How to release an immigrant from detention if the underlying case is dropped

A bit of a mouthful for this blog title -- but it is a surprisingly common topic. What steps do you follow if the case is terminated in Immigration Court, but the client is still detained. This usually happens when there is a joint motion to close (terminate) proceedings, but the Court has not yet ruled on the case. When the next status hearing (called a Master Calendar hearing in Immigration Court parlance) is several months away, or the Court has not yet set a status date, the idea of staying detained when the government has moved to close the case is...galling.

From a fellow practitioner in New Jersey:

I have a case of first impression and I hope you can give me some guidance. OCC [Ed: Office of Chief Counsel -- another name for opposing counsel in an immigration case] just terminated proceedings against my client because his conviction is no longer considered a crime of violence. His next hearing date is December 13, 2016 at Elizabeth, NJ.

My question is: can I get him out sooner since OCC is terminating or must my client wait an additional month in detention (seems counter-intuitive but this is the Government) for the hearing I which the judge will release him?

That isn’t handled by the Court – early release would be through ICE (Immigration and Custom Enforcement - or ICE - is responsible for detaining aliens; although the Court can set bond in certain cases, ICE always has jurisdiction pursuant to ). I would petition his DO (deportation officer). Generally, they want the bed space. Do the following:

• Write a formal letter to the DO stating the reason for releasing your client early
• Include a copy of the Government's motion to terminate
• Include a copy of your G28 (if you have not already)
• Include a copy of the policy memorandum governing release (see here: policy)

And then nag the hell out of the DO guy (or gal). If the DHS counsel is willing to sign on to your letter, get that signature, too. The main kick, though, is through the DO.

Do you have a question regarding immigration procedure, court, or policy? If so, call us! You can reach us at 1-800-579-9864 or email at admin@hanoverlawpc.com. You can also visit our website, www.hanoverlawpc.com for additional information on immigration laws, policies, and procedures, as well as issue related to criminal, family, and business (civil) law.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

What happens at a credible fear hearing before an immigration judge?

Credible fear hearings refer to the process of an immigration officer or judge reviewing the statements of an individual who is seeking asylum in the United States. Generally, these hearings are first conducted at the port of entry by a custom and border protection (CBP) agent, or an immigration and custom enforcement officer (ICE). Based on the determination of the CBP/ICE officer, an initial credible fear determination is made. If a credible fear of return to the asylum seekers who country is established with the officers, generally the individual is permitted to enter the United States and remain at large until their hearing is conducted before a judge on the merits of the asylum application.

However, if the CBP/ICE officer determines that there is no credible fear of returning to the asylum seekers who country, the asylum seeker is detained. At this point he/she may request a judge to review the CBP/ICS determination. This review process is called a "credible fear hearing" and is conducting before an immigration judge. A couple of pointers to remember:

• A credible fear hearing must be requested, it is not automatic.
• Your client will be detained for the entire pendency of the credible fear hearing process, and likely thereafter.
• Only ICE has jurisdiction to release your client during or after a credible fear hearing, not the immigration court or judge.

The law on the matter is contained in 8 CFR:

Credible fear standard: A Credible fear of persecution means that there is a significant possibility that the alien can establish eligibility for asylum under INA § 208 or withholding of removal (restriction on removal) under INA § 241(b)(3). The credibility of the alien statements in support of the claim, and other facts known to the reviewing official, are taken into account. 8 C.F.R. §§ 208.30(e)(2), 1003.42(d).

Credible fear of torture: means there is a significant possibility that the alien is eligible for withholding of removal (restriction on removal) or deferral of removal under the Convention Against Torture pursuant to 8 C.F.R. §§ 208.16 or 208.17. 8 C.F.R. §§ 208.30(e)(3), 1003.42(d).

[taken from the "EOIR Immigration Judges Handbook"]

How does a credible fear hearing work?

First, you don’t submit evidence at a credible fear hearing – in fact, the judge may not even speak to you as the attorney on the case. You are an observer of the process only – this is a conversation between the judge and your client. On a practical note, usually the judge will speak to you and ask you what is going on. It’s faster and easier that way. But don’t be alarmed if the judge completely ignores you. Take good notes!

Representation: Prior to the credible fear review, the alien may consult with a person or persons of the alien's choosing. In the discretion of the Immigration Judge, persons consulted may be present during the credible fear review. However, the alien is not represented at the credible fear review. Accordingly, persons acting on the alien's behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments.

[taken from the "EOIR Immigration Judges Handbook"; See generally INA 235(b)(1)(B), 8 CFR 1003.42]

You need to prepare your client thoroughly. The client will be able to speak to the judge and will be able to testify. The discussion will be about the credible fear interview itself. The judge will ask things like: why are there inconsistent answers, etc. He/She will be using all the CBP/ICE forms, so be sure that you have a copy of the credible fear interview and each step of what your client did and said. Your client should have been given a copy of that. If there are translation issues (as there often are; most translation for the initial credible fear at the port of entry is done over the phone), be sure to brief your client on bringing that up to the judge.

