Immigration Enforcement in the Criminal Justice System ________________________What Every Criminal Defense Attorney Needs to Know

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Immigration Enforcement in the Criminal Justice
System________________________What Every
Criminal Defense Attorney Needs to Know
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Washington Defender AssociationsImmigration
Project

• Ann Benson, Immigration Resource Attorney
• abenson_at_defensenet.org 360-385-2538
• Jonthan Moore, Immigration Specialist
• Immigration Specialist
• jonathan_at_defensenet.org 206-623-4321
• WDAs Website www.defensenet.org

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Overview of Presentation

• Sec. I Immigration Status
• Sec. II Relevant Components of the
  Immigration System
• Sec. III Deportation Removal Procedures
• Sec. IV Immigration Enforcement in the CJS

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• Section I
• Immigration Status
• What is it? How to get it?
• ____________________________________

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Immigration Basics Immigrant Demographics

• Over 30 million immigrants in U.S
• 33 increase over 1990
• 20 of U.S. population are immigrants or children
  of immigrants

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Immigration Basics- Washington StateImmigrant
Demographics

• 12.5 of WA population is foreign born
• Washington ranks 10th in U.S. for total immigrant
  population
• 39 from Asia 30 from Latin America
• For more info The Migration Policy Institute
  www.migrationpolicy.org

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Immigration Status

• Refers to persons classification under US
  immigration laws 8 USC
• Most significant factor in determining
  consequences, options and rights
• Which immigration laws subject to
• Amount of due process

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U.S. Citizenship

• Three ways to acquire Citizenship
• Birth in the US
• Birth to US citizen parent(s)
• Naturaliztion (apply to become a USC)
• US citizens cannot be deported

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Immigration Status

• Everyone else is a noncitizen (a.k.a. alien)
• Always subject to deportation if in violation of
  immigration laws
• Even for minor criminal violations (e.g. simple
  misd.)
• Regardless of length of time in US or other
  equities
• Regardless of age (minor children deported)

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Immigration Status

• Lawful Permanent Resident LPR/Greencard holder
• Entitled to live work indefinitely in US
• Can apply for citizenship after 5 years (3 if
  married to USC)
• Refugee/Asylee
• Granted safe haven due to persecution
• Can live and work legally in US
• Can apply to be LPR after one year

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Immigration Status

• Nonimmigrant Visa Holder
• Temporary visa
• Issued for specific purpose (e.g. student,
  tourist)
• Subject to deportation if terms violated
• Undocumented Persons
• Nonimmigrant visa holders who violate terms
• Persons who illegally enter US

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Obtaining lawful immigration status

• FOUR BASIC AVENUES
• 1. Asylum/Refugee Status
• Prove past or future persecution
• 2. Employment
• Employer makes petition for employee
• 3. Family
• LPR/USC Spouse or Parent petitions for family
  member
• 4. Relief From Removal
• Immigration Judge has certain options in formal
  removal proceedings to allow noncitizens to
  remain lawfully in US (e.g. cancellation of
  removal)

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Immigration Basics ProceduresObtaining lawful
immigration status

• Congress expected to undertake Comprehensive
  Immigration Reform (CIR) in 2009 or 2010.
• CIR is expected to include some avenue for the 12
  million undocumented people in the U.S. to apply
  for lawful status.
• Criminal history/convictions will impact
  eligibility

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Immigration StatusReview Questions 1 and 2

• 1. Identify explain two types of immigration
  status.
• 2.True or False Sergi married a U.S. citizen
  and got his greencard 15 years ago. If he is
  convicted of delivery of cocaine (a controlled
  substance violation under Immigration law) he
  will face deportation?

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Immigration StatusReview Questions 3 and 4

• Benjamin comes to the U.S. on student visa but
  drops out of school. What is his immigration
  status?
• 4. Luen was born in Cambodia and came to the
  U.S as a refugee when he was five. What are the
  possibilities for his current immigration status?
  What additional information would you want to
  know?

