Studying the hazy line between procedure and substance in immigrant detention litigation

• Published in: Harvard civil rights-civil liberties law review 2023-12, Vol.58 (1), p.203-272
• Main Authors: Hlass, Laila L, Yanik, Mary
• Format: Article
• Language: English
• Subjects: Asylum, Right of; Constitutional law; Decisions; Deportation; Detention; Detention of persons; Dismissal; Emigration and immigration; Habeas corpus; Immigrants; Immigration policy; Litigation; Rights; Rules; Supreme courts; United States. Department of Homeland Security
• ISSN: 0017-8039; 1943-5061

At age six, Hyung Joon Kim came to the United States with his family. Two years later, he became a lawful permanent resident (LPR). Mr. Kim grew up in California, where he attended public schools. In 1996, at age 18, his life was irreparably changed. After breaking into a tool shed with high school friends, he was convicted of burglary. He earned an early release after serving two months in jail and was able to start his freshman year at the University of California, Santa Barbara. Within the next year, he shoplifted twice, stealing some computer games, batteries, an extension cord, and phone cards, amounting to less than $100. The impacts on Mr. Kim and his family were greater than he ever could have imagined because of the chance timing of his last conviction for “petty theft with priors.” He was convicted right after the 1996 Illegal Immigration Reform and Immigrant Responsibility Act expanded the definition of what qualifies as an aggravated felony requiring mandatory, no-bond detention for immigrants. The Immigration and Naturalization Service (INS) initially charged him as deportable, arguing that this last shoplifting charge was an aggravated felony within the newly expanded mandatory detention.