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 [email protected] 360-385-2538
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What is it? How to get it?
Everyone else is a noncitizen (a.k.a. “alien”)
FOUR BASIC AVENUES
1. Asylum/Refugee Status
4. “Relief” From Removal
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?
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?
Components of the Immigration System
Homeland Security Act abolished INS
Responsible for enforcement of immigration laws within the U.S. (other than the border)
Apprehension of Noncitizens
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
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?
Deportation & Removal Procedures
What Your Client Will Face When Taken Into Immigration Custody
“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
Immigration Enforcement in the
Criminal Justice System & Strategies for Effectively Representing Your
- 287(g) Agreements
- In 2006 there were only 8 agencies with MOUs.
- If policy is not to ask, then there is nothing to share
Allows for the release of defendant prior to completion of sentence where:
8 C.F.R. 287.7(d) provides:
Upon a determination by the [immigration officials] to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period of not to exceed 48 hours, excluding Saturday, Sundays, and [federal] holidays in order to permit assumption of custody by the Service.
- Authorized under 8 USC 1357(d) and
8 CFR 287.7
- ICE has not done any investigation; it places holds on anyone it believes to be in violation of immigration laws
- Request to Detain
- Notice of Investigation
- or both
No Release From Custody
- Case is still pending but court orders release
- Case is dismissed and the person is going to be released
- Case is adjudicated and disposition is entered and person will be released
It is critical to determine whether a detainer has been lodged against your client.