Analytic Note: The standard is met if the proposition is more likely to be true than not true. Stated differently, the standard is satisfied if there is a greater than fifty percent chance that the proposition is true.

Source Excerpt: (pp. 423-424) Addington v. Texas, 441 U.S. 418, 423 (U.S. Sup. Ct. 1979). The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusion for a particular type of adjudication.” In re Winship, 397 U.S. 358, 370 (170) (Harlan, J., concurring). Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, the plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion. In a criminal case, on the other hand, the interest of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/UYJWCA * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep441/usrep441418/usrep441418.pdf

Analytic Note: Formerly detained non-citizens, private immigration lawyers, and members of non-governmental organizations have reported squalid conditions, grossly insufficient medical standards, and abuse at the hands of government officials, all of which raise questions about violations of international and U.S. standards of human rights.

Source Excerpt: On Friday, Representative Nanette Barragán, Democrat of California and the chairwoman of the House homeland security subcommittee on border security, toured the shelter at the convention center in Long Beach and said the Biden administration was providing minors with much more humane conditions in the health department facilities than they had while in Border Patrol custody, where she said youths slept on mats on the ground and lacked medical care. “Let’s get the kids out of Border Patrol custody as quickly as possible,” Ms. Barragán said in an interview after touring the shelter, which housed 728 migrant children, with room for only 72 more. “In the H.H.S. custody, even in the emergency centers, they have medical staff, they have beds, they have television, they have activities.” Even so, she said she was “concerned” with data showing that the program was in need of more money in the coming months. “Make no mistake,” Ms. Barragán said, “there are things we need to work on.” Migrant surges in the spring are typical, but this year has brought record numbers. While previous administrations focused on expanding the number of facilities run by border agents, the Biden administration has pivoted by spending money on developing temporary shelters in convention centers, military sites and vacant arenas. “The administration is qualitatively looking at this response to this migration event in a different way,” said Cris Ramón, an immigration consultant based in Washington. During the 2020 presidential campaign, Mr. Biden promised that the United States would return to being a compassionate destination for migrants, a sharp contrast with the harsh policies put in place by President Donald J. Trump, who used an emergency public health rule to turn children away. Mr. Biden has committed to allowing these children to enter the country. And housing the migrant children is not the only challenge on the border for the Biden administration. The United States has also been increasingly allowing migrant families to enter the country because of new barriers to sheltering families in Mexico. As a result, the administration has struggled to find space for them and has turned to housing them in hotels before releasing them into the country.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/OSDNFI * See also: https://www.nytimes.com/2021/05/07/us/politics/migrant-children-shelters.html * Human rights groups maintain similar collections of similar articles available at: 1. https://www.aclu.org/news/by-issue/immigration-detention-conditions/ 2. https://www.splcenter.org/attention-on-detention

Analytic Note: Structurally, the Immigration Court is housed in the Executive Office for Immigration Review (EOIR), an agency within the United States Department of Justice. Under delegated authority from the Attorney General, Immigration Judges and the Board of Immigration Appeals interpret and adjudicate immigration cases according to United States immigration laws.

Source Excerpt: 8 C.F.R. §1001.1(l): The term immigration judge means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 240 of the Act. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/TCQFPR * See also: https://www.ecfr.gov/current/title-8/chapter-V/subchapter-A/part-1001/section-1001.1

Analytic Note: In December 2021, the First Circuit affirmed in part and vacated in part the declaratory judgment and permanent injunction issued by the district court in this class action challenging the bond procedures used to detain noncitizen during the pendency of removal proceedings under 8 U.S.C. 1226(a), the discretionary immigration detention provision, holding that the district court lacked jurisdiction to issue injunctive relief in favor of the class. In June 2022, the U.S. Government filed a petition to have Brito’s burden ruling reconsidered by the full (“en banc”) group of First Circuit judges.

Source Excerpt: (pp. 33-34) For the foregoing reasons, we affirm the district court's declaratory judgment to the extent it declared that if the government refuses to offer release subject to bond to a noncitizen detained pursuant to 8 U.S.C. §1226(a), it must either prove by clear and convincing evidence that the noncitizen is dangerous or prove by a preponderance of the evidence that the noncitizen poses a flight risk. We otherwise vacate the district court's declaratory judgment and permanent injunction and remand for entry of judgment in accordance with this opinion.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PNULCL * See also: https://cases.justia.com/federal/appellate-courts/ca1/20-1037/20-1037-2021-12-28.pdf?ts=1640728809

Analytic Note: A comprehensive legal review found two other federal courts enacted legal rules identical to Brito, but those changes occured two and seven months after our study period ends. Government documents confirm this and guide IJs to make bond hearings in the same manner in December 2020 as November 2017 (Office of the Chief Immigration Judge, 2017, 2020a,b).

Source Excerpt: 2017 Immigration Court Practice Manual

Chapter 9.3 - Bond Hearings

(a) In general. — In certain circumstances, an alien detained by the Department of Homeland Security (DHS) can be released from custody upon the payment of bond. Initially, the bond is set by DHS. Upon the alien’s request, an Immigration Judge may conduct a “bond hearing,” in which the Immigration Judge has the authority to redetermine the amount of bond set by DHS.

$$\dots$$

(e) Bond hearings.—In a bond hearing, the Immigration Judge determines whether the alien is eligible for bond. If the alien is eligible for bond, the Immigration Judge considers whether the alien’s release would pose a danger to property or persons, whether the alien is likely to appear for further immigration proceedings, and whether the alien is a threat to national security. In general, bond hearings are less formal than hearings in removal proceedings.

$$\dots$$

(e)(vii) Decision. — The Immigration Judge’s decision is based on any information that is available to the Immigration Judge or that is presented by the parties. See 8 C.F.R. § 1003.19(d).

Usually, the Immigration Judge’s decision is rendered orally. Because bond hearings are generally not recorded, the decision is not transcribed. If either party appeals, the Immigration Judge prepares a written decision based on notes from the hearing.

Link to Data Source: * version November 2017: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/OCDJKJ * version July 2020: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/EIAM0V * version August 2020: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/IBNRSY * version December 2020: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/RXFTI7

Analytic Note: In a legal dispute, one party is presumed to be correct and the other bears the burden of producing evidence persuasive enough to satisfy all the dispute’s legal elements. In criminal cases, the government carries the burden of proof while the defendant is presumed innocent.

Source Excerpt: (pp.423-424) Addington v. Texas, 441 U.S. 418, 423 (U.S. Sup. Ct. 1979). Since society has a minimal concern with the outcome of such private suits, the plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion. In a criminal case, on the other hand, the interest of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/UYJWCA * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep441/usrep441418/usrep441418.pdf

Analytic Note: Private immigration attorney who represented non-citizen respondents in immigration bond hearings believed the Brito decision—specifically shifting the burden of proof and identifying a clear standard of proof—would increase the rate IJs would grant their clients bonded release. The research participant thought that Brito led to more people being released, but the effect was not as large as expected.

Source Excerpt: All sorts of people were detained before. You could be like a mom of three and you could be detained no matter what, right. And now we definitely see fewer people detained, more serious crimes. It's tough to tell [Brito's effects] because a bunch of those are getting denied. They would have been denied anyway at any time. But I do think when Brito came out, more people were being released. Not as many, I mean, we thought this was gonna change our entire world. We thought it was going to be that everyone was going to get out and that that certainly didn't happen. But sure, more people got out.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PV33MN

Analytic Note: Private immigration attorney who represented non-citizen respondents in immigration bond hearings believed the Brito decision—specifically shifting the burden of proof and identifying a clear standard of proof—would increase the rate IJs would grant their clients bonded release. According to this research participant, the decision did not appear to have its full effect immediately, however.

Source Excerpt: Anticipating our discussion today, I went back through some of my old listserves to [remind myself what private immigration attorneys thought when Brito came out.] Everybody was in kind of shock from it all. And defense lawyers totally thought that it was going to be the silver bullet, like we thought, oh, great, we're going to be able to just go in, and then the government's going to have to prove [the case]. [Immediately following the decision}, the government and the judges, all acted like it didn't exist. And 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.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/2OP5YN

Analytic Note: The Supreme Court considers clear and convincing evidence is appropriate where the litigant with the benefit of the doubt has a “particularly important interest” at stake. Colorado v. New Mexico, 467 U.S. 310, 315-317 (1984) defines clear and convincing evidence.

Source Excerpt: (pp. 316-317) The standard reflects this Court's long-held view that a proposed diverter should bear most, though not all, of the risks of erroneous decision: "The harm that may result from disrupting established uses is typically certain and immediate, whereas the potential benefits from a proposed diversion may be speculative and remote." Colorado v. New Mexico, 459 U. S., at 187; see also id., at 182, n. 9. In addition, the clear-and-convincing- evidence standard accommodates society's competing interests in increasing the stability of property rights and in putting resources to their most efficient uses: "[T]he rule of priority [will] not be strictly applied where it 'would work more hardship' on the junior user 'than it would bestow benefits' on the senior user ...[,though] the equities supporting the protection of existing economies will usually be compelling." Id., at 186-187 (quoting Nebraska v. Wyoming, 325 U. S. 589, 619 (1945)).

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/HGTRC3 * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467310/usrep467310.pdf

Analytic Note: In Brito v. Barr, the court ordered that for all immigration courts within its jurisdiction the burden of proof be assigned to the government; and, that the government must prove that the immigrant respondent is a flight risk by the preponderance of the evidence and dangerousness by clear and convincing evidence. The decision only applied to bond hearings in Massachusetts. We leverage the natural experiment created by the Brito decision to consider the causal effect of reallocating the burden of proof and establishing more familiar standards of proof on immigration court outcomes.

Source Excerpt: (p.22) The Court declares that aliens detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence and that no condition or combination of conditions will reasonably assure the alien’s future appearance and the safety of the community. At the bond hearing, the immigration judge must evaluate the alien’s ability to pay in setting bond above $1,500 and must consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien’s future appearances.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/CGJLVJ

Analytic Note: “The ‘beyond a reasonable doubt’ standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the ‘moral force of the criminal law,’ In re Winship, 397 U.S., at 364, and we should hesitate to apply it too broadly or casually in noncriminal cases.” Addington v. Texas, 441 U.S., 428.

Source Excerpt: (pp.363-364) The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ Coffin v. United States, supra, at 453. As the dissenters in the New York Court of Appeals observed, and we agree, ‘a person accused of a crime...would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case." 24 N. Y. 2d, at 205, 247 N. E. 2d, at 259. The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we said in Speiser v. Randall, supra, at 525-526: ‘There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of . . . persuading the factfinder at the conclusion of the trial of his guilt be- yond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt.’ To this end, the reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967). Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” U.S. Reports: In re Winship, 397 U.S. 363-364 (1970).

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/0B9UNP * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep397/usrep397358/usrep397358.pdf

Analytic Note: Private immigration attorney who represented non-citizen respondents in immigration bond hearings believed the Brito decision—specifically shifting the burden of proof and identifying a clear standard of proof—would increase the rate IJs would grant their clients bonded release. This research participant thought that Brito's class-action nature was especially relevant.

Source Excerpt: I was obviously really excited about it. I remember hearing about it the day before Thanksgiving in 2019. Obviously a huge win. I'd been involved in the litigation for a while, as I said. I was excited that finally, someone agreed, adopted arguments, and on a class wide basis. That is why it was so important. I had been more frustrated by the fact that litigating this issue, you had to do in this piecemeal fashion, because unless it was a class action, you had to file--you know, lose at a bond hearing, file a habeas corpus petition--and hope to get a decision on that before the issue became moot. And several of my cases had become moot before I could get a resolution. It seems like there is no power or impact from the prior district court decisions if the immigration judges don't have to follow them. And so that's why the class action piece of it was so important. I was optimistic because it had the reach that I had wanted for a long time, which is through a class as opposed to these individual petitions.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF

Analytic Note: Excerpts from research interviews with private immigration attorneys clarify ICE attorneys' professional incentives for pursuing cases where the non-citizen respondent is neither dangerous nor a flight risk. Specifically, courtroom experience is a key factor when assigning immigration judgeships. Therefore, ICE attorneys may choose to detain non-dangerous individuals in order to acquire trail experience necessary for career advancement.

Source Excerpt: * RI 7: I did think when Brito came down that [ICE] would perhaps release people. Because pre-Brito they would arrest somebody, you know, for a driving without a license charge. And it's still my burden to show that that guy should be let out. Even though that's all he has on his record for 20 years or whatever. I don't think [ICE released people] to the extent it really should have; they still try to put on their case even when their cases are weak. * RI 51: One of the nice things about the Boston immigration court, though, is that a lot of the trial attorneys are former district attorneys. And so they're used to like conferencing the case. [ICE attorneys] don't just come straight from law school to government. They typically have experience in a forum where they're used to meeting to communicate with the other side. * RI 69: And it is easier to get into a judgeship if you were previously in law enforcement because you've already gone through the background checks. And more court experience is one heavy factor when weighing of the immigration judgeship. And for immigration judgeships, prosecutors are always going to have more court experience than the people representing the non-citizens.

Link to Data Source: * Research Interview 7: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PV33MN * Research Interview 51: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/2OP5YN * Research Interview 69: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF

Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that IJs combine risk-aversion with unclear standards.

Source Excerpt: But once the burden was shifted to the government, I feel like the entire job was different. You know, because, well, you know, beforehand, we really had to go--it wasn't beyond a reasonable doubt--but it was, you know, we had to really convince the judge that does history that the detainee had was not going to cause any other problems. So I mean, let's be honest, the judge is always [asking], "What am I going to see in the newspaper the next day? What am I going to see on TV? Am I going to see that this person with a drunk driving arrest [from] 10 years ago going to be in five more [accidents and] kill somebody?" So our burden of proof before Brito was pretty significant. A lot of things in immigration a preponderance of the evidence. You were lucky depending on which judge you've got. Some judges don't like [operating under the influence] and some judges don't like assault and battery. It really just depends on the judge and whether or not you could meet a standard of more likely than not preponderance of the evidence. It was just all over the board beforehand, but it was very difficult. It was very difficult to prove that somebody was, like I said, was not a danger to the community or not a flight risk, especially if you couldn't access records fast enough.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/LEXP17

Analytic Note: Attorneys General for republican presidents appointed 8 of the 11 judges assigned to the Boston Immigration Court Staff as of October 2019. Seventy-five percent of those IJs were appointed in 2017 or later.

Methodological Description: Boston Immigration Court Staff as of October 2019. Judge name, EOIR identifier, year appointed, number of decisions made, and rate granted provided for reference: 1. Jose A. Sanchez, Assistant Chief Immigration Judge (identifier JS1, appointed 2017, 86 decisions, 43% rate granted bond) 2. Robin Feder (REF, 2006, 8, 38%) 3. John Furlong Jr. (JMF, 2019, 662, 36%) 4. Paul Gagnon (PMG, 2002, 3, 33%) 5. Lincoln Jalelian (LSJ, 2019, 1, 0%) 6. Todd Masters (TAM, 2018, 605, 31%) 7. Jennifer Mulcahy (JRM, 2019, 676, 33%) 8. Brenda O’Malley (OMB, 2009, 1, 0%) 9. Maureen O’Sullivan (MOS, 2010, 1, 100%) 10. Mario Sturla (MJS, 2016, 378, 29%) 11. Gwendylan Tregerman (GET, 2017, 259, 17%)

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows how the DOJ's policy and administrative decisions hamper the immigration judges' ability to discharge their duties and responsibilities under the law. DOJ's failure to provide in-person training and continuing legal education concerning legal developments in the field breeds ignorance and incompetence among IJs.

Source Excerpt: (p. 3) EOIR inappropriately minimizes the administrative time allotted for judges to keep current on legal developments, prepare for and review the reams of documentation frequently submitted in support of a given case, and render decisions in complex, vigorously litigated matters. In 2019, EOIR cancelled the annual in-person immigration judge training. Furthermore, EOIR terminated the ability of local judicial law clerks to provide courts with updated circuit and case law. Immigration judges are required to rely on centralized information provided by the Office of Policy which is often untimely, not court specific, and without the depth of analysis provided by law clerks who previously were responsible for the dissemination of this information.

Link to Data Source: * NAIJ Policy and Position Statement “Immigration Court in Crisis and in Need of Reform.” Posted Sep 19, 2019. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/Z39KX6 * See also: NAIJ - Immigration Court in Crisis and in Need of Reform

Theoretical Exposition: This assumes that players (in this case the IJ) do not attempt to draw inferences about the type of ICE prosecutor before them when they find themselves at a history that should not be reached if the players adopt their equilibrium strategies. We will also assume the IJ to use information about how evidence emerges. There is one example in our model when this happens, specifically in the case “No Docket,” where no prosecutor brings a case to immigration court. This is admittedly an odd equilibrium. If an IJ in such an equilibrium was in fact asked to run a custody hearing, we are assuming that she would not draw an inference about the type of prosecutor before her but use her understanding about how evidence emerges. For example, we still allow the IJ to conclude that the respondent most not be dangerous if the IJ observes \(e_w\).

Methodological Description: (i.e., that the treatment effect is 0 for all units) One of the advantages of conducting a randomized trial is that the researcher knows the precise procedure by which the units were allocated to treatment and control. Randomization inference considers what would have happened under all possible random assignments, not just the one that happened to be selected for the experiment at hand.

Source Excerpt: In order to simulate all possible random assignments, we need to stipulate the counterfactual outcomes – what we would have observed among control units had they been treated or among treated units had they not been treated. The sharp null hypothesis of no treatment effect for any unit is a skeptical worldview that allows us to stipulate all of the counterfactual outcomes. If there were no treatment effect for any unit, then all the control units’ outcomes would have been unchanged had they been placed in treatment. Similarly, the treatment units’ outcomes would have been unchanged had they been placed in the control group. Under the sharp null hypothesis, we therefore have a complete mapping from our data to the outcomes of all possible experiments. All we need to do is construct all possible random assignments and, for each one, calculate the test statistic (e.g., the difference in means between the assigned treatment group and the assigned control group). The collection of these test statistics over all possible random assignments creates a reference distribution under the null hypothesis. If we want to know how unusual our actual experimental test statistic is, we compare it to the reference distribution. For example, our experiment might obtain an estimate of 6.5, but 24% of all random assignments produce an estimate of 6.5 or more even in the absence of any treatment effect. In that case, our one-tailed p-value would be 0.24.

Link to Data Source: * https://egap.org/resource/10-things-to-know-about-randomization-inference/

Theoretical Exposition: By construction, an IJ will always infer correctly that a respondent is peaceful if the IJ observes weak evidence. The question is what to infer when the evidence is strong. Since only \(ICE_1\) denies initial bond, strong evidence also perfectly reveals whether the respondent is dangerous. If the IJ will deny bond upon seeing strong evidence, it is possible that \(ICE_0\) might want to take advantage of the IJ’s beliefs and deny initial bond to an individual who is peaceful. To ensure that \(ICE_0\) has no incentive to do this, it must be that strong evidence is sufficiently discriminating or that $$q<\frac{\epsilon_0}{v_0}$$, the first threshold in Figure 1. Shifting the burden \(v_0\) of proof to the prosecution would have made this kind of equilibrium easier to sustain for increasingly coarse evidentiary signals (high values of \(q\)). This change would have plausibly increased the costs of litigation for ICE, shifting the first threshold to the right.

