IMMIGRATION DETENTION AND REMOVAL
United States immigration laws have changed dramatically over the past ten years. These changes are most noticeable in the area of detention and deportation or removal of non-citizens with criminal convictions. There are more enforcement at the time of entry into the country or when an individual has contact with the law enforcements. Many immigrants including lawful permanent residents (green card holders) become subject to mandatory detention and mandatory deportation as a result of their convictions.
Almost all borders in US have “pre clearance” meaning you will clear the Custom to board a plane or arrive in the US. All itineraries for flights are received before arrivals and individuals are checked prior to their entry. As a result, once you arrive, you are referred to the secondary inspection for further questioning and possible denial of entry.
There is no right to an attorney at the Border. When you are facing secondary inspection, Customs & Border Protection (CBP) computer is providing information relevant to your case to the officer such as prior deportation, prior criminal background or prior fraud or misrepresentation or intent to immigrate issues. If you feel that answering the officers will place you in deportation, request that they place you in deportation to address the issue(s) before an immigration judge. Remember, everything you say will be used against you in the court of law. You may request a one time entry into the US for an appointment with CBP Deferred Inspection to discuss your case with your attorney and/or present documents that may clear or explain records.
If you are unable to stay in US for long and do not wish to proceed with a hearing before an immigration judge, you may withdraw your request for admission and leave the country. An attorney could review your file and assist you with your case, if you are a visitor. If you are a resident in US, you may wish to proceed with a hearing before an Immigration Judge. There is no “one fits all” policy. Every case is different and each fact patterns assist your attorney to prepare your case based on law.
Immigrants who are subject to removal are now much more likely to be detained by immigration authorities, if they have criminal background. The law provides for mandatory detention of non-citizens convicted of certain crimes. If an individual arriving US from abroad, that persons is deemed to be arriving aliens and by law they are ineligible for bond and release from custody.
Many people who are subject to removal are detected and detained in four main ways.
Stopped at the Airport after Traveling Abroad: Upon re-entering the United States, all non- citizens have to go through Department of Homeland Security (DHS, formerly known as the Immigration and Naturalization Service) screening. Many have traveled to their home countries in the past without any problem, but the government now regularly updates its computers at airport inspection. The computers have access to criminal records and prior orders of deportation. There is no statute of limitations under the immigration laws and you may be stopped for convictions that occurred many years ago i.e. 25 years ago. If you have a criminal conviction you should consult a reputable immigration practitioner before traveling abroad to make sure that you will be able to re-enter the United States without a problem.
Interviewed While in Jail: The DHS has officers at most jails and state prisons. You will likely be interviewed by a DHS agent and will be asked about your immigration status. You may not even realize that DHS is interviewing you. You will be placed into removal proceedings if there is a basis under the immigration laws to hold you in Immigration Detention Centers. The DHS officer will first place a “detainer” on you. Once you have completed your time in prison or jail, you will be transferred to DHS custody. Federal law says that state and local law enforcement authorities may only hold persons on immigration “detainers” for 48 hours after the completion of their jail time. This means that once you have completed your jail time, the immigration officials must take you into custody within two days. If they do not, you should contact your criminal defense lawyer and ask him or her to file a writ of habeas corpus with the state court demanding your release.
Immigration Applications: Most, if not all, applications to the United States Citizenship and Immigration Services (USCIS), an agency within DHS, now require security clearances and/or fingerprints as part of the application process. This includes applications for citizenship, renewal of green cards, employment authorization documents and even “status inquiries” to USCIS. USCIS now uses very sophisticated databases for their security clearances which identify old criminal convictions from anywhere in the U.S. When fingerprints are taken, USCIS gets a list of all your arrests and convictions. If you have a conviction that makes you removable, your application is likely to be denied and you very likely will be placed in removal proceedings.
