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

Washington defender association s immigration project
Washington Defender Association’sImmigration Project

  • Jonthan Moore, Immigration Specialist

    • Immigration Specialist

  • Overview of presentation
    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

    Section I

    Immigration Status

    What is it? How to get it?


    Immigration basics immigrant demographics
    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

    Immigration basics washington state immigrant demographics
    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

    Immigration status
    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

    U s citizenship
    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

    Immigration status1
    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)

    Immigration status2
    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

    Immigration status3
    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

    Obtaining lawful immigration status
    Obtaining lawful immigration status


    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”)

    Immigration basics procedures obtaining lawful immigration status
    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

    Immigration status review questions 1 and 2
    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?

    Immigration status review questions 3 and 4
    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?

    Section ii
    Section II:

    Components of the Immigration System

    The Players

    Immigration law is federal law
    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

    I migration basics the players
    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

    D hs immigration related divisions
    DHS Immigration-Related Divisions

    • Customs & Border Protection – CBP

    • Immigration & Customs Enforcement –ICE

    • Citizenship & Immigration Services - CIS

    Customs border protection cbp
    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

    Citizenship immigration services cis
    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

    Immigration customs enforcement ice
    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

    Immigration customs enforcement ice1
    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

    Department of justice
    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

    Federal circuit courts
    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

    Department of state dos
    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

    Review question 1
    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?

    Review question 2
    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?

    Section iii
    Section III:

    Deportation & Removal Procedures

    What Your Client Will Face When Taken Into Immigration Custody

    Deportation removal procedures
    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

    Deportation removal procedures1
    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)

    Expedited removal procedures 8 usc 1225 b or 1228 b
    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

    Judicial orders of deportation 8 usc 1228 c
    Judicial Orders of Deportation8 USC 1228(c)

    • Defendants can stipulate to removal as part of plea agreement in federal criminal prosecution


    • 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

    Admininstrative voluntary departure 8 usc 1229 c
    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

    Stipulated removal orders 8 usc 1229a d
    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.

    Removal proceedings before immig judge 8 usc 1229 a
    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

    Removal proceedings before immigration judge 8 usc 1229 a cont d
    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

    Removal proceedings before immigration judge 8 usc 1229 a cont d1
    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.

    Reinstatement of prior removal 8 usc 1231 a 5
    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

    Federal criminal prosecution for illegal re entry after deportation 8 usc 1326
    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

    Immigration detention by dhs
    Immigration Detention by DHS Deportation-

    “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 detention by dhs1
    Immigration Detention by DHS Deportation-

    • 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

    Immigration detention
    Immigration Detention Deportation-

    • 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

    Removal procedures review questions
    Removal Procedures Review Questions Deportation-

    • 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?

    Section iv
    Section IV. Deportation-

    Immigration Enforcement in the

    Criminal Justice System & Strategies for Effectively Representing Your

    Noncitizen Client

    Is the criminal justice system compelled to enforce immigration laws
    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.

    Is the criminal justice system compelled to enforce immigration laws1
    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

    Is the criminal justice system compelled to enforce immigration laws2
    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

    Summary of federal law on imm enforcement
    Summary of Federal Law on Imm Enforcement immigration laws?

    • 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.

    Iirira provisions
    IIRIRA Provisions immigration laws?

    • 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

    287 g agreements
    287(g) Agreements immigration laws?

    • IIRIRA allows local and state police and sheriff departments to enter into agreements, titled “Memoranda of Understanding” (MOUs), with the Department of Justice to aid in the enforcement of immigration laws (including issuance of deportation/removal orders) after they have received adequate training.

    287 g agreements1
    287(g) Agreements immigration laws?

    • Only those officers who undergo the training have the authority to assist in immigration enforcement and are supervised by ICE.

    • The MOUs are very specific as to what immigration laws local officers can and cannot enforce.

    • No 287(g) Agreements in WA

      • But significant cooperation by jails/police

    Current status of 287 g agreements
    Current Status of 287(g) Agreements immigration laws?

    • As of July 2008, there were over 765 officers in 47 state- and local-level law enforcement agencies participating in the 287(g) program.

      - In 2006 there were only 8 agencies with MOUs.