Methodological Description: We took several steps to test these findings’ robustness. We shifted our unit of analysis from HBC to state and extended the time between observations from week to month. These adjustments did not change our general findings but did have the undesirable results of a smaller donor pool and fewer post-treatment observations. We also shortened the pre-treatment period to fewer than 38 weeks. This did not change our findings, but did make the synthetic control less precise. In another step, we added predictors to assess whether they changed our results. They did not. Our results persisted, but with less precision, regardless of which predictors we added to the synthetic control. The predictors used for robustness checks include a respondent’s gender, language, and nationality; each IJ’s gender and party of the president who appointed them; county-level vote share for the 2016 presidential candidates; and state-level measures for governorships and unemployment rates. We also utilized a synthetic difference-in-differences estimation procedure Arkhangelsky et al.’s (2021) that calculates an average treatment effect on the treated (ATT) as the pre- versus post- difference-in-difference between treated units and synthetic control units, where synthetic control units are chosen as an optimally weighted function of untreated units. The ATT was -1.89 (p = 0.92) and 0.05 (p = 0.17) for caseload and rate granted bond, respectively.

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are concerned with the weaponization of performance metrics in politically-motivated policy warfare.

Source Excerpt: (p. 7) Equally disturbing, because the performance metrics set the bar so high that all judges are incapable of meeting them, EOIR is empowered to dismiss judges who fail to follow their policy preferences under the pretext of inadequate performance. This is what happens when the structure of the Immigration Courts allow it to be used as a tool for immigration enforcement rather than as a fair and independent tribunal. They are a pretext. These meaningless and politically-motivated performance metrics are clearly designed to intimidate judges rather than to honestly evaluate their performance. It places each judge at odds with their oath of office to provide impartial justice because their continued employment hangs in the balance. Yet this is just another example of the pernicious effect of the structural defect of allowing the Immigration Court to remain in a law enforcement agency.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) describes how bond hearings' quick tempo exacerbates inequities in the courtroom. To be precise, respondents are generally laypersons, non-English speakers who carry the burden of proof. Though they have the right to attorney, one is not provided for them. These disadvantaged, inexperienced defendants must prove their case against competent government lawyers.

Source Excerpt: (p. 5) DHS is always represented by an attorney, typically one who has handled hundreds, if not thousands, of cases and can more readily accommodate a shortened time frame for trial. The respondents are often unrepresented, non-English speaking, and forced to appear before a judge who is penalized for slowing down to provide more guidance. The respondents also carry the burden of proof to persuade the judge to allow them to remain in the United States under the law. Any lack of evidence caused by the speed at which the metrics force judges to process cases works against the respondent and can be fatal to his or her case.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

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

Methodological Description: Decisions outside our scope are those in which IJs declared they had no jurisdiction (8,142 observations). Undefined decisions are those with missing (2,340 observations) or uninterpretable codes (772 observations). The data contain several illogical coding combinations that we remove. First, we omit observations in which the decision code indicates the IJ decided on a new bond amount, but the data is missing information on this new amount (75 observations). We also strike observations where the decision code indicates the IJ made “no change” to ICE’s earlier decision, but data on the initial bond is missing while data on the new bond is present (199 observations). We take similar action when the decision code indicates the IJ took “no action” to ICE’s earlier decision, but data on the initial bond is missing while data on the new bond is present (407 observations). Fourth, we eliminate observations in which the initial and new bond amounts are zero, but the decision codes include “recognizance,” “no change,” and “no bond” (48 observations). Finally, we create a binary variable identifying whether an IJ decides to grant bonded release for the remaining 203,799 observations.

Analytic Note: Excerpts from research interviews with private immigration attorneys demonstrate that an IJ's ignorance of Brito should not be an excuse. First, as RI #71 explains, courts are interactive and allow both attorneys to professionally remind IJs of legal developments and IJs to clarify how a recent legal development affects the case before the court. Second, as RI #69 explains, courts can revisit past decisions and correct due process failures.

Source Excerpt: * RI #71: I assume the IJ doesn't know anything about this. And just put it on the record. And sometimes, I don't advise this specifically. But I know my friends, and I know that they say things like, as I'm sure your honor is where he, you know, in Brito, V blah, blah, blah, blah, blah, blah, blah. So if they're not aware, then they can ask further questions. \(\dots\) It also helps them immediate situation to sort of put the judge on notice, like, remember, we're in Massachusetts, remember, you know, because you're doing video calls all over the country. Remember, here in Massachusetts, we have this. * RI #69: Certain judges were doing detainee cases, and others were not. [My client] got in front of this judge for a bond hearing. The IJ said Brito standards apply, but she forgot to consider alternatives to detention. Literally did not even consider them even though we have put them in our packet and mentioned them. We had argued about that when she gave her decision. Still, she said I find that he's a flight risk. Here's why. Period. And there was no consideration that a GPS ankle monitor can actually ensure that he'll come back. Nothing. And so we went, we went back to the district court and did a motion to enforce the judgment. To argue that she failed to consider alternatives to detention. And Brito requires that. And then we went back for a new bond hearing in May, and she did release with an ankle monitor. And she literally said, "I did not complete the analysis." And I remember thinking, it's because this alternative to detention thing is kind of new. And the last time she was deciding detention cases, this wasn't a thing. And so she didn't, like it wasn't of part of her mindset of what needed to be done. We ultimately got what we wanted out of that case, but it was just more circuitous than I would have liked.

Link to Data Source: * Research Interview #69: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF * Research Interview #71: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/C91RC1

Analytic Note: An excerpt from this research interview with a private immigration attorney explains that IJs' decisions are always discretionary, no matter what standard they are required to follow.

Source Excerpt: To the judge's satisfaction feeds the immigration judge's sense that they operate nearly entirely on discretion. And they do. Basically, every application they see before them is discretionary. So the judge's personalities can play into it to a very high degree. Having a precise legal standard, I don't think, takes their personalities and their influences out of the equation. \(\dots\) I think they do speak to the standard. But I don't know if they're cognizant of the fact that there's a standard. They say what it is, and then they decide what they want.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/1K5HBD

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) illustrates that immigration judges recognize that longstanding institutions shape constraints and incentives that compel judges' behavior to conform to the political will of the Attorney General and, by extension, the White House.

Source Excerpt: (p. 1) The performance evaluation system has been turned into a mechanism to enforce the political will of the the-ncurrent administration on the immigration court and immigration judges. The current system places inappropriate focus on “organizational results,” which EOIR has equated with production quotas and time-based deadlines. The major flaw in the current evaluation and discipline structure for immigration judges stems from the fact that DOJ considers and treats immigration judges as merely attorney employees and not as judges. This violates the immigration court’s organic statute. By statute, we are attorneys appointed by the Attorney General to serve as judges. Since the language clearly reflects our judicial function once appointed, a traditional judicial model for performance evaluation and discipline is warranted. The current protocols employed by EOIR stand in stark contrast to how other courts nationwide evaluate judges.

Link to Data Source: * NAIJ Policy and Position Statement “Overview of EOIR Discipline and Performance Protocols. Posted Posted Mar 20, 2021. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/J0U84D * See also: NAIJ - Overview of EOIR Discipline and Performance Protocols

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are not advocating for more personnel or resources but rather an institutional change that will create an independent immigration court in accordance with the separation of powers.

Source Excerpt: (p. 2) We acknowledge that it is difficult to look past the immediacy of the overwhelming backlog of cases which currently stands just shy of 1.1 million cases. This amounts to an almost doubling of the backlog in three years, in spite of the largest ever immigration judge hiring initiative (over 200) and concomitant increase in court appropriations in the history of EOIR. The “backlog” has been used as a justification, an excuse, and most often as pretext for implementing otherwise indefensible policies and practices with respect to the Immigration Court. Yet the problem is not a backlog or lack of funds; it is the structural flaw of the Immigration Court, located within a law enforcement agency, that frustrates the ability to properly address the backlog or the appropriated funds. It is time to acknowledge the truth organizations such as the NAIJ, the American Bar Association, the Federal Bar Association, and numerous others have stated publicly for years: unless and until the Immigration Court is removed from the DOJ and established as an independent court, we cannot begin to adequately address the immigration crisis we face as a nation.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are asking for the same institutional changes that private, reputed organizations argued for previously: the need for an independent court following the separation of powers.

Source Excerpt: (p. 15) Every reputable organization that has studied the Immigration Court has reached the same conclusion. The American Bar Association has produced an in-depth and extensive report of the need for an independent Immigration Court. The Federal Bar Association has drafted proposed Article 1 legislation. The American Immigration Lawyers Association, the largest organization of immigration law attorneys who practice on a daily basis before the Court, has formally endorsed an independent Immigration Court. If nothing else, the drastic pendulum swings between the previous and current administration’s use and abuse of the Immigration Court has evidenced what our founding fathers knew at the inception of our country— the importance of separation of powers between the judicial role of the government from its law enforcement prerogatives. The judicial role of the Immigration Court is simply irreconcilable with the law enforcement mission and role of the DOJ. The only real and lasting solution is the establishment of an independent Immigration Court. Only then will we begin to move forward in solving the immigration crisis facing our nation.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

Theoretical Exposition: We will also assume that $$v_0>\epsilon_{0}$$, so that no prosecutor would fail to deny bond initially if she believed that that the IJ would also certainly deny bond. This assumption can be relaxed without doing any harm to the analysis. The consequence is that some of the equilibria we identify would require additional conditions to be identified in the results section. Substantively, it is also defensible. It means that \(ICE_1\), who knows that the detainee is dangerous, would not release him simply to avoid paying the costs of litigation. And once we have assumed that \(ICE_0\) is willing to go to court in order to keep a peaceful person in detention, we have already implicitly assumed that \(v_0\) must be relatively large.

Analytic Note: Again, we focus the model on the issue of dangerousness, understanding that a respondent’s potential flight risk is also an issue. It is useful to note that Brito did not change the flight risk standard nearly as much as it did the dangerousness standard. Second, in so far as the standards/burdens shifted, they shifted in the same direction.

Source Excerpt: (pp. 2-3) In summary, the Court holds and declares as follows: First, the Board of Immigration Appeals ("BIA") policy of placing the burden of proof on the alien at 8 U.S.C. § 1226(a) bond hearings violates due process and the APA. Second, due process requires the Government prove at § 1226(a) bond hearings an alien's dangerousness by clear and convincing evidence or risk of flight by a preponderance of the evidence. Third, due process requires the immigration court to evaluate an alien's ability to pay in setting bond, and consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien's future appearances. Fourth, the Government shall produce to class counsel certain information regarding each member of the Post-Hearing Class in order to facilitate individual habeas petitions challenging their continued detention.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/CGJLVJ

Theoretical Exposition: For this to be true, strong evidence must be sufficiently discriminating for the IJ, which requires that $$q< \frac{\pi \beta}{\alpha(1-\pi)}$$. Given that \(ICE_1\) knows that strong evidence will be observed at the hearing, \(ICE_1\) knows that the IJ will deny bond and the incentive to deny bond initially is transparent. In order for \(ICE_0\) to deny bond, it must be sufficiently likely that weak evidence will nevertheless appear strong at the hearing. This requires $$q \geq \frac{\epsilon_0}{v_0}$$. Thus, for this case, we require \(q\) to fall between the two thresholds in Figure 1: it must be neither too likely nor too unlikely that a weak case will appear strong. Placing the burden of proof on the prosecution would have reduced the range of \(q\) for which this equilibrium exists for two reasons. The change in the burden of production would have shifted the first threshold to the right by increasing \(\epsilon_0\). The change in the burden of persuasion would have shifted the second threshold to the left by increasing \(\alpha\) (or decreasing \(\beta\) or both).

Methodological Description: These observational data nest as follows: states contain multiple HBCs, each HBC contains multiple IJs, each IJ makes multiple bond hearing decisions in a single period, and detainees may make several appearances in immigration court concerning their bonded release.

Theoretical Exposition: As we describe in the text, the shift in the burden of proof would have increased \(\epsilon_i\) and \(\alpha\). The first change would have increased the range of values of \(q\) for which the equilibrium in Case 1 could be sustained. Relative to Case 2, the immigration court caseload is lower in Case 1. The bond grant rate is also lower in Case 1 than Case 2 since there are no cases in which weak evidence is observed.

Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that, under the Trump Administration, the DOJ used several tools that threatened fair treatment in immigration courts. These included, first, a performance management system that penalized IJs for spending more than the allotted time on a single case. Second, the government attacked the National Association of Immigration Judges, which was the entity pushing to end quotas and give immigration courts judicial independence (visit the NAIJ's Publications Archive for public statements and policy position papers). And finally, priorities guidance instructed ICE agents and attorneys who they were supposed to target and detain.

Source Excerpt: I observed several of the hearings right after Brito to see how they were going. And, you know, the ordering was different. So that's obviously a change. I guess I would say that, I don't know that I observed that the judges' behavior was necessarily different in terms of the outward manifestation of what they were thinking. You know, I guess I would also mention that there have been some external things that have been happening on judges, immigration judges in the not-so-distant past that also coincided with that period. You probably are aware that there were a series of efforts to undermine the independence of the immigration judges, including an effort by the Trump administration that I think was at least initially successful, to decertify their union protections. So that happened to and I want to say that was true, you can look it up, but I believe that was 2019-ish, probably. Decisions were happening in that. So there were issues with [the judges] independence. And again, I'm not saying I saw that reflected in the hearings, I observed. But, you know, I don't know what effect that has. I believe there were attempts to track more closely the progress of their cases through things like automated dashboards and things like that, that they're being forced to use. And then there have also some changes more recently, that might be somewhat relevant, at least to the population that's coming before the judges. The Trump administration had priorities guidance about who [ICE officials] were supposed to be targeting. And [Biden] got rid of that. [Trump] went with an all-of-the-above strategy for immigration arrests. When the Biden administration came in, they issued priorities guidance to narrow that back down again. So in theory, at least, whether or not that's happening, I'm sure, is a subject of much discussion. So the profile that people may be coming before the judges over time may have changed to some degree.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/F1OOBA

Methodological Description: All variables are averaged over the entire pre-intervention period up to but excluding the intervention period. Predictors selected to minimize MSPE in the pre-treatment period.

Analytic Note: By contrast, the Biden administration’s directive (09/30/2021) narrowed immigration enforcement and prioritized those individuals that threaten national security, public safety, and border security (see RI #64, #69). Research participants (see RI #7, #10) noted COVID forced the Trump administration to soften how ICE prioritized detaining individuals and managing ongoing cases.

Source Excerpt: * RI 7: All sorts of people were detained before. You could be like a mom of three and you could be detained no matter what, right. \(\dots\) So when Brito first came down, [the government] had not [been bringing different types of cases forward, or allowing some of the individuals bonded release earlier knowing that it will be a harder case to prove in court.] It was very much, you know, almost business as usual. Same number of people being detained all of that. Now, there are way fewer bond hearings around here in Boston. So there are way fewer bond hearings, and fewer people detained, but I don't think it has to do with Brito, I think it has to do with like COVID. And there's a lot of action around here to try to not overcrowd the jails, because of COVID. So ICE can release people if they want just by themselves, and they don't have to put on a bond case they can just parole them or release them. And I think that to try to not overcrowd the jails. Some of that had happened. RI 10: I can't really speak to the rest of the country, unfortunately. I do know that it seemed like there was definitely a higher standard during COVID. I mean, a lot of people were just getting letters to call in; they weren't even asking them to show up to their appointments at ICE. The check-in appointments and stuff they were just being asked to call in. If they tried to show up they would get sent away. [Compared to before the COVID pandemic], I feel like ICE was trying to keep people away versus collecting them around here. But yeah, I can't speak to the rest of the country. * RI 10: I can't really speak to the rest of the country, unfortunately. I do know that it seemed like there was definitely a higher standard during COVID. I mean, a lot of people were just getting letters to call in; they weren't even asking them to show up to their appointments at ICE. The check-in appointments and stuff they were just being asked to call in. If they tried to show up they would get sent away. [Compared to before the COVID pandemic], I feel like ICE was trying to keep people away versus collecting them around here. But yeah, I can't speak to the rest of the country. * RI 64: The Trump administration had priorities guidance about who [ICE officials] were supposed to be targeting. And [Biden] got rid of that. [Trump] went with an all-of-the-above strategy for immigration arrests. When the Biden administration came in, they issued priorities guidance to narrow that back down again. So in theory, at least, whether or not that's happening, I'm sure, is a subject of much discussion. So the profile that people may be coming before the judges over time may have changed to some degree. * RI 69: Responding the the quetion, "I liked what you said about the 'burden to produce evidence' but also the 'burden to persuade,' given those added costs on the government side, have you noticed that the government is releasing people earlier in the process so that they can just focus on cases? Or do you think they're still bringing in the same types of cases now as they were before?" RI #69 response: "I don't think that [Brito] made a difference as to which cases [ICE] decided to detain and not to detain. I think the Biden enforcement priorities probably do make a difference about deciding to detain and not detain. But I think [the Brito] decision did not impact that."

Link to Data Source: * Biden Administration's directive: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/WWXTYW * 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 64: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/F1OOBA * Research Interview 69: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF

Methodological Description: The synthetic is a weighted combination of control units from non-treated jurisdictions. Suppose that there is a sample of \(J+1\) jurisdictions indexed by \(j\), among which unit \(j=1\) is the jurisdiction of interest and jurisdictions \(j=2\) to \(j=J+1\) are potential comparisons. The treated unit, \(j=1\), is the jurisdiction exposed to the intervention. The remaining jurisdictions, \(j=2\) to \(j=J+1\) comprise the ``donor pool'' of potential comparison units unexposed to the intervention under study.

Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that IJs know their decision are difficult to review under the legal regime in place.

Source Excerpt: It almost felt like for the judges who wanted to deny they just settled into this, "I'm going to recite these magic words," and "I'm going to say that there is clear and convincing evidence of dangerousness and that there is no reasonable alternative to detention that can protect the community or ensure the client safe." I have also tried to litigate this issue unsuccessfully. Once you have a judge who said all the magic words, even if the evidence doesn't meet clear and convincing standard, the district court will probably say, "No jurisdiction to review. You're asking me to reweigh the evidence and that is barred because there's a jurisdiction stripping statute within the detention statute. 8 US Code 1226, Section E, says there is no jurisdiction by a federal court to review a discretionary decision to detain. And so what you're complaining about is that evidence shouldn't have been weighted so heavily, that's a discretionary decision [that cannot be reviewed]."

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF

Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that IJs combine risk-aversion with unclear standards.

Source Excerpt: I just feel like often the government is just saying, "Seems dangerous to me. Look at this one police report." And if you have to prove dangerousness by clear and convincing evidence, I don't think there's any IJ who thinks [a police report] on its own is clear and convincing. Well, maybe there are, but not in Boston. So I do think [the Brito decision] mattered. [Brito] didn’t change the underlying fact that whose burden it is isn’t going to change the results. [If ] you have a long enough criminal record[, which] doesn’t technically bar you from bond, it makes the judge feel that you’re not safe. That's not going to change based on who has the burden.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/C91RC1

Analytic Note: Excerpts from research interviews with private immigration attorneys illuminate how they provide important value to respondents, especially those held in custody, unfamiliar with U.S. laws, and/or non-English speaking. Competent lawyers can acknowledge and effectively rebut the government's claims; without them, the government would likely ride roughshod over a respondent's argument (RI #7, #52). Capable attorneys can review the government's case and prepare appropriate responses, including composing legal strategy, piecing together a compelling story on why and how the respondent is not dangerous, and collecting evidence supporting the respondent's counterarguments (RI #23).

