Detention without a bond hearing

A recent decision by the U.S. Supreme Court makes it easier for the U.S. government to arrest and detain without bond noncitizens who have been convicted of certain crimes.

The statute that was the focus of the Supreme Court’s decision in Nielsen v. Preap is Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. Section 1226(c).  The statute states that the federal government “shall take into custody” a noncitizen who has been convicted of certain crimes “when … released.”

Many U.S. district courts around the country, including the federal district court in Detroit, interpreted the “when … released” language to mean that U.S. officials needed to arrest and detain a noncitizen when he or she is released from custody as a result of the criminal conviction, or at least shortly after release from criminal custody.  If there was a significant gap in time between the release of the noncitizen from criminal custody and the federal government’s arrest of the noncitizen, many federal district courts ordered the federal government to release the noncitizen, because of the government’s failure to arrest and detain the noncitizen “when … released.”

But the U.S. Supreme Court, by a 5-4 decision, concluded that the federal government may arrest and detain a noncitizen in this situation at any time, including years or even decades after release from criminal custody.

In dissent, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote that Congress “did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing.”

Unfortunately, the Supreme Court’s 5-4 decision clears the way for the federal government to detain certain noncitizens without providing them the possibility of a bond hearing.

Michigan Court of Appeals rules that Padilla is not retroactive

The Michigan Court of Appeals has issued a decision that a new rule of criminal procedure announced by the U.S. Supreme Court is not retroactive, and thus only applies to current and future cases.

The U.S. Supreme Court, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), ruled that a criminal defense attorney must advise a defendant whether or not a guilty plea or a no-contest plea will have adverse consequences to the defendant’s immigration status.

In the Michigan case, People of Michigan v. Isaac Alvarez Gomez, the defendant is a permanent resident who pleaded no contest to possession with intent to deliver marijuana.  Four years later, the Department of Homeland Security initiated removal proceedings against the defendant.

After the U.S. Supreme Court issued the Padilla decision, the defendant in the Michigan case requested that his no-contest plea and his conviction be withdrawn, because his criminal defense attorney did not inform him of the immigration consequences of his plea.

The Michigan Court of Appeals ruled that Padilla does not apply to convictions that occurred prior to the Padilla ruling on March 31, 2010.

This case or other similar cases in Michigan might be appealed to the Michigan Supreme Court.

Courts around the country are split on the issue of whether Padilla is retroactive – whether the ruling applies to convictions issued prior to the Padilla ruling.

Access the decision here:  People of Michigan v. Isaac Alvarez Gomez

BIA issues ruling regarding drug conviction

The Board of Immigration Appeals (BIA) recently issued a ruling regarding a permanent resident in removal proceedings who had been convicted of possession of marijuana with intent to distribute under a state law.  Although the state law conviction was a misdemeanor, the U.S. government charged him with having committed an aggravated felony under federal law.

At issue in the case is whether the respondent qualifies under a federal exception to the aggravated felony determination if the crime involved a small amount of marijuana for no remuneration, or payment.

The BIA ruled that the respondent must show that he qualifies for the exception, and that he may present evidence outside of the record of conviction to establish that the crime involved a small amount of marijuana and no payment.  Examples of such evidence could include police reports and crime lab reports.

Although the BIA did not rule specifically on the quantity of marijuana that would qualify as a “small amount,” the Board indicated that 30 grams or less could generally be considered as a “useful guidepost in determining whether an amount is ‘small.'”

Access the decision here:  Matter of Wilmer Rodrigo CASTRO RODRIGUEZ, Respondent