<br>Analytic Note: Excerpts from research interviews with private immigration attorneys suggest IJs and ICE personnel erect a compliance facade to make it appear they comply with Brito but, in reality, seek to maintain the status quo. This includes going through the exercise of exploring a person's financial ability to pay a bond when the IJ has no intention of awarding a bond (RI #7); wrongly suggesting that detentions before the Brito decision are not subject to the new standards (RI #10); misinterpreting judicial rulings (RI #51); and not applying the appropriate standard IJs should use when making decisions (RI #52).
Source Excerpt:
* RI 7: Now, I would say the judges are very careful to at least make it look as if they're following Brito. One of the things Brito says is that you have to consider someone's financial ability to pay. That you can't set a bond without considering that because the same amount of money could be different for, you know, depending on who you are, could be more or less realistic, depending on who you are. So now, judges are very careful to do that. They ask almost all the time, they're good about that, about financial ability to pay, even in cases where you can tell they're never going to give you a bond. They've already decided they're going to deny the bond, but they're careful about, you know, checking all the boxes. And so they'll say, "Alright, how much money do they have in their bank account? How much family support do they have here? Is there anybody who'd be willing to pay the bond on their behalf? How much money does that person have?" And so they are careful; they know that that's a requirement of Brito. They're careful about that. The other thing that they're often careful about is mitigation. The government has to prove that there are no circumstances that would allow this person to be released safely into the community. And so, you know, for example, on a case where someone's had a DUI charge, I'll always argue to make it a condition that they not drive, or we could install this breathalyzer in their car. I'll put suggestions for what we could do to reasonably have this person released and still be safe for the community. And the judges are careful about considering those as well, because of the new standard.
* RI 10: I remember, at the very beginning, it was hard to get the government's to do that, you know, it was like, "Oh, this is a pre-Brito arrest. So we don't have to do that analysis. It's still your burden." You know, so there was still some wrangling of hands during that time.
* RI 51: The government and judges acted like [Brito] didn't exist. So ultimately, petitions were filed in federal court is my understanding. And then once the immigration court and the trial attorneys started to get reminded that they had to follow this new case, then they started being more favorable to issuing bond.\(\dots\) I believe there's been more compliance with the standard lately than when it first came out. I think that there was a real push against the idea of this significance because this was a sea change shift in bond proceedings. \(\dots\) What's so completely fascinating to me, is that these cases come from the real courts, right from the actual courts, with real judges that enforce real laws. And the BIA immigration judges are like, "That's not what they meant." \(\dots\) But you still need to remind the judges all the time about it, and you need to remind the trial attorneys about it.
* RI 52: I think the sentiment was that it should have changed the way the court practiced more than it did. I think the burden itself was shifted to the government. So the government went first, and the immigration attorney went second. But the way the judges actually made the decisions, it did not appear that they were burden shifting the way that they were required. That was the kind of general schoolyard chatter among the immigration attorneys was, yes, technically, the order in which things were happening changed. But the way the judges were making the decision did not appear to have changed very much. \(\dots\) The discretion that the judges have in these situations is always a big concern for us because. Like I said, you can say, "I'm applying XYZ thing," but at the end of the day, it's what the judge says. You either satisfy the bond standard to their level or you don't. And they can say they're applying the new rule and everything else. But if the decisions were not changing, in my mind, that wasn't going to be a big surprise. And that was sort of what we're seeing.
Link to Data Source:
* Research Interview #7: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PV33MN
* Research Interview #10: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/LEXP17
* Research Interview #51: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/2OP5YN
* Research Interview #52: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/RD0IPI