Source Excerpt: * RI 7: Now, post Brito, the government presents the case and talks about how terrible my client is, and all these crimes they've committed, or whatever it is they want to say. And then my response rubuts that. I would say, "Nope. That's not true. Here's what happened." Or [I would say], "Yes, I acknowledge that. But look at all the wonderful ways he's changed since then." So, you're acknowledging their argument and rebutting it. * RI 23: In a practical sense, it means that we are actually getting paperwork from the government ahead of our bond hearings, which is just magical. \(\dots\) I think my stress levels going into a hearing changed a little bit because I knew what the government had and what they were likely to say. And I knew that if they thought someone was secretly a gang member, that would be at the top of their submission rather than after I've put together my 20-minute presentation. But, you know, if I think they have anything, then I can't tell my client, "Well, let's just hang back, see what the government comes up with." I need to have proof that my client is not dangerous. I had a client who was convicted of embezzlement. It was not great sounding. Okay. And he and another family member were co-defendants and the other family member had, to my mind, done a great deal more. More bad guy stuff than my client. And so I'm not going to let the government say, "Look, he's got a federal conviction." I have to think through what motivates my client has to stay here. I have to think through my argument that my guy has relief. How am I going to map out for the judge that that relief is not a pipe dream? [I have to explain,] "No, your honor. It's gonna be like this, he's gonna do A, he's gonna do B, he's going to do C. And you're gonna see that he's eligible for D." So I have to have that tight. The burden might be on the government, but if I can't say he's eligible for anything, I don't think any judge can ignore that. And the burden isn't really on the government to say what he's eligible for, especially when I have to do the fact-finding. * RI 52: I think that the burden-shifting made it much easier for detained immigrants to be able to get bond because instead of this ridiculous proving a negative of my client is not a flight risk. My client is not a danger to society, it was the government's job to actually demonstrate how they were a flight risk or a danger to the community.

Link to Data Source: * Research Interview #7: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PV33MN * Research Interview #23: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/1K5HBD * Research Interview #52: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/RD0IPI

Analytic Note: Excerpts from research interviews with private immigration attorneys clarify ICE attorneys' professional incentives for pursuing cases where the non-citizen respondent is neither dangerous nor a flight risk. Specifically, courtroom experience is a key factor when assigning immigration judgeships. Therefore, ICE attorneys may choose to detain non-dangerous individuals in order to acquire trail experience necessary for career advancement.

Source Excerpt: * RI 7: I did think when Brito came down that [ICE] would perhaps release people. Because pre-Brito they would arrest somebody, you know, for a driving without a license charge. And it's still my burden to show that that guy should be let out. Even though that's all he has on his record for 20 years or whatever. I don't think [ICE released people] to the extent it really should have; they still try to put on their case even when their cases are weak. * RI 51: One of the nice things about the Boston immigration court, though, is that a lot of the trial attorneys are former district attorneys. And so they're used to like conferencing the case. [ICE attorneys] don't just come straight from law school to government. They typically have experience in a forum where they're used to meeting to communicate with the other side. * RI 69: And it is easier to get into a judgeship if you were previously in law enforcement because you've already gone through the background checks. And more court experience is one heavy factor when weighing of the immigration judgeship. And for immigration judgeships, prosecutors are always going to have more court experience than the people representing the non-citizens.

Link to Data Source: * Research Interview 7: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PV33MN * Research Interview 51: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/2OP5YN * Research Interview 69: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF

Analytic Note: By contrast, the Biden administration’s directive (09/30/2021) narrowed immigration enforcement and prioritized those individuals that threaten national security, public safety, and border security (see RI #64, #69). Research participants (see RI #7, #10) noted COVID forced the Trump administration to soften how ICE prioritized detaining individuals and managing ongoing cases.

Source Excerpt: * RI 7: All sorts of people were detained before. You could be like a mom of three and you could be detained no matter what, right. \(\dots\) So when Brito first came down, [the government] had not [been bringing different types of cases forward, or allowing some of the individuals bonded release earlier knowing that it will be a harder case to prove in court.] It was very much, you know, almost business as usual. Same number of people being detained all of that. Now, there are way fewer bond hearings around here in Boston. So there are way fewer bond hearings, and fewer people detained, but I don't think it has to do with Brito, I think it has to do with like COVID. And there's a lot of action around here to try to not overcrowd the jails, because of COVID. So ICE can release people if they want just by themselves, and they don't have to put on a bond case they can just parole them or release them. And I think that to try to not overcrowd the jails. Some of that had happened. RI 10: I can't really speak to the rest of the country, unfortunately. I do know that it seemed like there was definitely a higher standard during COVID. I mean, a lot of people were just getting letters to call in; they weren't even asking them to show up to their appointments at ICE. The check-in appointments and stuff they were just being asked to call in. If they tried to show up they would get sent away. [Compared to before the COVID pandemic], I feel like ICE was trying to keep people away versus collecting them around here. But yeah, I can't speak to the rest of the country. * RI 10: I can't really speak to the rest of the country, unfortunately. I do know that it seemed like there was definitely a higher standard during COVID. I mean, a lot of people were just getting letters to call in; they weren't even asking them to show up to their appointments at ICE. The check-in appointments and stuff they were just being asked to call in. If they tried to show up they would get sent away. [Compared to before the COVID pandemic], I feel like ICE was trying to keep people away versus collecting them around here. But yeah, I can't speak to the rest of the country. * RI 64: The Trump administration had priorities guidance about who [ICE officials] were supposed to be targeting. And [Biden] got rid of that. [Trump] went with an all-of-the-above strategy for immigration arrests. When the Biden administration came in, they issued priorities guidance to narrow that back down again. So in theory, at least, whether or not that's happening, I'm sure, is a subject of much discussion. So the profile that people may be coming before the judges over time may have changed to some degree. * RI 69: Responding the the quetion, "I liked what you said about the 'burden to produce evidence' but also the 'burden to persuade,' given those added costs on the government side, have you noticed that the government is releasing people earlier in the process so that they can just focus on cases? Or do you think they're still bringing in the same types of cases now as they were before?" RI #69 response: "I don't think that [Brito] made a difference as to which cases [ICE] decided to detain and not to detain. I think the Biden enforcement priorities probably do make a difference about deciding to detain and not detain. But I think [the Brito] decision did not impact that."

Link to Data Source: * Biden Administration's directive: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/WWXTYW * 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 64: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/F1OOBA * Research Interview 69: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF

Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that, under the Trump Administration, the DOJ used several tools that threatened fair treatment in immigration courts. These included, first, a performance management system that penalized IJs for spending more than the allotted time on a single case. Second, the government attacked the National Association of Immigration Judges, which was the entity pushing to end quotas and give immigration courts judicial independence (visit the NAIJ's Publications Archive for public statements and policy position papers). And finally, priorities guidance instructed ICE agents and attorneys who they were supposed to target and detain.

Source Excerpt: I observed several of the hearings right after Brito to see how they were going. And, you know, the ordering was different. So that's obviously a change. I guess I would say that, I don't know that I observed that the judges' behavior was necessarily different in terms of the outward manifestation of what they were thinking. You know, I guess I would also mention that there have been some external things that have been happening on judges, immigration judges in the not-so-distant past that also coincided with that period. You probably are aware that there were a series of efforts to undermine the independence of the immigration judges, including an effort by the Trump administration that I think was at least initially successful, to decertify their union protections. So that happened to and I want to say that was true, you can look it up, but I believe that was 2019-ish, probably. Decisions were happening in that. So there were issues with [the judges] independence. And again, I'm not saying I saw that reflected in the hearings, I observed. But, you know, I don't know what effect that has. I believe there were attempts to track more closely the progress of their cases through things like automated dashboards and things like that, that they're being forced to use. And then there have also some changes more recently, that might be somewhat relevant, at least to the population that's coming before the judges. The Trump administration had priorities guidance about who [ICE officials] were supposed to be targeting. And [Biden] got rid of that. [Trump] went with an all-of-the-above strategy for immigration arrests. When the Biden administration came in, they issued priorities guidance to narrow that back down again. So in theory, at least, whether or not that's happening, I'm sure, is a subject of much discussion. So the profile that people may be coming before the judges over time may have changed to some degree.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/F1OOBA

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are concerned with the weaponization of performance metrics in politically-motivated policy warfare.

Source Excerpt: (p. 7) Equally disturbing, because the performance metrics set the bar so high that all judges are incapable of meeting them, EOIR is empowered to dismiss judges who fail to follow their policy preferences under the pretext of inadequate performance. This is what happens when the structure of the Immigration Courts allow it to be used as a tool for immigration enforcement rather than as a fair and independent tribunal. They are a pretext. These meaningless and politically-motivated performance metrics are clearly designed to intimidate judges rather than to honestly evaluate their performance. It places each judge at odds with their oath of office to provide impartial justice because their continued employment hangs in the balance. Yet this is just another example of the pernicious effect of the structural defect of allowing the Immigration Court to remain in a law enforcement agency.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are not advocating for more personnel or resources but rather an institutional change that will create an independent immigration court in accordance with the separation of powers.

Source Excerpt: (p. 2) We acknowledge that it is difficult to look past the immediacy of the overwhelming backlog of cases which currently stands just shy of 1.1 million cases. This amounts to an almost doubling of the backlog in three years, in spite of the largest ever immigration judge hiring initiative (over 200) and concomitant increase in court appropriations in the history of EOIR. The “backlog” has been used as a justification, an excuse, and most often as pretext for implementing otherwise indefensible policies and practices with respect to the Immigration Court. Yet the problem is not a backlog or lack of funds; it is the structural flaw of the Immigration Court, located within a law enforcement agency, that frustrates the ability to properly address the backlog or the appropriated funds. It is time to acknowledge the truth organizations such as the NAIJ, the American Bar Association, the Federal Bar Association, and numerous others have stated publicly for years: unless and until the Immigration Court is removed from the DOJ and established as an independent court, we cannot begin to adequately address the immigration crisis we face as a nation.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are asking for the same institutional changes that private, reputed organizations argued for previously: the need for an independent court following the separation of powers.

Source Excerpt: (p. 15) Every reputable organization that has studied the Immigration Court has reached the same conclusion. The American Bar Association has produced an in-depth and extensive report of the need for an independent Immigration Court. The Federal Bar Association has drafted proposed Article 1 legislation. The American Immigration Lawyers Association, the largest organization of immigration law attorneys who practice on a daily basis before the Court, has formally endorsed an independent Immigration Court. If nothing else, the drastic pendulum swings between the previous and current administration’s use and abuse of the Immigration Court has evidenced what our founding fathers knew at the inception of our country— the importance of separation of powers between the judicial role of the government from its law enforcement prerogatives. The judicial role of the Immigration Court is simply irreconcilable with the law enforcement mission and role of the DOJ. The only real and lasting solution is the establishment of an independent Immigration Court. Only then will we begin to move forward in solving the immigration crisis facing our nation.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that IJs know their decision are difficult to review under the legal regime in place.

Source Excerpt: It almost felt like for the judges who wanted to deny they just settled into this, "I'm going to recite these magic words," and "I'm going to say that there is clear and convincing evidence of dangerousness and that there is no reasonable alternative to detention that can protect the community or ensure the client safe." I have also tried to litigate this issue unsuccessfully. Once you have a judge who said all the magic words, even if the evidence doesn't meet clear and convincing standard, the district court will probably say, "No jurisdiction to review. You're asking me to reweigh the evidence and that is barred because there's a jurisdiction stripping statute within the detention statute. 8 US Code 1226, Section E, says there is no jurisdiction by a federal court to review a discretionary decision to detain. And so what you're complaining about is that evidence shouldn't have been weighted so heavily, that's a discretionary decision [that cannot be reviewed]."

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF

Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that IJs combine risk-aversion with unclear standards.

Source Excerpt: I just feel like often the government is just saying, "Seems dangerous to me. Look at this one police report." And if you have to prove dangerousness by clear and convincing evidence, I don't think there's any IJ who thinks [a police report] on its own is clear and convincing. Well, maybe there are, but not in Boston. So I do think [the Brito decision] mattered. [Brito] didn’t change the underlying fact that whose burden it is isn’t going to change the results. [If ] you have a long enough criminal record[, which] doesn’t technically bar you from bond, it makes the judge feel that you’re not safe. That's not going to change based on who has the burden.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/C91RC1

Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that IJs combine risk-aversion with unclear standards.

Source Excerpt: But once the burden was shifted to the government, I feel like the entire job was different. You know, because, well, you know, beforehand, we really had to go--it wasn't beyond a reasonable doubt--but it was, you know, we had to really convince the judge that does history that the detainee had was not going to cause any other problems. So I mean, let's be honest, the judge is always [asking], "What am I going to see in the newspaper the next day? What am I going to see on TV? Am I going to see that this person with a drunk driving arrest [from] 10 years ago going to be in five more [accidents and] kill somebody?" So our burden of proof before Brito was pretty significant. A lot of things in immigration a preponderance of the evidence. You were lucky depending on which judge you've got. Some judges don't like [operating under the influence] and some judges don't like assault and battery. It really just depends on the judge and whether or not you could meet a standard of more likely than not preponderance of the evidence. It was just all over the board beforehand, but it was very difficult. It was very difficult to prove that somebody was, like I said, was not a danger to the community or not a flight risk, especially if you couldn't access records fast enough.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/LEXP17

Analytic Note: An excerpt from this research interview with a private immigration attorney explains that IJs' decisions are always discretionary, no matter what standard they are required to follow.

Source Excerpt: To the judge's satisfaction feeds the immigration judge's sense that they operate nearly entirely on discretion. And they do. Basically, every application they see before them is discretionary. So the judge's personalities can play into it to a very high degree. Having a precise legal standard, I don't think, takes their personalities and their influences out of the equation. \(\dots\) I think they do speak to the standard. But I don't know if they're cognizant of the fact that there's a standard. They say what it is, and then they decide what they want.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/1K5HBD

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) illustrates that immigration judges recognize that longstanding institutions shape constraints and incentives that compel judges' behavior to conform to the political will of the Attorney General and, by extension, the White House.

Source Excerpt: (p. 1) The performance evaluation system has been turned into a mechanism to enforce the political will of the the-ncurrent administration on the immigration court and immigration judges. The current system places inappropriate focus on “organizational results,” which EOIR has equated with production quotas and time-based deadlines. The major flaw in the current evaluation and discipline structure for immigration judges stems from the fact that DOJ considers and treats immigration judges as merely attorney employees and not as judges. This violates the immigration court’s organic statute. By statute, we are attorneys appointed by the Attorney General to serve as judges. Since the language clearly reflects our judicial function once appointed, a traditional judicial model for performance evaluation and discipline is warranted. The current protocols employed by EOIR stand in stark contrast to how other courts nationwide evaluate judges.

Link to Data Source: * NAIJ Policy and Position Statement “Overview of EOIR Discipline and Performance Protocols. Posted Posted Mar 20, 2021. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/J0U84D * See also: NAIJ - Overview of EOIR Discipline and Performance Protocols

Analytic Note: Excerpts from research interviews with private immigration attorneys illuminate how they provide important value to respondents, especially those held in custody, unfamiliar with U.S. laws, and/or non-English speaking. Competent lawyers can acknowledge and effectively rebut the government's claims; without them, the government would likely ride roughshod over a respondent's argument (RI #7, #52). Capable attorneys can review the government's case and prepare appropriate responses, including composing legal strategy, piecing together a compelling story on why and how the respondent is not dangerous, and collecting evidence supporting the respondent's counterarguments (RI #23).

Source Excerpt: * RI 7: Now, post Brito, the government presents the case and talks about how terrible my client is, and all these crimes they've committed, or whatever it is they want to say. And then my response rubuts that. I would say, "Nope. That's not true. Here's what happened." Or [I would say], "Yes, I acknowledge that. But look at all the wonderful ways he's changed since then." So, you're acknowledging their argument and rebutting it. * RI 23: In a practical sense, it means that we are actually getting paperwork from the government ahead of our bond hearings, which is just magical. \(\dots\) I think my stress levels going into a hearing changed a little bit because I knew what the government had and what they were likely to say. And I knew that if they thought someone was secretly a gang member, that would be at the top of their submission rather than after I've put together my 20-minute presentation. But, you know, if I think they have anything, then I can't tell my client, "Well, let's just hang back, see what the government comes up with." I need to have proof that my client is not dangerous. I had a client who was convicted of embezzlement. It was not great sounding. Okay. And he and another family member were co-defendants and the other family member had, to my mind, done a great deal more. More bad guy stuff than my client. And so I'm not going to let the government say, "Look, he's got a federal conviction." I have to think through what motivates my client has to stay here. I have to think through my argument that my guy has relief. How am I going to map out for the judge that that relief is not a pipe dream? [I have to explain,] "No, your honor. It's gonna be like this, he's gonna do A, he's gonna do B, he's going to do C. And you're gonna see that he's eligible for D." So I have to have that tight. The burden might be on the government, but if I can't say he's eligible for anything, I don't think any judge can ignore that. And the burden isn't really on the government to say what he's eligible for, especially when I have to do the fact-finding. * RI 52: I think that the burden-shifting made it much easier for detained immigrants to be able to get bond because instead of this ridiculous proving a negative of my client is not a flight risk. My client is not a danger to society, it was the government's job to actually demonstrate how they were a flight risk or a danger to the community.

Link to Data Source: * Research Interview #7: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PV33MN * Research Interview #23: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/1K5HBD * Research Interview #52: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/RD0IPI

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) describes how bond hearings' quick tempo exacerbates inequities in the courtroom. To be precise, respondents are generally laypersons, non-English speakers who carry the burden of proof. Though they have the right to attorney, one is not provided for them. These disadvantaged, inexperienced defendants must prove their case against competent government lawyers.

Source Excerpt: (p. 5) DHS is always represented by an attorney, typically one who has handled hundreds, if not thousands, of cases and can more readily accommodate a shortened time frame for trial. The respondents are often unrepresented, non-English speaking, and forced to appear before a judge who is penalized for slowing down to provide more guidance. The respondents also carry the burden of proof to persuade the judge to allow them to remain in the United States under the law. Any lack of evidence caused by the speed at which the metrics force judges to process cases works against the respondent and can be fatal to his or her case.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

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

Analytic Note: Excerpts from research interviews with private immigration attorneys demonstrate that an IJ's ignorance of Brito should not be an excuse. First, as RI #71 explains, courts are interactive and allow both attorneys to professionally remind IJs of legal developments and IJs to clarify how a recent legal development affects the case before the court. Second, as RI #69 explains, courts can revisit past decisions and correct due process failures.

Source Excerpt: * RI #71: I assume the IJ doesn't know anything about this. And just put it on the record. And sometimes, I don't advise this specifically. But I know my friends, and I know that they say things like, as I'm sure your honor is where he, you know, in Brito, V blah, blah, blah, blah, blah, blah, blah. So if they're not aware, then they can ask further questions. \(\dots\) It also helps them immediate situation to sort of put the judge on notice, like, remember, we're in Massachusetts, remember, you know, because you're doing video calls all over the country. Remember, here in Massachusetts, we have this. * RI #69: Certain judges were doing detainee cases, and others were not. [My client] got in front of this judge for a bond hearing. The IJ said Brito standards apply, but she forgot to consider alternatives to detention. Literally did not even consider them even though we have put them in our packet and mentioned them. We had argued about that when she gave her decision. Still, she said I find that he's a flight risk. Here's why. Period. And there was no consideration that a GPS ankle monitor can actually ensure that he'll come back. Nothing. And so we went, we went back to the district court and did a motion to enforce the judgment. To argue that she failed to consider alternatives to detention. And Brito requires that. And then we went back for a new bond hearing in May, and she did release with an ankle monitor. And she literally said, "I did not complete the analysis." And I remember thinking, it's because this alternative to detention thing is kind of new. And the last time she was deciding detention cases, this wasn't a thing. And so she didn't, like it wasn't of part of her mindset of what needed to be done. We ultimately got what we wanted out of that case, but it was just more circuitous than I would have liked.

Link to Data Source: * Research Interview #69: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF * Research Interview #71: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/C91RC1

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows how the DOJ's policy and administrative decisions hamper the immigration judges' ability to discharge their duties and responsibilities under the law. DOJ's failure to provide in-person training and continuing legal education concerning legal developments in the field breeds ignorance and incompetence among IJs.

