washington defender association’s immigration project

Immigration Enforcement Immigration Enforcement in the Criminal Justice in the Criminal Justice

SystemSystem________________________________________________What Every Criminal Defense Attorney What Every Criminal Defense Attorney

Needs to KnowNeeds to Know

Washington Defender Association’sWashington Defender Association’sImmigration ProjectImmigration Project

Ann Benson, Immigration Resource AttorneyAnn Benson, Immigration Resource Attorney

[email protected]@defensenet.org 360-385-2538 360-385-2538

Jonthan Moore, Immigration SpecialistJonthan Moore, Immigration Specialist Immigration SpecialistImmigration Specialist

[email protected]@defensenet.org 206-623-4321206-623-4321

WDA’s Website: www.defensenet.orgWDA’s Website: www.defensenet.org

Overview of PresentationOverview of Presentation

Sec. I – Immigration StatusSec. I – Immigration Status

Sec. II – Relevant Components of the Sec. II – Relevant Components of the Immigration SystemImmigration System

Sec. III – Deportation & Removal ProceduresSec. III – Deportation & Removal Procedures

Sec. IV – Immigration Enforcement in the CJSSec. IV – Immigration Enforcement in the CJS

Section ISection I

Immigration StatusImmigration Status

What is it? How to get it?What is it? How to get it?

________________________________________________________________________

Immigration Basics –Immigration Basics –Immigrant DemographicsImmigrant Demographics

Over 30 million immigrants in U.SOver 30 million immigrants in U.S

33% increase over 1990 33% increase over 1990

20% of U.S. population are immigrants or 20% of U.S. population are immigrants or children of immigrantschildren of immigrants

Immigration Basics- Washington StateImmigration Basics- Washington StateImmigrant DemographicsImmigrant Demographics

12.5% of WA population is foreign born12.5% of WA population is foreign born

Washington ranks 10Washington ranks 10thth in U.S. for total immigrant in U.S. for total immigrant populationpopulation

39% from Asia; 30% from Latin America39% from Asia; 30% from Latin America

For more info: The Migration Policy Institute For more info: The Migration Policy Institute www.migrationpolicy.orgwww.migrationpolicy.org


Refers to persons classification under US Refers to persons classification under US immigration laws – 8 USCimmigration laws – 8 USC

Most significant factor in determining Most significant factor in determining consequences, options and rights consequences, options and rights Which immigration laws subject toWhich immigration laws subject to Amount of due process Amount of due process

U.S. CitizenshipU.S. Citizenship

Three ways to acquire Citizenship:Three ways to acquire Citizenship: Birth in the USBirth in the US Birth to US citizen parent(s)Birth to US citizen parent(s) Naturaliztion (apply to become a USC)Naturaliztion (apply to become a USC)

US citizens cannot be deportedUS citizens cannot be deported


Everyone else is a noncitizen (a.k.a. “alien”)Everyone else is a noncitizen (a.k.a. “alien”)

Always subject to deportation if in violation of Always subject to deportation if in violation of immigration lawsimmigration laws

Even for minor criminal violations (e.g. simple misd.)Even for minor criminal violations (e.g. simple misd.) Regardless of length of time in US or other equitiesRegardless of length of time in US or other equities Regardless of age (minor children deported)Regardless of age (minor children deported)


Lawful Permanent Resident – LPR/Greencard holderLawful Permanent Resident – LPR/Greencard holder

Entitled to live & work indefinitely in USEntitled to live & work indefinitely in US Can apply for citizenship after 5 years (3 if married to USC)Can apply for citizenship after 5 years (3 if married to USC)

Refugee/AsyleeRefugee/Asylee

Granted safe haven due to persecutionGranted safe haven due to persecution Can live and work legally in USCan live and work legally in US Can apply to be LPR after one yearCan apply to be LPR after one year


Nonimmigrant Visa HolderNonimmigrant Visa Holder Temporary visa Temporary visa Issued for specific purpose (e.g. student, tourist)Issued for specific purpose (e.g. student, tourist) Subject to deportation if terms violatedSubject to deportation if terms violated

Undocumented PersonsUndocumented Persons Nonimmigrant visa holders who violate termsNonimmigrant visa holders who violate terms Persons who illegally enter USPersons who illegally enter US

Obtaining lawful immigration statusObtaining lawful immigration status

FOUR BASIC AVENUESFOUR BASIC AVENUES

1. Asylum/Refugee Status1. Asylum/Refugee Status Prove past or future persecutionProve past or future persecution

2. Employment2. Employment Employer makes petition for employeeEmployer makes petition for employee

3. Family3. Family LPR/USC Spouse or Parent petitions for family memberLPR/USC Spouse or Parent petitions for family member

