How to attack an ICE detainer -- a discussion

ICE Attorneys contemplating detainer law...or lack of it.

From a recent question by a fellow practioner -- worth sharing!

FACTS
Client given a 30 sentence in county jail with a 5 consecutive days at beginning and 13 weekends thereafter as per the County Judge's Order. TWO days before his released Martin County Fla Jail notified ICE (they have a detainer agreement) of the client's release. client is now being held him until ICE transfers him to a detention center.

I called the jail and demanded his release but was told by a sgt. that "it is a standing order by all judges" that whenever a detainer is placed by ICE, the detainee's sentence is to be served consecutively (rather than the weekends as per the judge's order) and at the end of it ICE will take him. I asked him where THAT came from and he said they have always done it like that. I asked him again for the law/authority and he told me to check with the judge.

I explained the detainer is good for 48 hrs only. He said they have the detainer and an ICE WARRANT. I asked for a faxed copy and sgt said NO. I called ICE and was told he is not yet processed and no DO has been assigned to case.

QUESTION
Is this true?

First, there are a couple of minor corrections I would point out. The IJ (immigration judge) does not sign a warrant. A warrant has to be signed by a federal or state judge after hearing (or reading) a statement of probable cause to believe a crime has or is occurring, and the warrant address that specific aspect of the crime (different types of warrants, obviously). Because an IJ lacks authority to hold a probable cause determination, they won’t be handing out warrants. It would be great fun if they did…talk about a federal case on its face! It is very rare indeed that any judge issues a warrant to ICE, as a state judge really wouldn’t have standing, and a federal judge rarely has time. It does happen for drug, gang, and trafficking cases, where ICE special units conduct raids. But most practitioners won’t run into this in the normal course of ops, and most of those cases end up in Federal Court anyway. It is more common to see a state police officer, with a state warrant, accompanying ICE officers (joint investigation). But again, that is usually for more severe cases.

Now ICE does issue detainers. A detainer is a demand, based on Federal Law, for a state or local authority to hold an illegal alien until immigration can pick him/her up. It is strictly an internal document, and the Agency jealousy guards them as TOP SECRET. Really, all that is on there is a phone number for a duty ICE agent. Unlike almost every other ICE/EOIR/DHS phone number, they actual answer that line quickly. They get really really mad if you call it. It’s good fun! You should try it sometime (assuming you can get a copy of an ICE detainer doc). The problem with detainers is that a state court has no authority over them (federal admin law), and the jail doesn’t really know what to do with them. BUT..state court does have authority over your fella’s detention. So if the jail holds him beyond 48 hours AFTER his sentence is over, then you have a habeas action and should file it right pronto. That usually makes the jail spit your guy out…but it’s a race between ICE and that hearing. If the jail plays hardball, by the time you’re up in Court, detainee is long gone to ICE hell.

What really got me chuckling was the jail’s unilateral modification of the criminal sentence. While it makes sense (i.e. don’t let a person out of jail who has an ICE detainer), it conflates Federal immigration law (immigration detainer) with speculation (ye olde flight) with a healthy dose of “you can’t change a state judge’s order just because.” Sounds to me like the Warden of the jail has taken immigration consequences into his own hands. Interestin’…

You have a pick of tools to go after the Warden. There’s the ol’ “Show Cause” order which, rarely, has a place in criminal law (outside of probation violations), but is quite tasty in this case. After all, the state is violating the Judge’s order. You can file a writ of mandamus to order the jail to honor the judge’s order. You can file a habeas action (obviously – for detention of your fella outside the bounds of the court order).

You’ll lose on them all, though. It would be great fun to tweek the jail, though! You lose because, ultimately, the jail has authority to modify the nature of the detention, so long as the length of the detention remains unchanged. For example, the jail could put your guy in solitary for violating jail rules. That would not take a court order to effect, even though it changes the nature of the detention. A jail has wide latitude to control the safety and security of its prisoners, and the state. But…you might get lucky!

