require active encouragement of specific acts. The United States specifically notes that “encourage” and “induce” are used in many state and federal statues to define clearly illegal crimes like solicitation, facilitation, and aiding and abetting. The United States further points out that Congress included “assist” and “solicit” in earlier versions of subsection (A)(iv). Thus, the United States reasons, the intent of Congress was to criminalize intentional solicitation and facilitation of illegal immigration, not speech addressed to the general public. The United States posits this interpretation is supported by subsection (A)(iv)’s requirement that defendants knew of or recklessly disregarded the fact that an immigrant’s entrance or continued presence in the U.S. was illegal. The United States asserts that this dovetails with the intent required for criminal accomplices. Finally, the United States argues reading § 1324 broadly would violate the principle of constitutional avoidance, under which states courts should, when possible, read statutes narrowly to avoid constitutional issues. Thus, the United States asserts, the Court should avoid raising First Amendment problems by interpreting subsection (A)(iv) as a statute about solicitation and facilitation, which are not protected by the First Amendment.
Hansen’s Position
In opposition, Hansen alleges that § 1324(a)(1)(A)(iv) is not a solicitation or facilitation statute, because it sweeps broader than solicitation or facilitation and unconstitutionally encompasses protected First Amendment speech. Hansen emphasizes that, under Brandenburg v. Ohio, the First Amendment protects individuals who advocate lawbreaking in the abstract: the only exception is when speech is geared towards and likely to produce “imminent” illegal action. Hansen asserts that the United States cherrypicked its definitions of “encourage” and “induce,” and ignored the words’ obvious meanings. Hansen alleges that “encourage” and “induce,” by definition, include speech that merely influences people and makes it more likely they will stay in the United States. Thus, Hansen posits, subsection (A)(iv) criminalizes clearly protected speech, such as doctors telling patients that staying in the United States will make treatment easier. Hansen states that, when governments use “encourage” and “induce” to define other crimes, they usually pair them with other verbs to limit their meaning and provide context; by contrast, because subsection (A)(iv) uses “encourage” and “induce” alone, the words must be interpreted on their face. Hansen stresses that subsection (A)(iv) only requires knowledge or reckless disregard of an individual’s status, not knowledge or intent that an individual will break the law in the near future. Thus, Hansen cautions, § 1324 extends beyond Brandenburg’s exception, which requires both intent and imminence. Hansen further emphasizes that Congress chose to remove the intent requirement of “willfully or knowingly” encouraging or inducing from the statute in 1986—thus, the Court should not add back in a requirement Congress explicitly removed. Finally, Hansen states that constitutional avoidance only applies when there are two equally valid interpretations of a statute: because subsection (A)(iv) is clearly not a solicitation or facilitation statute, constitutional avoidance is inapplicable.
Whether the First Amendment permits criminal punishment of speech that merely encourages a noncitizen to remain in the United States, without any requirement of intent to further illegal conduct, and when remaining in the United States is itself not a crime. Whether the First Amendment permits criminal punishment of speech that merely encourages a noncitizen to remain in the United States, without any requirement of intent to further illegal conduct, and when remaining in the United States is itself not a crime.
The Respondent (Hansen) through his attorneys, raises valid points in the Respondent’s Brief. The strongest argument is that there are many forms of speech and many reasonable statements that we could all imagine being said by someone who does not intend to break the law , which could be considered criminal under the statute . They provide several examples in their brief.
The words “encourage” and “induce” are not limited in any way. Under the statute’s plain meaning, all of the following are prohibited:
• A priest telling a noncitizen congregant who has overstayed her visa that the church will provide charitable assistance, which might have the effect of encouraging her to remain;
• A U.S. citizen telling her undocumented spouse that he is needed in the country to provide financial support for the family;
• A public safety official advising undocumented members of the community to shelter in place during a natural disaster;
• A coach advising an undocumented student athlete that if she travels with her team for an international competition she will likely not be able to return to the United States;
• A college counselor advising an undocumented student that they can obtain a private scholarship to pay for dormitory fees and other expenses to fund their life as a college student in the United States;
• A doctor providing medical advice to a noncitizen with a visa that will shortly expire that a particular medical treatment is more readily available in the United States than elsewhere, leading that noncitizen to overstay the visa to wait for treatment;
• A lawyer providing advice to a client that overstaying his visa is not a bar to adjusting his status to that of a lawful permanent resident if he marries a U.S. citizen.
OPINION OF THE COURT
Writing for the court, Justice Amy Coney Barrett interpreted the key words “encourages or induces” narrowly. The government had argued that those words were terms of art, meaning criminal law concepts of solicitation and facilitation (or aiding and abetting). Hansen and the court of appeals below, on the other hand, had interpreted the words in their ordinary meaning, which would potentially include a broad range of protected speech. The court agreed with the government that Congress used the words “encourages or induces” in the specialized sense. This implicitly includes the requirement of intent (mens rea) traditionally associated with solicitation and facilitation. The court added that the canon of constitutional avoidance favored the narrower reading if it was at least “fairly possible”. Under this reading, various hypothetical examples of overbroad applications would not meet the elements of the crime.
