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.

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.