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Washington Defender Association’s Immigration Project

Immigration Enforcement in the Criminal Justice System ________________________ What Every Criminal Defense Attorney Needs to Know. Washington Defender Association’s Immigration Project. Ann Benson, Immigration Resource Attorney abenson@defensenet.org 360-385-2538

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Washington Defender Association’s Immigration Project

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  1. Immigration Enforcement in the Criminal Justice System________________________What Every Criminal Defense Attorney Needs to Know

  2. Washington Defender Association’sImmigration Project • Ann Benson, Immigration Resource Attorney • abenson@defensenet.org 360-385-2538 • Jonthan Moore, Immigration Specialist • Immigration Specialist • jonathan@defensenet.org 206-623-4321 WDA’s Website: www.defensenet.org

  3. Overview of Presentation • Sec. I – Immigration Status • Sec. II – Relevant Components of the Immigration System • Sec. III – Deportation & Removal Procedures • Sec. IV – Immigration Enforcement in the CJS

  4. Section I Immigration Status What is it? How to get it? ____________________________________

  5. Immigration Basics –Immigrant Demographics • Over 30 million immigrants in U.S • 33% increase over 1990 • 20% of U.S. population are immigrants or children of immigrants

  6. Immigration Basics- Washington StateImmigrant Demographics • 12.5% of WA population is foreign born • Washington ranks 10th in U.S. for total immigrant population • 39% from Asia; 30% from Latin America • For more info: The Migration Policy Institute www.migrationpolicy.org

  7. Immigration Status • Refers to persons classification under US immigration laws – 8 USC • Most significant factor in determining consequences, options and rights • Which immigration laws subject to • Amount of due process

  8. U.S. Citizenship • Three ways to acquire Citizenship: • Birth in the US • Birth to US citizen parent(s) • Naturaliztion (apply to become a USC) • US citizens cannot be deported

  9. Immigration Status Everyone else is a noncitizen (a.k.a. “alien”) • Always subject to deportation if in violation of immigration laws • Even for minor criminal violations (e.g. simple misd.) • Regardless of length of time in US or other equities • Regardless of age (minor children deported)

  10. Immigration Status • Lawful Permanent Resident – LPR/Greencard holder • Entitled to live & work indefinitely in US • Can apply for citizenship after 5 years (3 if married to USC) • Refugee/Asylee • Granted safe haven due to persecution • Can live and work legally in US • Can apply to be LPR after one year

  11. Immigration Status • Nonimmigrant Visa Holder • Temporary visa • Issued for specific purpose (e.g. student, tourist) • Subject to deportation if terms violated • Undocumented Persons • Nonimmigrant visa holders who violate terms • Persons who illegally enter US

  12. Obtaining lawful immigration status FOUR BASIC AVENUES 1. Asylum/Refugee Status • Prove past or future persecution 2. Employment • Employer makes petition for employee 3. Family • LPR/USC Spouse or Parent petitions for family member 4. “Relief” From Removal • Immigration Judge has certain options in formal removal proceedings to allow noncitizens to remain lawfully in US (e.g. “cancellation of removal”)

  13. Immigration Basics: ProceduresObtaining lawful immigration status • Congress expected to undertake Comprehensive Immigration Reform (CIR) in 2009 or 2010. • CIR is expected to include some avenue for the 12 million undocumented people in the U.S. to apply for lawful status. • Criminal history/convictions will impact eligibility

  14. Immigration StatusReview Questions #1 and #2 1. Identify & explain two types of immigration status. 2.True or False: Sergi married a U.S. citizen and got his greencard 15 years ago. If he is convicted of delivery of cocaine (a controlled substance violation under Immigration law) he will face deportation?

  15. Immigration StatusReview Questions #3 and #4 • Benjamin comes to the U.S. on student visa but drops out of school. What is his immigration status? 4. Luen was born in Cambodia and came to the U.S as a refugee when he was five. What are the possibilities for his current immigration status? What additional information would you want to know?

