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IMMIGRATION DETENTION & REMOVAL PROCEEDINGS

Background

Since September 11, 2001, the United States Immigration & Customs Enforcement (ICE) has dramatically
stepped up the removal (i.e. deportation) of aliens who are unlawfully present and of lawful permanent
residents who have become convicted of certain crimes. For example, in 1995, approximately 5,500
people were detained on any given day and some 33,000 were deported. In 2003, over 20,000 people
were detained on any given day and over 77,000 were deported. The numbers have increased since
that time - currently, the United States is experiencing major immigration raids of workplaces where
hundreds of people are detained in a single operation. Accordingly, non-citizens who are subject to
deportation are now more likely to be arrested and detained by law enforcement authorities.

The types and numbers of crimes which make non-citizens deportable have also been enlarged. For
example, conviction for domestic violence is a ground for deportation of a lawful permanent resident
(Green Card holder). On the other hand, an individual may be detained for the simple reason that he or
she has overstayed the departure date granted after lawful temporary entry with a visa. Yet another
reason a person is detained is that he or she is facing a Final Order of Removal/Deportation (where all
avenues of appeal and review have been exhausted and the issuance of a "bag and baggage" letter).

What To Do If A Person is Detained by U. S. Immigration and Customs Enforcement

An individual who has been detained by U. S. Immigration and Customs Enforcement (ICE) will almost
certainly be placed in removal (deportation) proceedings. While consequences to the non-citiizen who
has been detained are severe (including being jailed while awaiting a hearing in immigration court), that
person - unlike those charged with a crime - is not entitled to a court appointed attorney/public defender,
but he or she must retain counsel at own expense.

The timely retention of immigration counsel can make a difference for a detainee. Even though detained
by ICE, a non-citizen has the right to be visited by counsel at the place of detention and to have the
benefits of legal advice.   Even though detained by ICE, a non-citizen may have available to him or her
certain defenses and forms of relief from both detention and removal. For relief in the form of an Order
for Stay, please see the section of Motion for Stay below. Due to the complexities and tension that arise
during detention and removal, timely and competent immigration counsel from an attorney is invaluable.

Release from Custody (Posting of Bond)

Under the law, mandatory detention without the right to bond is required of individuals who have been
convicted of certain offenses and released from prison after October 8, 1998. Persons who were
convicted of a removable offense but not sentenced to time in jail may still be eligible for bond.   What
constitutes an offense requiring mandatory detention is a complex question and the law is constantly
developing in this area.   A person classified as an “arriving alien” is also placed under mandatory
detention without bond by the U. S. Customs and Border Protection (subject to parole into the United
States upon successful assertion of "credible fear" of persecution if returned to the country of origin).

Other persons who have been detained are eligible for bond. ICE will make an initial determination on
bond, Any person who continues to be detained may apply to the U. S. Immigration Court for a hearing to
redetermine bond. The law requires the Immigration Judge to consider a number of criteria, such as for
example, ties to the community, prior work history, flight risk and other relevant criteria for setting the
amount of bond. If bond is denied by the Immigration Judge, a detainee may appeal the decision to the
Board of Immigration Appeals.

In unusual circumstances, a petition for a Writ of Habeas Corpus may be still available from a United
States District Court. Congress has amended the immigration laws through the REAL ID Act of 2005 to
restrict or even attempt to completely eliminate habeas corpus for aliens, but the judiciary should be
approached to entertain habeas corpus on behalf of aliens who assert illegal detention in the custody of
the Federal Government under circumstances which justify this form of extraordinary relief. The law on
habeas corpus can be expected to be in constant flux as the Great Writ involves the constitutional
"checks and balances" to be secured by the separation of powers between the branches of American
government.

Finally, the United States Supreme Court has held that the Government may not indefinitely detain an
alien person with a Final Order of Removal/Deportation but who cannot be deported from the United
States because no country will accept him or her. Indefinite detention is a "serious constitutional threat"
under the Fifth Amendment guarantee of Due Process which is available to all "persons" within the United
States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent." Under the
U. S. Constitution, only "reasonable" detention is permitted. This means that after six months of
detention, and if deportation did not seem likely in the "reasonably foreseeable future," release on bond
must be accorded priority.

