KNOW YOUR RIGHTS FOR IRAQIS WITH REMOVAL ORDERS

Transcription

1 KNOW YOUR RIGHTS FOR IRAQIS WITH REMOVAL ORDERS Information about Hamama v. Adducci, No. 17-cv (E.D. Mich.) From the American Civil Liberties Union (ACLU) of Michigan (October 3, 2017) What is the Hamama case about? The Hamama case asks the federal court to delay deportation of Iraqi nationals with final orders of removal until you have the chance to hire an immigration lawyer, seek to reopen your immigration case, and demonstrate to the immigration court or Board of Immigration Appeals that you should not be deported to Iraq because you face a likelihood of persecution, torture, or death there. The Hamama case also includes claims that detention of class members and their repeated transfers is unlawful. What has happened in the case so far? On July 24, 2017, Hamama s district court judge issued a stay of removal which allows you time to fight your removal order in the immigration court system. The stay will apply only for a limited time. So it will help you only if you also take action to protect your own rights. The stay applies to all Iraqi nationals in the United States who had final orders of removal on June 24, 2017 and who have been, or will be, detained for removal by ICE. Here s what it says: 1. Under the court order, before deporting an Iraqi national under a final order of removal, the government must provide that person with their A-File and Record of Proceedings. The A-File contains your immigration history and the Record of Proceedings contains your legal history in immigration court. Your lawyers will need those papers in order to fight your removal. 2. Starting from the day the government sends you (or your lawyer) the A-File and Record of Proceedings, you have 90 DAYS to file a Motion to Reopen your immigration case. 3. If you file the Motion to Reopen within the 90 day period, the court s stay of removal will remain in place until the immigration court or Board of Immigration Appeals considers your motion AND it will continue to protect you from deportation if you appeal to the Board of Immigration Appeals or Court of Appeals. If you do not file the Motion to Reopen, the stay of removal will end and the government can deport you to Iraq. The Hamama case alone WILL NOT stop your deportation to Iraq. The Hamama stay of removal is TEMPORARY. You need to fight your final order of removal within the immigration court system (the immigration court and the Board of Immigration Appeals). To do this, you will need to file: 1. A Motion to Reopen, 2. A request for a Stay of Removal, and 3. The application for underlying relief (example: Asylum I-589) What you need to do if you want to take advantage of the stay: You SHOULD hire an immigration lawyer to advise you and assist with filings in the immigration court/board of Immigration Appeals/court of appeals. You will NOT BE PROTECTED BY THE STAY OF DEPORTATION if: a. You do not file a Motion to Reopen within the 90-day period, OR b. You fail to file an Appeal to the Board of Immigration Appeals or Court of Appeals within the appeal deadlines. IMPORTANT: On September 21, 2017, the government appealed the district court s stay order to the Sixth Circuit Court of Appeals. It will almost certainly take at least several months for the Court of Appeals to hear the case, and we will send an update about what the Court decides. But you should know that, once it rules, the Court of Appeals could change the terms of the stay or could end it. ICE could then deport you if you do not have an individual stay from the immigration court. If you have had your motion to reopen granted, you have an automatic stay of deportation, even if you are still in detention. If the Court of Appeals lifts the stay of removal in the Hamama case, you should talk with your individual immigration lawyer about what options you have for a stay of deportation from the immigration court. 1