  16. Section II: Components of the Immigration System The Players

  17. Immigration Law is Federal Law • Same laws apply throughout the US • Different Circuit Court interpretations • Congress makes the laws • Most immigration laws at Title 8 U.S.C • The Board of Immigration Appeals and the Federal Circuit Courts interpret the laws

  18. Imigration Basics: The Players Homeland Security Act abolished INS • Immigration functions split between: • Department of Homeland Security - DHS • Department of Justice - DOJ • Department of State - DOS

  19. DHS Immigration-Related Divisions • Customs & Border Protection – CBP • Immigration & Customs Enforcement –ICE • Citizenship & Immigration Services - CIS

  20. Customs & Border Protection- CBP • Responsible for enforcement at the borders and points of entry • Facilitates removal of apprehended noncitizens • Makes referrals to USAs for illegal reentry prosecution • Responsible for facilitating legal admission (or refusal of admission) at the ports of entry to US • 2009 Budget request = $11 Billion

  21. Citizenship & Immigration Services - CIS • Responsible for processing applications for immigration benefits such as greencards, citizenship, asylum • Denial of application = referral to ICE for deportation/removal • 2009 budget request = $2.7 billion

  22. Immigration & Customs Enforcement- ICE Responsible for enforcement of immigration laws within the U.S. (other than the border) • Determines who is eligible for a hearing before an immigration judge • Issues administrative removal order for those who are not • Initiates formal removal proceedings for those who are by issuance of a Notice to Appear • Effectuates deportation/removal orders • Oversees detention of noncitizens • Refers case to USA for illegal reentry prosecution

  23. Immigration & Customs Enforcement- ICE Apprehension of Noncitizens • Local, state & federal Jails • Denied applications for benefits • Work place & home raids • ICE has more armed agents than any other federal agency, including FBI, DEA and federal marshalls

  24. Department of Justice • Executive Office For Immigration Review • Immigration Courts • Conduct removal proceedings • Board of Immigration Appeals • Reviews decisions from Immigration Courts • Office of Immigration Litigation • Represents government in federal circuit court appeals and US Supreme Court appeals

  25. Federal Circuit Courts • Jurisdiction to review decisions of the BIA • Significant restrictions on jurisdiction • No jurisdiction re: many discretionary decisions • No Jurisdiction where noncitizen is facing removal for criminal conviction • However, court has power to determine if conviction is a deportable/removable offense • Congress trying to restrict jurisdiction further

  26. Department of State - DOS US consulates abroad are involved in processing, adjudicating and issuing many applications for both immigrant and non-immigrant visas. Note: Individual decisions from consulates are immune from judicial review

  27. Review Question #1 • Boris is an LPR who wants to apply for citizenship. Which DHS agency would he be dealing with? • Boris takes a trip to Canada. When he presents himself at the border to re-enter the U.S. which DHS agency will he be dealing with?

  28. Review Question #2 Boris is arrested and charged with assault 4th degree – DV. He is in jail for 3 days. He pleads guilty and is sentenced to 365 days/362 suspended. Upon release, he is taken into DHS custody and put in removal proceedings because of his conviction. Which DHS agency is responsible for these functions?

  29. Section III: Deportation & Removal Procedures What Your Client Will Face When Taken Into Immigration Custody

  30. Deportation & Removal Procedures • Civil proceedings • Unlawful presence in U.S. not a crime – civil violation • Over 1 million people “returned” in 2007 • Approx. 100,000 due to criminal convictions • Mandatory detention for “criminal aliens” • No right to appointed counsel • 85% of noncitizens unrepresented

  31. Deportation & Removal Procedures • 1. Expedited Removal • 2. Federal Judicial Orders of Removal • 3. Administrative Voluntary Departure • 3. Stipulated Orders of Removal • 4. Removal Proceedings Before An IJ • 5. Reinstatement of Removal • 6. Illegal Reentry Prosecution (criminal)

  32. Expedited Removal Procedures8 USC 1225(b) or 1228(b) • Who is subject to it? • Persons w/o proper documents at border • Persons apprehended w/in 100 miles of the border w/o proper documents & in US for less than 14 days • Non-LPRs convicted of aggravated felonies (AF) • LPRs MUST get hearing before immig judge • What is it? • ICE issues order • No meaningful judicial review • Bar to readmission – 5 years or permanent for AF

  33. Judicial Orders of Deportation8 USC 1228(c) • Defendants can stipulate to removal as part of plea agreement in federal criminal prosecution or • Federal District Judge can conduct removal proceedings in context of federal criminal sentencing • If USA requests and judge chooses • Court can consider applications for relief

  34. Admininstrative Voluntary Departure8 USC 1229(c) • Granted by ICE in lieu of formal removal proceedings before Immigration Judge • Given up to 120 days to leave “voluntarily” • no deport/removal order • Ineligible if significant criminal history • Failure to comply bars future immigration benefits

  35. Stipulated Removal Orders8 USC 1229a(d) • Noncitizen waives right to hearing before Immigration Judge and agrees to a “stipulated” order of removal (SOR) signed by the IJ. • 535% increase in SOR’s from 2004-2008 • Vast majority are by noncitizens in immigration detention w/o legal representation. • Forecloses all future avenues to obtain status • Serves as basis for illegal reentry prosecutions.

