The difference between "credible fear" and "reasonable fear" interviews by ICE/DHS

From time to time we run into this question -- what is the difference between there two types of interviews? A recent question asked on an immigration board, to which we belong, is typical:

I have a detained client who received a positive reasonable fear determination. I checked the law, and I cannot find anything that states his bond eligibility. Anyone have any information on this?

ANSWER: A reasonable fear determination (as opposed to a credible fear determination) is the term used by DHS/ICE when the detained individual has a prior removal order that is not extinguished (still active). Although this was not mentioned in the above scenario, judging from the term used ("reaosnable fear"), I would guess that is the case. If it is, the judge lacks the authority to issue a bond.

The controlling provisions for bond/custody re-determination hearings are found at INA §236; 8 CFR §1003.19 and 1236.1. The bond hearing is separate and apart from the removal hearings pursuant to 8 CFR §1003.19(d).

The kicker is here: The immigration judge has no authority to review custody determinations if the alien has an administratively final order of removal or deportation. INA § 241; 8 C.F.R. § 1236.1(d)(1); Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989); Matter of Sio, 18 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981).

It should be noted that because a credible fear determination stems from an aliens status as "arriving," immigration judges also lack authority to grant bond to individuals who have a positive credible fear determination, whether or not ICE/DHS grants them parole or bond.

Do you have an immigration question? Call us! We can help. We are experienced in both immigration court defense, and forms based business and family adjustments. 1-800-579-9864 or admin@hanoverlawpc.com.

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. 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

Determining Arriving Alien Status

How to determine if your client is an arriving alien -- or not!

First test: Was she stopped at the border?

Yes: Continue
No: Was she stopped with ~25 miles of the border within 10 days of when she arrived?

Yes: Continue
No: Arguably not arriving alien.

Second test: Is she a US citizen?

Yes: Interesting. If they are moving to revoke citizenship (i.e. not by birth), then you have a pickle. Arguably, not an arriving alien, as only a judge could revoke citizenship and a citizen cannot be an arriving alien. So most likely – not an arriving alien.
No: Continue

Third test: Was she granted conditional parole?

Yes: This is very narrow exception. Humanitarian or CBP approved “signed at the border” parole only. In this instance, she would not have been given a return date, and she would not have been placed in removal proceedings. A deferred inspection is not a parole for this purpose.
No: Continue

Fourth test: LPR?

Yes: Is there a petty exception that the CBP officer will accept? If so, get this kicked at the deferred inspection. If not, she is an arriving alien.
No: Arriving alien

If she is an arriving alien, hope her case get’s randomly transferred to York, PA. In York, the judges oftem grant bond even for arriving aliens (must have a legal place to go in the US, and someone willing to vouch for the alien). Otherwise, you are looking at no-bond initially.

How do I get bond for an arriving alien?

1. York
2. If there has been a credible fear determination (either through Court or through CBP), then you can ask ICE to grant a bond. ICE always has the right to grant bond. Talk to the DO (Deportation Officer – fella who is responsible for your client’s case on the ICE side) and request a bond. This usually only works on successful credible fear. If you have a pending asylum application and work permit, you should be able to get this unless your DO is being particularly ornery.

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.	Lili O'connell, Esq. Charles Hatley, Esq.
1-800-579-9864	admin@hanoverlawpc.com

Post Immigration Court -- what happens if I lose?

A colleague of mine asked for information on what happens after an adverse decision by the Immigration Court. The Judge ruled against her client, and she sought guidance on how to proceed.

I just received word that my client's CAT and Withholding claims were denied. I am worried that I may not be able to reach him before he is transferred, and the family is in a panic.

I would like to know:
1. What happens next
2. If he exercises right to appeal, could he be eligible for interim bond/release from custody (Alien AF - conspiracy/100 kilos of marijuana is what landed him in Removal proceedings in the first place) during the wait time?
3. How do we determine where he will be taken, and how can we track his movement so that the family can try to get him some clothing, his I.D's and some money?

Any insight from those of you who have gone through this, and had to deal with the anxiety the family members are suffering, would be extremely helpful!

In answer, this is a rather complex compound question. Your client will be placed on the “depart roster.” For security reasons, DHS will not release the time or place they will fly your client out from – it largely depends on what country he is going to. If you ask nicely (and it is that random!), you are technically permitted to bring him a single suitcase before he departs. You are right to coordinate this through his D.O. (deportation officer). However, that’s about as much information and access as you will get.

If appeal rights were not waived, he’ll wait 30 days before anything happens. If he waived appeal, or 30 days elapse, then he’ll be on the next available flight. Generally, flights leave for Mexico regularly, but say, to Nepal, quite rarely indeed.