Proceedings Following Release From Detention

If a person is released from detention following the setting of bond by the Immigration Judge and the
posting of that bond, that person will be issued a Notice to Appear and must appear at a future date in
Immigration Court to explain why he or she should not be removed. This initial appearance is called a
Master Hearing and a case may be continued for a number of Master Hearings. Failure to appear in a
hearing will result in a removal order being issued in absentia.   Cases in which claims for relief have
been asserted will proceed to an Individual Hearing. At the Individual Hearing, evidence in support of the
claim for relief (e.g. asylum by reason of political persecution) must be presented to an Immigration
Judge. The law pertaining to the defenses against removal and the forms of relief that may be available
are complex. Again, the assistance of counsel is invaluable at this stage of immigration proceedings.

At the conclusion of the Individual Hearing, the Immigration Court will issue a decision either granting
relief or ordering removal. This decision can be appealed to the Board of Immigration Appeals for
review. A review decision from the Board can further be appealed as matter of right to a United States
Circuit Court of Appeals with jurisdiction. The United States Supreme Court has final discretionary review.

The Motion for Stay

Generally, a Motion for Stay is a request for injunctive relief, that is a resort to the equitable powers of a
tribunal to restrain or enjoin the execution of a prior judgment or decision. In the immigration context, a
Motion for Stay is a formal and specific request for a temporary halt of the effort by ICE to remove or
deport a non-citizen from the United States. When granted, the resulting Order for Stay will literally cause
the applicant to enjoy a temporary stay inside the country while other matters, usually an appeal from an
adverse decision, are being considered and finally decided. An Order for Stay may be granted by the
Immigration Court, the Board of Immigration Appeals, or by the federal judiciary, such as a U.S. Court of
Appeals, or a U.S. District Court.   Most Orders for Stay are not automatically issued with the filing of an
appeal, a motion to reopen, or a motion to reconsider. One exception is when a person appeals the
order of removal issued by an Immigration Court to the Board of Immigration Appeals for the first time. In
other proceedings, a Motion for Stay must be specifically filed with supporting argument and authority for
the issuance of an Order for Stay. Generally, the law concerning the stay of execution of judgment,
including when and where to file a Motion of Stay and the standards for the grant or denial of stay is one
of the more obscure areas of law, including immigration practice. The uncertainty in immigration cases is
exacerbated by legislation purporting to limit the jurisdiction of the courts, and as a practical matter, by
the haste of the enforcement agency to deport.   Circumstances will arise when a Motion for Stay of
removal/deportation must be filed on an emergency basis.   The United States Supreme Court has issued
a decision which has helped clarify some of the uncertainty, especially pertaining to differences within
the federal circuits.

Application for a Writ of Habeas Corpus

The writ of habeas corpus, also called "The Great Writ," can be traced to the common law of England.
Thought to already exist before the Magna Carta of 1215, this extraordinary writ was a guarantee of
individual freedom against arbitrary official action, in particular, detention or imprisonment without lawful
reason. Today, in the United States, such an application normally is filed in an appropriate United States
District Court. Indeed the Great Writ enjoys Constitutional stature for Article I , Section 9 of the United
States Constitution provides that "The privilege of the writ of habeas corpus shall not be suspended,
unless when in cases of rebellion or invasion, the pubic safety may require it." This is also known as the
Suspension Clause and because it is written into Article I, it is also understood that the Great Writ may
only be suspended by the United States Congress and not by the Executive. While the Suspension
Clause and the habeas corpus it protects may pertain only to detention by the Federal Government,
Congress has authorized the Federal judiciary the power to direct Writs of Habeas Corpus at any
government authority. When issued, it takes the form of a judicial order commanding the custodian of the
prisoner to bring forth the person out of detention and into court for the purpose of establishing the
reasons for his or her loss of liberty. The availability of habeas corpus has been reviewed in the context
of the War on Terror and corresponding restrictive legislation by Congress - presently, the United States
Supreme Court has upheld the availability of habeas corpus from the Federal judiciary.   Accordingly, and
because the Federal Courts are regularly open across the United States, the Great Writ can be expected
to remain available to an immigrant detainee who has been arrested inside the United States for the
purpose of challenging an unauthorized detention by immigration authorities.

Caveat /Disclaimer: U.S. immigration statutes, regulations and interpretations of same and federal, state and local law are subject to change and timely,
competent counsel from a qualified legal professional on current and applicable law is indispensable. The publisher reserves the right to amend the
contents of this website at any time and for any reason.