Prior Orders of Deportation: DHS has a “absconder list” to pick up persons living in the United States who have prior orders of deportation. Some people may not even know that they have been ordered deported or they may think that because the deportation order was entered many years ago it is no longer a problem. If you were ever in immigration court proceedings before but did not return to court, you may have been ordered deported in your absence. Your lack of participation in your deportation hearing results in an Order to your detriment. Persons with prior orders of deportation have been entered onto a national “absconder” list. Immigration authorities have been working together with local law enforcement to pick up “absconders.” This can happen anywhere including at the border or even if you are stopped for a traffic violation.
Detention Facilities: United States Immigration and Customs Enforcement (USICE), an agency within DHS, operates or has contracts with detention facilities all over the country. Some facilities are used exclusively for people seeking political asylum. Others are just for immigration detainees. Most detainees are held in local jails that are paid a fee by the government for holding detainees such as Santa Ana jail and Lancaster Detention Center. At this time, ICE sends detainees to a particular facility based on the availability of beds and the type of immigration violation at the time of apprehension.
Not all immigrants are eligible for release from detention. Depending on your immigration status and/or criminal record, you may be subject to mandatory detention. If you are not eligible for bond, you will have to fight your removal from inside immigration detention.
I. MANDATORY DETENTION:
The Immigration and Nationality Act and federal regulations state that the government must take you into custody and hold you without bond if you have been convicted of certain removable offenses and released from jail after October 8, 1998. If you were convicted of a removable offense but not sentenced to jail (for example if you were sentenced to community service, probation, or a conditional discharge) you may still be eligible for bond. If you think that you are entitled to bond, you must write to the immigration court and ask for a Hearing where you can try to convince the judge that the mandatory detention law does not apply to you.
Grounds for Mandatory Detention of Lawful Permanent Residents in the United States, Persons Who Have Overstayed Their Visa, or Persons Who Have Been Lawfully Admitted into the United States: If you are a lawful permanent resident or overstayed your visa or were admitted into the United States in some manner, you may be subject to mandatory detention if you were released from jail after October 8, 1998, and convicted of any of the following crimes (these are explained in more detail in the section entitled Grounds of Removability Based on Criminal Convictions):
- Two Crimes Involving Moral Turpitude (CIMT) at any time after your admission in the United States;
- An aggravated felony;
- A controlled substance offense;
- A Firearms offense.
Grounds for Mandatory Detention for Lawful Permanent Residents Returning From a Trip Abroad, Persons Who Entered Without Inspection (EWI), or Persons Seeking Admission into the United States: If you are a lawful permanent resident returning from a trip outside the United States or entered without inspection or are seeking admission into the United States, you may be subject to mandatory detention if you were released from jail after October 8, 1998, and convicted of any of the following crimes. (These grounds are explained in more detail in the section entitled Grounds of Removability Based on Criminal Convictions):
- One CIMT (which may be waived as a petty offense if you have no prior criminal history, the offense was not punishable by more than one year in jail and you did not serve more than six months in jail);
- Controlled substance offense;
- Drug trafficking offense;
- Two or more offenses with aggregate sentence of 5 years incarceration;
- Domestic violence or violation of protection order.
II. PROCEDURES FOR SETTING BOND
If you are not subject to mandatory detention and you are not an arriving alien, then you are eligible for bond.
DHS Will Set Initial Bond: If you are detained but eligible for bond, the government will set an initial bond amount. If you post this bond, you will be released. If you cannot afford the bond, you can write to the immigration court and ask for a bond re-determination hearing.
Bond Hearing: To set the amount of bond, the judge will look at two factors: (i) whether you are a flight risk or somebody who would not come back to court if released, and (ii) whether you a danger to the community.
Amount of the Bond: The immigration judge is not allowed to set a bond below $1,500 but can order your release “on your own recognizance.”
This means the judge can let you go without any bond. The bond may be paid in cash or you may use a bail bondsman.
Bond Appeal: If you disagree with the judge’s determination of your bond request, you may file a bond appeal with the Board of Immigration Appeals (BIA). You must complete and file the Notice of Appeal with the BIA within 30 days of the judge’s decision. The BIA may take several months to decide your bond appeal and the immigration judge may order you removed before you receive a decision from the BIA. You will be held in detention while your appeal is being decided.
