CRIMMIGRATION 101 Rachel M Self Esq of Rachel

+ CRIMMIGRATION 101 Rachel M. Self, Esq. of Rachel M. Self, P. C, Boston, Chair Hon. Paul M. Gagnon of U. S. Immigration Court, Executive Office for Immigration Review, Boston Hon. Myong J. Joun, Associate Justice of the Boston Municipal Court

+ SOURCES OF LAW ● Immigration and Nationality Act (8 USC) ● Code of Federal Regulations (8 CFR) ● Board of Immigration Appeals (BIA) ● 1 st Circuit and Supreme Court Decisions

+ TYPES OF IMMIGRATION STATUS U. S. Citizen Includes Puerto Rico and U. S. Territories Legal Permanent Resident (“green card”) Non-Immigrant Student Tourist Other types of Visas Out of status or Undocumented Asylum Seekers Temporary Protected Status

+ THE STATUS HIREARCHY ● US Citizen (by birth, acquired, derived, naturalized) ● Lawful Permanent Resident/Conditional Resident ● TPS, DACA ● Immigrant Visas ● Nonimmigrant visas ● The undocumented

+ Common Acronyms n OCC n NTA n CIMT n DHS n LPR n COV n ICE n USC n GMC n CBP n TPS n IJ n ERO/DRO n DACA n VD n EOIR n BIA n DOJ n USCIS n CFR n PD n INA

+ WHAT ICE ISN’T TELLING YOU ABOUT DETAINERS Important facts about ICE detainers that ICE usually neglects to mention.

+ 1. ICE DETAINER REQUESTS ARE NOT MANDATORY ICE detainer request is just a request. There is NO PENALTY if local agencies don’t comply. n No legal requirement for your dept to comply n Fed govt has no legal right to force your dept to hold anyone beyond the time when they are eligible for release from state or local custody

+ 2. ICE DETAINER REQUESTS ARE NOT WARRANTS ICE detainer requests do NOT provide a lawful basis for arrest OR detention. n Criminal warrant is issued by a judge + probable cause whereas an ICE detainer is issued by an ICE officer (not judge), because ICE has “initiated an investigation” into a person’s status n If ICE detainer is issued, that doesn’t mean the individual is actually a non-citizen subject to deportation or even that ICE has probable cause to think so n ICE detainer is NOT a criminal detainer n n Criminal detainer can only be issued if there are charges pending in another jx against a person currently serving a criminal sentence ICE detainers have VIRTUALLY NOTHING IN COMMON with criminal detainers

+ 3. HOLDING SOMEONE FOR ICE IS EXPENSIVE Holding people @ ICE’s request is expensive for state/local. n ICE does not reimburse localities for detaining individuals until ICE has assumed actual custody of the individual n n Can amount to millions of dollars of state/local money being spent for ICE’s benefit If you choose to comply with ICE detainers, your agency faces the costs of legal liability. n Detainer lawsuits are regular occurrences Although request comes from ICE, the choice to comply means a state/county/city is liable for potential damages.

+ 4. ICE FREQUENTLY MAKES MISTAKES ICE issues erroneous detainers with disturbing regularity. n Example: Rennison Castillo, USC/army vet, was held for 7 months in immigration detention after ICE placed a detainer despite multiple attempts to prove his citizenship n After release, ICE admitted mistake. n Misspelled his name n Assigned him multiple file numbers

+ 5. GETTING INVOLVED WITH ICE DETAINERS UNDERMINES PUBLIC SAFETY When you choose to comply with ICE detainers, people in the community may come to see you as an arm of ICE. n Erosion of people’s trust in your officers n Reluctance to come forward and report crimes for fear of immigration consequences for themselves or others By declining to comply with ICE detainer requests, you can: 1. Maintain a clear distinction between your officers and federal immigration authorities 2. Encourage people to report crimes and cooperate in community policing efforts 3. Ensure the safety of the whole community.

