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Does a mandatory detention provision prohibit the release of alien families in expedited removal proceedings? By Nolan Rappaport


  • Does a mandatory detention provision prohibit the release of alien families in expedited removal proceedings? By Nolan Rappaport


    Family Pictures

    Nolan writes:

    President Donald Trump is being criticized for detaining alien families, but President Barack Obama did the same thing in 2014, when there was a rapid increase in the number of families crossing the border illegally.

    Obama’s DHS Secretary, Jeh Johnson, explained the decision this way: “Frankly, we want to send a message that our border is not open to illegal migration, and if you come here, you should not expect to simply be released.”

    Opponents of Obama’s family detention policy claimed that it violated the 1997 Flores Settlement Agreement, which established a nationwide policy for the detention, release, and treatment of unaccompanied alien minors.

    In 1962, a U.S. Court of Appeals acknowledged that the Flores litigation focused initially on the problems facing unaccompanied minors, but it heldthat the underlying policies applied equally to alien minors who are with a parent.

    This created a no-win situation in expedited removal proceedings.

    Alien families that are apprehended at or near the border after making an illegal entry are placed in expedited removal proceedings. If they want asylum, they are given an opportunity to establish that they have a credible fear of persecution. If they succeed, they are placed in regular removal proceedings for an asylum hearing before an immigration judge. Otherwise, they are deported without further proceedings.

    Detention is mandatory in expedited removal proceedings, “Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”

    The Board of Immigration Appeals held that the mandatory detention period ends when a credible fear has been established, but Attorney General Jeff Sessions recently directed that decision to himself for a determination of whether it should be overruled.

    DHS, however, has the discretion to parole an alien in expedited removal proceedings for “urgent humanitarian reasons” or “significant public benefit.”

    . . . .

    Congress is aware of these problems.

    A Senate Committee recently held a hearing on the implications of extending the Settlement Agreement to children who are with a parent. According to Committee Chairman Ron Johnson, (R-WI), “it is well past time for Congress to act.”

    The most promising solution may be to amend the mandatory detention provision and provide funding for the development of effective alternatives to detention.

    Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

    Last edited by ImmigrationDaily; 11-07-2018, 12:04 PM.

    • Nolan Rappaport
      Nolan Rappaport commented
      Editing a comment
      I stand by my comment that Roger did a character assassination of Kavanaugh. He has relied on ad hominem attacks so often that he apparently no longer realizes that he is doing it.

      Discussions with Roger would be more productive if he took the time to do some background reading before forming his opinions. His comments about the way the Ford investigation was performed illustrate that problem. He can find a thorough discussion of the nomination process in a CRS memo at

      This is a summary of the process. Note that Feinstein waited until it had been completed and the Committee was ready to vote before revealing the Ford accusation. If she had raised it during the investigative stage of the proceedings, it would have been fully investigated before the hearings at which the committee members questioned Kavanaugh and discussed fully at the hearings.

      Since the late 1960s, the Judiciary Committee’s consideration of a Supreme Court nominee almost always has consisted of three distinct stages—(1) a pre-hearing investigative stage, followed by (2) public hearings, and concluding with (3) a committee decision on what recommendation to make to the full Senate.

      During the pre-hearing investigative stage, the nominee responds to a detailed Judiciary Committee questionnaire, providing biographical, professional, and financial disclosure information to the committee. In addition to the committee’s own investigation of the nominee, the FBI also investigates the nominee and provides the committee with confidential reports related to its investigation.

      Once the Judiciary Committee completes its investigation of the nominee, he or she testifies in hearings before the committee.

      Usually within a week upon completion of the hearings, the Judiciary Committee meets in open session to determine what recommendation to “report” to the full Senate.

      Nolan Rappaport

    • ImmigrationLawBlogs
      Editing a comment
      I have been reading and rereading Nolan's description of the investigation of Justice Brett Kavanaugh's qualification s for the Supreme Court but have so far been unable to find any reference to two phrases which have grabbed the attention of the overwhelming majority of the American people during the past week or two but which do not seem to have engaged Nolan's interest, judging by his above unfounded statement accusing me of "character assassination".against Kavanaugh.