Source Excerpt: (p. 3) EOIR inappropriately minimizes the administrative time allotted for judges to keep current on legal developments, prepare for and review the reams of documentation frequently submitted in support of a given case, and render decisions in complex, vigorously litigated matters. In 2019, EOIR cancelled the annual in-person immigration judge training. Furthermore, EOIR terminated the ability of local judicial law clerks to provide courts with updated circuit and case law. Immigration judges are required to rely on centralized information provided by the Office of Policy which is often untimely, not court specific, and without the depth of analysis provided by law clerks who previously were responsible for the dissemination of this information.

Link to Data Source: * NAIJ Policy and Position Statement “Immigration Court in Crisis and in Need of Reform.” Posted Sep 19, 2019. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/Z39KX6 * See also: NAIJ - Immigration Court in Crisis and in Need of Reform

Methodological Description: (i.e., that the treatment effect is 0 for all units) One of the advantages of conducting a randomized trial is that the researcher knows the precise procedure by which the units were allocated to treatment and control. Randomization inference considers what would have happened under all possible random assignments, not just the one that happened to be selected for the experiment at hand.

Source Excerpt: In order to simulate all possible random assignments, we need to stipulate the counterfactual outcomes – what we would have observed among control units had they been treated or among treated units had they not been treated. The sharp null hypothesis of no treatment effect for any unit is a skeptical worldview that allows us to stipulate all of the counterfactual outcomes. If there were no treatment effect for any unit, then all the control units’ outcomes would have been unchanged had they been placed in treatment. Similarly, the treatment units’ outcomes would have been unchanged had they been placed in the control group. Under the sharp null hypothesis, we therefore have a complete mapping from our data to the outcomes of all possible experiments. All we need to do is construct all possible random assignments and, for each one, calculate the test statistic (e.g., the difference in means between the assigned treatment group and the assigned control group). The collection of these test statistics over all possible random assignments creates a reference distribution under the null hypothesis. If we want to know how unusual our actual experimental test statistic is, we compare it to the reference distribution. For example, our experiment might obtain an estimate of 6.5, but 24% of all random assignments produce an estimate of 6.5 or more even in the absence of any treatment effect. In that case, our one-tailed p-value would be 0.24.

Link to Data Source: * https://egap.org/resource/10-things-to-know-about-randomization-inference/

Methodological Description: We took several steps to test these findings’ robustness. We shifted our unit of analysis from HBC to state and extended the time between observations from week to month. These adjustments did not change our general findings but did have the undesirable results of a smaller donor pool and fewer post-treatment observations. We also shortened the pre-treatment period to fewer than 38 weeks. This did not change our findings, but did make the synthetic control less precise. In another step, we added predictors to assess whether they changed our results. They did not. Our results persisted, but with less precision, regardless of which predictors we added to the synthetic control. The predictors used for robustness checks include a respondent’s gender, language, and nationality; each IJ’s gender and party of the president who appointed them; county-level vote share for the 2016 presidential candidates; and state-level measures for governorships and unemployment rates. We also utilized a synthetic difference-in-differences estimation procedure Arkhangelsky et al.’s (2021) that calculates an average treatment effect on the treated (ATT) as the pre- versus post- difference-in-difference between treated units and synthetic control units, where synthetic control units are chosen as an optimally weighted function of untreated units. The ATT was -1.89 (p = 0.92) and 0.05 (p = 0.17) for caseload and rate granted bond, respectively.

Methodological Description: All variables are averaged over the entire pre-intervention period up to but excluding the intervention period. Predictors selected to minimize MSPE in the pre-treatment period.

Analytic Note: Attorneys General for republican presidents appointed 8 of the 11 judges assigned to the Boston Immigration Court Staff as of October 2019. Seventy-five percent of those IJs were appointed in 2017 or later.

Methodological Description: Boston Immigration Court Staff as of October 2019. Judge name, EOIR identifier, year appointed, number of decisions made, and rate granted provided for reference: 1. Jose A. Sanchez, Assistant Chief Immigration Judge (identifier JS1, appointed 2017, 86 decisions, 43% rate granted bond) 2. Robin Feder (REF, 2006, 8, 38%) 3. John Furlong Jr. (JMF, 2019, 662, 36%) 4. Paul Gagnon (PMG, 2002, 3, 33%) 5. Lincoln Jalelian (LSJ, 2019, 1, 0%) 6. Todd Masters (TAM, 2018, 605, 31%) 7. Jennifer Mulcahy (JRM, 2019, 676, 33%) 8. Brenda O’Malley (OMB, 2009, 1, 0%) 9. Maureen O’Sullivan (MOS, 2010, 1, 100%) 10. Mario Sturla (MJS, 2016, 378, 29%) 11. Gwendylan Tregerman (GET, 2017, 259, 17%)

Methodological Description: Decisions outside our scope are those in which IJs declared they had no jurisdiction (8,142 observations). Undefined decisions are those with missing (2,340 observations) or uninterpretable codes (772 observations). The data contain several illogical coding combinations that we remove. First, we omit observations in which the decision code indicates the IJ decided on a new bond amount, but the data is missing information on this new amount (75 observations). We also strike observations where the decision code indicates the IJ made “no change” to ICE’s earlier decision, but data on the initial bond is missing while data on the new bond is present (199 observations). We take similar action when the decision code indicates the IJ took “no action” to ICE’s earlier decision, but data on the initial bond is missing while data on the new bond is present (407 observations). Fourth, we eliminate observations in which the initial and new bond amounts are zero, but the decision codes include “recognizance,” “no change,” and “no bond” (48 observations). Finally, we create a binary variable identifying whether an IJ decides to grant bonded release for the remaining 203,799 observations.

Methodological Description: These observational data nest as follows: states contain multiple HBCs, each HBC contains multiple IJs, each IJ makes multiple bond hearing decisions in a single period, and detainees may make several appearances in immigration court concerning their bonded release.

Methodological Description: The synthetic is a weighted combination of control units from non-treated jurisdictions. Suppose that there is a sample of \(J+1\) jurisdictions indexed by \(j\), among which unit \(j=1\) is the jurisdiction of interest and jurisdictions \(j=2\) to \(j=J+1\) are potential comparisons. The treated unit, \(j=1\), is the jurisdiction exposed to the intervention. The remaining jurisdictions, \(j=2\) to \(j=J+1\) comprise the ``donor pool'' of potential comparison units unexposed to the intervention under study.

Theoretical Exposition: As we describe in the text, the shift in the burden of proof would have increased \(\epsilon_i\) and \(\alpha\). The first change would have increased the range of values of \(q\) for which the equilibrium in Case 1 could be sustained. Relative to Case 2, the immigration court caseload is lower in Case 1. The bond grant rate is also lower in Case 1 than Case 2 since there are no cases in which weak evidence is observed.

Theoretical Exposition: For this to be true, strong evidence must be sufficiently discriminating for the IJ, which requires that $$q< \frac{\pi \beta}{\alpha(1-\pi)}$$. Given that \(ICE_1\) knows that strong evidence will be observed at the hearing, \(ICE_1\) knows that the IJ will deny bond and the incentive to deny bond initially is transparent. In order for \(ICE_0\) to deny bond, it must be sufficiently likely that weak evidence will nevertheless appear strong at the hearing. This requires $$q \geq \frac{\epsilon_0}{v_0}$$. Thus, for this case, we require \(q\) to fall between the two thresholds in Figure 1: it must be neither too likely nor too unlikely that a weak case will appear strong. Placing the burden of proof on the prosecution would have reduced the range of \(q\) for which this equilibrium exists for two reasons. The change in the burden of production would have shifted the first threshold to the right by increasing \(\epsilon_0\). The change in the burden of persuasion would have shifted the second threshold to the left by increasing \(\alpha\) (or decreasing \(\beta\) or both).

Theoretical Exposition: By construction, an IJ will always infer correctly that a respondent is peaceful if the IJ observes weak evidence. The question is what to infer when the evidence is strong. Since only \(ICE_1\) denies initial bond, strong evidence also perfectly reveals whether the respondent is dangerous. If the IJ will deny bond upon seeing strong evidence, it is possible that \(ICE_0\) might want to take advantage of the IJ’s beliefs and deny initial bond to an individual who is peaceful. To ensure that \(ICE_0\) has no incentive to do this, it must be that strong evidence is sufficiently discriminating or that $$q<\frac{\epsilon_0}{v_0}$$, the first threshold in Figure 1. Shifting the burden \(v_0\) of proof to the prosecution would have made this kind of equilibrium easier to sustain for increasingly coarse evidentiary signals (high values of \(q\)). This change would have plausibly increased the costs of litigation for ICE, shifting the first threshold to the right.

Theoretical Exposition: This assumes that players (in this case the IJ) do not attempt to draw inferences about the type of ICE prosecutor before them when they find themselves at a history that should not be reached if the players adopt their equilibrium strategies. We will also assume the IJ to use information about how evidence emerges. There is one example in our model when this happens, specifically in the case “No Docket,” where no prosecutor brings a case to immigration court. This is admittedly an odd equilibrium. If an IJ in such an equilibrium was in fact asked to run a custody hearing, we are assuming that she would not draw an inference about the type of prosecutor before her but use her understanding about how evidence emerges. For example, we still allow the IJ to conclude that the respondent most not be dangerous if the IJ observes \(e_w\).

Theoretical Exposition: We will also assume that $$v_0>\epsilon_{0}$$, so that no prosecutor would fail to deny bond initially if she believed that that the IJ would also certainly deny bond. This assumption can be relaxed without doing any harm to the analysis. The consequence is that some of the equilibria we identify would require additional conditions to be identified in the results section. Substantively, it is also defensible. It means that \(ICE_1\), who knows that the detainee is dangerous, would not release him simply to avoid paying the costs of litigation. And once we have assumed that \(ICE_0\) is willing to go to court in order to keep a peaceful person in detention, we have already implicitly assumed that \(v_0\) must be relatively large.

Analytic Note: Again, we focus the model on the issue of dangerousness, understanding that a respondent’s potential flight risk is also an issue. It is useful to note that Brito did not change the flight risk standard nearly as much as it did the dangerousness standard. Second, in so far as the standards/burdens shifted, they shifted in the same direction.

Source Excerpt: (pp. 2-3) In summary, the Court holds and declares as follows: First, the Board of Immigration Appeals ("BIA") policy of placing the burden of proof on the alien at 8 U.S.C. § 1226(a) bond hearings violates due process and the APA. Second, due process requires the Government prove at § 1226(a) bond hearings an alien's dangerousness by clear and convincing evidence or risk of flight by a preponderance of the evidence. Third, due process requires the immigration court to evaluate an alien's ability to pay in setting bond, and consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien's future appearances. Fourth, the Government shall produce to class counsel certain information regarding each member of the Post-Hearing Class in order to facilitate individual habeas petitions challenging their continued detention.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/CGJLVJ

Analytic Note: Private immigration attorney who represented non-citizen respondents in immigration bond hearings believed the Brito decision—specifically shifting the burden of proof and identifying a clear standard of proof—would increase the rate IJs would grant their clients bonded release. This research participant thought that Brito's class-action nature was especially relevant.

Source Excerpt: I was obviously really excited about it. I remember hearing about it the day before Thanksgiving in 2019. Obviously a huge win. I'd been involved in the litigation for a while, as I said. I was excited that finally, someone agreed, adopted arguments, and on a class wide basis. That is why it was so important. I had been more frustrated by the fact that litigating this issue, you had to do in this piecemeal fashion, because unless it was a class action, you had to file--you know, lose at a bond hearing, file a habeas corpus petition--and hope to get a decision on that before the issue became moot. And several of my cases had become moot before I could get a resolution. It seems like there is no power or impact from the prior district court decisions if the immigration judges don't have to follow them. And so that's why the class action piece of it was so important. I was optimistic because it had the reach that I had wanted for a long time, which is through a class as opposed to these individual petitions.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF

Analytic Note: Private immigration attorney who represented non-citizen respondents in immigration bond hearings believed the Brito decision—specifically shifting the burden of proof and identifying a clear standard of proof—would increase the rate IJs would grant their clients bonded release. The research participant thought that Brito led to more people being released, but the effect was not as large as expected.

Source Excerpt: All sorts of people were detained before. You could be like a mom of three and you could be detained no matter what, right. And now we definitely see fewer people detained, more serious crimes. It's tough to tell [Brito's effects] because a bunch of those are getting denied. They would have been denied anyway at any time. But I do think when Brito came out, more people were being released. Not as many, I mean, we thought this was gonna change our entire world. We thought it was going to be that everyone was going to get out and that that certainly didn't happen. But sure, more people got out.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PV33MN

Analytic Note: Private immigration attorney who represented non-citizen respondents in immigration bond hearings believed the Brito decision—specifically shifting the burden of proof and identifying a clear standard of proof—would increase the rate IJs would grant their clients bonded release. According to this research participant, the decision did not appear to have its full effect immediately, however.

Source Excerpt: Anticipating our discussion today, I went back through some of my old listserves to [remind myself what private immigration attorneys thought when Brito came out.] Everybody was in kind of shock from it all. And defense lawyers totally thought that it was going to be the silver bullet, like we thought, oh, great, we're going to be able to just go in, and then the government's going to have to prove [the case]. [Immediately following the decision}, the government and the judges, all acted like it didn't exist. And 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.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/2OP5YN

Analytic Note: In December 2021, the First Circuit affirmed in part and vacated in part the declaratory judgment and permanent injunction issued by the district court in this class action challenging the bond procedures used to detain noncitizen during the pendency of removal proceedings under 8 U.S.C. 1226(a), the discretionary immigration detention provision, holding that the district court lacked jurisdiction to issue injunctive relief in favor of the class. In June 2022, the U.S. Government filed a petition to have Brito’s burden ruling reconsidered by the full (“en banc”) group of First Circuit judges.

Source Excerpt: (pp. 33-34) For the foregoing reasons, we affirm the district court's declaratory judgment to the extent it declared that if the government refuses to offer release subject to bond to a noncitizen detained pursuant to 8 U.S.C. §1226(a), it must either prove by clear and convincing evidence that the noncitizen is dangerous or prove by a preponderance of the evidence that the noncitizen poses a flight risk. We otherwise vacate the district court's declaratory judgment and permanent injunction and remand for entry of judgment in accordance with this opinion.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PNULCL * See also: https://cases.justia.com/federal/appellate-courts/ca1/20-1037/20-1037-2021-12-28.pdf?ts=1640728809

Analytic Note: “The ‘beyond a reasonable doubt’ standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the ‘moral force of the criminal law,’ In re Winship, 397 U.S., at 364, and we should hesitate to apply it too broadly or casually in noncriminal cases.” Addington v. Texas, 441 U.S., 428.

Source Excerpt: (pp.363-364) The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ Coffin v. United States, supra, at 453. As the dissenters in the New York Court of Appeals observed, and we agree, ‘a person accused of a crime...would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case." 24 N. Y. 2d, at 205, 247 N. E. 2d, at 259. The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we said in Speiser v. Randall, supra, at 525-526: ‘There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of . . . persuading the factfinder at the conclusion of the trial of his guilt be- yond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt.’ To this end, the reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967). Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” U.S. Reports: In re Winship, 397 U.S. 363-364 (1970).

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/0B9UNP * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep397/usrep397358/usrep397358.pdf

Analytic Note: The Supreme Court considers clear and convincing evidence is appropriate where the litigant with the benefit of the doubt has a “particularly important interest” at stake. Colorado v. New Mexico, 467 U.S. 310, 315-317 (1984) defines clear and convincing evidence.

Source Excerpt: (pp. 316-317) The standard reflects this Court's long-held view that a proposed diverter should bear most, though not all, of the risks of erroneous decision: "The harm that may result from disrupting established uses is typically certain and immediate, whereas the potential benefits from a proposed diversion may be speculative and remote." Colorado v. New Mexico, 459 U. S., at 187; see also id., at 182, n. 9. In addition, the clear-and-convincing- evidence standard accommodates society's competing interests in increasing the stability of property rights and in putting resources to their most efficient uses: "[T]he rule of priority [will] not be strictly applied where it 'would work more hardship' on the junior user 'than it would bestow benefits' on the senior user ...[,though] the equities supporting the protection of existing economies will usually be compelling." Id., at 186-187 (quoting Nebraska v. Wyoming, 325 U. S. 589, 619 (1945)).

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/HGTRC3 * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467310/usrep467310.pdf

Analytic Note: The standard is met if the proposition is more likely to be true than not true. Stated differently, the standard is satisfied if there is a greater than fifty percent chance that the proposition is true.

Source Excerpt: (pp. 423-424) Addington v. Texas, 441 U.S. 418, 423 (U.S. Sup. Ct. 1979). The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusion for a particular type of adjudication.” In re Winship, 397 U.S. 358, 370 (170) (Harlan, J., concurring). Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, the plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion. In a criminal case, on the other hand, the interest of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/UYJWCA * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep441/usrep441418/usrep441418.pdf

Analytic Note: In a legal dispute, one party is presumed to be correct and the other bears the burden of producing evidence persuasive enough to satisfy all the dispute’s legal elements. In criminal cases, the government carries the burden of proof while the defendant is presumed innocent.

Source Excerpt: (pp.423-424) Addington v. Texas, 441 U.S. 418, 423 (U.S. Sup. Ct. 1979). Since society has a minimal concern with the outcome of such private suits, the plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion. In a criminal case, on the other hand, the interest of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/UYJWCA * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep441/usrep441418/usrep441418.pdf

Analytic Note: Structurally, the Immigration Court is housed in the Executive Office for Immigration Review (EOIR), an agency within the United States Department of Justice. Under delegated authority from the Attorney General, Immigration Judges and the Board of Immigration Appeals interpret and adjudicate immigration cases according to United States immigration laws.

Source Excerpt: 8 C.F.R. §1001.1(l): The term immigration judge means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 240 of the Act. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/TCQFPR * See also: https://www.ecfr.gov/current/title-8/chapter-V/subchapter-A/part-1001/section-1001.1

Analytic Note: Formerly detained non-citizens, private immigration lawyers, and members of non-governmental organizations have reported squalid conditions, grossly insufficient medical standards, and abuse at the hands of government officials, all of which raise questions about violations of international and U.S. standards of human rights.

Source Excerpt: On Friday, Representative Nanette Barragán, Democrat of California and the chairwoman of the House homeland security subcommittee on border security, toured the shelter at the convention center in Long Beach and said the Biden administration was providing minors with much more humane conditions in the health department facilities than they had while in Border Patrol custody, where she said youths slept on mats on the ground and lacked medical care. “Let’s get the kids out of Border Patrol custody as quickly as possible,” Ms. Barragán said in an interview after touring the shelter, which housed 728 migrant children, with room for only 72 more. “In the H.H.S. custody, even in the emergency centers, they have medical staff, they have beds, they have television, they have activities.” Even so, she said she was “concerned” with data showing that the program was in need of more money in the coming months. “Make no mistake,” Ms. Barragán said, “there are things we need to work on.” Migrant surges in the spring are typical, but this year has brought record numbers. While previous administrations focused on expanding the number of facilities run by border agents, the Biden administration has pivoted by spending money on developing temporary shelters in convention centers, military sites and vacant arenas. “The administration is qualitatively looking at this response to this migration event in a different way,” said Cris Ramón, an immigration consultant based in Washington. During the 2020 presidential campaign, Mr. Biden promised that the United States would return to being a compassionate destination for migrants, a sharp contrast with the harsh policies put in place by President Donald J. Trump, who used an emergency public health rule to turn children away. Mr. Biden has committed to allowing these children to enter the country. And housing the migrant children is not the only challenge on the border for the Biden administration. The United States has also been increasingly allowing migrant families to enter the country because of new barriers to sheltering families in Mexico. As a result, the administration has struggled to find space for them and has turned to housing them in hotels before releasing them into the country.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/OSDNFI * See also: https://www.nytimes.com/2021/05/07/us/politics/migrant-children-shelters.html * Human rights groups maintain similar collections of similar articles available at: 1. https://www.aclu.org/news/by-issue/immigration-detention-conditions/ 2. https://www.splcenter.org/attention-on-detention

Analytic Note: In Brito v. Barr, the court ordered that for all immigration courts within its jurisdiction the burden of proof be assigned to the government; and, that the government must prove that the immigrant respondent is a flight risk by the preponderance of the evidence and dangerousness by clear and convincing evidence. The decision only applied to bond hearings in Massachusetts. We leverage the natural experiment created by the Brito decision to consider the causal effect of reallocating the burden of proof and establishing more familiar standards of proof on immigration court outcomes.