PROTECTING YOUR + CLIENTS WHO HAVE ICE DETAINERS

+ DETAINERS & SECURE COMMUNITIES n Most detainers are lodged against those arrested for minor misdemeanors such as traffic offenses like driving without a license n Uses fingerprints and FBI data to search automatically after jx signs up

+ WHAT IS A DETAINER A notification from ICE to state/local jails that: n ICE is investigating whether an individual is removable n ICE has issued Notice to Appear n There is an arrest warrant for the person, or the person has been ordered removed n Usually transmitted via fax or email n Often sent from LESC in VT n If person is in custody pursuant to a detainer before the detainer arrives, possibly illegal n Suspected noncitizen supposed to be given copy, but no requirement to do so n No effective way to contest while in custody except habeas corpus

+ WHAT A DETAINER IS NOT n Not the equivalent of an arrest warrant n A determination that an individual is deportable/inadmissible n The equivalent of ICE custody over an individual n The equivalent of a criminal detainer

+ WATCH OUT FOR DISCRIMINATION n Sometimes jails tell families that they can’t post bond for their loved ones on detainers n They CAN post bond but only starts the 48 hr clock; doesn’t ensure immediate release n Magistrate shouldn’t raise bond/revoke solely b/c of detainer n Inmates shouldn’t be classified as a security risk or lose privileges because of existence of ICE detainer

+ LEGAL AUTHORITY FOR DETAINER n Requires Ice to consider issuing detainer upon request by local/state/federal agency for persons held on a controlled substances violation n Holding agency initiates process, provides info and details n No standard of proof in statute for lodging a detainer n ICE to expeditiously take custody upon release from other enforcement agency n Not limited to controlled substances arrests n Extends local custody for up to 48 hours excl. weekends and holidays n Law enforcement required to provide all relevant criminal documents n An immigration detainer is merely an administrative mechanism to assure that a person subject to confinement will not be released from custody until the party requesting the detainer has an opportunity to act.

+ 48 HOUR RULE n 48 hour rule beings: n If criminal case pending, the court orders release and bail is posted; n If the case is dismissed; n If the individual completes his sentence; The 48 hour rule doesn’t begin when ICE says it does

+ 48 HOUR RULE EXAMPLES n Example: Erik’s criminal charge dismissed at 12: 21 p. m. on Friday. He is returned to jail, where he remains over the weekend subject to ICE detainer. Jail faxes ICE on Tuesday at 10 a. m. stating Erik is “ready for pickup. ” ICE officer calls the jail and reminds jail that ICE pickup days are Wednesdays and Fridays. The jail holds Erik until Wednesday, and ICE picks him up at 7 a. m. Violation? Yes. Erik should have been released by 12: 21 p. m. on Tuesday.

+ 48 HOUR RULE EXAMPLES n Note that if the 48 -hour clock expires at midnight, it expires then —not at 8 a. m. when the ICE office opens. n • Remedies: n Motion to suppress in immigration court n Damages actions/injunctive relief v. ICE (Bivens or Federal Tort Claims Act), or v. locals, 42 USC § 1983 n Habeas to ensure release

+ HOW IS A DETAINER ISSUED? n Immigration Detainer – Notice of Action (Form I-247) n Completed by Ice and sent to state/local law enforcement agency n Verbal Holds – is that a detainer? NO!

+ ARE DETAINERS VOLUNTARY OR MANDATORY? ICE has conceded that they are “not mandatory as a matter of law” in statements to MOCs, litigation, etc. n For years however, ICE argued that detainers were mandatory.

+ SO WHAT IF THEY’RE NOT MANDATORY? n If mandatory, it is federal commandeering of local resources = unfunded mandate n Detaining individuals solely to verify their immigration status would raise constitutional concerns n If not mandatory, the jurisdictions can opt-out of Secure Communities process or limit its application to actual “criminal aliens”

+ May 26, 2016 – Moscoso SJ-20160168 n Judge Spina issued the following order on a G. L. 211 3 Petition: n “it is ORDERED that the petition be, and the same is hereby allowed, for the reasons set forth in the petition. Accordingly it is FURTHER ORDERED that because the trial court is without authority to hold the petitioner, or otherwise order him held, on a civil I. C. E. detainer, the defendant must be released upon posting bail, unless he is held on some other process”

+ DAMAGES ACTIONS Who do you sue: State/local, ICE, both? n General rule: whoever has control over the body, which is generally the state/county

+ WHAT STRATEGIES CAN BE USED TO DEFEAT DETAINERS? n 112 total jurisdictions (and counting!) limiting ICE holds that range from outright refusal to comply to more limited policies n Justice Spina’s Order is not binding precedent, but defense counsel should argue that honoring such a detainer is unlawful consistent with Justice Spina’s Order. Move that the court release the client notwithstanding the detainer. File a motion. Cite to Justice Spina’s order. n Use this order to advocate for release with the local sherrif of local DOC.