Conduct of hearing: A credible fear review is not as exhaustive or in-depth as an asylum hearing in removal proceedings. Rather, a credible fear review is simply a review of the DHS asylum officer's decision. Either the alien or DHS may introduce oral or written statements, and the court provides an interpreter if necessary. Evidence may be introduced at the discretion of the Immigration Judge. The hearing is recorded. Parties should be mindful that all requests for continuances are subject to the statutory time limits.

[taken from the "EOIR Immigration Judges Handbook"]

If the judge finds credible fear, that he/she will set a next status date (called a master calendar hearing) at which point you will turn in the I-589 and supporting initial docs. Thereafter, it proceeds according to a regular defensive asylum process.

Technically, the judge cannot release your client, as she is deemed an arriving alien, not subject to parole from the court. There are two general rules here… in some jurisdictions, such as York, and sometimes Arlington, the judge will give bond anyway, and DHS rarely objects. That is technically a violation of the code. If the judge does not (and do not be alarmed if that happens…he/she should NOT do so), you can file to have ICE give a bond. In many jurisdictions, ICE will release your client once a credible fear determination I positive. Bond usually runs about $5K. Be sure to submit a bond package, showing where your client will live and with whom, when asking ICE for a bond. It is entirely up to the DO (deportation officer) in charge of your client.

No jurisdiction by regulation: By regulation, an Immigration Judge does not have jurisdiction to conduct bond hearings involving:

• aliens in exclusion proceedings
• arriving aliens in removal proceedings
• aliens ineligible for release on security or related grounds
• aliens ineligible for release on certain criminal grounds

An asylum seeker who requests asylum at a port of entry is an arriving alien.

See: 8 CFR 1003.19(h)(2)(i)

Is there an appeal if the credible fear is denied by the judge?

No right to appeal, however, generally, you can bring a request for DHS to give one final review before deporting your client. See 8 CFR 1208.30(g)(2)(iv)(A).

Do you have a question regarding immigration law or detention hearings? Give us a call! We can help --- 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com		Lili O'connell, Esq.
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq.

Difference between JOINT filing and CONSENT filing

As a practitioner in both Federal and State jurisdictions, I am often consulted on matters that cross between both types of Courts. A recent question posted to the American Immigration Lawyers Association (AILA) is a good example. In this case, a practitioner new to immigration law (Federal) was asking the difference between a joint filing with the opposing counsel, and a consent filing with the DHS attorney. Her question, in part, read:

I used to file "consent" motions in state criminal court when I had consulted with the prosecutor and they agreed on whatever I was asking for. I didn't have them [prosecutors] actually sign the motion...

I've been looking at a sample "joint" motion to admin close an immigration case, and there's a space for the DHS attorney to sign. Is that just a best option, or is it actually necessary for me to get OCC's (Office of Chief Counsel -- immigration equivalent of the "district attorney" for a particular court) signature on a joint motion?

Does it make a difference if I title my motion "consent" vs. "joint"?

A discussion on JOINT MOTIONS vs. CONSENT MOTIONS:

A consent motion is one that the opposing parties agrees to allow you to file – consent = no opposition. The other party consents to your filing, but takes no position on the matter.

A joint motion is one where you and another party (together) are requesting the Court take some action. A joint motion is much stronger than a consent motion. In a joint motion, all parties are arguing that the Court should grant the requested relief, and the facts alleged are true. The opposition has moved from merely agreeing to allow you to file, to actually arguing for the relief to be granted. To make an argument to the Court, counsel must sign the motion. Hence for a joint filing, all parties filing in joint must sign.

When the petitioner AND the government both file in joint (a joint motion -- in the example above, OCC and the petitioner), the government is actually obligated to argue on behalf of the motion, just as you are obligated to argue on behalf of the motion. The Court is obligated to view the requested relief as beneficial to the government (or other joint filing party) when factoring whether to grant the same, or not.

Oddly, I just had a joint motion for bond redetermination denied by the Superior Court in DC (client had a 3rd DUI and was being held on a show cause for probation violation). That is exceptionally rare, and despite my impassioned plea, and rather luke-warm, tepid support by the government, the judge did her own thing. Just goes to show no matter how strong a joint motion is, the final arbitor is always the judge!(laughing). Those of you who have had favorable plea agreements nixed by the Court are too aware of the odd quirks that a judge can take despite the agreement of all parties on how the case should move forward.

Do you have a procedural question or concern in Federal or State Court? Call us! We can help -- 703-402-2723 or 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com		Lili O'connell, Esq. Abby Archer, Esq.
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 580 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq.

Understanding the term "arriving alien"

Be careful not to get your immigration client "no bond" on result of bogus allegations!

Many DHS attorneys (opposing counsel in immigration cases) do a great job, but you still need to be vigilant against your fella not getting bond or access to certain relief because the government incorrectly classifies him as an arriving alien.

