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


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

Immigration Enforcement in the Criminal Justice
System________________________What Every
Criminal Defense Attorney Needs to Know
Washington Defender AssociationsImmigration
  • Ann Benson, Immigration Resource Attorney
  • 360-385-2538
  • Jonthan Moore, Immigration Specialist
  • Immigration Specialist
  • 206-623-4321
  • WDAs Website

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

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

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

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

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

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

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
  • Regardless of length of time in US or other
  • Regardless of age (minor children deported)

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

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

Obtaining lawful immigration status
  • 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
  • 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

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

Immigration StatusReview Questions 1 and 2
  • 1. Identify explain two types of immigration
  • 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?

Immigration StatusReview Questions 3 and 4
  • Benjamin comes to the U.S. on student visa but
    drops out of school. What is his immigration
  • 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

Section II
  • Components of the Immigration System
  • The Players

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

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

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

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
  • Responsible for facilitating legal admission (or
    refusal of admission) at the ports of entry to US
  • 2009 Budget request 11 Billion

Citizenship Immigration Services - CIS
  • Responsible for processing applications for
    immigration benefits such as greencards,
    citizenship, asylum
  • Denial of application referral to ICE for
  • 2009 budget request 2.7 billion

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

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

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

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

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

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?

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?

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

Deportation Removal Procedures
  • Civil proceedings
  • Unlawful presence in U.S. not a crime civil
  • 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

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)

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

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
  • If USA requests and judge chooses
  • Court can consider applications for relief

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

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.

Removal Proceedings Before Immig. Judge 8 USC
  • 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

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

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

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

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
  • WA state ranks 5th in country for 1326
  • Severe sentence enhancements when crim history

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

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

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
  • Private contracting facility not operated by
  • Documentation of significant human rights
  • ICE routinely transfers noncitizens to distant,
    remote locations

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?

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

Is the Criminal Justice system compelled to
enforce immigration laws?
  • No federal law requires state and local officials
    to affirmatively enforce federal immigration
  • There is no duty under federal law for state or
    local law enforcement officials to report

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
  • - 287(g) Agreements

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

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.

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

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.

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

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.

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.

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

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

WA Law Immigration Enforcement
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

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

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.

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.

Immigration Detainers8 USC 1226 1357 8 CFR
  • 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

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.

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

What are Detainers or Holds?
  • Detainers or holds DO NOT mean that the person is
    actually deportable or the case is active with
  • - 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.

How are detainers issued?
  • Telephonically to agency holding the noncitizen
  • Filing Form I-247 with the jail

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

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.

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

What does having a detainer mean for a
  • 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.

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.

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

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

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

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

Defense Strategies Re Detainers
  • It is critical to determine whether a detainer
    has been lodged against your client.

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.

Defense Strategies If There Is An Immigration
  • 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

Defense Strategies If There Is An Immigration
  • 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

Disclosure of Immigration Status
  • 5th Amendment protects noncitizens from being
    compelled to disclose immigration status
  • Alienage is element of illegal reentry
  • 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

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.
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