Source Excerpt: (p.22) The Court declares that aliens detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence and that no condition or combination of conditions will reasonably assure the alien’s future appearance and the safety of the community. At the bond hearing, the immigration judge must evaluate the alien’s ability to pay in setting bond above $1,500 and must consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien’s future appearances.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/CGJLVJ

Analytic Note: A comprehensive legal review found two other federal courts enacted legal rules identical to Brito, but those changes occured two and seven months after our study period ends. Government documents confirm this and guide IJs to make bond hearings in the same manner in December 2020 as November 2017 (Office of the Chief Immigration Judge, 2017, 2020a,b).

Source Excerpt: 2017 Immigration Court Practice Manual

Chapter 9.3 - Bond Hearings

(a) In general. — In certain circumstances, an alien detained by the Department of Homeland Security (DHS) can be released from custody upon the payment of bond. Initially, the bond is set by DHS. Upon the alien’s request, an Immigration Judge may conduct a “bond hearing,” in which the Immigration Judge has the authority to redetermine the amount of bond set by DHS.

$$\dots$$

(e) Bond hearings.—In a bond hearing, the Immigration Judge determines whether the alien is eligible for bond. If the alien is eligible for bond, the Immigration Judge considers whether the alien’s release would pose a danger to property or persons, whether the alien is likely to appear for further immigration proceedings, and whether the alien is a threat to national security. In general, bond hearings are less formal than hearings in removal proceedings.

$$\dots$$

(e)(vii) Decision. — The Immigration Judge’s decision is based on any information that is available to the Immigration Judge or that is presented by the parties. See 8 C.F.R. § 1003.19(d).

Usually, the Immigration Judge’s decision is rendered orally. Because bond hearings are generally not recorded, the decision is not transcribed. If either party appeals, the Immigration Judge prepares a written decision based on notes from the hearing.

Link to Data Source: * version November 2017: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/OCDJKJ * version July 2020: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/EIAM0V * version August 2020: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/IBNRSY * version December 2020: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/RXFTI7

Analytic Note: Formerly detained non-citizens, private immigration lawyers, and members of non-governmental organizations have reported squalid conditions, grossly insufficient medical standards, and abuse at the hands of government officials, all of which raise questions about violations of international and U.S. standards of human rights.

Source Excerpt: On Friday, Representative Nanette Barragán, Democrat of California and the chairwoman of the House homeland security subcommittee on border security, toured the shelter at the convention center in Long Beach and said the Biden administration was providing minors with much more humane conditions in the health department facilities than they had while in Border Patrol custody, where she said youths slept on mats on the ground and lacked medical care. “Let’s get the kids out of Border Patrol custody as quickly as possible,” Ms. Barragán said in an interview after touring the shelter, which housed 728 migrant children, with room for only 72 more. “In the H.H.S. custody, even in the emergency centers, they have medical staff, they have beds, they have television, they have activities.” Even so, she said she was “concerned” with data showing that the program was in need of more money in the coming months. “Make no mistake,” Ms. Barragán said, “there are things we need to work on.” Migrant surges in the spring are typical, but this year has brought record numbers. While previous administrations focused on expanding the number of facilities run by border agents, the Biden administration has pivoted by spending money on developing temporary shelters in convention centers, military sites and vacant arenas. “The administration is qualitatively looking at this response to this migration event in a different way,” said Cris Ramón, an immigration consultant based in Washington. During the 2020 presidential campaign, Mr. Biden promised that the United States would return to being a compassionate destination for migrants, a sharp contrast with the harsh policies put in place by President Donald J. Trump, who used an emergency public health rule to turn children away. Mr. Biden has committed to allowing these children to enter the country. And housing the migrant children is not the only challenge on the border for the Biden administration. The United States has also been increasingly allowing migrant families to enter the country because of new barriers to sheltering families in Mexico. As a result, the administration has struggled to find space for them and has turned to housing them in hotels before releasing them into the country.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/OSDNFI * See also: https://www.nytimes.com/2021/05/07/us/politics/migrant-children-shelters.html * Human rights groups maintain similar collections of similar articles available at: 1. https://www.aclu.org/news/by-issue/immigration-detention-conditions/ 2. https://www.splcenter.org/attention-on-detention

Analytic Note: “The ‘beyond a reasonable doubt’ standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the ‘moral force of the criminal law,’ In re Winship, 397 U.S., at 364, and we should hesitate to apply it too broadly or casually in noncriminal cases.” Addington v. Texas, 441 U.S., 428.

Source Excerpt: (pp.363-364) The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ Coffin v. United States, supra, at 453. As the dissenters in the New York Court of Appeals observed, and we agree, ‘a person accused of a crime...would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case." 24 N. Y. 2d, at 205, 247 N. E. 2d, at 259. The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we said in Speiser v. Randall, supra, at 525-526: ‘There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of . . . persuading the factfinder at the conclusion of the trial of his guilt be- yond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of . . . convincing the factfinder of his guilt.’ To this end, the reasonable-doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967). Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” U.S. Reports: In re Winship, 397 U.S. 363-364 (1970).

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/0B9UNP * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep397/usrep397358/usrep397358.pdf

Analytic Note: The standard is met if the proposition is more likely to be true than not true. Stated differently, the standard is satisfied if there is a greater than fifty percent chance that the proposition is true.

Source Excerpt: (pp. 423-424) Addington v. Texas, 441 U.S. 418, 423 (U.S. Sup. Ct. 1979). The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusion for a particular type of adjudication.” In re Winship, 397 U.S. 358, 370 (170) (Harlan, J., concurring). Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, the plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion. In a criminal case, on the other hand, the interest of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/UYJWCA * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep441/usrep441418/usrep441418.pdf

Analytic Note: In Brito v. Barr, the court ordered that for all immigration courts within its jurisdiction the burden of proof be assigned to the government; and, that the government must prove that the immigrant respondent is a flight risk by the preponderance of the evidence and dangerousness by clear and convincing evidence. The decision only applied to bond hearings in Massachusetts. We leverage the natural experiment created by the Brito decision to consider the causal effect of reallocating the burden of proof and establishing more familiar standards of proof on immigration court outcomes.

Source Excerpt: (p.22) The Court declares that aliens detained pursuant to 8 U.S.C. § 1226(a) are entitled to receive a bond hearing at which the Government must prove the alien is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence and that no condition or combination of conditions will reasonably assure the alien’s future appearance and the safety of the community. At the bond hearing, the immigration judge must evaluate the alien’s ability to pay in setting bond above $1,500 and must consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien’s future appearances.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/CGJLVJ

Analytic Note: The Supreme Court considers clear and convincing evidence is appropriate where the litigant with the benefit of the doubt has a “particularly important interest” at stake. Colorado v. New Mexico, 467 U.S. 310, 315-317 (1984) defines clear and convincing evidence.

Source Excerpt: (pp. 316-317) The standard reflects this Court's long-held view that a proposed diverter should bear most, though not all, of the risks of erroneous decision: "The harm that may result from disrupting established uses is typically certain and immediate, whereas the potential benefits from a proposed diversion may be speculative and remote." Colorado v. New Mexico, 459 U. S., at 187; see also id., at 182, n. 9. In addition, the clear-and-convincing- evidence standard accommodates society's competing interests in increasing the stability of property rights and in putting resources to their most efficient uses: "[T]he rule of priority [will] not be strictly applied where it 'would work more hardship' on the junior user 'than it would bestow benefits' on the senior user ...[,though] the equities supporting the protection of existing economies will usually be compelling." Id., at 186-187 (quoting Nebraska v. Wyoming, 325 U. S. 589, 619 (1945)).

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/HGTRC3 * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep467/usrep467310/usrep467310.pdf

Analytic Note: Structurally, the Immigration Court is housed in the Executive Office for Immigration Review (EOIR), an agency within the United States Department of Justice. Under delegated authority from the Attorney General, Immigration Judges and the Board of Immigration Appeals interpret and adjudicate immigration cases according to United States immigration laws.

Source Excerpt: 8 C.F.R. §1001.1(l): The term immigration judge means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 240 of the Act. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/TCQFPR * See also: https://www.ecfr.gov/current/title-8/chapter-V/subchapter-A/part-1001/section-1001.1

Analytic Note: A comprehensive legal review found two other federal courts enacted legal rules identical to Brito, but those changes occured two and seven months after our study period ends. Government documents confirm this and guide IJs to make bond hearings in the same manner in December 2020 as November 2017 (Office of the Chief Immigration Judge, 2017, 2020a,b).

Source Excerpt: 2017 Immigration Court Practice Manual

Chapter 9.3 - Bond Hearings

(a) In general. — In certain circumstances, an alien detained by the Department of Homeland Security (DHS) can be released from custody upon the payment of bond. Initially, the bond is set by DHS. Upon the alien’s request, an Immigration Judge may conduct a “bond hearing,” in which the Immigration Judge has the authority to redetermine the amount of bond set by DHS.

$$\dots$$

(e) Bond hearings.—In a bond hearing, the Immigration Judge determines whether the alien is eligible for bond. If the alien is eligible for bond, the Immigration Judge considers whether the alien’s release would pose a danger to property or persons, whether the alien is likely to appear for further immigration proceedings, and whether the alien is a threat to national security. In general, bond hearings are less formal than hearings in removal proceedings.

$$\dots$$

(e)(vii) Decision. — The Immigration Judge’s decision is based on any information that is available to the Immigration Judge or that is presented by the parties. See 8 C.F.R. § 1003.19(d).

Usually, the Immigration Judge’s decision is rendered orally. Because bond hearings are generally not recorded, the decision is not transcribed. If either party appeals, the Immigration Judge prepares a written decision based on notes from the hearing.

Link to Data Source: * version November 2017: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/OCDJKJ * version July 2020: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/EIAM0V * version August 2020: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/IBNRSY * version December 2020: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/RXFTI7

Analytic Note: In a legal dispute, one party is presumed to be correct and the other bears the burden of producing evidence persuasive enough to satisfy all the dispute’s legal elements. In criminal cases, the government carries the burden of proof while the defendant is presumed innocent.

Source Excerpt: (pp.423-424) Addington v. Texas, 441 U.S. 418, 423 (U.S. Sup. Ct. 1979). Since society has a minimal concern with the outcome of such private suits, the plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion. In a criminal case, on the other hand, the interest of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/UYJWCA * See also: https://tile.loc.gov/storage-services/service/ll/usrep/usrep441/usrep441418/usrep441418.pdf

Analytic Note: Private immigration attorney who represented non-citizen respondents in immigration bond hearings believed the Brito decision—specifically shifting the burden of proof and identifying a clear standard of proof—would increase the rate IJs would grant their clients bonded release. The research participant thought that Brito led to more people being released, but the effect was not as large as expected.

Source Excerpt: All sorts of people were detained before. You could be like a mom of three and you could be detained no matter what, right. And now we definitely see fewer people detained, more serious crimes. It's tough to tell [Brito's effects] because a bunch of those are getting denied. They would have been denied anyway at any time. But I do think when Brito came out, more people were being released. Not as many, I mean, we thought this was gonna change our entire world. We thought it was going to be that everyone was going to get out and that that certainly didn't happen. But sure, more people got out.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PV33MN

Analytic Note: Private immigration attorney who represented non-citizen respondents in immigration bond hearings believed the Brito decision—specifically shifting the burden of proof and identifying a clear standard of proof—would increase the rate IJs would grant their clients bonded release. According to this research participant, the decision did not appear to have its full effect immediately, however.

Source Excerpt: Anticipating our discussion today, I went back through some of my old listserves to [remind myself what private immigration attorneys thought when Brito came out.] Everybody was in kind of shock from it all. And defense lawyers totally thought that it was going to be the silver bullet, like we thought, oh, great, we're going to be able to just go in, and then the government's going to have to prove [the case]. [Immediately following the decision}, the government and the judges, all acted like it didn't exist. And 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.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/2OP5YN

Analytic Note: In December 2021, the First Circuit affirmed in part and vacated in part the declaratory judgment and permanent injunction issued by the district court in this class action challenging the bond procedures used to detain noncitizen during the pendency of removal proceedings under 8 U.S.C. 1226(a), the discretionary immigration detention provision, holding that the district court lacked jurisdiction to issue injunctive relief in favor of the class. In June 2022, the U.S. Government filed a petition to have Brito’s burden ruling reconsidered by the full (“en banc”) group of First Circuit judges.

Source Excerpt: (pp. 33-34) For the foregoing reasons, we affirm the district court's declaratory judgment to the extent it declared that if the government refuses to offer release subject to bond to a noncitizen detained pursuant to 8 U.S.C. §1226(a), it must either prove by clear and convincing evidence that the noncitizen is dangerous or prove by a preponderance of the evidence that the noncitizen poses a flight risk. We otherwise vacate the district court's declaratory judgment and permanent injunction and remand for entry of judgment in accordance with this opinion.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PNULCL * See also: https://cases.justia.com/federal/appellate-courts/ca1/20-1037/20-1037-2021-12-28.pdf?ts=1640728809

Theoretical Exposition: This assumes that players (in this case the IJ) do not attempt to draw inferences about the type of ICE prosecutor before them when they find themselves at a history that should not be reached if the players adopt their equilibrium strategies. We will also assume the IJ to use information about how evidence emerges. There is one example in our model when this happens, specifically in the case “No Docket,” where no prosecutor brings a case to immigration court. This is admittedly an odd equilibrium. If an IJ in such an equilibrium was in fact asked to run a custody hearing, we are assuming that she would not draw an inference about the type of prosecutor before her but use her understanding about how evidence emerges. For example, we still allow the IJ to conclude that the respondent most not be dangerous if the IJ observes \(e_w\).

Analytic Note: Private immigration attorney who represented non-citizen respondents in immigration bond hearings believed the Brito decision—specifically shifting the burden of proof and identifying a clear standard of proof—would increase the rate IJs would grant their clients bonded release. This research participant thought that Brito's class-action nature was especially relevant.

Source Excerpt: I was obviously really excited about it. I remember hearing about it the day before Thanksgiving in 2019. Obviously a huge win. I'd been involved in the litigation for a while, as I said. I was excited that finally, someone agreed, adopted arguments, and on a class wide basis. That is why it was so important. I had been more frustrated by the fact that litigating this issue, you had to do in this piecemeal fashion, because unless it was a class action, you had to file--you know, lose at a bond hearing, file a habeas corpus petition--and hope to get a decision on that before the issue became moot. And several of my cases had become moot before I could get a resolution. It seems like there is no power or impact from the prior district court decisions if the immigration judges don't have to follow them. And so that's why the class action piece of it was so important. I was optimistic because it had the reach that I had wanted for a long time, which is through a class as opposed to these individual petitions.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows how the DOJ's policy and administrative decisions hamper the immigration judges' ability to discharge their duties and responsibilities under the law. DOJ's failure to provide in-person training and continuing legal education concerning legal developments in the field breeds ignorance and incompetence among IJs.

Source Excerpt: (p. 3) EOIR inappropriately minimizes the administrative time allotted for judges to keep current on legal developments, prepare for and review the reams of documentation frequently submitted in support of a given case, and render decisions in complex, vigorously litigated matters. In 2019, EOIR cancelled the annual in-person immigration judge training. Furthermore, EOIR terminated the ability of local judicial law clerks to provide courts with updated circuit and case law. Immigration judges are required to rely on centralized information provided by the Office of Policy which is often untimely, not court specific, and without the depth of analysis provided by law clerks who previously were responsible for the dissemination of this information.

Link to Data Source: * NAIJ Policy and Position Statement “Immigration Court in Crisis and in Need of Reform.” Posted Sep 19, 2019. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/Z39KX6 * See also: NAIJ - Immigration Court in Crisis and in Need of Reform

Analytic Note: Attorneys General for republican presidents appointed 8 of the 11 judges assigned to the Boston Immigration Court Staff as of October 2019. Seventy-five percent of those IJs were appointed in 2017 or later.

Methodological Description: Boston Immigration Court Staff as of October 2019. Judge name, EOIR identifier, year appointed, number of decisions made, and rate granted provided for reference: 1. Jose A. Sanchez, Assistant Chief Immigration Judge (identifier JS1, appointed 2017, 86 decisions, 43% rate granted bond) 2. Robin Feder (REF, 2006, 8, 38%) 3. John Furlong Jr. (JMF, 2019, 662, 36%) 4. Paul Gagnon (PMG, 2002, 3, 33%) 5. Lincoln Jalelian (LSJ, 2019, 1, 0%) 6. Todd Masters (TAM, 2018, 605, 31%) 7. Jennifer Mulcahy (JRM, 2019, 676, 33%) 8. Brenda O’Malley (OMB, 2009, 1, 0%) 9. Maureen O’Sullivan (MOS, 2010, 1, 100%) 10. Mario Sturla (MJS, 2016, 378, 29%) 11. Gwendylan Tregerman (GET, 2017, 259, 17%)

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) describes how bond hearings' quick tempo exacerbates inequities in the courtroom. To be precise, respondents are generally laypersons, non-English speakers who carry the burden of proof. Though they have the right to attorney, one is not provided for them. These disadvantaged, inexperienced defendants must prove their case against competent government lawyers.

Source Excerpt: (p. 5) DHS is always represented by an attorney, typically one who has handled hundreds, if not thousands, of cases and can more readily accommodate a shortened time frame for trial. The respondents are often unrepresented, non-English speaking, and forced to appear before a judge who is penalized for slowing down to provide more guidance. The respondents also carry the burden of proof to persuade the judge to allow them to remain in the United States under the law. Any lack of evidence caused by the speed at which the metrics force judges to process cases works against the respondent and can be fatal to his or her case.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

Theoretical Exposition: For this to be true, strong evidence must be sufficiently discriminating for the IJ, which requires that $$q< \frac{\pi \beta}{\alpha(1-\pi)}$$. Given that \(ICE_1\) knows that strong evidence will be observed at the hearing, \(ICE_1\) knows that the IJ will deny bond and the incentive to deny bond initially is transparent. In order for \(ICE_0\) to deny bond, it must be sufficiently likely that weak evidence will nevertheless appear strong at the hearing. This requires $$q \geq \frac{\epsilon_0}{v_0}$$. Thus, for this case, we require \(q\) to fall between the two thresholds in Figure 1: it must be neither too likely nor too unlikely that a weak case will appear strong. Placing the burden of proof on the prosecution would have reduced the range of \(q\) for which this equilibrium exists for two reasons. The change in the burden of production would have shifted the first threshold to the right by increasing \(\epsilon_0\). The change in the burden of persuasion would have shifted the second threshold to the left by increasing \(\alpha\) (or decreasing \(\beta\) or both).

Analytic Note: By contrast, the Biden administration’s directive (09/30/2021) narrowed immigration enforcement and prioritized those individuals that threaten national security, public safety, and border security.

Source Excerpt: * RI 7: * RI 10: * RI 64: * RI 69:

Link to Data Source: * Biden Administration's directive: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/WWXTYW * 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 64: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/F1OOBA * Research Interview 69: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF

Methodological Description: These observational data nest as follows: states contain multiple HBCs, each HBC contains multiple IJs, each IJ makes multiple bond hearing decisions in a single period, and detainees may make several appearances in immigration court concerning their bonded release.