2 What if I don t have a lawyer and can t afford one? The National Immigrant Justice Center is working to assist Iraqi nationals in finding legal representation. If you need an immigration lawyer, please contact the National Immigrant Justice Center (NIJC), (312) , between 11 am and 2 pm Central Standard Time (CST). 208 S. LaSalle St., Suite 1300, Chicago, IL Or ask a family member to fill out the form available at Please note that contacting NIJC is for informational and potential referral purposes only and cannot guarantee legal representation in your individual case. How can I be deported if Iraq has never given me travel documents? Even if you have not received a travel document in the past, you still could be deported. According to ICE, the Iraqi government recently agreed to the return of Iraqi nationals even if they do not have travel documents. What is a Motion to Reopen? A motion to reopen gives you an opportunity to have your immigration case heard again. Generally, these types of motions must be filed within 90 days of the final order of removal, but there are some exceptions. Most relevant here, you are allowed to file a motion to reopen after the 90 days if you are seeking asylum, withholding from removal, or protection under the Convention Against Torture based on changed country conditions in the country to which you were ordered deported. Because of the recent changes in county conditions in Iraq, many of you have already had success reopening your immigration cases on this basis. The motion has to state new facts that you will prove at a hearing if the motion is granted, and has to be supported by sworn statements and other evidence. You may be able to reopen your immigration case based on these grounds or others so long as you meet certain eligibility requirements. Because the law has changed a lot over time, you may also be able to file a motion to reopen on the basis of the change in law, or other circumstances, that have rendered you no long deportable or at least entitle you to another hearing on that question. Your immigration attorney will need to look at your individual situation and any criminal history you may have to see what kinds of immigration relief you are eligible for. You will need copies of your A-file, your immigration court Record of Proceedings, and your criminal history records to file your motion to reopen. What is the process for getting my A-file and Record of Proceeding? If you have a lawyer who has filed a representation form with the government since March 2017, the government will share your A-file and Record of Proceedings with that lawyer. If your lawyer has filed a representation form, you do not need to fill out the first page of the Detainee Designation of Representatives to Receive A-File and Record of Proceedings. You only need to fill out the second page, of the form that is Attachment B of the packet you are receiving from ICE. If you do not have a lawyer (or if your lawyer has not filed a representation form), then the government will share an A-File and Record of Proceeding with either you or someone you choose. You can choose who will receive the file copies using the form, Detainee Designation of Representatives to Receive A-File and Record of Proceedings. Your immigration lawyer is probably the best person to receive your files because your lawyer will need those files to make your case. Even if you do not have immigration counsel, you may wish to pick someone such as a family member to receive your files, because that person will be able to share the files with prospective immigration counsel more easily than you yourself can from detention. To send your files to someone other than an attorney who has filed a representation form since March 2017, you must fill out two Privacy Act forms listing that person. Those forms are Attachment B.1 of the packet you are receiving from ICE. 2

3 The form Detainee Designation of Representatives to Receive A-File and Record of Proceedings also asks for your permission to share a second copy of these files with the attorneys in the Hamama case. Make sure to look at the second page. It is very important for us to have these files so that we can make the best arguments for why Iraqi nationals should be released from detention while you fight your case in immigration court. If you do not have an immigration lawyer, sharing your file may also help in finding you a lawyer. To share your files with us, you must check the box on the form and must also fill out the two Privacy Act forms that list the Hamama lawyers. Those forms are at Attachment B.2 of the packet you are receiving from ICE. When will I get my A-file and Record of Proceedings? The judge has set the following schedule for when ICE must send out A-files and Records of Proceedings: If you have filed a motion to reopen since January 2017, whether it was granted, denied or hasn t been decided: November 6, For this group, the records will be sent to your attorney. For everyone else: November 27, For this group, the records will be sent to whomever you choose, unless your attorney has filed an appearance, in which case the records will be sent to your attorney. Your three months to file a motion to reopen does not start until ICE sends your files. What if I want to return to Iraq? If you have an attorney and you want to return to Iraq: First, you should talk with an immigration lawyer about your options for staying in the United States, what risks you face if deported to Iraq, and what deportation would mean for your ability to return to the U.S. or pursue other kinds of immigration relief. You should be fully aware of your rights before you make the decision. If you still decide that you want to voluntarily leave the U.S., please have your lawyer contact both ICE by calling the ICE Detroit Office of Chief Counsel and the lawyers in the Hamama case by ing hamama@aclumich.org. If you do not have an attorney and you want to return to Iraq: ICE is providing you with a form, Attachment C, that you can send in. Do NOT fill out this form if you want to stay in the United States. This form does not waive your rights, but it will tell both ICE and the ACLU that you wish to be removed to Iraq. The ACLU and other lawyers in the Hamama litigation will then try, but cannot guarantee, that they will locate an attorney who can meet with you and advise you (without cost to you) on this important decision. The lawyer can give you advice about your individual options for challenging your deportation and about your chances of getting out of detention. We have heard reports that ICE and facility staff have been pressuring some Iraqi nationals to agree to be deported. Staff are not allowed to talk to you about this lawsuit or to coerce, threaten or harass you in any way related to this lawsuit. If they do, please let us know. Contact information for us appears on the last page of this document. What can I do to get out of detention while I m challenging my deportation? So far, the attorneys in the Hamama case have focused on preventing your deportation. The Hamama case also includes a claim about release from detention, and the attorneys in the Hamama case are now working on this issue. You should also consult with your immigration lawyer about your particular situation and explore any special circumstances that can help you advocate for release, such as medical issues. It is possible you could bring a case in federal district court challenging the legality of your continued detention, especially if you can show that your immigration case is not going to be concluded for a long period of time and that ICE cannot remove you during this time. U.S. law generally gives ICE the authority to detain people after a final order of removal for up to 90 days while it attempts to remove them from the United States. ICE believes that this law applies even if you were released into the community after the final order of removal was issued. ICE must conduct custody reviews to determine if you can be released after 90 days and again after 180 days. Depending on your criminal history, ICE may use this to argue that you are a danger. You have the opportunity to present documents in support of release and may be interviewed. The Florence Immigrant and Refugee Rights Project has prepared a guide to assist individuals in 3

