QUESTIONS AND ANSWERS ALBUQUERQUE ICE/DRO*** LIAISON MEETING WITH AILA/NEW MEXICO MEMBERS JUNE 15, 2010 ***The acronym DRO has now officially been replaced with the acronym ERO which stands for Enforcement and Removal Operations*** Present for ICE: Mr. William Jepsen, AFOD/DRO and Mr. Jose Tavarez, Office of the Principal Legal Advisor, El Paso. Present for AILA: Victoria Ferrara, Jeanne Smith, Kseniya Zavala, Alison Cimino, Pamela Kennedy, Beth Persky, David Alderete, John Lawit, Jim Noble, Melissa Ewer, Iris Calderon, Megan Martinez and Jasmine McLee. 1. Is the decision to refer immigrants for federal prosecution for federal crimes, including illegal re-entry after removal, discretionary or mandatory? What are the criteria for determining whether to refer someone for federal prosecution? Do you have established guidelines? Memorandums? All cases are reviewed and assessed for criminal violations. Decisions to refer someone for federal prosecution are based on the overall public benefit of pursuing prosecution. Factors used to make this determination include the resources needed to pursue prosecutions, likelihood of conviction and humanitarian factors of the defendant. Frederick Fu is the new SDDO officer and head of VCAS (Violent Criminal Alien Section). The U.S. Attorney in Albuquerque who is the contact person for these cases is James Tierney. 2. A number of immigrants in ICE custody at the local office have reported to AILA members they are being coerced into agreeing to voluntary return (form I-826). The typical scenario involves ICE agents telling someone that if they do not sign the voluntary return they will be detained for a VERY long time and if they accept voluntary return they will be released and returned to their home country immediately. And furthermore that the alien will be able to return legally to the U.S. It has also been reported by aliens that they are discouraged from speaking with an attorney. One ICE agent was reported as saying, You don t need an attorney. They can t help you and they will only take your money. It has been reported by aliens that some of these exchanges appear threatening, questioning whether the choice to sign a voluntary return is actually voluntary. Finally, in none of the cases reported 1
did an agent inform the alien they may be subject to a ten-year bar upon departure. Or that they may have certain relief from removal in front of an Immigration Judge. It seems a clear violation of due process rights not to inform an alien of his/her rights and remedies in these situations in an objective manner, similar to reading someone their Miranda rights. Our question is: are agents trained in the basics of the immigration consequences of voluntary return and on how to advise clients of their rights? Does your office have any written script agents can stick to under these circumstances rather than open-ended harassment? Would you be willing to work with our members to implement such a script that can be used in all cases where an alien is presented with the Form I-826? The form I-826 was passed around the room. It is not a public document and is not found on the ICE website. This question assumes facts that are in dispute namely that ICE Officers are intimidating, coercing and giving improper legal advice regarding the effects of Voluntary Departure or Voluntary Return. The local office is not aware of any formal complaints filed to substantiate the allegations. ICE Officers receive basic immigration law training at the Academy and receive refresher training throughout their careers. There are no written scripts. The I-826 is the script. The form is in Spanish and English. The form is given to the alien to read. If the alien cannot read the officer reads the form to them. If the alien has a question regarding their legal rights, they are provided with the list of non-profit legal services. They are allowed a three minute telephone call. The Mexican Consul is contacted every time someone is in custody and the alien has the right to speak with their consulate. Agents are not trained to give legal advice. Mr. Jepsen will make clear to his staff that when presented with a question about legal rights/request for advice from an alien, the best posture is to give no advice at all. The alien will be provided with a copy of the signed I-826. Post script: The list of free legal service providers is now posted in the detention area. 3. What is the procedure for filing a formal complaint against an agent/officer in the above situation or when an alien feels their constitutional rights have been violated? Where are complaints filed? Is there a procedure for responding to such complaints? 2
There are posters in Spanish and English in the processing area. The posters inform the alien they can file a complaint through the DHS Office of Inspector General Hotline by calling 1-800-323-8603. In addition to the posters, aliens from Mexico can speak to the Mexican Consul regarding any concerns they may have. It has been and continues to be the practice of this office that the Mexican Consul immediately brings these issues and any other issues to our attention. If a complaint is made directly to or brought to the attention of Mr. Jepsen, the alien will not be removed while the complaint is pending. Victoria passed around complaint procedures for alleged civil rights violations in the Secure Communities Program. These complaints are made to DHS, Office for Civil Rights and Civil Liberties. Attached is a copy. 4. Which Law Enforcement Agencies in New Mexico have signed MOAs to participate in the Secure Communities Program? Could you discuss this program further such as how funding is provided to the communities that do participate? New Mexico State Police, Bernalillo County and the four border counties of Dona Ana, Luna, Grant and Hidlago. Requires no funding from DHS. Offenders are fingerprinted by law enforcement. State police maintain the fingerprint database. When the finger prints are checked against IDENT and there is an existing record, the computer generates an automatic notification to ICE. This allows the local ERO office to respond. 