  36. Removal Proceedings Before Immig. Judge8 USC 1229(a) • Immigration Judge has power to: • Grant release from detention in certain cases • EXCEPTION: Mandatory detention for duration of removal proceedings where noncitizen facing removal for criminal convictions • If deportable as charged and no “relief” granted, issues order of removal. • Limited Appeal to Board of Immigration Appeals & Federal Circuit Courts

  37. Removal Proceedings Before Immigration Judge – 8 USC 1229(a)…cont’d • IJ has power to grant applications for “relief from removal” to noncitizens who meet statutory qualifications. Examples: • Persecution & torture claims: asylum, CAT • LPR Cancellation: LPRs w/7 years residency who are not aggravated felons • Undocumented Cancellation: 10 years, no crim history, exceptional hardship • Family based petitions for LPR status

  38. Removal Proceedings Before Immigration Judge – 8 USC 1229(a)…cont’d • Institutional Hearing Program • IJ’s conduct removal hearings for inmates incarcerated in state facilities; • Hearings can be telephonic; • Objective is to have final order of deportation (or case adjudicated) prior to completion of sentence.

  39. Reinstatement of Prior Removal 8 USC 1231(a)(5) • ICE reinstates prior removal/deportation order for persons determined to have unlawfully re-entered after previous deportation/removal. • Order entered administratively by ICE/CBP • No meaningful judicial review

  40. Federal Criminal Prosecution for Illegal Re-entry after Deportation- 8 USC 1326 • Noncitizen re-enters after deportation/removal order by immigration judge or ICE • Most prosecuted federal crime (8 USC 1325 & 1326) • Latino males biggest target group • 51% of all federal filings involve immigration violations • WA state ranks 5th in country for 1326 prosecutions • Severe sentence enhancements when crim history

  41. Immigration Detention by DHS “With as many as 1.6 million people in some stage of immigration proceedings, ICE holds more inmates a night than the Clarion Hotels have guests, operates nearly as many vehicles as Greyhound has buses and flies more people each day then do many small US airlines.” - Washington Post 2/2/07

  42. Immigration Detention by DHS • In 2006 DHS ended “catch & release” • Quadrupled # of detained noncitizens • DHS detains over 27,500 noncitizens on any given day • No statute or regulations governing conditions/standards of confinement • Extensive documentation of human rights violations • No statutes/regulations governing conditions of confinement • Difficult to fight deportation from immigration detention • Detention mandatory for most convictions

  43. Immigration Detention • WA noncitizens (adults) are detained at the Northwest Detention Center in Tacoma. • 1,000 beds - Always at capacity • Proposed expansion of 500 additional beds underway • Private contracting facility – not operated by DHS/ICE • Documentation of significant human rights violations • ICE routinely transfers noncitizens to distant, remote locations

  44. Removal Procedures Review Questions • Diego was convicted of possession of C/S, a deportable offense. What may happen to him if: • He is an LPR? • He is undocumented? • Was deported 2 years ago and came back? • What if his conviction was for delivery, an aggravated felony?

  45. Section IV. Immigration Enforcement in the Criminal Justice System & Strategies for Effectively Representing Your Noncitizen Client

  46. Is the Criminal Justice system compelled to enforce immigration laws? • No federal law requires state and local officials to affirmatively enforce federal immigration laws. • There is no duty under federal law for state or local law enforcement officials to report noncitizens.

  47. Is the Criminal Justice system compelled to enforce immigration laws? • There is disagreement whether or not local and state law enforcement have the “inherent authority” to enforce civil immigration laws. • However, federal law contemplates that local cannot enforce immigration laws, unless they have a formal agreement and training from DHS to do so. - 287(g) Agreements

  48. Is the Criminal justice system compelled to enforce immigration laws? • Local and state law enforcement may cooperate with Immigration and Customs Enforcement (ICE) in the enforcement of immigration laws if it chooses so long as it does not conflict with state or local laws and/or policies

  49. Summary of Federal Law on Imm Enforcement • The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) = main federal legislation that addresses ability of state and local agencies to investigate suspected civil violations of immigration law.

  50. IIRIRA Provisions • Responding to “mass influx” of immigrants in urgent situations (rare) • 287(g) Programs – MOUs between ICE and law enforcement to aid in enforcement of imm laws after receiving training • Prohibits don’t tell policies, but not don’t ask policies

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