There is no bond for a detainee who is awaiting deportation. If ever there was a flight risk, that would be your fella! However, if the BIA appeal is successful, and a remand is had, you should be able to avail yourself of the six month rule (primarily in the 9th circuit, but arguable everywhere). Ping me if you need more information on this.

You can file an appeal and ask for a stay of removal pending appeal. You need to ALWAYS ask. Although, technically this should be automatic…trust nothing. I’ve actually had folks deported during their appeal and then subsequently win the appeal…and they are in yonder land. ALWAYS ask.

Do you have a question about deportation relief AFTER an immigration court hearing? Call us immediately as time is of the essence. Oh, and never waive appeal rights. 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 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq.

Get Out of ICE Detention -- When you have credible fear but remain detained.

Among one of the more perplexing aspects of immigration law is the plight of the arriving alien. Bluntly, an arriving alien without proper paperwork is going to experience a considerable amount of trouble. The procedures for an "undoc" arriving alien (aka smuggled, border jumping, etc.) are contained in 8 CFR 235.3. If the alien claims asylum, then a credible fear interview must be held. Regardless of whether the investigating officer determines fear, or if the an immigration judge later finds credible fear despite the investigating officers determination, the individual who entered the US remains in custody as an arriving alien.

There are three key steps to getting bonded out in a credible fear/arriving alien situation:

• First, there must be a finding of credible fear by an asylum officer. The credible fear checklist is found at 8 CFR 208.30. For a more in-depth step-by-step application of 208.30, see the USCIS field training manual here.
• Secondly, if the asylum officer declines to find credible fear, the arriving alien must ask to appear before a judge. The judge will then review the notes of the interviewing officer, discuss the case with DHS counsel and with the counsel for the arriving alien. Note -- you absolutely need an attorney here if you are planning to actual fight this. Although technically, an attorney for the alien exists only to advise the alien during a credibility determination (cannot make representations to the Court), as a practical matter, the judge usually does not question the alien further, but instead looks to the alien's attorney to explain the nexus and why, at law if all facts are properly admitted, this alien will be eligible for asylum. How to handle a credible fear hearings is the subject of a different blog.
• Finally, if either the judge or the asylum officer has determined there is a credible fear, and that a nexus exists tying the credible fear to a protected class, the arriving alien will be eligible for parole.

Recognize that ICE parole/bond is not the same as an Immigration Court bond . An immigration court has no jurisdiction over arriving aliens (on account of the expedited removal order that is already entered upon an illegal entry into the US -- see 235.3 above). This means that an immigration judge is barred from granting bond. By statute, only ICE has jurisdiction over release of arriving aliens, even if they are placed in removal proceedings.

To obtain parole for a detained alien with a positive credible fear determination, the alien is no longer required to complete the deportation parole worksheet; however, as a practical matter, every alien should request parole and affirmatively ask to complete the worksheet once credible fear has been established. The form has no number, but an example can be found here. This should happen automatically. However, having an attorney complete the paperwork is of critical assistance to ensure no loose ends are left undone. Be sure your attorney informs the DO (deportation officer) or the DRO (detention and removal office) in charge of the alien's case that the presumption is release unless there is an overriding need to keep the alien detained (defined as safeguarding the community or national interest). See the ICE Memorandum on parole and release for more specific legal guidance on this. This memorandum has been key on several occasions to get ICE to "move along" on the parole request.

A few pointers to remember. The DO cannot complete a parole worksheet until credible fear has been established. Also remember that the arriving alien will not be paroled until an NTA (Notice to Appear -- subpoena for immigration court) has been issued with a return to court date. The reason is that once the alien is released on parole -- poof. No more alien. Unless ICE has the alien sign the NTA, there is no proof the alien received notice of the immigration court date, and no way to enforce a removal order if the alien does not show to court. Not going to happen -- ergo, no bond/parole until an NTA with a date certain return is issued. This can take a week or so after a hearing, or usually immediately is credible fear is granted by the asylum officer.

DO NOT forget to complete an AR-11 (change of address form) prior to having your arriving alien disappear on bond/parole.

What is the difference between bond and parole? From an absolute standpoint -- nothing. From a practical standpoint, a bond requires the payment of collateral in order to ensure the alien will return to court. Parole requires no payment (hence the term, "parole", which means "word" in the sense of "to give one's word").

Do you have an immigration question about arriving alients? Give us a call! We can help. Do not try to handle immigration court on your own -- this can be disastrous and lead to expedited removal without an appeal. We have specialized experience with gangs and special juvenile immigrant status (SJIS) cases. Let our expertise work for you.

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.

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.