Do you have a problem with how the Government has treated you? Call us! We're happy to discuss your case, and see if you have a claim. We can be reached at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax (VA), Resiterstown (MD), and Washington (DC)
www.hanoverlawpc.com
Central Office: 2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq. Charlet Herr, Practice Manager
1-800-579-9864 admin@hanoverlawpc.com

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.

CBP and LPR -- what happens at a "deferred inspection"

Interesting case recently. A client called us with a not-to-uncommon problem. On the way back from visiting an ailing relative in Costa Rica, the family was stopped at Dulles International Airport (a la Virginia). The dreaded hand gesture was made by an immigration border officer to "go to line B". Deferred inspection is in your future.

When Custom and Border Patrol (CBP) takes your passport and gives you a date to return to talk to them -- that is deferred inspection.

So what happens? You get a deferred inspection when you have criminal incidents in your past that could reasonably lead to inadmissibility into the United States. Eh, you say? What is THAT!?

So first, a discussion on crime and immigration. Remember, no matter how old your criminal convictions they are still eligible for immigration review. There is no "ignore after certain date" -- although, there are crimes that are treated differently if your convictions fall before 1990 (among others). That notwithstanding, remember that CBP can review ANY crime convicted at ANY time. However, the crime MUST have resulted in a conviction.

When speaking of crimes, it is important to remember that any crime that has a detention or deferred sentence (suspended sentence) of 12 months or more is considered an aggravated felony, and constitutes inadmissibility on its face. That's bad.

Certain crimes can be waived under the petty exception for CIMT's. Remember that time when you were busted for shoplifting and served 30 days in the brig? Likely, a single offense can be ignored and you will not be found inadmissible.

When you go for your interview, bring a lawyer, and if you can afford one, bring a book. Whoops -- that was backwards, but I'm biased. You will be waiting for quite some time. While you are obligated to be on time for your 11AM deferred inspection, CBP will often stall and you won't be seen until 2pm! Or later. Can you sense my frustration? Baah.

Why do you need a lawyer? Well, a lawyer cannot change the law. If you have an aggravated felony, or you have been smuggling little children into the country, there is nothing the attorney nor the CBP officer can do -- our hands are tied, and the law says you will be found inadmissible. However, an attorney can make a good argument to NOT HAVE YOU DETAINED. CBP will contact ICE once they determine you are inadmissible. It is up to ICE -- not CBP -- whether you shall be detained (sent to jail while you wait for your immigration trial). NOTE -- that an aggravated felony cannot be bonded out. So, having your attorney get CBP to argue that you should NOT be detained (when speaking to ICE) is worth its weight in gold. CBP can make a good argument to have ICE just ignore you. You do NOT want to be detained. While this does not always work, it can ONLY work when you have an attorney.

When you leave (non-detained), you will have a court date from your Notice to Appear (NTA)and you should meet with your attorney to plan your case (see my posting on what to expect at your first immigration court hearing). If you are detained, you will be taken to an immigration detention center and "booked" directly from the deferred inspection meeting. You will then be given your NTA while detained, and need to get in touch with your attorney, who will need to come and meet you at the detention center. Do you need help with a CBP or deferred inspection? You came to the right place! We have considerable experience helping walk clients through tough situations. We'll walk through each step and help you get the best possible results.

http://www.hanoverlawpc.com
703-402-2723

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.

So you're going to immigration court...what should your lawyer do?

Ah...the fun of the court room! Gotta love it!

Think "cattle call" -- do you do state or federal cases? The initial hearing equates roughly to a preliminary hearing in state/federal. The burden of moving forward is with the state, and if the respondent does not admit to the charges of removability, it is the burden of the state to prove them up. Once the state has convinced the judge that the charges are legit, the judge asks what relief the respondent seeks. Note that care must be used is admitting to the state's allegations as to removability...usually it's pretty "cold turkey" gotchas, but occasionally, they'll try to pull a quickie. Keep an eye on the regs, and the charges -- especially when a charge (state or federal criminal charge) can be viewed in different ways depending on the eye of the beholder. You can all sorts of fun stomping your feet and demanding a hearing as to the applicability or legitimacy of a particular allegation. On the same note -- don't be a jerk. If the allegation is valid, don't get a reputation of wasting court time on goofy meaningless foot dragging. This is especially true if your fella (or lass, as the case may be) is detained.