4. “Relief” From Removal4. “Relief” From Removal Immigration Judge has certain options in formal removal proceedings to allow Immigration Judge has certain options in formal removal proceedings to allow

noncitizens to remain lawfully in US (e.g. “cancellation of removal”)noncitizens to remain lawfully in US (e.g. “cancellation of removal”)

Immigration Basics: ProceduresImmigration Basics: ProceduresObtaining lawful immigration statusObtaining lawful immigration status

Congress expected to undertake Comprehensive Congress expected to undertake Comprehensive Immigration Reform (CIR) in 2009 or 2010.Immigration Reform (CIR) in 2009 or 2010.

CIR is expected to include some avenue for the 12 CIR is expected to include some avenue for the 12 million undocumented people in the U.S. to apply for million undocumented people in the U.S. to apply for lawful status. lawful status.

Criminal history/convictions will impact eligibility Criminal history/convictions will impact eligibility

Immigration StatusImmigration StatusReview Questions #1 and #2Review Questions #1 and #2

1. Identify & explain two types of immigration 1. Identify & explain two types of immigration status. status.

2.True or False: Sergi married a U.S. citizen and 2.True or False: Sergi married a U.S. citizen and got his greencard 15 years ago. If he is got his greencard 15 years ago. If he is convicted of delivery of cocaine (a controlled convicted of delivery of cocaine (a controlled substance violation under Immigration law) substance violation under Immigration law) he will face deportation?he will face deportation?

Immigration StatusImmigration StatusReview Questions #3 and #4Review Questions #3 and #4

3.3. Benjamin comes to the U.S. on student visa Benjamin comes to the U.S. on student visa but drops out of school. What is his but drops out of school. What is his immigration status?immigration status?

4. Luen was born in Cambodia and came to the 4. Luen was born in Cambodia and came to the U.S as a refugee when he was five. What are U.S as a refugee when he was five. What are the possibilities for his current immigration the possibilities for his current immigration status? What additional information would status? What additional information would you want to know?you want to know?

Section II:Section II:

Components of the Immigration SystemComponents of the Immigration System

The PlayersThe Players

Immigration Law is Federal LawImmigration Law is Federal Law

Same laws apply throughout the USSame laws apply throughout the US Different Circuit Court interpretationsDifferent Circuit Court interpretations

Congress makes the lawsCongress makes the laws Most immigration laws at Title 8 U.S.CMost immigration laws at Title 8 U.S.C

The Board of Immigration Appeals and the The Board of Immigration Appeals and the Federal Circuit Courts interpret the lawsFederal Circuit Courts interpret the laws

IImigration Basics: The Playersmigration Basics: The Players

Homeland Security Act abolished INSHomeland Security Act abolished INS Immigration functions split between:Immigration functions split between:

Department of Homeland Security - DHSDepartment of Homeland Security - DHS Department of Justice - DOJDepartment of Justice - DOJ Department of State - DOSDepartment of State - DOS

DDHS Immigration-Related DivisionsHS Immigration-Related Divisions

Customs & Border Protection – CBPCustoms & Border Protection – CBP

Immigration & Customs Enforcement –ICEImmigration & Customs Enforcement –ICE

Citizenship & Immigration Services - CISCitizenship & Immigration Services - CIS

Customs & Border Protection- CBPCustoms & Border Protection- CBP

Responsible for enforcement at the borders and points Responsible for enforcement at the borders and points of entryof entry Facilitates removal of apprehended noncitizensFacilitates removal of apprehended noncitizens Makes referrals to USAs for illegal reentry prosecutionMakes referrals to USAs for illegal reentry prosecution

Responsible for facilitating legal admission (or Responsible for facilitating legal admission (or refusal of admission) at the ports of entry to USrefusal of admission) at the ports of entry to US

2009 Budget request = $11 Billion2009 Budget request = $11 Billion

Citizenship & Immigration Services - Citizenship & Immigration Services -

CISCIS

Responsible for processing applications for Responsible for processing applications for immigration benefits such as greencards, immigration benefits such as greencards, citizenship, asylumcitizenship, asylum

Denial of application = referral to ICE for Denial of application = referral to ICE for deportation/removaldeportation/removal