5. Which Law Enforcement Agencies in New Mexico have signed on as 287(g) partners? Could you discuss this program further such as training for local law enforcement agencies that sign on to this program? Presently, none of the law enforcement agencies in New Mexico have a signed Memorandum of Agreement for the 287(g) program. Law enforcement officers attend a four week course on immigration law, interviewing and processing. A deportation officer is then assigned to the facility to provide guidance and additional training. The deportation officer reviews all paperwork and submits it for supervisory approval. 3
Post Script: The New Mexico Department of Corrections (State Penitentiary System) recently signed an MOA for 287(g). 6. Under the Secure Communities program ICE has detailed Standard Operating Procedures. These procedures discuss ICE not detaining, removing or referring someone to Immigration Court if State/local criminal proceedings are pending. Or if State/local criminal proceedings are pending, procedures are discussed about notifying the court when an alien is removed or elects voluntary return. What is your office s policy regarding detaining an alien who has criminal proceedings pending? Do you have a procedure in place to notify the courts where criminal proceedings are pending that you have assumed custody or removed the alien or the alien has voluntarily departed? If so, what is the procedure? This is important because an alien who fails to appear for a State/local criminal proceeding (because they are in ICE custody) will be subject to a warrant for failure to appear and the bondholder will lose their bond. Whereas if ICE notifies the court of ICE custody/removal/voluntary departure, the alien should not incur these State/local court consequences. This is an issue that should be brought to the attention of ICE National for further guidance. ICE has no authority to hold someone while they await state/local proceedings. But if the crime is of a serious nature and that person has an ICE detainer and they bond out or are released from State custody, we can assume custody of them. ICE will provide information to the court if authorized by the law to assist other law enforcement agencies. Post Script: ICE recently began meeting with area district attorneys to explore ways to better handle immigration cases where criminal charges are pending. 7. It has been widely reported in the media that ICE will now maintain a permanent presence at the Bernalillo MDC and will check the immigration status of all inmates. Would you like to comment on this new development? ICE has maintained a constant presence at the Bernalillo County Metropolitan Detention Center since 2007 and has been checking the status of inmates. This is not a new development. ICE officers are now working out of the Prisoner Transport Center at 4 th and Roma. Prisoners are processed at this Center before booking and it is here ICE decides whether to issue a detainer. The immigration status of all prisoners is checked. 4
8. It is our understanding that the local ICE office now fees in the application and filing fee for a stay of removal. During which days and times will you accept the application and filing fee? Are we required to make an INFOPASS appointment? What forms of payment will you accept? Should we continue to send a copy of the application to the El Paso District Office? Correct, the local Albuquerque ICE office accepts the Application for Stay of Deportation or Removal, form I-246, including the application fee. A stamped and dated copy of the application is provided as a receipt. The application and filing fee are accepted Monday-Friday 8:00 am to 3:00 pm. An INFOPASS appointment is not required simply inform security at the front entrance that you are here to file an Application for Stay of Deportation or Removal with ICE-DRO and an ICE official will be contacted to assist you. The fee must be payable to the Department of Homeland Security in the form of a cashier s check or money order only. Attorney s checks are not accepted. It is not necessary to send an additional copy of the application to the El Paso Field Office. The original application will be routed and placed into the file. 9. Would you please update us on changes to FOD, AFOD and other supervisory positions in the district? The Acting FOD is Dorothy E. Herrera-Niles. The Deputy FOD is Alfredo Campos. Our new supervisor at the Albuquerque Office is Frederick Fu. He supervises the federal prosecutions unit, non-detained, VCAS and JCART (Joint Criminal Alien Recovery Team.) 10. Would you also, once again, provide us with a breakdown of the areas that fall under your supervision and the names of the supervisors at the local office that oversee these areas? The Criminal Alien Program is supervised by Patricia Bates. She also has DOS (Deputy Operations Supervisor) Joseph Padilla and SIEA (Supervisory Immigration Enforcement Agent) Ronald Barela and SIEA Gabriel Narvaez under her supervision. Frederick Fu is as above. George Schoen oversees Fugitive Operations and Corina Singh is the Operations Supervisor. All telephone numbers remain the same. END OF Q. AND A. 5