    • Another 90 law enforcement agencies have pending 287(g) requests awaiting approval by the DHS, and these requests are likely to be approved.

    Current status of 287 g agreements1
    Current Status of 287(g) Agreements immigration laws?

    • Many of the agencies participating have 287(g) trained officers solely in their jail system and fewer use it only outside of the jail system or both inside and outside the jail system.

    • The trained officers in the jail system obtain incoming prisoners’ immigration status during the intake process and promptly report any suspected undocumented immigrants to ICE.

    Don t tell v don t ask policies
    Don’t Tell v. Don’t Ask Policies immigration laws?

    • IIRIRA prohibits policies that restrict information sharing re: immigration status between ICE and local and state law enforcement

    • It does not, however, require that they collect immigration information

      - If policy is not to ask, then there is nothing to share

    Ncic database noncitizens
    NCIC Database & Noncitizens immigration laws?

    • In 2001 Justice Department began entering names of certain classes of noncitizens into the National Crime Information Center – NCIC’s data base.

    • Recent study revealed that 42% of NCIC immigration hits in response to police inquiries were “false positives”.

    Rcw 9 94a 685 conditional release for deportation
    RCW 9.94A.685 immigration laws?Conditional Release for Deportation

    Allows for the release of defendant prior to completion of sentence where:

    • Conviction for nonviolent offense

    • Final Order of deportation (removal)

    • Court includes as condition of sentence

      • If both prosecutor and DOC consent

    Rcw 9 94a 685 conditional release for deportation1
    RCW 9.94A.685 immigration laws?Conditional Release for Deportation

    • Enacted over 15 years ago

    • Virtually no implementation due to lack of prosecutorial consent & INS/ICE compliance

    • Current amendments pending to eliminate prosecutor/judicial consent

    Smc 4 18 015 inquiries into immigration status
    SMC 4.18.015 immigration laws?Inquiries Into Immigration Status

    • A. Notwithstanding Seattle Municipal Code Section 4.18.010, unless otherwise required by law or by court order, no Seattle City officer or employee shall inquire into the immigration status of any person, or engage in activities designed to ascertain the immigration status of any person.

    • B. Seattle Police officers are exempt from the limitations imposed by subsection A, above, with respect to a person whom the officer has reasonable suspicion to believe: (1) has previously been deported from the United States; (2) is again present in the United States; and (3) is committing or has committed a felony criminal-law violation.

    Rcw 10 70 140
    RCW 10.70.140 immigration laws?

    • Requires jail/prison officials to determine “nationality” of all detainees and notify immigration authorities whenever a noncitizen person IS COMMITTED to their facility.

    • Most jails use this as basis for determining citizenship status (or place of birth) at time of booking into jail facility.

    • Jails provide this info to ICE officials who use it as basis to interview detainees and place immigration detainers on them.

    Immigration detainers 8 usc 1226 1357 8 cfr 287 7
    Immigration Detainers immigration laws?8 USC 1226 & 1357 8 CFR 287.7

    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.

    Immigration detainers
    Immigration Detainers immigration laws?

    • Regulation is ultra vires because authorizing statute provides:

      • Request for issuance of detainer must first come from local law enforcement official, not initiated by ICE;

      • Authority for issuing detainers is strictly limited to aliens arrested for controlled substance offenses.

    What are detainers or holds
    What are Detainers or Holds? immigration laws?

    • Request that criminal justice agency, such as county jail, inform DHS of impending release of immigrant, in order for DHS to arrange to assume custody in order to deport the person

      - Authorized under 8 USC 1357(d) and

      8 CFR 287.7

    What are detainers or holds1
    What are Detainers or Holds? immigration laws?

    • Detainers or holds DO NOT mean that the person is actually deportable or the case is active with ICE.

      - ICE has not done any investigation; it places holds on anyone it believes to be in violation of immigration laws

    • In many instances, the person is not subject to deportation or has relief in immigration court.

    How are detainers issued
    How are detainers issued? immigration laws?

    • Telephonically to agency holding the noncitizen

    • Filing Form I-247 with the jail

    Detainer form i 247
    Detainer Form – I-247 immigration laws?

