States too often play on the distinction between criminal law and administrative law in immigration matters, using the one – most often administrative law – which is most convenient to ensure that migrants are detained for prolonged periods.
Administrative law is today the most dangerous law of the land, because it has not yet developed the guarantees of the defence (rules of evidence and procedure) that criminal law has developed over centuries: in most countries, only immigration judges can send people to summary executions, torture and arbitrary detention, through deportation proceedings.
And administrative judges, in many countries, are quite lenient with government officials who decide that detention of a migrant is essential for security reasons: they accept reasons for detention that they would never accept if the person in any administrative proceedings had their nationality.
It is good to see that some judges are waking up to the issue.
“According to both Mr. Lett’s lawyer and the judge, Dora L. Irizarry, the government cannot decide to criminally prosecute immigrants and then keep them locked up on immigration detainers, if, as their cases proceed, they are granted bail. To do so, they said, was to take what amounted to a second bite of the apple, one that skirted the constitutional protections of the criminal-justice system by using the separate immigration process to obtain a result they failed to get the first time.
“The executive branch has a choice to make,” the lawyer, Michelle Gelernt, wrote last week in a motion to dismiss Mr. Lett’s charges. “Whether to proceed with the criminal case against Mr. Lett or whether to proceed instead with his removal.””
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