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Section II

• Components of the Immigration System
• The Players

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Immigration Law is Federal Law

• Same laws apply throughout the US
• Different Circuit Court interpretations
• Congress makes the laws
• Most immigration laws at Title 8 U.S.C
• The Board of Immigration Appeals and the Federal
  Circuit Courts interpret the laws

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Imigration Basics The Players

• Homeland Security Act abolished INS
• Immigration functions split between
• Department of Homeland Security - DHS
• Department of Justice - DOJ
• Department of State - DOS

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DHS Immigration-Related Divisions

• Customs Border Protection CBP
• Immigration Customs Enforcement ICE
• Citizenship Immigration Services - CIS

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Customs Border Protection- CBP

• Responsible for enforcement at the borders and
  points of entry
• Facilitates removal of apprehended noncitizens
• Makes referrals to USAs for illegal reentry
  prosecution
• Responsible for facilitating legal admission (or
  refusal of admission) at the ports of entry to US
• 2009 Budget request 11 Billion

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Citizenship Immigration Services - CIS

• Responsible for processing applications for
  immigration benefits such as greencards,
  citizenship, asylum
• Denial of application referral to ICE for
  deportation/removal
• 2009 budget request 2.7 billion

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Immigration Customs Enforcement- ICE

• Responsible for enforcement of immigration laws
  within the U.S. (other than the border)
• Determines who is eligible for a hearing before
  an immigration judge
• Issues administrative removal order for those who
  are not
• Initiates formal removal proceedings for those
  who are by issuance of a Notice to Appear
• Effectuates deportation/removal orders
• Oversees detention of noncitizens
• Refers case to USA for illegal reentry
  prosecution

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Immigration Customs Enforcement- ICE

• Apprehension of Noncitizens
• Local, state federal Jails
• Denied applications for benefits
• Work place home raids
• ICE has more armed agents than any other federal
  agency, including FBI, DEA and federal marshalls

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Department of Justice

• Executive Office For Immigration Review
• Immigration Courts
• Conduct removal proceedings
• Board of Immigration Appeals
• Reviews decisions from Immigration Courts
• Office of Immigration Litigation
• Represents government in federal circuit court
  appeals and US Supreme Court appeals

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Federal Circuit Courts

• Jurisdiction to review decisions of the BIA
• Significant restrictions on jurisdiction
• No jurisdiction re many discretionary decisions
• No Jurisdiction where noncitizen is facing
  removal for criminal conviction
• However, court has power to determine if
  conviction is a deportable/removable offense
• Congress trying to restrict jurisdiction further

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Department of State - DOS

• US consulates abroad are involved in processing,
  adjudicating and issuing many applications for
  both immigrant and non-immigrant visas.
• Note Individual decisions from consulates are
  immune from judicial review

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Review Question 1

• Boris is an LPR who wants to apply for
  citizenship. Which DHS agency would he be
  dealing with?
• Boris takes a trip to Canada. When he presents
  himself at the border to re-enter the U.S. which
  DHS agency will he be dealing with?

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Review Question 2

• Boris is arrested and charged with assault 4th
  degree DV. He is in jail for 3 days. He
  pleads guilty and is sentenced to 365 days/362
  suspended. Upon release, he is taken into DHS
  custody and put in removal proceedings because of
  his conviction. Which DHS agency is responsible
  for these functions?

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Section III

• Deportation Removal Procedures
• What Your Client Will Face When Taken Into
  Immigration Custody

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Deportation Removal Procedures

• Civil proceedings
• Unlawful presence in U.S. not a crime civil
  violation
• Over 1 million people returned in 2007
• Approx. 100,000 due to criminal convictions
• Mandatory detention for criminal aliens
• No right to appointed counsel
• 85 of noncitizens unrepresented

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Deportation Removal Procedures

• 1. Expedited Removal
• 2. Federal Judicial Orders of Removal
• 3. Administrative Voluntary Departure
• 3. Stipulated Orders of Removal
• 4. Removal Proceedings Before An IJ
• 5. Reinstatement of Removal
• 6. Illegal Reentry Prosecution (criminal)

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Expedited Removal Procedures 8 USC 1225(b) or
1228(b)

• Who is subject to it?
• Persons w/o proper documents at border
• Persons apprehended w/in 100 miles of the border
  w/o proper documents in US for less than 14
  days
• Non-LPRs convicted of aggravated felonies (AF)
• LPRs MUST get hearing before immig judge
• What is it?
• ICE issues order
• No meaningful judicial review
• Bar to readmission 5 years or permanent for AF

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Judicial Orders of Deportation8 USC 1228(c)

• Defendants can stipulate to removal as part of
  plea agreement in federal criminal prosecution
• or
• Federal District Judge can conduct removal
  proceedings in context of federal criminal
  sentencing
• If USA requests and judge chooses
• Court can consider applications for relief

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Admininstrative Voluntary Departure8 USC 1229(c)

• Granted by ICE in lieu of formal removal
  proceedings before Immigration Judge
• Given up to 120 days to leave voluntarily
• no deport/removal order
• Ineligible if significant criminal history
• Failure to comply bars future immigration
  benefits

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Stipulated Removal Orders8 USC 1229a(d)

• Noncitizen waives right to hearing before
  Immigration Judge and agrees to a stipulated
  order of removal (SOR) signed by the IJ.
• 535 increase in SORs from 2004-2008
• Vast majority are by noncitizens in immigration
  detention w/o legal representation.
• Forecloses all future avenues to obtain status
• Serves as basis for illegal reentry prosecutions.

