Introduction to Immigration Court and Removal Proceedings

Transcription

1 Introdction to Immigration Cort and Removal Proceedings ELIZABETH M. KNOWLES, ESQ. ASSISTANT CLINICAL PROFESSOR OF LAW IMMIGRATION & HUMAN RIGHTS CLINIC UNIVERSITY OF AKRON SCHOOL OF LAW Agenda Sorces of Law Basic Immigration Terms Entities Involved with Immigration Removability Some Forms of Relief Going to Immigration Cort Stattes and Reglations Immigration and Nationality Act (INA) 8 U.S.C. Code Code of Federal Reglations 1

2 The Immigration Act The Immigration and Nationality Act of 1952, as amended (INA), is or crrent immigration law. Since 1952, Congress has passed other laws which change the INA. The Immigration Reform and Control Act of 1986 (IRCA) The Immigration Act of 1990 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) The reglations otlining how the INA will be enforced, and which carry the force of law, are written by the Department of Homeland Secrity (DHS), the Exective Office for Immigration Review (EOIR), the Department of State, and the Department of Labor. These reglations are fond in Title 8 of the U.S. Code of Federal Reglations (8 CFR). Entities Involved with Immigration U.S. Department of Homeland Secrity: U.S. Cstoms and Border Patrol (CBP)- airports, land ports, borders U.S. Immigration and Cstoms Enforcement (ICE)- detention and removal U.S. Citizenship and Immigration Services (CIS)- applications and benefits U.S. Department of Jstice: Condcts removal proceedings Exective Office for Immigration Review (EOIR) Board of Immigration Appeals (BIA) Other Governmental Agencies Involved in Aspects of Immigration Law The Department of Jstice, sbject to the direction and reglation of the Attorney General, has jrisdiction over the Exective Office for Immigration Review (EOIR), and the Board of Immigration Appeals (BIA). The Department of State manages the U.S. conslates abroad, which may isse immigrant and non-immigrant visas to non-citizens who are otside the United States. The Office of Refgee Resettlement (ORR) in the Department of Health and Hman Services exercises athority over the care and cstody of naccompanied alien children. An Office of Civil Rights has been established with the DHS to be responsible for reviewing, assessing, and reporting civil rights abses, inclding racial and ethnic profiling, by employees and officials of the department. 2

3 Administrative Cases Pblished Board of Immigration Appeals (BIA) decisions are binding precedent for proceedings in Immigration Cort BIA precedent decisions are cited as I & N Dec.. More recent decisions are called Interim Decisions and have not been placed in bond volmes Precedent decisions can be fond on the BIA website: Circit Cort Decisions Federal corts have limited jrisdiction in immigration matters, bt a circit cort decision will have precedence in administrative proceedings in the circit in which the matter is being heard Where there is a conflict between regional circit cort law and BIA precedent, the decision of circit cort controls in that circit. Otherwise the BIA controls. 9th Circit immigration law otline sets ot precedent cases for or circit: U.S. Citizen Born in the United States Derivative citizen (born abroad to U.S. citizen parent(s) or permanent resident minor whose parents natralize before he trns 18 Natralized (INA , 8U.S.C ) 3

4 U.S. Citizenship A person is a U.S. citizen if she is born in the United States, bt not always simple to prove. A person may also be a U.S. citizen if she is born abroad to a U.S. citizen parent (depending on year of birth, length of residence of citizen parent in United States, legitimacy, etc.) A person may be a U.S. citizen if parent natralized dring person s childhood while person was green card holder (depending on year of birth and other factors). Lawfl Permanent Resident (LPR), or green card holder Defined at INA 101(a)(20), 8 U.S.C. 1101(a)(20) Allowed to live and work permanently in the United States Sbject to removal (deportation) from the U.S. for violation of criminal and immigration laws, regardless of how long he has been an LPR Sbject to abandonment for prolonged absences from the U.S. Non-Immigrant Classifications Defined at INA 101(a)(15); 8 U.S.C. 1101(a)(15) Incldes torists, bsiness visitors, stdents, investors, athletes, entertainers, and temporary workers Violation of stats or criminal conviction can reslt in removal from U.S. and/or jeopardize eligibility to become an LPR 4

5 Refgees and Asylees Allowed to live and work in the U.S. prsant to grant of protection from persection in their home contry Refgees admitted to U.S. from a contry otside (INA 207, 8 U.S.C. 1157) Asylees apply for and receive asylm from an asylm officer or Immigration Jdge within the U.S. (INA 208, 8 U.S.C. 1158) Can apply for LPR stats after one year in U.S. in protected stats Sbject to removal from U.S. for conviction of crimes, althogh waiver is available Arriving Alien An applicant for admission coming or attempting to come into the US at a port-of-entry, or an alien seeking transit throgh a port-of-entry, or an alien indicted in international or US waters and broght into the US by any means, whether or not to a designated port-of-entry, and regardless of the means of transport, 8 CFR 1.1(q), (q) Are ineligible for bond, bt may seek release on parole Undocmented Immigrants Undocmented immigrants are people who live in the U.S. withot legal permission. Entry withot inspection (EWI): crossing the U.S. border illegally. Visa Overstay: entering on a non-immigrant visa bt failing to leave the U.S. when their permission to stay (indicated on I-94) has expired. 5