Analytic Note: Excerpts from research interviews with private immigration attorneys illuminate how they provide important value to respondents, especially those held in custody, unfamiliar with U.S. laws, and/or non-English speaking. Competent lawyers can acknowledge and effectively rebut the government's claims; without them, the government would likely ride roughshod over a respondent's argument (RI #7, #52). Capable attorneys can review the government's case and prepare appropriate responses, including composing legal strategy, piecing together a compelling story on why and how the respondent is not dangerous, and collecting evidence supporting the respondent's counterarguments (RI #23).

Source Excerpt: * RI 7: Now, post Brito, the government presents the case and talks about how terrible my client is, and all these crimes they've committed, or whatever it is they want to say. And then my response rubuts that. I would say, "Nope. That's not true. Here's what happened." Or [I would say], "Yes, I acknowledge that. But look at all the wonderful ways he's changed since then." So, you're acknowledging their argument and rebutting it. * RI 23: In a practical sense, it means that we are actually getting paperwork from the government ahead of our bond hearings, which is just magical. \(\dots\) I think my stress levels going into a hearing changed a little bit because I knew what the government had and what they were likely to say. And I knew that if they thought someone was secretly a gang member, that would be at the top of their submission rather than after I've put together my 20-minute presentation. But, you know, if I think they have anything, then I can't tell my client, "Well, let's just hang back, see what the government comes up with." I need to have proof that my client is not dangerous. I had a client who was convicted of embezzlement. It was not great sounding. Okay. And he and another family member were co-defendants and the other family member had, to my mind, done a great deal more. More bad guy stuff than my client. And so I'm not going to let the government say, "Look, he's got a federal conviction." I have to think through what motivates my client has to stay here. I have to think through my argument that my guy has relief. How am I going to map out for the judge that that relief is not a pipe dream? [I have to explain,] "No, your honor. It's gonna be like this, he's gonna do A, he's gonna do B, he's going to do C. And you're gonna see that he's eligible for D." So I have to have that tight. The burden might be on the government, but if I can't say he's eligible for anything, I don't think any judge can ignore that. And the burden isn't really on the government to say what he's eligible for, especially when I have to do the fact-finding. * RI 52: I think that the burden-shifting made it much easier for detained immigrants to be able to get bond because instead of this ridiculous proving a negative of my client is not a flight risk. My client is not a danger to society, it was the government's job to actually demonstrate how they were a flight risk or a danger to the community.

Link to Data Source: * Research Interview #7: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PV33MN * Research Interview #23: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/1K5HBD * Research Interview #52: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/RD0IPI

Theoretical Exposition: We will also assume that $$v_0>\epsilon_{0}$$, so that no prosecutor would fail to deny bond initially if she believed that that the IJ would also certainly deny bond. This assumption can be relaxed without doing any harm to the analysis. The consequence is that some of the equilibria we identify would require additional conditions to be identified in the results section. Substantively, it is also defensible. It means that \(ICE_1\), who knows that the detainee is dangerous, would not release him simply to avoid paying the costs of litigation. And once we have assumed that \(ICE_0\) is willing to go to court in order to keep a peaceful person in detention, we have already implicitly assumed that \(v_0\) must be relatively large.

Methodological Description: Decisions outside our scope are those in which IJs declared they had no jurisdiction (8,142 observations). Undefined decisions are those with missing (2,340 observations) or uninterpretable codes (772 observations). The data contain several illogical coding combinations that we remove. First, we omit observations in which the decision code indicates the IJ decided on a new bond amount, but the data is missing information on this new amount (75 observations). We also strike observations where the decision code indicates the IJ made “no change” to ICE’s earlier decision, but data on the initial bond is missing while data on the new bond is present (199 observations). We take similar action when the decision code indicates the IJ took “no action” to ICE’s earlier decision, but data on the initial bond is missing while data on the new bond is present (407 observations). Fourth, we eliminate observations in which the initial and new bond amounts are zero, but the decision codes include “recognizance,” “no change,” and “no bond” (48 observations). Finally, we create a binary variable identifying whether an IJ decides to grant bonded release for the remaining 203,799 observations.

Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that IJs combine risk-aversion with unclear standards.

Source Excerpt: But once the burden was shifted to the government, I feel like the entire job was different. You know, because, well, you know, beforehand, we really had to go--it wasn't beyond a reasonable doubt--but it was, you know, we had to really convince the judge that does history that the detainee had was not going to cause any other problems. So I mean, let's be honest, the judge is always [asking], "What am I going to see in the newspaper the next day? What am I going to see on TV? Am I going to see that this person with a drunk driving arrest [from] 10 years ago going to be in five more [accidents and] kill somebody?" So our burden of proof before Brito was pretty significant. A lot of things in immigration a preponderance of the evidence. You were lucky depending on which judge you've got. Some judges don't like [operating under the influence] and some judges don't like assault and battery. It really just depends on the judge and whether or not you could meet a standard of more likely than not preponderance of the evidence. It was just all over the board beforehand, but it was very difficult. It was very difficult to prove that somebody was, like I said, was not a danger to the community or not a flight risk, especially if you couldn't access records fast enough.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/LEXP17

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) illustrates that immigration judges recognize that longstanding institutions shape constraints and incentives that compel judges' behavior to conform to the political will of the Attorney General and, by extension, the White House.

Source Excerpt: (p. 1) The performance evaluation system has been turned into a mechanism to enforce the political will of the the-ncurrent administration on the immigration court and immigration judges. The current system places inappropriate focus on “organizational results,” which EOIR has equated with production quotas and time-based deadlines. The major flaw in the current evaluation and discipline structure for immigration judges stems from the fact that DOJ considers and treats immigration judges as merely attorney employees and not as judges. This violates the immigration court’s organic statute. By statute, we are attorneys appointed by the Attorney General to serve as judges. Since the language clearly reflects our judicial function once appointed, a traditional judicial model for performance evaluation and discipline is warranted. The current protocols employed by EOIR stand in stark contrast to how other courts nationwide evaluate judges.

Link to Data Source: * NAIJ Policy and Position Statement “Overview of EOIR Discipline and Performance Protocols. Posted Posted Mar 20, 2021. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/J0U84D * See also: NAIJ - Overview of EOIR Discipline and Performance Protocols

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are not advocating for more personnel or resources but rather an institutional change that will create an independent immigration court in accordance with the separation of powers.

Source Excerpt: (p. 2) We acknowledge that it is difficult to look past the immediacy of the overwhelming backlog of cases which currently stands just shy of 1.1 million cases. This amounts to an almost doubling of the backlog in three years, in spite of the largest ever immigration judge hiring initiative (over 200) and concomitant increase in court appropriations in the history of EOIR. The “backlog” has been used as a justification, an excuse, and most often as pretext for implementing otherwise indefensible policies and practices with respect to the Immigration Court. Yet the problem is not a backlog or lack of funds; it is the structural flaw of the Immigration Court, located within a law enforcement agency, that frustrates the ability to properly address the backlog or the appropriated funds. It is time to acknowledge the truth organizations such as the NAIJ, the American Bar Association, the Federal Bar Association, and numerous others have stated publicly for years: unless and until the Immigration Court is removed from the DOJ and established as an independent court, we cannot begin to adequately address the immigration crisis we face as a nation.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

Analytic Note: Excerpts from research interviews with private immigration attorneys demonstrate that an IJ's ignorance of Brito should not be an excuse. First, as RI #71 explains, courts are interactive and allow both attorneys to professionally remind IJs of legal developments and IJs to clarify how a recent legal development affects the case before the court. Second, as RI #69 explains, courts can revisit past decisions and correct due process failures.

Source Excerpt: * RI #71: I assume the IJ doesn't know anything about this. And just put it on the record. And sometimes, I don't advise this specifically. But I know my friends, and I know that they say things like, as I'm sure your honor is where he, you know, in Brito, V blah, blah, blah, blah, blah, blah, blah. So if they're not aware, then they can ask further questions. \(\dots\) It also helps them immediate situation to sort of put the judge on notice, like, remember, we're in Massachusetts, remember, you know, because you're doing video calls all over the country. Remember, here in Massachusetts, we have this. * RI #69: Certain judges were doing detainee cases, and others were not. [My client] got in front of this judge for a bond hearing. The IJ said Brito standards apply, but she forgot to consider alternatives to detention. Literally did not even consider them even though we have put them in our packet and mentioned them. We had argued about that when she gave her decision. Still, she said I find that he's a flight risk. Here's why. Period. And there was no consideration that a GPS ankle monitor can actually ensure that he'll come back. Nothing. And so we went, we went back to the district court and did a motion to enforce the judgment. To argue that she failed to consider alternatives to detention. And Brito requires that. And then we went back for a new bond hearing in May, and she did release with an ankle monitor. And she literally said, "I did not complete the analysis." And I remember thinking, it's because this alternative to detention thing is kind of new. And the last time she was deciding detention cases, this wasn't a thing. And so she didn't, like it wasn't of part of her mindset of what needed to be done. We ultimately got what we wanted out of that case, but it was just more circuitous than I would have liked.

Link to Data Source: * Research Interview #69: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF * Research Interview #71: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/C91RC1

Methodological Description: All variables are averaged over the entire pre-intervention period up to but excluding the intervention period. Predictors selected to minimize MSPE in the pre-treatment period.

Theoretical Exposition: As we describe in the text, the shift in the burden of proof would have increased \(\epsilon_i\) and \(\alpha\). The first change would have increased the range of values of \(q\) for which the equilibrium in Case 1 could be sustained. Relative to Case 2, the immigration court caseload is lower in Case 1. The bond grant rate is also lower in Case 1 than Case 2 since there are no cases in which weak evidence is observed.

Methodological Description: (i.e., that the treatment effect is 0 for all units) One of the advantages of conducting a randomized trial is that the researcher knows the precise procedure by which the units were allocated to treatment and control. Randomization inference considers what would have happened under all possible random assignments, not just the one that happened to be selected for the experiment at hand.

Source Excerpt: In order to simulate all possible random assignments, we need to stipulate the counterfactual outcomes – what we would have observed among control units had they been treated or among treated units had they not been treated. The sharp null hypothesis of no treatment effect for any unit is a skeptical worldview that allows us to stipulate all of the counterfactual outcomes. If there were no treatment effect for any unit, then all the control units’ outcomes would have been unchanged had they been placed in treatment. Similarly, the treatment units’ outcomes would have been unchanged had they been placed in the control group. Under the sharp null hypothesis, we therefore have a complete mapping from our data to the outcomes of all possible experiments. All we need to do is construct all possible random assignments and, for each one, calculate the test statistic (e.g., the difference in means between the assigned treatment group and the assigned control group). The collection of these test statistics over all possible random assignments creates a reference distribution under the null hypothesis. If we want to know how unusual our actual experimental test statistic is, we compare it to the reference distribution. For example, our experiment might obtain an estimate of 6.5, but 24% of all random assignments produce an estimate of 6.5 or more even in the absence of any treatment effect. In that case, our one-tailed p-value would be 0.24.

Link to Data Source: * https://egap.org/resource/10-things-to-know-about-randomization-inference/

Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that IJs know their decision are difficult to review under the legal regime in place.

Source Excerpt: It almost felt like for the judges who wanted to deny they just settled into this, "I'm going to recite these magic words," and "I'm going to say that there is clear and convincing evidence of dangerousness and that there is no reasonable alternative to detention that can protect the community or ensure the client safe." I have also tried to litigate this issue unsuccessfully. Once you have a judge who said all the magic words, even if the evidence doesn't meet clear and convincing standard, the district court will probably say, "No jurisdiction to review. You're asking me to reweigh the evidence and that is barred because there's a jurisdiction stripping statute within the detention statute. 8 US Code 1226, Section E, says there is no jurisdiction by a federal court to review a discretionary decision to detain. And so what you're complaining about is that evidence shouldn't have been weighted so heavily, that's a discretionary decision [that cannot be reviewed]."

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF

Methodological Description: We took several steps to test these findings’ robustness. We shifted our unit of analysis from HBC to state and extended the time between observations from week to month. These adjustments did not change our general findings but did have the undesirable results of a smaller donor pool and fewer post-treatment observations. We also shortened the pre-treatment period to fewer than 38 weeks. This did not change our findings, but did make the synthetic control less precise. In another step, we added predictors to assess whether they changed our results. They did not. Our results persisted, but with less precision, regardless of which predictors we added to the synthetic control. The predictors used for robustness checks include a respondent’s gender, language, and nationality; each IJ’s gender and party of the president who appointed them; county-level vote share for the 2016 presidential candidates; and state-level measures for governorships and unemployment rates. We also utilized a synthetic difference-in-differences estimation procedure Arkhangelsky et al.’s (2021) that calculates an average treatment effect on the treated (ATT) as the pre- versus post- difference-in-difference between treated units and synthetic control units, where synthetic control units are chosen as an optimally weighted function of untreated units. The ATT was -1.89 (p = 0.92) and 0.05 (p = 0.17) for caseload and rate granted bond, respectively.

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are asking for the same institutional changes that private, reputed organizations argued for previously: the need for an independent court following the separation of powers.

Source Excerpt: (p. 15) Every reputable organization that has studied the Immigration Court has reached the same conclusion. The American Bar Association has produced an in-depth and extensive report of the need for an independent Immigration Court. The Federal Bar Association has drafted proposed Article 1 legislation. The American Immigration Lawyers Association, the largest organization of immigration law attorneys who practice on a daily basis before the Court, has formally endorsed an independent Immigration Court. If nothing else, the drastic pendulum swings between the previous and current administration’s use and abuse of the Immigration Court has evidenced what our founding fathers knew at the inception of our country— the importance of separation of powers between the judicial role of the government from its law enforcement prerogatives. The judicial role of the Immigration Court is simply irreconcilable with the law enforcement mission and role of the DOJ. The only real and lasting solution is the establishment of an independent Immigration Court. Only then will we begin to move forward in solving the immigration crisis facing our nation.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

Analytic Note: This excerpt from a research interview with a private immigration attorney suggests that IJs combine risk-aversion with unclear standards.

Source Excerpt: I just feel like often the government is just saying, "Seems dangerous to me. Look at this one police report." And if you have to prove dangerousness by clear and convincing evidence, I don't think there's any IJ who thinks [a police report] on its own is clear and convincing. Well, maybe there are, but not in Boston. So I do think [the Brito decision] mattered. [Brito] didn’t change the underlying fact that whose burden it is isn’t going to change the results. [If ] you have a long enough criminal record[, which] doesn’t technically bar you from bond, it makes the judge feel that you’re not safe. That's not going to change based on who has the burden.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/C91RC1

Analytic Note: Again, we focus the model on the issue of dangerousness, understanding that a respondent’s potential flight risk is also an issue. It is useful to note that Brito did not change the flight risk standard nearly as much as it did the dangerousness standard. Second, in so far as the standards/burdens shifted, they shifted in the same direction.

Source Excerpt: (pp. 2-3) In summary, the Court holds and declares as follows: First, the Board of Immigration Appeals ("BIA") policy of placing the burden of proof on the alien at 8 U.S.C. § 1226(a) bond hearings violates due process and the APA. Second, due process requires the Government prove at § 1226(a) bond hearings an alien's dangerousness by clear and convincing evidence or risk of flight by a preponderance of the evidence. Third, due process requires the immigration court to evaluate an alien's ability to pay in setting bond, and consider alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien's future appearances. Fourth, the Government shall produce to class counsel certain information regarding each member of the Post-Hearing Class in order to facilitate individual habeas petitions challenging their continued detention.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/CGJLVJ

Methodological Description: The synthetic is a weighted combination of control units from non-treated jurisdictions. Suppose that there is a sample of \(J+1\) jurisdictions indexed by \(j\), among which unit \(j=1\) is the jurisdiction of interest and jurisdictions \(j=2\) to \(j=J+1\) are potential comparisons. The treated unit, \(j=1\), is the jurisdiction exposed to the intervention. The remaining jurisdictions, \(j=2\) to \(j=J+1\) comprise the ``donor pool'' of potential comparison units unexposed to the intervention under study.

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

Analytic Note: An excerpt from this research interview with a private immigration attorney explains that IJs' decisions are always discretionary, no matter what standard they are required to follow.

Source Excerpt: To the judge's satisfaction feeds the immigration judge's sense that they operate nearly entirely on discretion. And they do. Basically, every application they see before them is discretionary. So the judge's personalities can play into it to a very high degree. Having a precise legal standard, I don't think, takes their personalities and their influences out of the equation. \(\dots\) I think they do speak to the standard. But I don't know if they're cognizant of the fact that there's a standard. They say what it is, and then they decide what they want.

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/1K5HBD

Analytic Note:

Source Excerpt:

Link to Data Source: * https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/F1OOBA

Theoretical Exposition: By construction, an IJ will always infer correctly that a respondent is peaceful if the IJ observes weak evidence. The question is what to infer when the evidence is strong. Since only \(ICE_1\) denies initial bond, strong evidence also perfectly reveals whether the respondent is dangerous. If the IJ will deny bond upon seeing strong evidence, it is possible that \(ICE_0\) might want to take advantage of the IJ’s beliefs and deny initial bond to an individual who is peaceful. To ensure that \(ICE_0\) has no incentive to do this, it must be that strong evidence is sufficiently discriminating or that $$q<\frac{\epsilon_0}{v_0}$$, the first threshold in Figure 1. Shifting the burden \(v_0\) of proof to the prosecution would have made this kind of equilibrium easier to sustain for increasingly coarse evidentiary signals (high values of \(q\)). This change would have plausibly increased the costs of litigation for ICE, shifting the first threshold to the right.

Analytic Note:

Source Excerpt: * RI 7:<br /> * RI 51: * RI 69:

Link to Data Source: * Research Interview 7: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/PV33MN * Research Interview 51: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/2OP5YN * Research Interview 69: https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/ZFK3WF

Analytic Note: The excerpt from the National Association of Immigration Judges (NAIJ) shows immigration judges are concerned with the weaponization of performance metrics in politically-motivated policy warfare.

Source Excerpt: (p. 7) Equally disturbing, because the performance metrics set the bar so high that all judges are incapable of meeting them, EOIR is empowered to dismiss judges who fail to follow their policy preferences under the pretext of inadequate performance. This is what happens when the structure of the Immigration Courts allow it to be used as a tool for immigration enforcement rather than as a fair and independent tribunal. They are a pretext. These meaningless and politically-motivated performance metrics are clearly designed to intimidate judges rather than to honestly evaluate their performance. It places each judge at odds with their oath of office to provide impartial justice because their continued employment hangs in the balance. Yet this is just another example of the pernicious effect of the structural defect of allowing the Immigration Court to remain in a law enforcement agency.

Link to Data Source: * NAIJ Congressional Testimony “Written Testimony Before House Judiciary Committee, January 2020.” Posted Jan 29, 2020. https://data.qdr.syr.edu/file.xhtml?persistentId=doi:10.5064/F60LYDGR/NAEJBX * See also: NAIJ - Written Testimony Before House Judiciary Committee, January 2020

ANALYTIC NOTE: Thirty-four of the 288 laws studied here provide the regulator with the authority to conduct investigations without reasonable cause (see example below). Forty-three laws prohibit such activity and require government agencies have reasonable cause. The remaining 211 laws do not discuss investigations.

CITATION: PROCLAMATION TO PROVIDE FOR THE REGISTRATION AND REGULATION OF CHARITIES AND SOCIETIES No. 621/2009 (Ethiopia)

EXCERPT: § 84. Power to Institute Inquiries -

1) The Agency may from time to time institute inquiries with regard to Charities or Societies or a particular Charity or Society or class of charities or societies, either generally or for particular purposes.