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Removal Proceedings Before Immig. Judge 8 USC
1229(a)

• Immigration Judge has power to
• Grant release from detention in certain cases
• EXCEPTION Mandatory detention for duration of
  removal proceedings where noncitizen facing
  removal for criminal convictions
• If deportable as charged and no relief granted,
  issues order of removal.
• Limited Appeal to Board of Immigration Appeals
  Federal Circuit Courts

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Removal Proceedings Before Immigration Judge 8
USC 1229(a)contd

• IJ has power to grant applications for relief
  from removal to noncitizens who meet statutory
  qualifications. Examples
• Persecution torture claims asylum, CAT
• LPR Cancellation LPRs w/7 years residency who
  are not aggravated felons
• Undocumented Cancellation 10 years, no crim
  history, exceptional hardship
• Family based petitions for LPR status

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Removal Proceedings Before Immigration Judge 8
USC 1229(a)contd

• Institutional Hearing Program
• IJs conduct removal hearings for inmates
  incarcerated in state facilities
• Hearings can be telephonic
• Objective is to have final order of deportation
  (or case adjudicated) prior to completion of
  sentence.

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Reinstatement of Prior Removal 8 USC 1231(a)(5)

• ICE reinstates prior removal/deportation order
  for persons determined to have unlawfully
  re-entered after previous deportation/removal.
• Order entered administratively by ICE/CBP
• No meaningful judicial review

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Federal Criminal Prosecution for Illegal Re-entry
after Deportation- 8 USC 1326

• Noncitizen re-enters after deportation/removal
  order by immigration judge or ICE
• Most prosecuted federal crime (8 USC 1325 1326)
• Latino males biggest target group
• 51 of all federal filings involve immigration
  violations
• WA state ranks 5th in country for 1326
  prosecutions
• Severe sentence enhancements when crim history

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Immigration Detention by DHS

• With as many as 1.6 million people in some stage
  of immigration proceedings, ICE holds more
  inmates a night than the Clarion Hotels have
  guests, operates nearly as many vehicles as
  Greyhound has buses and flies more people each
  day then do many small US airlines. -
  Washington Post 2/2/07

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Immigration Detention by DHS

• In 2006 DHS ended catch release
• Quadrupled of detained noncitizens
• DHS detains over 27,500 noncitizens on any given
  day
• No statute or regulations governing
  conditions/standards of confinement
• Extensive documentation of human rights
  violations
• No statutes/regulations governing conditions of
  confinement
• Difficult to fight deportation from immigration
  detention
• Detention mandatory for most convictions

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Immigration Detention

• WA noncitizens (adults) are detained at the
  Northwest Detention Center in Tacoma.
• 1,000 beds - Always at capacity
• Proposed expansion of 500 additional beds
  underway
• Private contracting facility not operated by
  DHS/ICE
• Documentation of significant human rights
  violations
• ICE routinely transfers noncitizens to distant,
  remote locations

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Removal Procedures Review Questions

• Diego was convicted of possession of C/S, a
  deportable offense. What may happen to him if
• He is an LPR?
• He is undocumented?
• Was deported 2 years ago and came back?
• What if his conviction was for delivery, an
  aggravated felony?

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Section IV.

• Immigration Enforcement in the
• Criminal Justice System Strategies for
  Effectively Representing Your
• Noncitizen Client

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Is the Criminal Justice system compelled to
enforce immigration laws?

• No federal law requires state and local officials
  to affirmatively enforce federal immigration
  laws.
• There is no duty under federal law for state or
  local law enforcement officials to report
  noncitizens.

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Is the Criminal Justice system compelled to
enforce immigration laws?

• There is disagreement whether or not local and
  state law enforcement have the inherent
  authority to enforce civil immigration laws.
• However, federal law contemplates that local
  cannot enforce immigration laws, unless they have
  a formal agreement and training from DHS to do
  so.
• - 287(g) Agreements

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Is the Criminal justice system compelled to
enforce immigration laws?

• Local and state law enforcement may cooperate
  with Immigration and Customs Enforcement (ICE) in
  the enforcement of immigration laws if it chooses
  so long as it does not conflict with state or
  local laws and/or policies

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Summary of Federal Law on Imm Enforcement

• The Illegal Immigration Reform and Immigrant
  Responsibility Act of 1996 (IIRIRA) main
  federal legislation that addresses ability of
  state and local agencies to investigate suspected
  civil violations of immigration law.

