In everyday English, “when” clearly “connote[s] immediacy.” . . . ‘”when’ … can be read, on the one hand, to refer to ‘action or activity occurring ‘at the time that’ or ‘as soon as’ other action has ceased or begun … [But on] the other hand, ‘when’ can also be read to [mean] ‘at or during the time that,’ ‘while,’ or ‘at any or every time that. “‘ (Footnotes omitted.)
This quote from an October 8, 2014 tour de force opinion of U.S. District Judge Shira A. Scheindlin of the Southern District of New York in Martinez-Done v. McConnell shows the many permutations and litigation-spawning power of a four-letter word. In Martinez-Done, Judge Scheindlin canvassed the nationwide landscape of conflicting opinions interpreting the word “when” in Immigration and Nationality Act § 236(c)(“Detention of Criminal Aliens”). That section requires U.S. Immigration and Customs Enforcement (ICE) officers, upon the happening of a condition, to arrest and incarcerate individuals convicted of a qualifying offense without the chance for impartial review of their detention. The condition that permits mandatory detention is triggered “when,” after conviction, the individual “is released”.
In this case, ICE detained Mr. Martinez-Done “nearly ten years [after] he was released from post-conviction custody.” No matter the varying meanings of “when,” the word, Judge Scheindlin ruled, could not be stretched so far into the future. She also noted that with the passage of time the underlying concerns prompting Congress to require mandatory detention wane in significance:
As the Supreme Court has explained, the imposition of different forms of detention on different classes of removable aliens stems from concern that some aliens “present an excessive flight risk or threat to society.” Section 236(c) was Congress’s solution to this concern. As far as dangerousness is concerned, there is often very little evidence that a removable alien ever was dangerous, much less that he continues, years after release and reincorporation into the community, to “threat[ en] society.” Furthermore, “[b ]y any logic, it stands to reason that the more remote in time a conviction becomes and the more time after a conviction an individual spends in a community, the lower his bail risk is likely to be.” (Footnotes omitted.)
Thus, on due process and statutory grounds, she held that Mr. Martinez-Done had the “right . . . to have an impartial adjudicator decide if he may be released during the pendency of his removal proceedings,” and ordered that he be granted a bond hearing.
Cities and states across the nation are coming to a similar conclusion as they increasingly decline to follow ICE’s notion of what makes a community secure and refuse to cooperate in releasing to ICE persons arrested or convicted of crimes. As Emily Badger of WonkBlog reports:
In many ways, cities with large and deeply rooted immigrant populations have interests here directly at odds with ICE. They have scarce resources to devote to public safety, which they believe are better spent addressing actual crime than federal immigration. (Recent ICE data suggest that only about one in 10 detention requests applies to people who’ve been convicted of a serious offense). Officials worry that the detention requests also undercut community policing, making neighborhoods less safe by discouraging victims in immigrant neighborhoods from reporting crime or working with police. Local communities, unlike ICE, are also left with the collateral damage of families fractured by deportation.
Other “when[s]” of immigration are when families are “fractured by deportation” and businesses must resort to work visa lotteries to see if their hiring needs will be met. These “when[s]” happens every day, when the House adamantly blocks efforts by the Senate to enact comprehensive immigration reform, and when President Obama stalls on his promises to use executive authority to make as many ameliorative changes as the power of his office will allow. So when will our immigration system be fixed? Whenever.