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

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.