The court applied the overbreadth doctrine as expressed in United States v. Williams (2008): a law is unconstitutional if it “prohibits a substantial amount of protected speech” relative to its “plainly legitimate sweep”. Here, the law’s “plainly legitimate sweep” covers nonexpressive conduct, for example smuggling, not implicating the freedom of speech at all. The only kind of speech it might cover is limited to “speech integral to unlawful conduct”, and such speech is an exception to the First Amendment.
Lastly, the court acknowledged but did not rule on the “‘mismatch’ theory” advanced by Hansen. Under that theory, the First Amendment does not allow criminalizing speech that solicits or facilitates a civil violation, and illegal immigration is often only a civil violation, not a crime. The court held that, regardless of whether that argument is correct, the ratio of invalid to valid applications of the law would not be high enough for the court to strike it down as overbroad.
DISSENT
This dissent seemed strange to me, but what do I know.
Justice Ketanji Brown Jackson dissented, joined by Justice Sonia Sotomayor, accusing the majority of rewriting the text. Jackson argued that, although “encourages” or “induces” often appear together with other terms like soliciting or facilitating or aiding-and-abetting, that does not mean they can be conflated or incorporate the same implications. She also disagreed with the majority’s analysis of the history of the statute. The text had been revised several times by Congress and formerly included the words “solicit” and “assist”. Jackson argued that the removal of those words was a significant change in meaning; the majority argued that Congress was only streamlining unnecessary language rather than making a sweeping expansion to the law. Jackson further argued that use of constitutional avoidance was especially inappropriate in the context of an overbreadth challenge.
Thomas Concurrence
Justice Clarence Thomas joined the majority in full, but, because he is Justice Thomas, he just had to write a separate concurrence. He reiterated his general opposition to the doctrine of overbreadth, similar to his previous solo opinions in United States v. Sineneng-Smith (2020) and Americans for Prosperity Foundation v. Bonta (2021).
The Supreme Court issued their decision on June 23, 2023. You can find the full decision here or click the button below to get a PDF of the Court’s full written decision.
Matter of Jose Antonio GARCIA, Respondent Decided March 24, 2023
In Matter of Garcia, 28 I&N Dec. 693 (BIA 2023). In this precedential decision, the BIA held that the controlling circuit law in immigration court proceedings is the law governing the geographic location of the immigration court where venue lies.
For choice of law purposes, the controlling circuit law in Immigration Court proceedings is the law governing the geographic location of the Immigration Court where venue lies, namely where jurisdiction vests and proceedings commence upon the filing of a charging document, and will only change if an Immigration Judge subsequently grants a change of venue to another Immigration Court. Matter of R-C-R-, 28 I&N Dec. 74 (BIA 2020), clarified.
NEED TO MOVE YOUR CASE TO A DIFFERENT IMMIGRATION COURT LOCATION?
If you are looking to change the venue of your removal proceedings see this guide from the Immigration Court that will show you how to file a Motion to Change Venue if you don’t have a lawyer.
New tool offers convenient, reliable option for noncitizens to update address information as they await immigration court proceedings.
ICE has announced that their “online change of address tool” for people in removal proceedings, subject to a removal order or Order of Supervision of some kind, or are otherwise required to keep their address updated with DHS/ICE.
You can still submit a change of address the old fashioned way using a paper form but it’s strongly encouraged that you do it online so you get instant proof of filing that you can print out to avoid any confusion in the future or being blamed for not informing DHS of the address change.
The Press Release from ICE is available on their website at ICE.gov and has been quoted below:
WASHINGTON — U.S. Immigration and Customs Enforcement (ICE)’s online change-of-address form for noncitizens – first announced in April 2023 – is now fully operational. This new system gives noncitizens the option to update their information online in addition to the existing options of doing so by phone or in-person. It will enable noncitizens to comply with their immigration obligations more easily and improve the accuracy of address information reported to ICE by utilizing address autofill to ensure U.S. Postal Service standardization.
After successfully entering a valid mailing address, if the noncitizen is currently in removal proceedings pursuant to Section 240 of the Immigration and Nationality Act (INA), the interactive online shows the noncitizen information on how to also change their address with the immigration court as required, using the Executive Office for Immigration Review’s (EOIR) Form EOIR-33, Change of Address/Contact Information, which may be submitted by mail, in-person at the immigration court, or online through EOIR’s Respondent Access. The EOIR-33 is currently available in English, Spanish, Chinese, Haitian Creole, Portuguese, and Punjabi.
To determine if a noncitizen still needs a notice to appear, ICE will run system checks to make sure the noncitizen is not already in removal proceedings pursuant to Section 240 of the INA, does not have an affirmative asylum application pending with U.S. Citizenship and Immigration Services (USCIS) and does not already have a final order of removal.
Noncitizens eligible for, but who have not yet received a notice to appear – meaning those who were released on conditional parole with an alternative to detention – may be prompted to state whether they want to receive their notice to appear by mail or to in person by scheduling an appointment at an ERO field office.
To process an online change-of-address, the system requires a full name, A-number and validated non-commercial address. It takes approximately one minute to complete the form. All noncitizens in the United States, except A and G visa holders and visa waiver visitors, must also report a change of address to USCIS within 10 days of relocating.