      Unless I need new glasses, one of the two missing phrases from Nolan's above summary is "attempted rape allegations". The other is "FBI investigation" .I have mentioned and commented on these two phrases in relation to Justice Kavanaugh, without expressing any opinion of my own as to whether the charges were true, since I have no connection with the FBI. But I have mentioned the charges and joined millions of other Americans in urging a full investigation, instead of the evident whitewash that took place, apparently under White House control according to nearly all reports.

      If memory serves me correctly, during the 2016 presidential campaign Nolan commented a number of times on the FBI investigation of the email lapses of Hillary Clinton, whom Nolan also made clear that he did not hold in particularly high regard.

      If the FBI had spent a grand total of only 4 to 5 days on this investigation as was the case with the much more serious allegations of attempted rape against Justice Kavanaugh, instead of the several months that it actually did spend on the Clinton emails, I respectfully suggest that that we would have heard at least a few words from Nolan about that. More than a few, very possibly.

      I also note that 2,400, law professors from all over America wrote a letter to the Senate opposing Kavanaugh's nomination because of his perceived lack of judicial temperment and/or impartiality.

      Was this also "character assassination" or an "ad hominem attack? Or were both the law professors' letter something utterly unprecedented in Supreme Court history, and the need for a real FBI investigation, instead of a charade lasting only a few days in which the main witness against Kavanaugh, Christine Ford, was not even interviewed, part of a legitimate inquiry into the character of a candidate for a lifetime appointment to this nation's highest Court?

      Roger Algase
      Attorney at Law
      Last edited by ImmigrationLawBlogs; 10-09-2018, 02:22 AM.

    • ImmigrationLawBlogs
      Editing a comment
      Perhaps I may also be overlooking something, but I have not noticed any reference by Nolan to another disqualifying event which took place during the Senate Committee hearings themselves - namely Kavanaugh's utterly unfounded attack on his accusers in the sexual misconduct allegations as allegedly being part of a Democratic conspiracy to get "revenge" for Hillary Clinton's electoral college defeat in 2016.

      Kavanaugh himself tried to apologize for this attack, which tore any pretense of impartiality on his part into shreds, in a subsequent WSJ op-ed. If Kavanaugh thought his attack on the entire opposition party was worth mentioning and apologizing for, is no one else justified in commenting on this issue?

      Moreover, if Nolan had read my own comments more carefully, he would have seen that at one point, I actually defended Kavanaugh.- in connection with questions about his college drinking. If having too many beers as a student is a disqualification of high office, then no doubt, many important positions in the nation would remain vacant because of a lack of qualified people to fill them.

      I think that attempts to delve into Kavanaugh's drinking history as a student were absurd and uncalled for, and I did not hesitate to say so. Was that "character assassination" too?

      In conclusion, Nolan's detailed but abstract recital of Senate confirmation hearing procedures in general also leaves out the fact that the Committee Chairman, Senator Charles Grassley, gave opposing Senators on the Committee only five minutes each to ask questions of Kavanaugh. How fair or thorough was that?

      When i was a Harvard Law School student, we were always taught to illustrate our points through hypothetical examples. Here's one for Nolan and all other readers:

      Suppose Hillary Clinton had become president and appointed someone to the Supreme Court with a history of views about immigration that Nolan thought reflected badly on the person's impartiality and ability to rule objectively.

      Suppose further that, in a Democratic controlled Senate, a Democratic committee chairman gave Republican opponents of the nomination only five minutes each to ask questions. Would Nolan be content with providing abstract and learned lectures about the background of the Senate confirmation process, or would we be seeing far more pithy and pointed comments from Nolan about the unfairness of such a rigged process?

      With all due respect to Nolan's distinguished reputation as one of America's leading immigration law experts, I suspect that the latter would be the case.

      Roger Algase
      Attorney at Law
      Last edited by ImmigrationLawBlogs; 10-09-2018, 03:33 AM.
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