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IIRIRA Provisions

• Responding to mass influx of immigrants in
  urgent situations (rare)
• 287(g) Programs MOUs between ICE and law
  enforcement to aid in enforcement of imm laws
  after receiving training
• Prohibits dont tell policies, but not dont ask
  policies

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287(g) Agreements

• IIRIRA allows local and state police and sheriff
  departments to enter into agreements, titled
  Memoranda of Understanding (MOUs), with the
  Department of Justice to aid in the enforcement
  of immigration laws (including issuance of
  deportation/removal orders) after they have
  received adequate training.

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287(g) Agreements

• Only those officers who undergo the training have
  the authority to assist in immigration
  enforcement and are supervised by ICE.
• The MOUs are very specific as to what immigration
  laws local officers can and cannot enforce.
• No 287(g) Agreements in WA
• But significant cooperation by jails/police

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Current Status of 287(g) Agreements

• As of July 2008, there were over 765 officers in
  47 state- and local-level law enforcement
  agencies participating in the 287(g) program.
• - In 2006 there were only 8 agencies with MOUs.
• Another 90 law enforcement agencies have pending
  287(g) requests awaiting approval by the DHS, and
  these requests are likely to be approved.

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Current Status of 287(g) Agreements

• Many of the agencies participating have 287(g)
  trained officers solely in their jail system and
  fewer use it only outside of the jail system or
  both inside and outside the jail system.
• The trained officers in the jail system obtain
  incoming prisoners immigration status during the
  intake process and promptly report any suspected
  undocumented immigrants to ICE.

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Dont Tell v. Dont Ask Policies

• IIRIRA prohibits policies that restrict
  information sharing re immigration status
  between ICE and local and state law enforcement
• It does not, however, require that they collect
  immigration information
• - If policy is not to ask, then there is
  nothing to share

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NCIC Database Noncitizens

• In 2001 Justice Department began entering names
  of certain classes of noncitizens into the
  National Crime Information Center NCICs data
  base.
• Recent study revealed that 42 of NCIC
  immigration hits in response to police inquiries
  were false positives.

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WA Law Immigration Enforcement
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RCW 9.94A.685Conditional Release for Deportation

• Allows for the release of defendant prior to
  completion of sentence where
• Conviction for nonviolent offense
• Final Order of deportation (removal)
• Court includes as condition of sentence
• If both prosecutor and DOC consent

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RCW 9.94A.685Conditional Release for Deportation

• Enacted over 15 years ago
• Virtually no implementation due to lack of
  prosecutorial consent INS/ICE compliance
• Current amendments pending to eliminate
  prosecutor/judicial consent

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SMC 4.18.015 Inquiries Into Immigration Status

• A. Notwithstanding Seattle Municipal Code Section
  4.18.010 , unless otherwise required by law or by
  court order, no Seattle City officer or employee
  shall inquire into the immigration status of any
  person, or engage in activities designed to
  ascertain the immigration status of any person.
• B. Seattle Police officers are exempt from the
  limitations imposed by subsection A, above, with
  respect to a person whom the officer has
  reasonable suspicion to believe (1) has
  previously been deported from the United States
  (2) is again present in the United States and
  (3) is committing or has committed a felony
  criminal-law violation.

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RCW 10.70.140

• Requires jail/prison officials to determine
  nationality of all detainees and notify
  immigration authorities whenever a noncitizen
  person IS COMMITTED to their facility.
• Most jails use this as basis for determining
  citizenship status (or place of birth) at time of
  booking into jail facility.
• Jails provide this info to ICE officials who use
  it as basis to interview detainees and place
  immigration detainers on them.

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Immigration Detainers8 USC 1226 1357 8 CFR
287.7

• 8 C.F.R. 287.7(d) provides
• Upon a determination by the immigration
  officials to issue a detainer for an alien not
  otherwise detained by a criminal justice agency,
  such agency shall maintain custody of the alien
  for a period of not to exceed 48 hours, excluding
  Saturday, Sundays, and federal holidays in
  order to permit assumption of custody by the
  Service.

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Immigration Detainers

• Regulation is ultra vires because authorizing
  statute provides
• Request for issuance of detainer must first come
  from local law enforcement official, not
  initiated by ICE
• Authority for issuing detainers is strictly
  limited to aliens arrested for controlled
  substance offenses.

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What are Detainers or Holds?

