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Tuesday, June 4, 2013

PODR - ICE Detention with a Final Order of Removal

Front-line immigration law work (affectionately known as "in the trenches" law) usually involves taking crazy situations and attempting to find some nuance -- a subtle interpretation of an obscure memo or regulation -- to give an otherwise hopeless situation a glimmer of "possibility." One are ripe for such plucking is the post order environment. "Post Order" refers to the period after a removal order has been entered, but before a client has been transported to a holding camp, and then off to the country of deportation. Post Order Deportation Relief (PODR) are the tactics used to attempt to jam that process based on ICE not moving forward in a timely manner. PODR does not grant any benefit to your client, only prevents them from being vacuumed out the exit door prematurely.

There are four steps to PODR:
1. 30 Day automatic review by ICE
2. The 90 Day Letter
3. The 180 Day Letter
4. The habeas corpus filing

Governing regulations are Zadvydas v. Davis, 533 U.S. 678 (2001), 8 C.F.R. §241.4(d)(1) (30 day ICE Review with criteria), 8 C.F.R. § 241.4(h)(2) (90 day ICE Review), 8 C.F.R. § 241.13 (6 months review by ICE Headquarters) .

However, what happens when the alien does not cooperate with ICE in the deportation action? This usually involves refusing to provide a passport, refusing to get travel documents, or other indications of non-compliance with ICE requests found of the I-229a form. Watch for this when the client has a viable asylum claim after an order of removal has been entered. Refusal to cooperate is grounds for ICE to maintain a client in custody regardless of duration (8 C.F.R. § 241.4(g)(ii)). However, impossibility is a meaningful defense to a charge of non-cooperation. A detained alien cannot get a passport, and requesting travel documents to a country that "abused" the client is illogical. Verify also that the deportation country has a treaty with the United States to accept back their removed citizens.

We are currently arguing on behalf of a detained immigrant who has not cooperated with ICE. An example of the 180 day letter is below:


10 APR 2013

TO: Headquarters Post-Order Detention Unit, U.S. Department of Homeland Security Immigration and Customs Enforcement, 801 I Street, N.W., Suite 900, Washington, DC 20536

IN RE: 180 Day Detention Letter, Mr. Detained Alien, A# 123 12 3432

1. We request that ICE take the following information into consideration in reviewing Mr. Detained Alien's custody status. We believe that he qualifies for an order of supervision. He is presently under a final order of removal and has been in detention for more than 6 months immediately preceding the writing of this memorandum. MR. DETAINED ALIEN HAS COMMITTED NO CRIMES.

2. It is unlikely that he will be deported to Nigeria in the reasonably foreseeable future due to the failure of the Nigeria embassy to provide travel papers, and the lack of passport.

3. Mr. Detained Alien is not a danger to public safety. He is not a flight risk.

4. Mr. Detained Alien last entered the United States on March 8th, 2003. He was ordered removed on July 2nd, 2008. He has the following family members in the United States:
Freed Sister US Citizen Happy Island, New York
Freed Brother LPR Happy Island, New York

5. Nigeria will not accept Mr. Detained Alien's deportation because of his homosexual status. Mr. Detained Alien does not have a passport, and cannot obtain one in detention. Our attempts to work with the Nigerian embassy have failed; they have not responded to our requests for any travel documents or other information (May 2013).

6. Mr. Detained Alien has not signed any I-229(a) because he has repeatedly indicated that he will be killed, tortured or detained indefinitely if he is returned to Nigeria. He has repeatedly asked for an asylum hearing, and he has indicated absolute fear of any return. He has not hindered his counsel or family from seeking information from the Nigerian Embassy, however, as he is detained, he cannot do this himself. It is impossible for him to comply, pursuant INA 241(a)(1(C), as there is no assistance he can render while detained, and no documents he can provide. Further, the required agreements under the I-229 form would vitiate his claim of fear of return by making him seek documents that would force him to go back to a location where he has expressed repeated fear of harm. His refusal is for that reason alone.

7. Mr. Detained Alien does not have a valid Nigerian passport, nor even an expired passport, available. He cannot provide what the deportation officer continue to demand, and it is manifestly unjust to demand he deport himself to a country where his harm is imminent .

8. There is no danger to public safety in Mr. Detained Alien's release. He has no criminal record, maintained a vibrant construction business in the community, and assisted in the employment of several citizens before his detention. Attached are letters from community leaders supporting his position.

9. If released, Mr. Detained Alien will live with his brother, Isioma Akwara in Maryland.

10. NOW THEREFORE, we ask that your office issue orders permitting Mr. Detained Alien's supervised release because of (a) the inability to deport Mr. Detained Alien in the future, and (b) the likelihood Nigeria will never accept him, nor issue travel documents for his return.

Fighting for detained aliens who have removal orders is often a losing proposition. However, finding the right relief, and arguing for their relief is a very rewarding an exciting area of federal practice. Often the most challenging aspect of the PODR process is keeping the morale of your detained client at a positive, functioning level. These cases can take many, many months to prosecute. Patience and persistence are key.

Questions about someone who is detained? Give us a call or visit our website today!

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.