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
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Clarification on Double EWI -- follow on to the post from June 2012

I was contacted by a fellow practioner today regarding double EWI's. She had an excellent question, and I thought I would display my answer here.

You are right about the need to accrue 1 year unlawful presences before you’re really “in the soup” with a double ewi. The catch-22 is that if you cannot prove the time you entered and left, the presumption is that you did accrue the requisite time and the double ewi becomes a bar. Fancy, eh? Wait until they pull that on you at court!

It usually goes like this…

Client stopped by police for driving on expired tags (or whatever)
Asked when she came to the US – she says 2001.
ICE later interviews her and she tells them she has been going back and forth across the border “for years”.
The last time she crossed was in 2003 when she decided to “stay for good…too dangerous to make the crossing anymore.”

Uh oh.

Presumption is that between the first EWI in 2001 and the last known EWI in 2003, she has accrued more than a year and…poof.

The very absence of dates gives rise to the problem, and by definition, an EWI often does not have specific dates. Defense cannot rebut the presumption and client get’s nailed.


-- In terms of DACA, though, I would be less concerned. An 821D is a form of deferred disposition – that means that the government already knows that it has the right to bar or “toss out” all the applicants; it is choosing not to enforce the rules only in so much as it promises not to pursue those people who register and are approved (selective non-application of appropriate law). As such, full disclosure is in order (lest the state say you are lying), and it should be okay (presuming EWI’s are the only problem).

Outside the context of DACA, always presume a double EWI is terminal to almost all forms of relief (except asylum based) unless there is definitive proof it is not (catch and release; multiple EWI’s in a single day, or other bizarre non-normative operations).

It should be noted that frequently, there is little that is guaranteed in a double EWI case. Many clients like to know the "odds" of success -- a common, and perfectly acceptable question. In double EWI cases, the odds are not great, and often rely more on the disposition of the immigration judge and prosecutor then anything else. However, a good lawyer can develop a compelling narrative and ensure every possible opportunity to stay is developed.

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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