+ HOW TO MAKE A POLICY WORK n Terminate or limit compliance with Ice detainers and any other warrants that ICE issues e. g. Ice can’t use local or state resources, tie it to federal reimbursement n Find a clear line in the state penal code for crimes that could be included and only include those that are the most serious with a long period of incarceration n Get technical assistance and talk to your criminal defense attorneys!

+ HOW CAN YOU HELP SOMEONE WITH A DETAINER?

+ TIPS: HOW DO YOU GET SOMEONE RELEASED WHO HAS AN ICE DETAINER? n Justice Spina’s Order!!!! n Know your jail, law enforcement agency, and local law n Assess the merits of the individual’s case for release n Negotiating the release of an individual through the local custodian and/or Ice n Seeking judicial review of custodian action

+ TIPS: ASSESSING THE MERITS OF THE INDIVIDUAL’S CASE FOR RELEASE n Is there an immigration hold? n Determine whether the immigration hold was issued erroneously n Strength of the individual’s case for prosecutorial discretion n Likelihood that individual will be detained past the 48 hour period

+ TIPS: NEGOTIATING RELEASE THROUGH LOCAL CUSTODIAN AND/OR ICE n Advocacy with local custodian(s) and counsel n Educate the jail on the legal consequences of submitting to the Ice hold and its non-mandatory nature – This just got a whole lot easier. n Long-term partnership with community organizations, political constituencies, and allies to show the greater community impact of holds and demand a hold policy

+ CAREFUL!!!! n Justice Spina’s Order does not mean that ICE agents can’t arrest your client without the help of state authorities. n On the street n At home n Outside the courtroom

+ TIPS: LIFT THE DETAINER: NEGOTIATING RELEASE WITH ICE n Erroneously issued (USC or LPR who is not removable)—Call ICE hotline number (855) 448 -6903 to lift the detainer. n Are they a good candidate for immigration relief or prosecutorial discretion? Ask the Assistant Field Office Director to cancel the detainer. Risk: disclosing status may cut against immigration n strategy n • Right point of contact

+ WORK WITH CRIMINAL COUNSEL n Criminal attorney may be family’s first call n Remind attorney to call you ASAP if arrested or if detainer lodged (no requirement to inform even criminal counsel) n Make sure attorney takes scrupulous notes re: timing of plea, dismissal of charges, expiration of sentence, or time bond posted n Use attorney to determine if jail is stalling releasing client awaiting a written detainer n Use 48 -hour window to interview client for immigration, esp. if ICE is likely to transfer client to detention far away n Confer about whether it would be helpful to have prosecutor request that ICE bring client back for trial.

+ FILE A LAWSUIT! PETITIONS FOR WRIT OF HABEAS CORPUS n Violations of the 48 -hour period n Writ of Habeas Corpus for violations of the Fourth, Fifth, and Fourteenth amendments or equivalent state laws n 48 -hour challenges

+ IMMIGRATION TERMS OF ART n Good moral character n Crime of Moral Turpitude n Conviction n Sentence n Aggravated Felony n Crime of Violence

+ CRIMES INVOLVING MORAL TURPITUDE n “Crimes that are base, vile or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. ” n Different rules depending on if arriving alien, applicant for admission, or admitted alien (212 vs. 237).

+ AGGRAVATED FELONIES n List of crimes that are considered aggravated felonies: INA § 101(a)(43) n Ground of removability only. n 212(c), 212(h) waiver available in limited circumstances.

+ CRIMES n Is it a conviction? INA 101(a)(48)(A) – definition of conviction a. i. “a formal judgment of guilt of the respondent entered by a court or, if the adjudication is withheld, where 1)a judge or jury has found the alien guilty or the alien has entered a plea of guilty or of nolo contendre or has admitted to facts sufficient to warrant a finding of guilt; and 2) the judge has ordered some form of punishment, penalty or restraint on the alien’s liberty to be imposed. n See Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008) CWOF – usually a conviction. n n Is it a petty offense? INA § 212(a)(2)(A)(ii) or § 237(a)(2)(A)(i).