2) For the purposes of any such inquiry, the Agency may by order require any Charity or Society or an officer or employee thereof:

a) furnish accounts and statements in writing with respect to any matter in question at the inquiry, being a matter on which that person has or can reasonably obtain information, or to return answers in writing to any questions or inquiries addressed to him on any such matter;

b) to furnish copies of documents in his custody or under his control which relate to any matter in question at the inquiry;

c) to attend at a specified time and place and give evidence or produce documents.

3) The Agency may use, for the purpose of the inquiry, any source of information including reports from the public, reports from government agencies including the reports of Charities and Societies.

EXCERPT TRANSLATION: Law printed in two languages.

FILENAME OR SOURCE: DeMattee_ETH_Societies_Charities

ANALYTIC NOTE: Only four of the 288 laws coded discuss restricting foreign funding by source; two of these are American laws (see example below). Eleven laws require a one-time financial approval to receive foreign funds or goods; 11 discuss a threshold CSOs must not exceed in foreign support; 7 discuss whether CSOs must acquire approval for each foreign financial transaction; 13 discuss whether CSOs must use certain depository institutions; and 42 permit CSOs to receive foreign funding.

CITATION: Trading with the Enemy Act of 1917 (USA)

EXCERPT: The words "to trade," as used herein, shall be deemed to mean-

(a) Pay, satisfy, compromise, or give security for the payment or satisfaction of any debt or obligation.

(b) Draw, accept, pay, present for acceptance or payment, or endorse any negotiable instrument or chose in action.

(c) Enter into, carry on, complete, or perform any contract, agreement, or obligation.

(d) Buy or sell, loan or extend credit, trade in, deal with, exchange, transmit, transfer, assign, or otherwise dispose of, or receive any form of property.

(e) To have any form of business or commercial communication or intercourse with.

Sec. 3. That it shall be unlawful- (a) For any person in the United States, except with the license of the President, granted to such person, or to the enemy, or ally of enemy, as provided in this Act, to trade, or attempt to trade, either directly or indirectly, with, to, or from, or for, or on account of, or on behalf of, or for the benefit of, any other person, with knowledge or reasonable cause to believe that such other person is an enemy or ally of enemy, or is conducting or taking part in such trade, directly or indirectly, for, or on account of, or on behalf of, or for the benefit of, an enemy or ally of enemy .

FILENAME OR SOURCE: DeMattee_USA_Trading_Enemy_1917

DeMattee_USA_TWEA_IEEE_history

ANALYTIC NOTE: Meddling in a CSO's internal affairs and private decisions takes many forms, including taxing compensation above some arbitrary threshold (see example below), requiring government approval to change the organization's name or bylaws, prescribing organizations use a particular accounting method, and demanding CSOs keep detailed membership lists and directories. In the laws studied here, 142 of 288 provide regulators some avenue for interfering in a CSO's internal matters. Twenty-two laws contain language limiting such interventions, while 124 are silent on such issues.

CITATION: Tax Cuts and Jobs Act of 2017, Public Law 115–97 (USA)

EXCERPT: § SEC. 4960. TAX ON EXCESS TAX-EXEMPT ORGANIZATION EXECUTIVE COMPENSATION.

(a) TAX IMPOSED.—There is hereby imposed a tax equal to the product of the rate of tax under section 11 and the sum of—

(1) so much of the remuneration paid (other than any excess parachute payment) by an applicable tax-exempt organization for the taxable year with respect to employment of any covered employee in excess of $1,000,000, plus

(2) any excess parachute payment paid by such an organization to any covered employee. For purposes of the preceding sentence, remuneration shall be treated as paid when there is no substantial risk of forfeiture (within the meaning of section 457(f)(3)(B)) of the rights to such remuneration.

(b) LIABILITY FOR TAX.—The employer shall be liable for the tax imposed under subsection (a).

(c) DEFINITIONS AND SPECIAL RULES.—For purposes of this section—

(1) APPLICABLE TAX-EXEMPT ORGANIZATION.—The term ‘applicable tax-exempt organization’ means any organization which for the taxable year—

(A) is exempt from taxation under section 501(a),

(B) is a farmers’ cooperative organization described in section 521(b)(1),

(C) has income excluded from taxation under section 115(1), or

(D) is a political organization described in section 527(e)(1).

FILENAME OR SOURCE: DeMattee_USA_TaxCutsJobsAct_2017

ANALYTIC NOTE: Many laws provide CSOs some remedy to appeal decisions (see example below). While it is unusal to explicitly deny the possibility of appeal, 197 of the 288 do not discuss appeals one way or another.

CITATION: UNION OF SOVIET SOCIALIST REPUBLICS LAW ABOUT PUBLIC ASSOCIATIONS N 1708-1 of 1990. (RUSSIA)

EXCERPT: *Article 12. Refusal to register the charter of a public association

The registration of the charter of a public association may be refused, if the charter of a public association contradicts the provisions of articles 3, 4 or 10 of this law or if the charter of public association with the same name was previously registered.

In case of refusal to register the chapter, the applicants are informed of this in writing, indicating the provisions of the legislation to which the charter contradicts.

Refusal to register the charter of a public association can be appealed to the court and considered in the manner provided by the civil procedural legislation.

Refusal to register the statutes of the all-Union or inter-republican public association may be appealed to the Supreme Court of the USSR. *

EXCERPT TRANSLATION: Статья 12. Отказ в регистрации устава общественного объединения

В регистрации устава общественного объединения может быть отказано, если устав общественного объединения противоречит положениям статей 3, 4 или 10 настоящего Закона либо ранее зарегистрирован устав общественного объединения с тем же названием.

В случае отказа в регистрации устава заявителям сообщается об этом письменно с указанием положений законодательства, которым представленный устав противоречит.

Отказ в регистрации устава общественного объединения может быть обжалован в суд и рассматривается в порядке, предусмотренном гражданским процессуальным законодательством.

Отказ в регистрации устава общесоюзного или межреспубликанского общественного объединения может быть обжалован в Верховный Суд СССР.

FILENAME OR SOURCE: DeMattee_RUS_Public Associations_1990_ENG

DeMattee_RUS_Public Associations_1990_ENG

CITATION: THE NON-GOVERNMENTAL ORGANIZATIONS REGISTRATION ACT 1989 (UGANDA)

ANALYTIC NOTE: The NGO Registration Act applied to a single legal form in Uganda.

EXCERPT: *An act to provide for the registration of non-governmental organizations, to establish a board for that purpose and for other matters connected therewith.

1. Interpretation - In this Act, unless the context otherwise requires –

(a) “board” means the National Board of Nongovernmental Organisations;

(b) “chairperson” means the chairperson of the board;

(c) “Minister” means the Minister responsible for internal affairs;

(d) “organization” means a nongovernmental organization established to provide voluntary services, including religious, educational, literary, scientific, social or charitable services to the community or any part of it.*

FILENAME OR SOURCE: DeMattee_UGA_NGO_Act_1989

CITATION: Societies Ordinance (Amendment) Act, No. 16 of 1969

ANALYTIC NOTE: Uganda achieved its independence on October 9th, 1962. The British colonial government passed The Trustees Incorporations Act "provide for the incorporation of the trustees of certain bodies and associations of persons." According to Uganda's National Bureau for Non-Governmental Organizations, the law is still part of the Ugandan legal institution regulating CSOs.

FILENAME OR SOURCE: https://www.ngobureau.go.ug/en/law-and-regulations

DeMattee_UGA_Trustees_1939

CITATION: Societies Ordinance (Amendment) Act, No. 16 of 1969

ANALYTIC NOTE: Tanzania achieved its independence on December 10th, 1963. The British colonial government passed the Societies Ordinance on June 1st, 1954, "to provide for the registration of Societies and other matter incidental thereto and connected therewith." The colonial government amended the ordinance in 1957, 1962, and 1963. On February 7th, 1969, the government of the United Republic of Tanzania enacted An Act to amend the Societies Ordinance. The amendment was less than three pages and contained only two sections. Those sections served to amend rather than replace the colonial era law.

EXCERPT: §1. This Act may be cited as the Societies Ordinance (Amendment) Act, 1969 and shall be read as one with the Societies Ordinance.

§2. Section 24 of the Societies Ordinance is amended by deleting subsection (5) and substituting therefor the following new subsections: -- [precise changes omitted here]

FILENAME OR SOURCE: DeMattee_TAZ_Societies_Amewndment_1963 DeMattee_TAZ_Societies_Amendment_1969

CITATION: The European Convention on Human Rights

EXCERPT: Section I, ARTICLE 11 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

1. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

FILENAME OR SOURCE: DeMattee_european_charter.pdf

CITATION: African Charter on Human and Peoples' Rights

EXCERPT: ARTICLE 11 Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

FILENAME OR SOURCE: DeMattee_african_charter

CITATION: AMERICAN CONVENTION ON HUMAN RIGHTS

EXCERPT: Article 16. Freedom of Association

1. Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes.

2. The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others.

3. The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association, on members of the armed forces and the police.

FILENAME OR SOURCE: https://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm

CITATION: THE NON·GOVERNMENTAL ORGANIZATIONS CO-ORDINATION REGULATIONS, 1992 L/N No. 152 (Kenya)

ANALYTIC NOTE: Agency must provide written explanation of registration and reregistration decision such as certificate of approval or justification for refusal after a CSO has applied as prescribed or else it is negligent.

EXCERPT: §12 Where the Board refuses registration of a proposed Organization under section 14 of the Act, it shall, within fourteen days from the date of such decision notify the applicant of the refusal in Form 6 set out in the First Schedule.

FILENAME OR SOURCE: DeMattee_KEN_NGO_Regs_1992

CITATION: Taxation Law of Malawi (1991)

ANALYTIC NOTE: CSOs may engage in unrelated business activities such as revenue generation if the law is enacted or else choose not to pursue those activities.

EXCERPT: §61 - (1) The taxable income of any club, society or association formed, etc. formed, organized or operated solely or principally for pleasure or recreation shall be liable to income tax notwithstanding that it arises from transactions of such club, society or association with its members.

(2) The taxable income of any such club, society or association shall be deemed to be an amount equivalent to six and one quarter per centum of all receipts by, or accruals to, or in favour of, it from sales of goods; cinematograph performances, stage plays, and gambling machines, and shall be charged at the rate applicable to companies. Receipts and accruals of the kind hereinbefore mentioned may be taken into account in determining the liability under this subsection of any such club, society or association notwithstanding that they are received by, or accrue to, or in favour of, any person in his capacity as a trustee for such clubs, society or association.

FILENAME OR SOURCE: DeMattee_MAW_Taxation_1991

CITATION: Natural Persons Income Tax of Directive No. 01/04 (Centrl African Republic)

ANALYTIC NOTE: Private entities may take a tax deduction for supporting certain CSOs according to their legal type, such as donations to charities but not contributions to political parties if the law is enacted or else choose not to take the deduction.

EXCERPT: §37 - for the determination of tax bases, account shall be taken of the net amount of salaries, allowances, salaries, pensions and annuities and of all the benefits in cash and in kind granted to the persons concerned, after deduction of the deductions made by the employer for the establishment of pensions or pensions as well as contributions to social insurance.

The deductions and dues must be mandatory.

EXCERPT TRANSLATION: §37 - Pour la détermination des bases d’imposition, il est tenu compte du montant net des traitements, indemnités, salaires, pensions et rentes viagères, ainsi que de tous les avantages en argent et en nature accordés aux intéressés, après déduction des retenues faites par l’employeur en vue de la constitution de pensions ou de retraites ainsi que des cotisations aux assurances sociales.

Lesdites retenues et cotisations doivent revêtir un caractère obligatoire.

FILENAME OR SOURCE: DeMattee_CAF_Income_Tax_2004_ENG

DeMattee_CAF_Income_Tax_2004_FR

CITATION: Societies Act of 1968 (Kenya)

ANALYTIC NOTE: CSOs must produce summary of operations and activities for public access if the law is enacted or else face penalty for non-compliance.

EXCERPT: §48 On payment of the prescribed fees, any person may inspect at the office of the Registrar the register and any documents relating to any society lodged with the Registrar under this Act, and may obtain from the Registrar a copy of or extract from such register or document.

FILENAME OR SOURCE: DeMattee_KEN_Societies_1968

CITATION: Regulates the right of free association (Law n. 8/91) Mozambique

ANALYTIC NOTE: CSOs must report their finances for public access if the law is enacted or else face penalty for non-compliance.

EXCERPT: §14 In addition to the duties established in the statutes and other legislation, the following are the duties of public utility associations:

a. Submit to the Ministry of Finance and the Administrative Court the annual report and budget of every fiscal year;

b. Provide the information requested by competent official entities.

EXCERPT TRANSLATION: §14 Para além dos deveres previstos estatutariamente e em demais legislação, são deveres das associações declaradas de utilidade pública, os seguintes:

a) Enviar anualmente ao Ministério das Finanças e ao Tribunal Administrativo o relat6rio e as contas do exerclcio findo;

b) Prestar as infonnacoes quo lhes forem solicitadas por compententes entidades oficials

FILENAME OR SOURCE: DeMattee_MOZ_Rights_on_Assoc_1991_ENG

DeMattee_MOZ_Rights_on_Assoc_1991_POR

CITATION: International Emergency Economic Powers Act of 1977 (USA)

ANALYTIC NOTE: CSOs forbidden to receive foreign funding from certain sources, such as foreign governments or private sponsors explicitly stated if the law is enacted or else face penalty for noncompliance.

EXCERPT: § 1702. Presidential authorities (a)(1) At the times and to the extent specified in section 1701 of this title, the President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise--

(A) investigate, regulate, or prohibit-- (i) any transactions in foreign exchange, (ii) transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof, (iii) the importing or exporting of currency or securities, by any person, or with respect to any property, subject to the jurisdiction of the United States;

(B) investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States; and

(C) when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals, confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States; and all right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms directed by the President, in such agency or person as the President may designate from time to time, and upon such terms and conditions as the President may prescribe, such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes.

(2) In exercising the authorities granted by paragraph (1), the President may require any person to keep a full record of, and to furnish under oath, in the form of reports or otherwise, complete information relative to any act or transaction referred to in paragraph (1) either before, during, or after the completion thereof, or relative to any interest in foreign property, or relative to any property in which any foreign country or any national thereof has or has had any interest, or as may be otherwise necessary to enforce the provisions of such paragraph. In any case in which a report by a person could be required under this paragraph, the President may require the production of any books of account, records, contracts, letters, memoranda, or other papers, in the custody or control of such person.

(3) Compliance with any regulation, instruction, or direction issued under this chapter shall to the extent thereof be a full acquittance and discharge for all purposes of the obligation of the person making the same. No person shall be held liable in any court for or with respect to anything done or omitted in good faith in connection with the administration of, or pursuant to and in reliance on, this chapter, or any regulation, instruction, or direction issued under this chapter.

(b) The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly--

(1) any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value;

(2) donations, by persons subject to the jurisdiction of the United States, of articles, such as food, clothing, and medicine, intended to be used to relieve human suffering, except to the extent that the President determines that such donations (A) would seriously impair his ability to deal with any national emergency declared under section 1701 of this title, (B) are in response to coercion against the proposed recipient or donor, or (C) would endanger Armed Forces of the United States which are engaged in hostilities or are in a situation where imminent involvement in hostilities is clearly indicated by the circumstances; or

(3) the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. The exports exempted from regulation or prohibition by this paragraph do not include those which are otherwise controlled for export under section 2404 of the Appendix to this title, or under section 2405 of the Appendix to this title to the extent that such controls promote the nonproliferation or antiterrorism policies of the United States, or with respect to which acts are prohibited by chapter 37 of Title 18;

(4) any transactions ordinarily incident to travel to or from any country, including importation of accompanied baggage for personal use, maintenance within any country including payment of living expenses and acquisition of goods or services for personal use, and arrangement or facilitation of such travel including nonscheduled air, sea, or land voyages.

(c) Classified information.--In any judicial review of a determination made under this section, if the determination was based on classified information (as defined in section 1(a) of the Classified Information Procedures Act) such information may be submitted to the reviewing court ex parte and in camera. This subsection does not confer or imply any right to judicial review.

FILENAME OR SOURCE: DeMattee_USA_IEEE_1977

CITATION: Law of the People's Republic of China on Donation for Public Welfare Undertakings (Order No. 19 of the President of the People's Republic of China)

ANALYTIC NOTE: CSOs must use certain depository institutions such as government banks if the law is enacted or else face penalty for non-compliance.

EXCERPT: Article 11 When natural disaster occurs or a donor from outside China requests that the people's government at or above the county level or one of its departments be the donee, the said people's government or the department may accept the donation, and it shall control the property donated in accordance with the relevant provisions in this Law.

The people's government at or above the county level or its department may transmit the donated property to a community public welfare organization or a nonprofit public welfare institution; or it may also distribute the property or use it to set up public welfare establishments according to the donor's wishes; however, it may not be the beneficiary itself.

EXCERPT TRANSLATION: 第十二条捐赠人可以与受赠人就捐赠财产的种类、质量、数量和用途等内容订立捐赠协议。捐赠 人有权决定捐赠的数量、用途和方式。

捐赠人应当依法履行捐赠协议，按照捐赠协议约定的期限和方式将捐赠财产转移给受赠人。

FILENAME OR SOURCE: DeMattee_CHN_Public_Welfare_Undertakings_1999

CITATION: ATTACHING GENERAL ENFORCEABLE PROVISIONS TO NON-PROFIT MAKING ORGANISATIONS AND CHARITABLE CORPORATIONS LAW N° 004/2001 (DEMOCRATIC REPUBLIC OF THE CONGO)

ANALYTIC NOTE: CSOs must surrender project assets to government after it is completed or CSO is dissolved or else face penalty for non-compliance.

EXCERPT: Article 72: In the event of an establishment of public interest not being able to render the services for which it had been instituted, the Regional Court at the request of the public prosecutor or the majority of the administrators will be able to pronounce the dissolution of said establishment.

In this case, the court appoints one or several liquidators who after discharging the liabilities give the properties the intended use as provided by the articles.

If this intended use cannot be realised, the liquidator(s) authorised by the court will yield the properties to the government. The government will restore these properties to the purpose for which they were intended as soon as possible.

FILENAME OR SOURCE: DeMattee_DRC_Nonprofits_2001

CITATION: THE NON-GOVERNMENTAL ORGANIZATIONS ACT, 2003 (South Sudan)

ANALYTIC NOTE: CSOs must acquire approval to operate separate from formal registration after commencement of law or else face penalty for non-compliance.

EXCERPT: Section 11. A certificate of registration shall be a conclusive evidence of authority to operate throughout the New Sudan or in such parts of it as shall be specified therein.

FILENAME OR SOURCE: DeMattee_SSD_NGO_Act_2003

CITATION: LAW N° 20/2000 OF 26/07/2000 RELATING TO NON-PROFIT MAKING ORGANIZATIONS

ANALYTIC NOTE: Agency must follow explicit process concerning revoking, suspending, terminating, or dissolving CSO’s permit, registration, or legal standing if the law is enacted or else it is negligent.

EXCERPT: <br /> Article: 24 The Minister having justice in his portfolio upon request by the authority mentioned in Article 8 of this law and considering any organization’s action are likely to be a threat to law, public order and good moral standards, may order the suspension for a three-month period of the organization’s activities. In case after this period the Ministry does not disclose its opinion, the organization may continue its activities.

FILENAME OR SOURCE: DeMattee_RWA_Nonprofits_2000

CITATION: On the Organic Framework of Non-profit Associations No. 1/02 of January 2017 (Burundi)

ANALYTIC NOTE: Agency forbidden to reject registration for reasons other than those explicitly stated if the law is enacted or else it is overstepping its authority.