4 preparing for their 90-day review, which can be found at: pdf. Or get a copy by writing to: Florence Project, P.O. Box 654, Florence, Arizona Release at the 90 day point is not automatic. If you were detained by ICE in the past, you may have been released at some point because ICE was not able to obtain travel documents to Iraq. But things have changed. Right now, the only thing stopping your removal may be either the stay issued by the district court in the Hamama case or a stay issued in your case by the immigration court. If you elect not to pursue your immigration case, it is likely that you will be deported, not released. If your motion to reopen is granted, a different law applies and you may be eligible for bond. Depending on your criminal history, the government may argue that you are subject to mandatory detention. However, there are also arguments why mandatory detention may not apply to you. Talk to your lawyer about whether you should request a hearing to challenge your detention. If you have had your motion to reopen granted and are being held in detention without a bond hearing, you or your lawyer should contact us. It appears that ICE is continuing to hold almost all Iraqis with orders of removal past 90 days; we are investigating this, because it may be illegal. We have asked the judge to order ICE to give us documents about why they are detaining you and other class members. How can I find out what is happening in the Hamama case? You or your family members will be able to learn more up-to-date information about the Hamama case at the ACLU s website: What can I do to help? We need information about you and others in the group covered by the Hamama case in order to advocate for the group. Contact information for us is at the bottom of the next page. Here are three things you can do to help: 1) Write to us with information we need to prove that the members of the class should not be in detention. The date of your 90-day review and the exact reason given by ICE for why you were not released. Your criminal history including the dates of your convictions and the exact laws you were convicted under. If you went to jail or prison, the dates you were locked up and when you were released. Whether you have been in immigration detention (not criminal detention) before and if so when you got locked up and when you got released. Whether you were living in the community before ICE detained you, or whether you were transferred directly to ICE detention from jail or prison. Whether you were under an order of supervision before you got locked up, how often you had to report, and whether you were following the rules of your supervision order. If you have had a motion to reopen granted: are you being held without a bond hearing and if so, what reason has the government given to hold you without bond? 2) Send us a copy of any papers you gave to ICE explaining why you should be released and any papers you received from ICE saying that you will not be released. It is very important for us to have those papers. You should keep the original. You can send us this, or your family or lawyer can. 3) Authorize us to receive a copy of your A-file and Record of Proceedings. For us to get those, you must check the box on the attached form saying you want those files sent to us. You must also complete the Privacy Act forms that are Attachment B.2 of the packet you are receiving from ICE. 4

5 What if I am mistreated in detention? Because of reports about abuse of Hamama class members, the judge ordered ICE to post a notice explaining how you can contact the Hamama lawyers if you are coerced, abused, or harassed. If that notice is not posted in your facility, please let us know. The address is also below. If you have an urgent issue that affects your health or safety, you should notify both the facility and ICE, using the forms available at your facility. If that is not effective, you should have your family contact: Custody Management Division, Office of Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement, ERO.INFO@ice.dhs.gov. If you are mistreated or abused, you can also file a complaint with the DHS Office of Inspector General (OIG) which investigates misconduct by ICE employees and contractors. You can call ; can submit your complaint electronically at or can write to Office of Investigations, Homeland Security Office of Inspector General, Mail Stop 2600, 245 Murray Lane, SW, Building 410 Washington, DC Send a copy of your complaint to us. How can I contact you? You can send confidential mail to: Legal Mail Attn: Hamama v. Adducci Litigation 101 N. Main, 7 th Floor Ann Arbor, MI Or have your family or your lawyer hamama@aclumich.org. This fact sheet is not intended to substitute for legal advice regarding your own individual immigration case or any other matter outside of the context of the Hamama lawsuit. We advise you to seek independent legal advice about your own individual immigration case and the impact of the Hamama lawsuit on your case. NOTE: ICE/ERO did not prepare this handout and is not responsible for its contents. 5