+ EFFECTS OF CRIMINAL CONVICTIONS ● Deportable Offenses ● Inadmissible Offenses o At entry o Certain Application o Offenses not requiring a conviction ● Asylum and Particularly Serious Crimes

+ EFFECTS OF CRIMINAL CONVICTIONS ON APPLICATIONS ● Ineligibility for relief o o o ● Cancellation of removal Adjustment of Status Naturalization Discretion

+ DACA INELIGIBILITY ● Felony conviction ● Significant Misdemeanor ● OR Three Non-significant misdemeanors

+ TPS INELIGIBILITY ● one felony, INA § 244(c)(2)(B)(i); ● one misdemeanor, as defined below and including Massachusetts misdemeanors, in which the sentence actually imposed is more than one year of incarceration, either suspended or committed, 8 C. F. R. § 244. 1; ● two misdemeanors, if the sentences actually imposed are one year or less, INA § 244(c)(2)(B)(i); or ● a “particularly serious crime” that makes him a danger to the community, INA §§ 244(c)(2)(B)(ii); 208(b)(2)(A)(ii).

+ Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) ● http: //www. legalactioncenter. org/practiceadvisories/moncrieffe-v-holder-implications-drug-charges-and -other-categorical-approach-iss ● The holding ● The broader implications

+ Descamps v. US, 133 S. Ct. 2276 (2013) ● http: //www. nationalimmigrationproject. org/legalresources/pra ctice_advisories/pa_Descamps_Practice_Advisory_6 -2613. pdf ● The holding ● The broader implications

+ BURDEN OF PROOF n The Department of Homeland Security (DHS) has the burden of proving removability by clear and convincing evidence. See also Matter of Rivens, 25 I&N Dec. 623 (BIA, Oct. 19, 2011).

+ COURT RULES n Immigration Court Practice Manual – effective July 1, 2008 – READ IT!! (Oh, please read it…and did I mention? READ IT. ) n www. usdoj. gov/eoir for Practice Manual, other resources n Follow all filing deadlines and other rules strictly

+ BOND HEARINGS n In Boston, bond hearing scheduled within 3 business days of your written request. n Court’s decision on bond is usually final. n Analysis: flight risk or danger to community. INA § 236. n Minimum bond amount: $1500. n Bond money is paid to Immigration & Customs Enforcement (DRO).

+ HUMANIZE YOUR CLIENT 1. Make them more than just a file on the desk. 2. Contact TAU and find out who is handling the hearing and how they feel about the case (617) 565 -3141. 3. Reach out to probation officers and corrections officers and any other law enforcement who could be helpful. 4. Get affidavits and motions for telephonic hearings. 5. When unable to get agreement for assistance, subpoena them (must be done pursuant to Benchbook and local laws).

+ USEFUL PHONE NUMBERS n Immigration Court, Boston: (617) 565 -3080 n Immigration Court, Hartford: (860) 240 -3881 n Litigation Unit, Boston: (617) 565 -3140 n Detention and Removal Operations (for posting bonds, orders of supervision, and finding out where your client is detained): (781) 359 -7500

+ USEFUL WEBSITES n EOIR: www. usdoj. gov/eoir n n BIA: www. usdoj. gov/eoir/biainfo. htm n n Practice Manual, contact information for all courts, application forms and fee list. Practice Manual, contact information. AILA: www. aila. org n Practice advisories, daily updates, other advocacy tools.

+ HELPFUL RESOURCES ● Kurzban ● Immigrant Legal Resource Center: http: //www. ilrc. org/crimes ● American Immigration Council: http: //www. legalactioncenter. org/practice-advisories-topic ● National Immigration Project: http: //www. nationalimmigrationproject. org/publications. htm ● http: //www. justice. gov/civil/docs_forms/REVISED%20 Padilla%2 0 v. %20 Kentucky%20 Reference%20 Guide_11 -8 -10. pdf (dated by a good general overview of proceedings) ● http: //www. justice. gov/eoir/vll/benchbook/resources/Fundamenta ls_of_Immigration_Law. pdf (dated by a good general overview of proceedings) ● Join the American Immigration Lawyers’ Association (AILA)