2009 budget request = $2.7 billion2009 budget request = $2.7 billion

Immigration & Customs Enforcement- Immigration & Customs Enforcement- ICEICE

Responsible for enforcement of immigration laws Responsible for enforcement of immigration laws within the U.S. (other than the border)within the U.S. (other than the border) Determines who is eligible for a hearing before an Determines who is eligible for a hearing before an

immigration judgeimmigration judge Issues administrative removal order for those who are notIssues administrative removal order for those who are not Initiates formal removal proceedings for those who are by issuance Initiates formal removal proceedings for those who are by issuance

of a Notice to Appearof a Notice to Appear

Effectuates deportation/removal ordersEffectuates deportation/removal orders Oversees detention of noncitizensOversees detention of noncitizens Refers case to USA for illegal reentry prosecutionRefers case to USA for illegal reentry prosecution

Immigration & Customs Enforcement- ICEImmigration & Customs Enforcement- ICE

Apprehension of NoncitizensApprehension of Noncitizens

Local, state & federal JailsLocal, state & federal Jails Denied applications for benefitsDenied applications for benefits Work place & home raidsWork place & home raids

ICE has more armed agents than any other federal ICE has more armed agents than any other federal agency, including FBI, DEA and federal marshallsagency, including FBI, DEA and federal marshalls

Department of JusticeDepartment of Justice

Executive Office For Immigration ReviewExecutive Office For Immigration Review Immigration CourtsImmigration Courts

Conduct removal proceedingsConduct removal proceedings Board of Immigration AppealsBoard of Immigration Appeals

Reviews decisions from Immigration CourtsReviews decisions from Immigration Courts

Office of Immigration LitigationOffice of Immigration Litigation Represents government in federal circuit court Represents government in federal circuit court

appeals and US Supreme Court appealsappeals and US Supreme Court appeals

Federal Circuit CourtsFederal Circuit Courts

Jurisdiction to review decisions of the BIAJurisdiction to review decisions of the BIA Significant restrictions on jurisdictionSignificant restrictions on jurisdiction

No jurisdiction re: many discretionary decisionsNo jurisdiction re: many discretionary decisions No Jurisdiction where noncitizen is facing removal No Jurisdiction where noncitizen is facing removal

for criminal convictionfor criminal conviction However, court has power to determine if conviction However, court has power to determine if conviction is a deportable/removable offenseis a deportable/removable offense

Congress trying to restrict jurisdiction furtherCongress trying to restrict jurisdiction further

Department of State - DOSDepartment of State - DOS

US consulates abroad are involved in processing, US consulates abroad are involved in processing, adjudicating and issuing many applications for adjudicating and issuing many applications for both immigrant and non-immigrant visas.both immigrant and non-immigrant visas.

Note: Individual decisions from consulates are Note: Individual decisions from consulates are immune from judicial reviewimmune from judicial review

Review Question #1Review Question #1

Boris is an LPR who wants to apply for Boris is an LPR who wants to apply for citizenship. Which DHS agency would he be citizenship. Which DHS agency would he be dealing with?dealing with?

Boris takes a trip to Canada. When he Boris takes a trip to Canada. When he presents himself at the border to re-enter the presents himself at the border to re-enter the U.S. which DHS agency will he be dealing U.S. which DHS agency will he be dealing with?with?

Review Question #2Review Question #2

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

Section III:Section III:

Deportation & Removal ProceduresDeportation & Removal Procedures

What Your Client Will Face When Taken Into What Your Client Will Face When Taken Into Immigration CustodyImmigration Custody


Civil proceedingsCivil proceedings Unlawful presence in U.S. not a crime – civil Unlawful presence in U.S. not a crime – civil

violationviolation Over 1 million people “returned” in 2007Over 1 million people “returned” in 2007

Approx. 100,000 due to criminal convictions Approx. 100,000 due to criminal convictions Mandatory detention for “criminal aliens”Mandatory detention for “criminal aliens” No right to appointed counselNo right to appointed counsel

85% of noncitizens unrepresented85% of noncitizens unrepresented


1. Expedited Removal 1. Expedited Removal 2. Federal Judicial Orders of Removal2. Federal Judicial Orders of Removal 3. Administrative Voluntary Departure3. Administrative Voluntary Departure 3. Stipulated Orders of Removal3. Stipulated Orders of Removal 4. Removal Proceedings Before An IJ4. Removal Proceedings Before An IJ 5. Reinstatement of Removal 5. Reinstatement of Removal 6. Illegal Reentry Prosecution (criminal)6. Illegal Reentry Prosecution (criminal)

Expedited Removal ProceduresExpedited Removal Procedures

8 USC 1225(b) or 1228(b) 8 USC 1225(b) or 1228(b) Who is subject to it?Who is subject to it?

Persons w/o proper documents at border Persons w/o proper documents at border Persons apprehended w/in 100 miles of the border w/o Persons apprehended w/in 100 miles of the border w/o

proper documents & in US for less than 14 daysproper documents & in US for less than 14 days Non-LPRs convicted of aggravated felonies (AF)Non-LPRs convicted of aggravated felonies (AF)

