Immigration Enforcement, Bond, and Removal Immigration Policy Reforms On Nov. 20, 2014, President Obama announced a series of reforms modifying immigration policy: 1. Expanding deferred action for certain parents of U.S. citizens and lawful permanent residents (DAPA) 2. Revising enforcement priorities ENFORCEMENT PRIORITIES MEMO Policies for the Apprehension, Detention and Removal of Undocumented Immigrants ( Priorities Memo ). New memo sets out enforcement priorities AND establishes bars to DAPA. Binds ICE, CBP, and USCIS Effective date: January 5, 2015. NOT impacted by federal court injunction 1
What are the enforcement priorities? Priority 1 Convicted of: a felony in the convicting jurisdiction an aggravated felony (as defined under immigration law) an offense with an element of participation in a criminal street gang 16 or older and intentionally participated in an organized criminal gang to further the illegal activity of the gang Engaged in or suspected of terrorism or espionage, or otherwise pose a threat to national security Apprehended at a border or port of entry trying to unlawfully enter (after the effective date of the memo, Jan. 5, 2015) Priority 2 Convicted of: three or more non-significant misdemeanors one significant misdemeanor Apprehended after unlawfully entering or reentering the U.S. and cannot show continuous physical presence since Jan. 1, 2014 Significantly abused the visa or visa waiver programs Priority 3 Issued a final order of removal on or after Jan. 1, 2014 Significant Misdemeanor: Types of Offenses Regardless of Sentence Domestic Violence Sexual Abuse or Exploitation Firearms (unlawful possession or use) Burglary Drug Distribution or Trafficking Driving under the influence offenses 5 More on Significant Misdemeanor Minor traffic offenses (that don t involve alcohol or drugs) generally do not count as misdemeanors Any misdemeanor with a jail sentence imposed, excluding suspended sentences, of at least 90 days. 6 2
THE DAPA/DACA INJUNCTION: WHERE ARE WE? 2/12: Judge Hanen from US District Court in TX enjoins DAPA & expanded DACA after 26 states bring a lawsuit against Obama 2/17: Statement by DHS that it will stop all DAPA implementation efforts. 4/17: 5 th Circuit heard oral arguments on DOJ s motion to lift the injunction. But what does this mean for my client? No DAPA for now Practice advisories re DAPA http://www.nationalimmigrationproject.org/le galresources/practice_advisories/pa_ar-dapacriminal-defender-advisory-11_25_2014.pdf http://www.ilrc.org/files/documents/ilrc_nipnl g_dapa_criminal_advisory_iii.pdf What about enforcement? But there is a change in enforcement If immigrant client does not come within priorities, generally not being detained or put into removal proceedings E.g., unlawfully present immigrant arrested for DWLR & no prior removals & present in the US prior to Jan. 2014 will likely not be picked up for removal Recent entrants and immigrants with DUIs are being hit hard and removed Gang database hit? 3
How clients get nailed by ICE Processed at jail Probation meeting Serve sentence at DOC Entering U.S. after travel abroad Renewing immigration benefits Applying for citizenship Raids, traffic stops, random bad luck Where Did My Client Go? Before client is transferred, try to get 9- digit A number If client has never had any contact with immigration, may not have one Will be on most immigration documents Should be included on the ICE detainer form filed with the prison and provided to your client How to find your client Use the new online detainee locator at https://locator.ice.gov/odls/homepage.do Need A# and country of birth OR Name, country of birth, and DOB If cannot find him there, you can try to email CLT-DRO-AILA@ice.dhs.gov. However, without a G-28 (attorney rep. form) may not get much info. Once in Immig. Court, call 800-898-7180 automated system to find court date, place, and removal info 4
How Shall I Deport Thee? Let Me Count the Ways Immigration court ( 240 proceedings ) Administrative Removal (Non-LPR with aggravated felony) Expedited Removal (At border/airport or within 100 miles/14 days) Stipulated Removal (Written stipulation to own removal) Reinstatement of Removal (Use old removal order) Executing Old Order of Removal (client never left) Voluntary Departure (by ICE or IJ) ICE HOLDS: HOW THEY START ICE files detainer (I-247) asking jail to hold immigrant to allow ICE to take into custody Technically a request, not an order 8 CFR 287.7 Duration: 48 hours excluding weekends and holidays Based on belief that immigrant is deportable, or if undocumented immigrant, if she comes within enforcement priorities 5
HOW TO END ICE HOLD If otherwise deportable, when client no longer subject to state custody, ICE will decide whether to pick up When 48 hours expires, get release by: calling ICE 919-688-8807 (usually quickly picks up or tells jail to release) talking to Sheriff (or his Attorney) filing habeas petition IMMIGRATION BONDS No right to immigration bond If client pays criminal bond, may be taken to ICE custody ICE can give bond, or hold without bond Client can file bond motion in Immigration Court--unless subject to mandatory detention 6
ICE CUSTODY IN N.C. No long-term ICE detention facilities in NC Client quickly moved to York, SC, then Georgia (ultimately Stewart Detention Facility) Upon leaving Carolinas, Charlotte Court loses jurisdiction Once bond set, must pay at ICE ERO office (Charlotte) or use bondsman One or more days delay before can pay bond, be released WHETHER TO PAY STATE BOND If client taken into ICE custody while criminal case still pending, cannot get client back In some counties (e.g. Durham) forfeit state bond if FTA even when can prove was in ICE custody when missed state court date If client stays in criminal custody, could use credits toward time served Pending criminal charges not basis to deport but affect discretion to grant bond for otherwise deportable aliens (e.g. policy of no bond for overstay with pending DV) IS CLIENT ELIGIBLE FOR IMMIGRATION BOND? MANDATORY DETENTION 8 USC 1226(c) - Cannot get immigration bond if convicted of: Crime making client inadmissible Drug offense (including paraphernalia) Firearm offense Aggravated felony Two CIMTs One CIMT w/in 5 years of admission with actual sentence imposed of a year or more 7
IS CLIENT ELIGIBLE FOR IMMIGRATION BOND? If not subject to mandatory detention, Client can seek bond redetermination before IJ Factors are: Dangerousness to community Flight Risk Matter of Urena, 25 I&N Dec. 140 (BIA 2009). But in practice, some IJ's also require some form of relief Immigration Court If released from custody, a month or two after release, get notice of hearing First hearing Master Calendar respond to allegations tell IJ what relief seeking Trial several months to a year or more later on allegations, if contested on eligibility for relief NOTICE TO APPEAR BOND HEARING (if eligible) MASTER CALENDAR HEARING INDIVIDUAL MERITS HEARING IMMIGRATION JUDGE DECISION RELIEF REMOVAL ORDER TERMINATION VOLUNTARY DEPARTURE BOARD OF IMMIGRATION APPEALS FEDERAL COURT 8