The Government May Also Appeal the judge’s decision if the government lawyer believes that the judge should not have set bond or set the bond too low.
Notice To Appear
The Notice to Appear or NTA is the document the government gives you and the court to explain why you should be removed from the United States. The NTA starts the case against you. DHS must give you the NTA within 72 hours of your detention. The NTA is divided into two parts. The first part which is labeled “ALLEGATIONS” has your name, the country you are from, and the date and manner you entered the United States. It also gives the factual basis or reason for your removal. The second part is called “CHARGES.” It lists the sections of the law under which you may be removed.
Immigration Court Proceedings
Proceedings Can Be Anywhere: If you are detained, there is no guarantee that you will be detained in the state where you live or that your case will be heard in the state where you live. DHS has the authority to detain you anywhere it wishes.
Change of Venue: The immigration court may transfer your case to an immigration court near your home if you ask it do so.
Master Calendar Hearings: Your first appearances before an immigration judge are known as the Master Calendar Hearings. These court appearances are usually very brief and are used by the court to take the pleadings, to decide if you are removable, and to identify the relief from removal you are eligible to apply for. A judge will have many cases scheduled for master calendar day. If you make an application for relief such as cancellation of removal, adjustment of status, or asylum your case will be adjourned for a full hearing to decide whether you are eligible for the relief. This is called the Individual Hearing. The judge will schedule only a few cases a day for individual hearings.
Adjournments to Find a Lawyer: At your first court appearance the court will ask if you have an attorney or would like time to obtain one. If you wish to fight your removal then you should ask the court for time to get an attorney.
Free Lawyers: While all detainees have the right to be represented by counsel, in immigration court, you are not entitled to have an attorney assigned to you at the government’s expense.
There are a few organizations and private attorneys who are willing to provide free or low cost representation to detainees, if you are indigent or low income. These Organizations and private attorneys have been screened by the Justice Department before being placed on the Court list. The court will provide you with a list of such organizations when you ask for time to find a lawyer. Nouri Law is on this approved list for Executive Office of Immigration Review. At Nouri Law, we accept number of pro bono cases per year, if the individual is indigent (without financial means).
PLEADINGS: At the beginning of your case the judge will “take the pleadings.” The judge will review the NTA with you. Government Must Prove Removability.
What is a Conviction?
A conviction is a finding of guilt with some form of punishment. You may be convicted of a crime by pleading guilty or by a guilty verdict after a trial. Convictions include no contest pleas or deferred adjudications when a person pleads guilty but later withdraws their plea after completing a treatment program. Adjournments in Contemplation of Dismissal (ACD) are not convictions because there was never a finding of guilt.
Citizenship: Some people may be citizens without even knowing it. This is particularly true if your parents became citizens while you were in the United States and under the age of 18, or you were born outside the United States and your parents were United States citizens. A person who qualifies as a citizen under these circumstances is said to derive or acquire citizenship from their parents. This is a very complicated area of the law. If you believe that you may be a citizen, you should alert the judge and retain an attorney to investigate and assist you.
Grounds of Removability Based on Criminal Convictions
Most non-citizens are placed in removal proceedings because they do not have legal immigration status (entered the United States without inspection, or overstayed their visa) or because they violated immigration rules. In this booklet we will focus on the ways in which non-citizens are put into removal proceedings as a result of criminal convictions.
In general, in removal proceedings there is a three-step inquiry. First, the judge will decide if you are removable because you have triggered one of the grounds of inadmissibility or deportability in immigration law. Next, the judge will decide if there is “relief” available to you. There are many different types of relief from removability including asylum, adjustment of status, and “waivers” that would allow you to remain in the U.S. despite your removability. Finally, the judge will decide whether you have met the legal and discretionary standards to be given that form of relief.
Determining Whether You Meet the Standards for Relief and seeking a remedy in Immigration Court
Applications: Once the judge finds that you are eligible to apply for a form of relief, she will allow you time to prepare the proper applications. There are different forms for each of the different types of relief. These forms ask very specific questions about things such as where you have lived and worked, your family, your arrest and conviction record, as well as many other things.