6 Deferred Action for Childhood Arrivals On Jne 15, 2012, the Secretary of Homeland Secrity annonced that certain people who came to the United States as children and meet several gidelines may reqest consideration of deferred action for a period of two years, sbject to renewal. They are also eligible for work athorization. Deferred action is a se of prosectorial discretion to defer removal action against an individal for a certain period of time. Deferred action does not provide lawfl stats. Entry Withot Inspection/Present Withot Admission Entered the U.S. withot lawfl athorization and inspection by an asylm officer Presence in the United States withot athorization is a grond for inadmissibility and removability Have limited opportnities to apply for relief from removal Inadmissibility/Removability Inadmissibility applies to all non-us Citizens who are seeking to enter (or reenter) the US All gronds of inadmissibility are fond at INA 212(a), 8 USC 1182 and inclde: Criminal gronds National secrity gronds Immigration violations Removability applies to individals who have been admitted in any stats, and are being charged with having violated immigration law 6

7 Immigration Cort What are removal proceedings? Cort proceedings dring which the Immigration Jdge ( IJ ) decides whether an individal will be able to remain lawflly in the US Civil rather than criminal proceedings No right to consel at government expense Attorney for government prosectes the case Initiated by the filing of a Notice to Appear, which states charges against the individal Notice to Appear Master Calendar Hearing Initial hearing before Immigration Jdge Individal will be asked to respond to charges in the Notice to Appear Individal will conceded or deny removability Immigration Jdge will set date for merits or individal hearing IJs sally hear 8-10 Master Calendar hearings at a time 7

8 Merits Hearing Less formal than a civil hearing Rles of Evidence do not apply Evidence mst be relevant, probative and fndamentally fair Hearsay is admissible Formal record made by tape recorder controlled by the IJ IJ may qestion witnesses dring direct and cross examination Decision of Immigration Jdge Usally made orally at the conclsion of the merits hearing IJ may reserve written decision Shold inclde clear and complete findings of fact Mst be spported by the record and in compliance with the law Each side asked whether they wold like to reserve appeal Appeal to the BIA Notice of Appeal to Board of Immigration Appeals mst state specific gronds for appeal Mst be received at BIA within 30 day s of IJ s final decision BIA will set briefing schedle BIA has limited fact-finding on appeals BIA will either isse a written opinion or affirm the IJ s final decision withot issing a separate opinion 8

9 Federal Cort Review Some BIA decisions are sbject to review by the Cort of Appeals in the Circit where the case was originally heard Petition for review mst be filed within 30 days of the decision of the BIA Removal Proceedings while Detained Remote Detention Facilities Access to Consel Isses No access to research/evidence Langage barriers Televideo Hearings Qick Timelines No process for conditional release if categorized as an arriving alien Access to Consel Isses Nationally, only 37 percent of all immigrants secred legal representation in their removal cases. Immigrants in detention were the least likely to obtain representation. Only 14 percent of detained immigrants acqired legal consel, compared with two-thirds of nondetained immigrants. Representation rates varied widely by cort jrisdiction. New York City s representation rate for nondetained cases (87 percent) was a fll 40 percent higher than that of Atlanta (47 percent). Immigrants with cort hearings in small cities were more than for times less likely to obtain consel than those with hearings in large cities (11 percent in small cities verss 47 percent in large cities). Immigrants of different nationalities had very different representation and detention rates. -AIC, 9/2016 9

10 Represented immigrants fare better at all stages of proceedings Represented immigrants in detention who had a cstody hearing were for times more likely to be released from detention (44 percent with consel verss 11 percent withot). Detained immigrants with consel were nearly 11 times more likely to seek relief sch as asylm than those withot representation (32 percent with consel verss 3 percent withot). Immigrants who were never detained were five times more likely to seek relief if they had an attorney (78 percent with consel verss 15 percent withot). Among detained immigrants, those with representation were twice as likely as nrepresented immigrants to obtain immigration relief if they soght it (49 percent with consel verss 23 percent withot). Represented immigrants who were never detained were nearly five times more likely than their nrepresented conterparts to obtain relief if they soght it (63 percent with consel verss 13 percent withot). Central American Refgee Crisis Since abot 2009, many more Central American migrants inclding many minors have made the trip north and soght asylm. Peaked in 2014 As the homicide rate spiked in Mexico, so did asylm applications; as San Pedro Sla became the mrder capital of the world, asylm applications from Hondras increased. The U.N.'s refgee agency has interviewed hndreds of women and children who have crossed the U.S. border over the past cople of years, and a vast majority of them said they were fleeing violence from organized crime Immigration Cort Asylm Grant Rates Disparate Reslts among Immigration Corts National Average Asylm Grant Rate 48% Jrisdictions with Extremely Low Grant Rates Atlanta, GA 2% Stewart Detention Facility, GA 5% Charlotte, NC 13% Dallas, TX 9% El Paso, TX 14% El Paso SPC, TX 4% Hoston SPC, TX 7% Hoston, TX 9% 10

11 Immigration Cort Backlogs Pending Cases FY 2017 Entire US: 572,608 California 104,701 Texas 98,908 New York 78,288 Florida 37,330 Virginia 33,449 New Jersey 28,950 Illinois 24,858 Maryland Georgia 17,157 Massachsetts Tennessee Arizona 13,392 10,120 Colorado 19,972 16,875 10,835 Pennsylvania 8,898 11