As to relief, that's where you pull out your trusty tool box and ponder the possible options. Generally, you want to do this prior to the hearing -- however, if you had not chance to see the NTA afore the hearing, take a moment to consider. Besides, you look good staring out the window rubbing your chin as you ponder how to save your client. You go, attorney! Typical relief options are Cancellation of Removal (COR 42A or 42B), some assortment of asylums (A-W-C), family adjustment (when appropriate), stalling with a plea for Prosecutorial Discretion (truly a waste), continuance for post-conviction relief (right....usually a stall tactic for some out of court magic date when bubba suddenly becomes eligible for relief), voluntary departure (one of the least understood and quite helpful tools for folks that can later adjust and don't already have EWI's etc.), and the old favorite -- a request for peonage (rarely granted, but often illicits a grin for those that know you have just asked to violate a host of immigration laws and the US constitution...but hey, if you have nothing else...)

When you really have hit the "duh...why am I here?" problem, and this is the first MCH...punt! Ask for a continuance to consider your options. Usually, you get one pass. Use it wisely.

Also, prior to requesting relief, but after a reading of the allegations (and any challenges thereunto), you'll have a chance to plead for bond, if your alleged evil alien monster is not already detained. Now, save yourself some grief, and the expectation crushing blow to your client's dying mother who just happened to attend your first MCH -- if your client has an aggravated felony (affectionately known as AgFel's). Don't know what constitutes an AgFel? Ping the law firm, and I'll send you a nifty cheat sheet (although as I have posted this prior -- I warn you that some of my more learned colleagues challenge some of the agfel definitions included on my sheet of cheating...but I'll leave that for your free time to hunt my alleged errors :). Regardless, with an AgFel, guess what? Your guest alien will not be getting out of the pokie. Don't even ask. Your client has "detained" stamped on his forehead. If you want to see if you can avoid that...TALK TO ICE BEFORE BEFORE BEFORE BEFORE (ahem...did I mention, um, "before"?) the judge has your case. The judge is compelled to keep your client detained if she has an AgFel. However, ICE can do whatever they want before EOIR takes the case. This is really important for CBP (custom and border patrol) ops (that would be LPR's that are snagged at the border for having a nefarious AgFel past that, for some reason, was allowed to be ignored for years and only now makes the evil heathens). If someone contacts you about a CBP "deferred inspection" grab them vigorously, and make SURE he or she takes you to the interview. You can beg and plead with the CBP officer to ask ICE to let your client walk -- even with AgFels. Once your client is non-detained -- judge can't revoke that, so it is possible to have a doomed, er..client out even with an AgFel. So...see if you can cajole ICE to play nice. Good luck with that, by the way :)

Let's see.. oh, and what about other MCH's? Well...they are just status hearings (a federal term for a continued case on the criminal docket). Usually you'll have one more after you plead relief so that you might have a glorious opportunity to, before all the assembled sad faced immigrants who, in court do find themselves, present a completed application of whatever relief thou hast otherwise requested in this, you first MCH.

The real fun is trying to prepare your client for their actual hearing on the merits (called an "individual calendar hearing" in immigration court parlance -- and by the way, if you are a client reading this LEARN AND DO NOT DO THESE THINGS). It is quite common to get hearing dates that are quite literally years out from the MCH (for non-detained). Your honest hard working client(s) will wander away...move to different states...go back to their home country, get DUI's (unbelievably...this is the number one charge for most of the folks that come to our office...an endemic problem in the Hispanic community of Northern VA...is there an ADA claim there somewhere? I'm game if anyone wants to help)...or, their story will change, the facts will be all wrong, and when trial comes, they'll not have provided anything you need. Remember! You are now a stunning paragon of justice and imminent speaker on all matters immigration -- so no worries (laughing)...you will persevere. On at least one in ten. (laughing again).

Court is a lot of fun, and the challenges of immigration court are really the same for all court cases -- facts and foundation. Get'um right and the relief you seek is indeed a pearl of great worth within your grasp.

http://www.hanoverlawpc.com
703-402-2723

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.

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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