    • A detainer can serve different purposes:

      - Request to Detain

      - Notice of Investigation

      - or both

    • If the detainer is only a notice of investigation it does not require that the agency with custody of the noncitizen continue to hold him/her

    Criminal records to ice
    Criminal Records to ICE immigration laws?

    • Under 8 CFR 287.7(c) the agency “requesting” the detainer must provide ICE with documentary records and other available information that reasonably relates to the minor’s legal status in the U.S.

    30 day notice to ice before release
    30 Day Notice to ICE Before Release immigration laws?

    • I-247 has a box that indicates that agency maintaining custody should notify ICE 30 days in advance of release

    • This is not mandated by any law or regulation

    • However, ICE may request agency to do so and it is in the discretion of agency holding minor to decide whether to comply

    What does having a detainer mean for a non citizen
    What does having a detainer mean for a non-citizen? immigration laws?

    No Release From Custody

    • If granted release by criminal court, ICE will assume custody;

    • Once in ICE custody, deportation/removal proceedings initiated;

    • ICE not likely to return minor to juvenile court even in pending proceedings, and thus may result in Failure to Appear.

    How long can non citizen be held under immigration detainer
    How long can non-citizen be held under immigration detainer?

    • Agency can maintain custody for a period “not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.”

    When does the 48 hours begin
    When does the 48 hours begin?

    • ICE takes the position that the 48 starts when the jail contacts ICE. This may happen in the following situations:

      - 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

    Solutions violations of 48 hour rule
    Solutions: Violations of 48 Hour Rule

    • Habeas corpus

    • False imprisonment

    • Issue: generally, by the time either is filed, ICE comes to pick up the person

    Lifting or canceling detainers
    Lifting or Canceling Detainers

    • ICE takes the position that only it has the authority to cancel or lift a detainer

    • State Superior Court Judges do not have authority to cancel or lift a detainer

    • If you want a detainer to be lifted, you have to negotiate directly with ICE

    Enforcement where there is no ice hold
    Enforcement Where There is No ICE Hold

    • If noncitizen is ordered release and there is no ICE hold, there is no legal basis for detention staff to continue to hold the juvenile to contact ICE and wait for them to come pick up the juvenile

    Defense strategies re detainers
    Defense Strategies Re: Detainers

    • STEP ONE:

      It is critical to determine whether a detainer has been lodged against your client.

    Defense strategies if no immigration detainer
    Defense Strategies If No Immigration Detainer

    • Get release from jail ASAP (either O/R or by posting bail);

    • Avoid sentence to/time in jail;

    • Avoid disclosure of nationality, immigration status or POB;

    • Avoid final conviction – file direct appeal

      • In 9th Cir., ICE cannot use conviction as basis for deportation unless it is final.

    Defense strategies if there is an immigration detainer
    Defense Strategies If There Is An Immigration Detainer

    • D will go directly from jail into ICE custody

      • Likely to forfeit criminal bond if posted

    • Immigration custody vs. staying in jail

      • ICE unlikely to produce D for criminal proceeding

      • D may need time to prepare for immigration court

      • Is D eligible for immigration relief (lawful status)?

    Defense strategies if there is an immigration detainer1
    Defense Strategies If There Is An Immigration Detainer

    • Challenge violations of 48 rule

      • Jails routinely hold noncitizens longer than the permitted 48 hours;

      • Inform jail of 8 CFR 287.7’s 48 hr. limit

      • File state habeas petition for release

        • WDA drafting model pleadings

    Disclosure of immigration status
    Disclosure of Immigration Status

    • 5th Amendment protects noncitizens from being compelled to disclose immigration status

      • Alienage is element of illegal reentry prosecution

    • Recent US Supreme Court caselaw held that law enforcement inquiry into detainees immigration status did not violate Fourth Amendment since it did not prolong otherwise lawful detention.

    • RCW 10.40.200’s advisal statute mandates no compelled disclosure when entering plea

    Advice to defendants
    Advice to Defendants

    • Do not say anything – do not disclose information regarding place of birth, nationality, immigration status

      • If compelled to say anything, only say “I want to talk to my lawyer.”

    • Don’t sign anything;

    • Don’t lie;

    • Consult with competent immigration counsel.