The Individual Hearing: At the hearing, you will have to prove that you meet the requirements for the relief you have applied for.
If you ask for asylum, withholding, or relief under the Convention Against Torture, you will need to present evidence about conditions in your country of origin and why you fear persecution or torture. This evidence may include:
- Country Reports on human rights practices in your country prepared by the United States Department of State and/or human rights organizations such as Amnesty International or Human Rights Watch;
- Newspaper and Magazine Articles describing instances of persecution.
- Testimony or Affidavits from experts on your country such as professors or diplomats, or of other people from your country who have suffered persecution.
If you ask for a 212(c) waiver, cancellation of removal or adjustment of status, you will need to present information about your past and present life in the United States and the lives of your family members. The judge must then balance the good and bad factors in your case and makes a discretionary decision as to whether you deserve to remain in the United States. This means that even though you qualified to apply for a waiver, the judge can still deny the waiver if she feels that you do not deserve it.
If you ask for a 212(h) waiver or adjustment of status you will also need to show that your removal would be an extreme and unusual hardship to your United States Citizen or lawful permanent resident spouse or children. The law regarding extreme and unusual hardship is complex. In general, means more than what one would expect from being separated from a family member.
If you have no ability to remain in the United States, you should seriously consider requesting voluntary departure (VD). The advantage of voluntary departure is that you will not have a removal order against you. This is important if you ever hope to return to the United States. If you are ordered removed, you will be barred from returning to the United States for a number of years. With voluntary departure, you may be able to return much sooner. If you have been in the United States illegally for more than 180 days, however, voluntary departure may not help you re-enter the United States (see the next section “Unlawful Presence”).
A voluntary departure removal order is much harder to reopen than a regular removal order. Therefore, you should carefully consider whether it is better take voluntary departure or an order of deportation. This is particularly true if you believe that you may become eligible for some form of relief, such as adjustment of status, at a later date and might seek to reopen your case.
If you overstay your visa or have entered the United States without inspection since April 1, 1997, you may begin to accrue “unlawful presence.” Once you have accrued 180 days of unlawful presence, you will be subject to a three year bar to admission from the U.S. If you accrue one year of unlawful presence you will be subject to a ten year bar to admission. This means that if you leave the United States and then attempt to reenter lawfully, you will not be allowed to do so for three or ten years. This can be a problem if you want to adjust your status to become a lawful permanent resident within the United States. Note that unlawful presence does not begin to accrue until after you turn 18 years old.
Appeals to the Board of Immigration Appeals
The Board of Immigration Appeals (BIA) reviews the decisions made by the Immigration Judge. The BIA is located in Virginia and almost all of the proceedings before it are conducted on paper. The BIA has very strict rules about how to file and prepare an appeal. Failure to follow these rules may result in your appeal being dismissed.
Filing Deadlines/Extensions: Both you and the government have the right to appeal the decisions of the immigration judge. To appeal, you must file a Notice of Appeal with the BIA. The notice must be received by the BIA within 30 days of the judge’s decision.
Motions to Reopen or Reconsider
Under certain circumstances you may ask the immigration judge or the BIA to review your case again. The motion must be filed with the court that last decided your case. A motion to reconsider asks the court to reconsider the decision in light of new case law or changes in the law.
A Motion to Reopen asks the court to reconsider in light of new facts or new evidence. If you were ordered deported in your absence, you may file such a motion with the immigration judge who ordered you deported.
Basis for the Motion: The grounds upon which a motion to reopen may be granted are:
- New Facts or Evidence: You will need to show why this new evidence was previously unavailable to you and could not have been presented to the court earlier;
- Circumstances Have Changed in Your Country Which Make it Unsafe for You to Return: You will need to explain what has changed and why it is unsafe for you to return to your country at this time;
- Lack of Notice: If you were did not appear in court because you did not receive proper notice the court mat reopen your case. You will nee to explain why you did not get notice;
- Ineffective Assistance of Counsel: The court may not consider a claim of ineffective assistance of counsel unless you also file a formal complaint against your former attorney with the bar association in the state where your lawyer practices. Each state has different requirements on how to file a complaint.