The term "arriving alien" is defined in section 8 CFR 1.1(q). It is a clear definition, and you must not let DHS or ICE mis-categorize the alien:

8 CFR 1.1(q):
(q) The term arriving alien means an applicant for admission coming or at- tempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of trans- port. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted ad- vance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, shall not be considered an arriving alien for pur- poses of section 235(b)(1)(A)(i) of the Act.

A recent example on a popular listserve we work with should illustrate:

My client entered the USA with a J-1 visa. The TA said that my client is an arriving alien. NTA allegation #3 states that client was admitted as a nonimmigrant exchange visitor for duration of Status. I have been doing research but I can't find it. Would anyone tell me where to find whether or not my client is an "arriving alien".

In this example, the client received a stamp -- "D/S" and entered the country. D/S stands for "duration of status" and indicates that the individual was reviewed by a Customs and Border Patrol officer, and admitted. Per 1 CFR 1.1(q), his is no longer an applicant for admission, and therefore he is not an arriving alien.

Where your client sneaks into the US (entry without inspection or EWI), the rule is that once he has "arrived" and is not detained within 100 miles of the border, he is considered to be within the US and no longer an arriving alien for Court purposes. The 100 miles, by the way, is a rule-of-thumb, not a firm statute.

Do you have a case involving an arriving alien? We'd love to help! Give us a call at 1-800-579-9864. Do not let your case get white washed!

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 580 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq. Leigh Snyder, Esq.

Stopped by CBP - Deferred Inspection

Deferred Inspection with CBP

In this instance, there are a couple of considerations. You should expect to be placed in removal proceedings. It does not sound like you will be charged with an aggravated felony. First, this does not appear to be a crime of violence, and secondly, as you described it, it sounds like you received straight probation. As such, under sec. 1101(a)(48)(b), this probably wouldn't be an aggravated felony anyway (called "agg-fel" in our parlance).

Now, if this is NOT an aggravated felony, you might qualify for various types of relief when put into removal proceedings.

A Curious Trial: U Visas, Rape, M-A-M hearing, and CAT relief

I was recently faced with a very difficult trial. A client of mine was suffering from torture and rape in prison, and the trial to have him released had been 10 months in the making. Additionally, I was barred from seeking Federal relief because the agency that held him was neither the state, nor even a prison -- rather it was a Federal Agency: ICE. Getting reports from that agency on anything is like pulling teeth.

After a grueling 5 hour trial, I managed to secure CAT relief for my client. In a different discussion forum, I mentioned different avenues for presenting the prison rape problem. Investigations were still underway when we went to trial on the 10th of December, 2012.

I decided to write up a motion with attendant supporting documentation showing the abuse, the investigation, and various responses from state and federal agencies. Instead of serving it in open court, I discussed it with the DHS attorney before court. To say the DHS attorney was surprised would be an understatement! She scurried off upstairs, as DHS did not know what was going on with the client and ICE had put nothing into the file. Nice.

When the judge came in, I explained the situation to him. He then took the motion packet and a stack of law books and reviewed it all in his office.

The tactic I decided on was not presentation on the record, per se – rather a soft demonstration prior to commencing operations. Gave everyone time to review and help come up with a solution. Very collaborative. I got one hell of a payback for that at the beginning of the trial, but at least at this point, my “sandbagging” the court and DHS was received with only a modest amount of grumbling. I will tell you, though, that I came prepared. The motion was properly formatted, and even hole-punched at the top! (I forget that all the time on emergency motions). I digress.

The awesome aspect of this was the ability to discuss with the judge and DHS counsel the prison conditions and rape (including medical problems, and document theft/protection money payments being required from my client) prior to any hearing on my CAT claim.

The judge proceeded with the trial, but it was obvious that he wanted to find some relief for my client just to get the guy out of prison (he had been detained by ICE for 10 months).

DHS had it’s own unexpected whammy. After the trial started, we immediately went into a M-A-M hearing – which I was entirely unprepared for. I was not even clear if I should be arguing my client was competent to stand trial (he had a couple of “not-guilty” findings due to insanity defense) or if I should try to ditch the case on grounds he could never comprehend the criminal nature of his conduct. That was a tad awkward. As a foot note – for those of you who have not done M-A-M hearings, these are generally fairly straight forward question/answer sessions based on medical reports and other corroborating evidence that speaks to your clients mental capacity. As a rule of thumb, a client represented by an attorney, and who can answer questions about the nature of the NTA, allegations, and why he/she is present at the trial, will be found competent to move forward. If the client is not found competent, the court has leave to suspend the hearing until competency can be established, appoint a guardian, or even remove the case and terminate proceedings. In the instant case, it was strange because I did not know how to argue it – especially given the prison rape, the psych background, and the need to get my client out ASAP. I hate not being prepared. For those who take the class on 18 Dec – you will have that hammered into you quite well.

Regardless, the judge found the client competent to stand trial and we had very interesting trial for many hours on homosexuals and transgenders in Venezuela.

It was a great hearing – but the take away is the tactic for handling prison situations prior to an IC wholly unrelated to the matter.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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