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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 (undocumented aliens) and of Lawful Permanent Residents who have become convicted of certain criminal offenses. 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 - recently, the United States has been experiencing major immigration raids of workplaces where hundreds of people are detained in a single operation. Since 2008, the numbers of deportations have been hitting record highs. In the federal fiscal year 2011, the U. S. deported 397,000 undocumented aliens, with emphasis on individuals with criminal records. Accordingly, non-citizens who are subject to deportation are now more likely to be arrested and detained by law enforcement authorities, including state and local police who may or not have actual authority to enforce immigration law. 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. This is because an immigration removal proceeding is considered to be a civil administrative type action. 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 & Motion for Redetermination 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. When a Motion for Redetermination of Bond is filed, 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. Under the Constitution, due process 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 adequately 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 preliminary or temporary 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 while a motion or appeal is pending. 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, a practice that has been subject of comment by at least one Court of Appeals. 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 focusing on the temporary nature of the motion for stay which has clarified some of the uncertainty about the nature of the motion, especially pertaining to differences within the federal circuits and increasing its availability in the U.S. Courts of Appeals. Cancellation of Removal Cancellation of removal is previously known as suspension of deportation. The current law of cancellation of removal is different for Lawful Permanent Residents (LPRs) and for all other aliens. LAWFUL PERMANENT RESIDENTS Cancellation of Removal for LPRs is governed by the Immigration and Nationality Act Section 240A(a), which affords cancellation to any LPR who can prove, before an U. S. Immigrattion Judge, the fulfillment of the following conditions: A. Has been an LPR for not less than five years; and B. Has resided in the United States for not less than seven years in any status; and C. Has not been convicted of an aggravated felony. An LPR usually is placed into removal proceeding by the serving of a Notice to Appear (NTA) after conviction of a crime, usually a state criminal code. It must be noted that conviction of an "aggravated felony" as defined under federal immigration law and further interpreted by the Board of Immigration Appeals and the U. S. Courts of Appeals, would preclude this form of relief. The "stop-time" rule at Section 240A(d) effectively stops an LPR from accumulating time towards the above seven years time requirement once the LPR is served with a Notice to Appear or when they have committed a crime that makes them deportable and/or inadmissable. Cancellation of removal for LPRs does not require a showing of any particular level of hardship for either the LOR or his or her family. However, the Immigration Judge will balance the equities when deciding whether to grant or deny cancellation to an LPR. An LPR who is convicted of a less serious crime may have the option of applying to re-adjust status. Due to the complexity of the law of cancellation of removal and the applicable case decisions, an LPR who believes that he or she is qualified to apply for cancellation of removal is well advised to retain legal counsel who is proficient in this area of immigration law. ALL OTHER ALIENS All other alien persons with under removal proceedings may be eligible to have removal cancelled under Section 240A(b) of the Immigration and Nationality Act (INA). To qualify for this benefit, a person must establish in a hearing before an Immigration Judge that: A. 1. Prior to the service of the Notice to Appear, the person has maintained continuous physical presence in the United States for ten (10) years or more, and has been a person of good moral character as defined in section 101(f) of the INA during such period; 2. The person has not been convicted of an offense covered under sections 212(a)(2), 237(a)(2), or 237(a)(3) of the INA; and 3. Removal would result in exceptional and extremely unusual hardship to that person's United States citizen or lawful permanent resident spouse, parent, or child, and the person is deserving of a favorable exercise of discretion on his or her application, OR B. 1. The person has been battered or subjected to extreme cruelty in the United States by his or her United States citizen or lawful permanent resident spouse or parent, or the person is the parent of a child of a United States citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or lawful permanent resident parent; 2. Prior to the service of the Notice to Appear, the person has maintained continuous physical presence in the United States for three (3) years or more and has been a person of good moral character as defined in section 101(f) of the INA during such period; 3. The person is not inadmissible under sections 212(a)(2) or 212(a)(3) of the INA, and is not deportable under section 237(a)(1)(G) or sections 237(a)(2)-(4) of the INA, and has not been convicted of an aggravated felony as defined under the INA; 4. a. Removal would result in extreme hardship to the person or person's child who is the child of a United States citizen or lawful permanent resident; or b. The person is a child whose removal would result in extreme hardship to the person or that person's parent; and 5. The person is deserving of a favorable exercise of discretion on his or her application. Please note that if a person has served on active duty in the Armed Forces of the United States for at least 24 months, that person does not have to meet the requirements of continuous physical presence in the United States. That person, however, must have been in the United States at the time of joining the Armed Forces. If the person is no longer in the Armed Forces, separation must be under honorable conditions. An alien is not eligible for cancellation of removal under Section 240A(b)(1) of the INA if that person: A. Entered the United States as a crewman after June 30, 1964; B. Were admitted to the United States as, or later became, a non-immigrant exchange alien as defined in section 101(a)(15)(J) of the INA in order to receive graduate medical education or training, regardless of whether the person was subject to or has fulfilled the 2-year foreign residence requirement of section 212(e) of the INA; C. Were admitted to the United States as, or later became, a non-immigrant exchange alien as defined in section 101(a)(15)(J) of the INA, other than to receive graduate medical education or training, and are subject to the 2-year foreign residence requirement of section 212(e) of the INA, but have neither fulfilled nor obtained a waiver of that requirement; D. Is an alien who is either inadmissible under section 212(a)(3) of the INA or deportable under section 237(a)(4) of the INA; E. Is an alien who ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion; or F. Is an alien who was previously granted relief under section 212(c) of the INA, or section 244(a) of the INA as such sections were in effect prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, whose removal has previously been cancelled under section 240A of the INA. Due to the complexity of the law of cancellation of removal and the quite high standard of eligibility, a person who believes he or she is qualified to apply for cancellation of removal is well advised to retain legal counsel who is proficient in this area of immigration law. 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. To reiterate, during the last decade, because of the operation of the detention facility at Guantanamo Bay, the U. S. Supreme Court through a series of landmark decisions has reaffirmed federal Habeas Corpus jurisdiction and the availability of the Great Writ to non-citizens. Ironically, Habeas Corpus in Latin means "You may have the body." Caveat /Disclaimer: U.S. immigration statutes, regulations and interpretations of these and other federal, state and local law are subject to change and timely, competent counsel from a qualified legal professional on current and applicable law to particular facts is indispensable. This website provides information of a general nature and such information cannot pertain to any specific set of facts, and the provision of information cannot create any attorney-client relationship. For any particular situation, the visitor should obtain counsel from a qualified legal professional. The publisher reserves the right to amend the contents of this website at any time and for any reason. This website is an ADVERTISEMENT. |
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