EXCERPT: Article 24: The Minister having approval of not-for-profit associations in his attributions, may, by written notification, reject the request for reason of failure to comply with the law or when the object of the Association is contrary to the laws of Burundi.

Any refusal of agreement must be motivated in writing and be notified to the legal representative of the Association that made the request. The latter may appeal to the administrative tribunal. If the appeal is declared founded by a definitive judgment, the Minister responsible for the approval in its attributions must approve the Association upon the notification of the jugement.

EXCERPT TRANSLATION: Article 24 : Le Ministre ayant l' agrement des associations sans but lucratif dans ses attributions, par notification ecrite, rejette la requete pour non respect de la loi ou lorsque l'objet de !'association est contraire aux lois.

Tout refus d'agrement doit etre motive par ecrit et notifie au representant legal de !'association ayant fait la demande. Celui-ci peut exercer un recours devant la Cour administrative. Si le recours est declare fonde par un arret definitif, le Ministre ayant l' agrement dans ses attributions est tenu d'agreer !'association des la signification de l' arret.

FILENAME OR SOURCE: DeMattee_BUI_Nonprofit_Associations_2017_ENG

DeMattee_BUI_Nonprofit_Associations_2017_FR

CITATION: Subversive Activities Control Act of 1950 (USA)

ANALYTIC NOTE: CSOs must comply with agency’s interference regarding external operations or prescribed coordination when instructions are communicated with or without reasonable cause or else face penalty for noncompliance.

EXCERPT: §10. It shall be unlawful for any organization which is registered under section 7, or for any organization with respect to which there is in effect it final order of the Board requiring it to register under section 7, or for any person acting for or on behalf of any such organization-

(1) to transmit or cause to be transmitted, through the United States mails or by any means or instrumentality of interstate or foreign commerce, any publication which is intended to be, or which it is reasonable to believe is intended to be, circulated or disseminated among two or more persons, unless such publication, and any envelope, wrapper, or othercontainer in which it is mailed or otherwise circulated or transmitted, bears the following, printed in such manner as may be provided in regulations prescribed by the Attorney General, with the name of the organization appearing in lieu of the blank: "Disseminated by ___, a Communist organization"; or

(2) to broadcast or cause to be broadcast any matter over any radio or television station in the United States, unless such matter is preceded by the following statement, with the name of the organization being stated in place of the blank: "The following program is sponsored by ___, a Communist organization".

FILENAME OR SOURCE: DeMattee_USA_Subversive_Activities_1950

CITATION: Law of 1 July 1901 relating to the Association Contract

ANALYTIC NOTE: CSOs must follow prescribed rules regarding internal administrative matters and/or activities if the law is enacted or else face penalty for non-compliance.

EXCERPT: §5 (¶ 5) The associations are obliged to make known, within three months, all changes in their administration, as well as all the changes made to their statutes.

§6 Any association regularly declared may, without any special authorization, sue, receive manual donations and donations of public utility establishments, acquire for a fee, possess and administer, outside of subsidies from the State, New Caledonia or its provinces, communes and their public establishments: (1) The contributions of its members or the sums by means of which these contributions have been drafted, these sums not exceeding 16 euros or an equivalent amount in local currency; ...

§11 These associations can proceed with all the actions of civil life that are not prohibited by their statutes, but they cannot possess or acquire other buildings other than those necessary for the purpose they propose. They may, for a fee or free of charge, acquire timber, forests or land to be afforested. All securities of an association must be placed in registered securities, or in securities accepted by the Banque de France as collateral for advances.

§15 Every religious congregation draws up a statement of its income and expenditure; each year, it draws up the financial account of the past year and the inventoried state of its movable and immovable property.

The full list of its members, mentioning their surname, as well as the name under which they are designated in the congregation, their nationality, age and place of birth, the date of their entry in the congregation, must be located at the seat of the congregation.

The latter is obliged to represent without displacement, on any requisition of the High Commissioner of the Republic in New Caledonia to himself or his delegate, the accounts, statements and lists indicated above.

The sentences laid down in article 8, paragraph 2, shall punish the representatives or directors of a congregation who have made false communications or refused to comply with the requisitions of the High Commissioner of the Republic in New Caledonia in the cases provided for in this article.

EXCERPT TRANSLATION: §5 (¶5) Les associations sont tenues de faire connaître, dans les trois mois, tous les changements survenus dans leur administration, ainsi que toutes les modifications apportées à leurs statuts.

§6 Toute association régulièrement déclarée peut, sans aucune autorisation spéciale, ester en justice, recevoir des dons manuels ainsi que des dons d'établissements d'utilité publique, acquérir à titre onéreux, posséder et administrer, en dehors des subventions de l'Etat, de la Nouvelle-Calédonie ou de ses provinces, des communes et de leurs établissements publics: 1° Les cotisations de ses membres ou les sommes au moyen desquelles ces cotisations ont été rédimées, ces sommes ne pouvant être supérieures à 16 euros ou à un montant équivalent en monnaie locale;

§11 Ces associations peuvent faire tous les actes de la vie civile qui ne sont pas interdits par leurs statuts, mais elles ne peuvent posséder ou acquérir d'autres immeubles que ceux nécessaires au but qu'elles se proposent. Cependant, elles peuvent acquérir, à titre onéreux ou à titre gratuit, des bois, forêts ou terrains à boiser. Toutes les valeurs mobilières d'une association doivent être placées en titres nominatifs, ou en valeurs admises par la Banque de France en garantie d'avances.

§15 Toute congrégation religieuse tient un état de ses recettes et dépenses ; elle dresse chaque année le compte financier de l'année écoulée et l'état inventorié de ses biens meubles et immeubles.

La liste complète de ses membres, mentionnant leur nom de famille, ainsi que le nom sous lequel ils sont désignés dans la congrégation, leur nationalité, âge et lieu de naissance, la date de leur entrée, doit se trouver au siège de la congrégation.

Celle-ci est tenue de représenter sans déplacement, sur toute réquisition du haut-commissaire de la République en Nouvelle-Calédonie à lui-même ou à son délégué, les comptes, états et listes ci-dessus indiqués.

Seront punis des peines portées au paragraphe 2 de l'article 8 les représentants ou directeurs d'une congrégation qui auront fait des communications mensongères ou refusé d'obtempérer aux réquisitions du haut-commissaire de la République en Nouvelle-Calédonie dans les cas prévus par le présent article.

FILENAME OR SOURCE: DeMattee_FRN_Association_1901_ENG.pdf

DeMattee_FRN_Association_1901_FRN.pdf

CITATION: Administrative Measures for the Donations for Disaster Relief (China) Decree No. 35 of 2008 of the Ministry of Civil Affairs.

ANALYTIC NOTE: CSOs may appeal decisions disadvantaging their positioning on financial and non-financial matters, such as orders regarding fines, taxes, foreign funding, and ownership of property. after such decisions are communicated or else accept the decision.

EXCERPT: Article 29 The donees shall distribute and use in the current year the funds and goods donated for disaster relief in strict accordance with the scope of use. No retention is allowed. If the donations really need to be used in the following years, the approval from the civil affairs departments under the people's government at a higher level shall be obtained.

EXCERPT TRANSLATION: 第三十条救灾捐赠款物的接受及分配、使用情况应当按照国务院民政部门规定的统计标准进行统 计,并接受审计、监察等部门和社会的监督。

FILENAME OR SOURCE: DeMattee_CHN_Disaster_Donations_2008

CITATION: UNION OF SOVIET SOCIALIST REPUBLICS LAW ABOUT PUBLIC ASSOCIATIONS N 1708-1 of 1990. (RUSSIA)

ANALYTIC NOTE: CSOs forbidden to appeal registration denial or deregistration order after such a decision has been communicated or else face noncompliance sanction.

EXCERPT: *Article 12. Refusal to register the charter of a public association

The registration of the charter of a public association may be refused, if the charter of a public association contradicts the provisions of articles 3, 4 or 10 of this law or if the charter of public association with the same name was previously registered.

In case of refusal to register the chapter, the applicants are informed of this in writing, indicating the provisions of the legislation to which the charter contradicts.

Refusal to register the charter of a public association can be appealed to the court and considered in the manner provided by the civil procedural legislation.

Refusal to register the statutes of the all-Union or inter-republican public association may be appealed to the Supreme Court of the USSR. *

EXCERPT TRANSLATION: Статья 12. Отказ в регистрации устава общественного объединения

В регистрации устава общественного объединения может быть отказано, если устав общественного объединения противоречит положениям статей 3, 4 или 10 настоящего Закона либо ранее зарегистрирован устав общественного объединения с тем же названием.

В случае отказа в регистрации устава заявителям сообщается об этом письменно с указанием положений законодательства, которым представленный устав противоречит.

Отказ в регистрации устава общественного объединения может быть обжалован в суд и рассматривается в порядке, предусмотренном гражданским процессуальным законодательством.

Отказ в регистрации устава общесоюзного или межреспубликанского общественного объединения может быть обжалован в Верховный Суд СССР.

FILENAME OR SOURCE: DeMattee_RUS_Public Associations_1990_ENG

DeMattee_RUS_Public Associations_1990_ENG

CITATION: CHAPTER 119 THE SOCIETIES ACT CHAPTER 119 THE SOCIETIES ACT (ZAMBIA)

ANALYTIC NOTE: Agency must have reasonable cause and follow explicit rules when conducting inspections of CSOs, such as requesting specific documentation or investigating offenses, if the law is enacted or else it is overstepping its authority.

EXCERPT: §29 29. (1) Whenever it is represented on oath or affidavit to a Judge or magistrate that in fact or according to reasonable suspicion any society, whether a statutory society or not, is being used or has been used or is about to be used for unlawful purposes or for purposes prejudicial to or incompatible with the maintenance of peace, order and good government, or that any statutory society is being used or has been used or is about to be used for unlawful purposes at variance with its declared objects, such Judge or magistrate may by warrant empower an authorised officer to enter, with or without assistance and using force for that purpose if necessary, into any place which is so represented to be or have been used or to be about to be used as a place of meeting or place of business of such society, and search such place and any person found therein or escaping therefrom for evidence that such society is being used for such purposes aforesaid.

FILENAME OR SOURCE: DeMattee_ZAM_Societies_Ord_Amend_1994

CITATION: An Act to amend the Societies Ordinance (TANGANYIKA) 1962. This Act may be cited as the Societies Ordinance (Amendment) Act, 1962, and shall be read as one with the Societies Ordinance (hereinafter called the Ordinance).

ANALYTIC NOTE: CSOs are forbidden to operate as informal, voluntary associations and instead must register with the government if the law is enacted or else face noncompliance sanction.

EXCERPT: §3. *The Ordinance is hereby amended by inserting immediately after section 6 thereof the following new sections 6A and 6B:

6A: (1) Subject to the provisions of subsection (5), where the Minister is satisfied that any company, partnership association or other organization formed for the purpose of conducting any lawful trade or business is carrying on its activities predominantly for a purpose other than the conduct of lawful trade or business he may, notwithstanding that such company, partnership, association or other organization is not a society within the meaning of this Ordinance by reason of the provisions of paragraph (a), paragraph (b), paragraph (c), paragraph (e), or paragraph (f) of the definition 'society' in subsection (1) of section 2 and notwithstanding the provisions of any other law, by order in writing addressed to the registered office or to the principal place of business of such company, partnership, association or other organization require such company, partnership, association or other organization to apply to the Registrar, within such period, being not less than twenty-one days, as may be specified in the order, for registration under this Ordinance. (2) Notification shall be given in the Gazette of any order made under subsection (1).

(3) Where any company, partnership, association or other organization in respect of which an order has been made under subsection (1) applies for registration under this Ordinance in compliance with such order and is registered under this Ordinance then, with effect from the date of such registration, all the provisions of this Ordinance shall, notwithstanding the provisions of any other law, apply to such company, partnership, association or other organization.

(4) Where any company, partnership, association or other organization in respect of which an order has been made under subsection (1) fails to apply for registration under this Ordinance in compliance with such order or, having so applied, is refused such registration, or where such company, partnership, association or other organization having been registered under this Ordinance, such registration is subsequently cancelled under any provision of this Ordinance, the Minister may publish notice of such failure, refusal or cancellation in the Gazette and on the date of the publication of such notice the company, partnership, association or other organization shall be dissolved.

(5) No order shall be made under subsection (1) in respect of any organization to which the provisions of paragraph (d) or paragraph (g) of the definition 'society' in subsection (1) of section 2 apply. * FILENAME OR SOURCE: DeMattee_TAZ_Societies_Amendment_1962

CITATION: THE CIVIL CODE PROCLAMATION OF 1960 (ETHIOPIA) PROCLAMATION NO. 165 OF 1960.

ANALYTIC NOTE: Government may create or empower cabinet ministers to make new rules regulating CSOs on certain matters if the law is enacted or else leave the regulatory regime unchanged.

EXCERPT: *Art. 479. - Ministry of Interior. (1) The Ministry of Interior may prescribe, within the framework of the existing laws, any other measure it thinks fit with a view to placing the offices of associations in a position to exercise an efficient control on the associations.

(2) Such measures may differ according to the object, the importance and the duration of the association.

(3) Particular measures may also be prescribed for the associations which have their head office in a foreign country, or which carry on an activity in a foreign country or the majority of whose members are foreigners, or which have a board of management in which one or more members are foreigners.*

FILENAME OR SOURCE: DeMattee_ETH_Civl_Code_1960

CITATION: THE NON-GOVERNMENTAL ORGANIZATIONS CO-ORDINATION ACT, 1990 (KENYA) §§4, 30-31

ANALYTIC NOTE: Agency is forbidden to regulate CSOs without oversight, such as an oversight board of CSO participants, a nomination & approval process, or clear accountability to elected officials, if the law is enacted or else it is overstepping its authority.

EXCERPT: *§4 (1) The Board shall consist of (a) a chairman appointed by the President; (b) not more than seven and not less than five members appointed by the Minister by virtue of their knowledge or experience in development and welfare management; (c) the Permanent Secretary in the Office of the President responsible for Non-Govemment: al Organizations; (d) the Permanent Secretary in the Ministry for the time being responsible for foreign affairs; (e) the Permanent Secretary to the Treasury; (f) the Permanent Secretary in the Ministry for the time being responsible for economic planning; (g) the Permanent Secretary in the Ministry for the time being responsible for social services; · (h) the Attorney-General; (i) five members appointed by the Minister on the recommendation of the Council to represent the diversified areas of Non-Governmental Organizations' interests within the Board; (j) the executive director appointed under section 5(1).

§30 ( 1) The Board shall cause to be kept all proper books and records of account of its income, expenditure, assets and liabilities. (2) Within three months from the end of each financial year, the executive director of the Board shall submit to the Auditor-General (Corporations) the accounts of the Board together with- ( a) a statement of financial activities, income, and expenditure during the financial year; and (b) a statemen1t of assets and liabilities of the Boord existing at the end of the year.

§31 ( 1) The accounts of the Board shall be audited by the Auditor-General (Corporat:ions). (2) The Auditor-General (Corporations) shall present to the Board within a period of six months after the end of each financial year, a report of the examinations and audit of accounts and the report shall also be forwarded to the Minister. (3) The Minister shall lay the Board's report and the report of the Auditor-General (Corporatfons) before the National Assembly within thirty days after the receipt of the report by him, or if the National Assembly is not sitting, within fourteen days after the commencement of the next sitting.*

FILENAME OR SOURCE: DeMattee_KEN_NGO_Act_1990.pdf

CITATION: Friendly Societies Act 1896 (c. 25) § 68

ANALYTIC NOTE: Government must create or empower a dispute resolution forum, such as a court if the law is enacted or else it is negligent.

EXCERPT: *§68 Decision of disputes (1) Every dispute between— (a) a member or person claiming through a member or under the rules of a registered society or branch, and the society or branch or an officer thereof; or (b) any person aggrieved who has ceased to be a member of a registered society or branch, or any person claiming through such person aggrieved, and the society or branch, or an officer thereof ; or (c) any registered branch of any society or branch and the society or branch of which it is a branch ; or (d) an officer of any such registered branch and the society or branch of which that registered branch is a branch ; or (e) any two or more registered branches of any society or branch, or any officers thereof respectively, shall be decided in manner directed by the rules of the society or branch, and the decision so given shall be binding and conclusive on all parties without appeal, and shall not be removable into any court of law or restrainable by injunction; and application for the enforcement thereof may be made to the county court.

(2) The parties to a dispute in a registered society or branch may, by consent (unless the rules of the society or branch expressly forbid it), refer the dispute to the chief registrar, or in Scotland or Ireland to the assistant registrar.

(3) The chief or other registrar to whom a dispute is referred shall, with the consent of the Treasury, either by himself or by any other registrar, hear and determine the dispute, and shall have power to order the expenses of determining the dispute to he paid either out of the funds of the society or branch, or by such parties to the dispute as he may think fit, and his determination and order shall have the same effect and be enforceable in like manner as a decision made in the manner directed by the rules of the society or branch.

(4) The chief or other registrar to whom a dispute is referred may administer' oaths, and may require the attendance of all parties concerned, and of witnesses, and the production of all books and documents relating to the matter in question.

(5) Where the rules of a registered society or branch direct that disputes shall be referred to justices, the dispute shall be determined by a court of summary jurisdiction, or, if the parties thereto consent, by the county court.

(6) Where the rules contain no direction as to disputes, or where no decision is made on a dispute within forty days after application to the society or branch for a reference under its rules, the member or person aggrieved may apply either to the county court, or to a court of summary jurisdiction, and the court to which application is so made may hear and determine the matter in dispute ; but in the case of a society with branches the said forty days shall not begin to run until application has been made in succession to all the bodies entitled to determine the dispute under the rules of the society or branch, so however that no rules shall require a greater delay than three months between each successive determination.

(7) Notwithstanding anything contained in the Arbitration Act, 1889, or in any other Act, the court and the chief or other registrar or any arbitrator or umpire to whom a dispute is referred under the rules of a registered society or branch shall not be compelled to state a special case on any question of law arising in the case, but the court, or chief or other registrar, may, at the request of either party, state a case for the opinion in England or Ireland of the Supreme Court, and in Scotland of either division of the Inner House of the Court of Session, on any question of law, and may also grant to either party such discovery as to documents and otherwise, or such inspection of documents, and in Scotland may grant warrant for the recovery of documents and examination of havers, as might be granted by any court of law or equity, and the discovery shall be made on behalf of the society or branch by such officer thereof as the court or registrar may determine.

(8) In this section the expression " dispute" includes any dispute arising on the question whether a member or person aggrieved is entitled to be or to continue to be a member or to be reinstated as a member, but, save as aforesaid, in the case of a person who has ceased to be a member, does not include any dispute other than a dispute on a question between him and the society or branch or an officer thereof which arose whilst he was a member, or arises out of his previous relation as a member to that society or branch. Change of Name, Amalgamation, and Conversion of Societies*

FILENAME OR SOURCE: DeMattee_UKG_Friendly_Societies_1896

CITATION: International Covenant on Civil and Political Rights.

EXCERPT: *Article 22 1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

1. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

2. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.*

SOURCE: https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

CITATION: Constitution for Congo (Democratic Republic of the) 2005 (rev. 2011). TITLE VI ARTICLE 215

ANALYTIC NOTE: Example of constitutional rule making treaties superior to ordinary legislation.

EXCERPT: The international treaties and agreements, regularly concluded, have, on their publication, an authority superior to that of the laws, under reserve for each treaty and agreement, of its the application by the other party.

EXCERPT TRANSLATION: Les traités et accords internationaux régulièrement conclus ont, dès leur publication, une autorité supérieure à celle des lois, sous réserve pour chaque traité ou accord, de son application par l’autre partie.

FILENAME OR SOURCE: https://constituteproject.org/