Last week, we highlighted and quoted from an amicus brief that has been on his desk since Wednesday night. Then, on Friday, the counsel who authored that brief explained very patiently to him, what the federal law in this area (of final removal orders) provides. He clearly was not listening, on the Zoom call -- but thinking about his next point on dangerous criminals, to tee up, for the Texas attorney to offer meaningless political talking points. Judge Tipton tonight asked the parties to add the below question to his "briefings" on the preliminary injunction.
Maybe he ought to. . . I don't know -- just a thought here. . . READ the ones he has. Here it is, in his own hand:
. . .In addition to any and all issues the parties see fit to address in their preliminary injunction briefing, the Court asks that they include the following:
What are the legal ramifications of deferring an individual’s removal beyond the first 90 days following a final order of removal? For instance, is the Attorney General accorded more discretion over an individual’s final order of removal or detention after expiration of the “removal period”? 8 U.S.C. § 1231(a)(1)(A). . . .
And. . . Here. . . is the answer to that question, already likely lying somewhere, in a pile, on his desk -- from last week's amicus brief:
. . .Notably, Congress provided that during the initial 90-day “removal period” after an order becomes final DHS shall “[u]nder no circumstance” release certain individuals, limiting that provision to those deemed removable based on certain terrorist or criminal activities, for example. 8 U.S.C. § 1231(a)(2).
After that period, the statute generally contemplates release of persons with final removal orders. Id. § 1231(a)(3). Indeed, for any number of reasons, DHS may choose to release an individual with a final removal order pending decisions on matters described above, such as a motion to reopen proceedings, or as an exercise of prosecutorial discretion. When a noncitizen is released, they may (depending on the mechanism and circumstances) be placed on an electronic ankle monitor; enrolled in the “Intensive Supervision Appearance Program” (“ISAP”); required to pay a cash bond and report to ICE for regular supervision check-ins; or subject to other conditions. . . .
Alternatives to detention are extremely effective in ensuring that noncitizens continue to report to check-in appointments and hearings as required. See U.S. Gov’t Accountability Office, GAO15-26, Alternatives to Detention 10-11 (Nov. 2014), see: http://tinyurl.com/jkfz3x4.
In addition, courts sometimes order release or order the agency to consider release notwithstanding statutory provisions that would otherwise mandate detention. Thus, for example, in the Fraihat litigation, a district court has ordered ICE, on substantive due process grounds, to conduct custody determinations for members of a certified nationwide class of individuals vulnerable, because of their health conditions, to a heightened risk of severe illness or death if they contract COVID. See Fraihat v. U.S. Immigration & Customs Enf’t, 445 F. Supp. 3d 709 (C.D. Cal. 2020), order clarified, No. 5:19-cv-01546-JGB-SHK, 2020 WL 6541994 (C.D. Cal. Oct. 7, 2020); ECF No. 9 at 1; see also ECF No. 14-1 at 1 (explaining that “HRD” means “High risk detainees” for purposes of the Fraihat litigation, i.e. that these individuals are at high risk of serious illness or death if infected with COVID).
Releases from custody happen every day, for all sorts of reasons. . . .
C R A Z Y.
It is sadly likely that this will be the caliber of most of the young, inexperienced judges Baby-T elevated to the federal bench, in the second half of his term. Able lawyers will be dealing with this nonsense for decades, and appellate courts will literally grow weary of over-ruling his clearly ill-founded decisions. The cost to the system will be. . . enormous. Thanks, Baby-T.
But justice will prevail.
नमस्ते
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