Federal Court Review
The rules regarding review in federal courts is very complicated. You should not file anything with a federal court unless you have consulted an attorney.
Petitions For Review To The Federal Appeals Court: Direct appeals to federal courts in cases involving removal due to criminal convictions have largely but not totally been eliminated. You may still file a Petition for Review if your claim is that your criminal conviction is not a removable offense or that the government did not prove your alienage. If you were ordered removed before October 30, 1996, you may still be able to file a petition for review to the Federal Circuit Court with jurisdiction over your case. If your case concerned asylum, withholding or the Convention Against Torture, you must file a petition for review with the Federal Circuit Court in the judicial district where you immigration court decision was made. Your Petition for Review must be filed within 30 days of the BIA decision you are appealing.
Habeas Corpus Petitions in Federal District Court: You can file for a writ of Habeas Corpus in federal district court asking the judge to reverse the immigration judge’s legal decisions or to release you from custody. Habeas Corpus relief is available to challenge removal orders based on criminal convictions.
Not Available for Discretionary Decisions: The district court can only issue a writ of habeas corpus in cases that raise questions of law. For example, you may challenge a decision by the immigration judge that you were not eligible to apply for relief but cannot seek a writ on the grounds that the immigration judge abused her discretion when she held that you did not deserve cancellation of removal.
Exhaustion of Administrative Remedies: A federal district court will generally require that you go through the entire administrative process in your case before raising your claim in a habeas corpus proceeding. You must show that your case was reviewed on appeal by the BIA and that you raised the specific issues contained in your habeas petition before the immigration judge and BIA.
Jurisdiction: Your habeas petition must be filed with the district court that has jurisdiction over your custodian or the person with control over you. The issue of who is the proper custodian in an immigration case is not settled. Some courts have held that the only custodian is the warden of the jail where you are held. Other courts have held that the Secretary of the Department of Homeland Security is the custodian and that the habeas petition may be filed in the district court for the district in which your immigration case was decided with a proper court for filing a habeas petition.
Post-Order Custody & Release from Indefinite Detention
Once you are ordered removed by the immigration judge and there are no more appeals or other challenges to your removal, the government has a limited period of time to physically remove you to your country of removal. The actual removal can take anywhere between a couple of days and several months. As a general rule, the government must remove you within six months. If DHS fails to do so, you may be released on parole. What this means is that you are allowed to go free, but you will need to report periodically to DHS.
90 Day Custody Review: If after 90 days from the date of your order you are still in DHS custody, your Deportation Officer (DO) is required to perform a custody review to determine whether there is any chance that DHS will be able to remove you from the United States. You should receive a notice of this review. If you do not receive a notice more than 90 days your removal order becomes final, you should write to the DO and request a “90 day custody review.” The DO will also give you instructions as to various materials, such as passports, birth certificates, and other identity documents that you will need to provide him or her. If the DO determines that it is unlikely that DHS will be able to remove you in a reasonable period of time, DHS should release you. As a practical matter, however, few people are released after 90 days.
180 Day Custody Review: After 180 days, the Detention Unit at DHS in Washington, D.C. will conduct a review of your case to determine whether there is a reasonable possibility that you will be removed in the near future. If you do not receive notice of this review after you have been detained six months, you should request a review.
Bars to Reentry
Once a person is removed, they are barred from returning to the United States for a period of time, depending on the basis for removal.
- Ordered removed on inadmissibility grounds (other than a controlled substance offense) – 5 years
- Ordered removed on deportation grounds (other than an aggravated felony) – 10 years
- Excluded or deported under old law – 10 years
- Two orders of removal – 20 years
- Failure to attend removal proceedings – 5 years
- Ordered removed for an Aggravated Felony or controlled substance offense – permanent
Certain kinds of waivers are available to allow certain kinds of re-entry despite these bars.
If you illegally re-enter the United States after having been ordered removed and you are re- detained, you may be subject to criminal prosecution and prison for as much as twenty years depending on the basis of the original removal order.