• Request that criminal justice agency, such as
  county jail, inform DHS of impending release of
  immigrant, in order for DHS to arrange to assume
  custody in order to deport the person
• - Authorized under 8 USC 1357(d) and
• 8 CFR 287.7

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What are Detainers or Holds?

• Detainers or holds DO NOT mean that the person is
  actually deportable or the case is active with
  ICE.
• - ICE has not done any investigation it
  places holds on anyone it believes to be in
  violation of immigration laws
• In many instances, the person is not subject to
  deportation or has relief in immigration court.

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How are detainers issued?

• Telephonically to agency holding the noncitizen
• Filing Form I-247 with the jail

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Detainer Form I-247

• A detainer can serve different purposes
• - Request to Detain
• - Notice of Investigation
• - or both
• If the detainer is only a notice of investigation
  it does not require that the agency with custody
  of the noncitizen continue to hold him/her

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Criminal Records to ICE

• Under 8 CFR 287.7(c) the agency requesting the
  detainer must provide ICE with documentary
  records and other available information that
  reasonably relates to the minors legal status in
  the U.S.

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30 Day Notice to ICE Before Release

• I-247 has a box that indicates that agency
  maintaining custody should notify ICE 30 days in
  advance of release
• This is not mandated by any law or regulation
• However, ICE may request agency to do so and it
  is in the discretion of agency holding minor to
  decide whether to comply

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What does having a detainer mean for a
non-citizen?

• No Release From Custody
• If granted release by criminal court, ICE will
  assume custody
• Once in ICE custody, deportation/removal
  proceedings initiated
• ICE not likely to return minor to juvenile court
  even in pending proceedings, and thus may result
  in Failure to Appear.

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How long can non-citizen be held under
immigration detainer?

• Agency can maintain custody for a period not to
  exceed 48 hours, excluding Saturdays, Sundays,
  and holidays in order to permit assumption of
  custody by the Department.

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When does the 48 hours begin?

• ICE takes the position that the 48 starts when
  the jail contacts ICE. This may happen in the
  following situations
• - Case is still pending but court orders release
• - Case is dismissed and the person is going to
  be released
• - Case is adjudicated and disposition is entered
  and person will be released

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Solutions Violations of 48 Hour Rule

• Habeas corpus
• False imprisonment
• Issue generally, by the time either is filed,
  ICE comes to pick up the person

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Lifting or Canceling Detainers

• ICE takes the position that only it has the
  authority to cancel or lift a detainer
• State Superior Court Judges do not have authority
  to cancel or lift a detainer
• If you want a detainer to be lifted, you have to
  negotiate directly with ICE

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Enforcement Where There is No ICE Hold

• If noncitizen is ordered release and there is no
  ICE hold, there is no legal basis for detention
  staff to continue to hold the juvenile to contact
  ICE and wait for them to come pick up the juvenile

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Defense Strategies Re Detainers

• STEP ONE
• It is critical to determine whether a detainer
  has been lodged against your client.

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Defense Strategies If No Immigration Detainer

• Get release from jail ASAP (either O/R or by
  posting bail)
• Avoid sentence to/time in jail
• Avoid disclosure of nationality, immigration
  status or POB
• Avoid final conviction file direct appeal
• In 9th Cir., ICE cannot use conviction as basis
  for deportation unless it is final.

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Defense Strategies If There Is An Immigration
Detainer

• D will go directly from jail into ICE custody
• Likely to forfeit criminal bond if posted
• Immigration custody vs. staying in jail
• ICE unlikely to produce D for criminal proceeding
• D may need time to prepare for immigration court
• Is D eligible for immigration relief (lawful
  status)?

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Defense Strategies If There Is An Immigration
Detainer

• Challenge violations of 48 rule
• Jails routinely hold noncitizens longer than the
  permitted 48 hours
• Inform jail of 8 CFR 287.7s 48 hr. limit
• File state habeas petition for release
• WDA drafting model pleadings

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Disclosure of Immigration Status

• 5th Amendment protects noncitizens from being
  compelled to disclose immigration status
• Alienage is element of illegal reentry
  prosecution
• Recent US Supreme Court caselaw held that law
  enforcement inquiry into detainees immigration
  status did not violate Fourth Amendment since it
  did not prolong otherwise lawful detention.
• RCW 10.40.200s advisal statute mandates no
  compelled disclosure when entering plea

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Advice to Defendants

• Do not say anything do not disclose information
  regarding place of birth, nationality,
  immigration status
• If compelled to say anything, only say I want to
  talk to my lawyer.
• Dont sign anything
• Dont lie
• Consult with competent immigration counsel.