LPRs MUST get hearing before immig judgeLPRs MUST get hearing before immig judge

What is it? What is it? ICE issues orderICE issues order No meaningful judicial reviewNo meaningful judicial review Bar to readmission – 5 years or permanent for AFBar to readmission – 5 years or permanent for AF

Judicial Orders of DeportationJudicial Orders of Deportation8 USC 1228(c)8 USC 1228(c)

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

oror Federal District Judge can conduct removal Federal District Judge can conduct removal

proceedings in context of federal criminal proceedings in context of federal criminal sentencingsentencing If USA requests and judge choosesIf USA requests and judge chooses Court can consider applications for reliefCourt can consider applications for relief

Admininstrative Voluntary DepartureAdmininstrative Voluntary Departure8 USC 1229(c)8 USC 1229(c)

Granted by ICE in lieu of formal removal Granted by ICE in lieu of formal removal proceedings before Immigration Judge proceedings before Immigration Judge

Given up to 120 days to leave “voluntarily”Given up to 120 days to leave “voluntarily” no deport/removal order no deport/removal order

Ineligible if significant criminal historyIneligible if significant criminal history

Failure to comply bars future immigration benefits Failure to comply bars future immigration benefits

Stipulated Removal OrdersStipulated Removal Orders8 USC 1229a(d)8 USC 1229a(d)

Noncitizen waives right to hearing before Noncitizen waives right to hearing before Immigration Judge and agrees to a “stipulated” Immigration Judge and agrees to a “stipulated” order of removal (SOR) signed by the IJ.order of removal (SOR) signed by the IJ. 535% increase in SOR’s from 2004-2008535% increase in SOR’s from 2004-2008 Vast majority are by noncitizens in immigration Vast majority are by noncitizens in immigration

detention w/o legal representation.detention w/o legal representation. Forecloses all future avenues to obtain statusForecloses all future avenues to obtain status Serves as basis for illegal reentry prosecutions.Serves as basis for illegal reentry prosecutions.

Removal Proceedings Before Immig. JudgeRemoval Proceedings Before Immig. Judge 8 USC 1229(a)8 USC 1229(a)

Immigration Judge has power to:Immigration Judge has power to: Grant release from detention in certain casesGrant release from detention in certain cases

EXCEPTION: Mandatory detention for duration of removal EXCEPTION: Mandatory detention for duration of removal proceedings where noncitizen facing removal for criminal proceedings where noncitizen facing removal for criminal convictionsconvictions

If deportable as charged and no “relief” granted, If deportable as charged and no “relief” granted, issues order of removal.issues order of removal.

Limited Appeal to Board of Immigration Appeals & Limited Appeal to Board of Immigration Appeals & Federal Circuit CourtsFederal Circuit Courts

RemovalRemoval Proceedings Before Immigration Judge Proceedings Before Immigration Judge – 8 USC 1229(a)…cont’d– 8 USC 1229(a)…cont’d

IJ has power to grant applications for “relief IJ has power to grant applications for “relief from removal” to noncitizens who meet from removal” to noncitizens who meet statutory qualifications. Examples:statutory qualifications. Examples:

Persecution & torture claims: asylum, CATPersecution & torture claims: asylum, CAT LPR Cancellation: LPRs w/7 years residency who are not LPR Cancellation: LPRs w/7 years residency who are not

aggravated felonsaggravated felons Undocumented Cancellation: 10 years, no crim history, Undocumented Cancellation: 10 years, no crim history,

exceptional hardshipexceptional hardship Family based petitions for LPR statusFamily based petitions for LPR status

RemovalRemoval Proceedings Before Immigration Judge Proceedings Before Immigration Judge – 8 USC 1229(a)…cont’d– 8 USC 1229(a)…cont’d

Institutional Hearing ProgramInstitutional Hearing Program

IJ’s conduct removal hearings for inmates IJ’s conduct removal hearings for inmates incarcerated in state facilities;incarcerated in state facilities;

Hearings can be telephonic;Hearings can be telephonic; Objective is to have final order of deportation (or Objective is to have final order of deportation (or

case adjudicated) prior to completion of sentence.case adjudicated) prior to completion of sentence.

Reinstatement of Prior RemovalReinstatement of Prior Removal 8 USC 1231(a)(5) 8 USC 1231(a)(5)

ICE reinstates prior removal/deportation order ICE reinstates prior removal/deportation order for persons determined to have unlawfully re-for persons determined to have unlawfully re-entered after previous deportation/removal.entered after previous deportation/removal.

Order entered administratively by ICE/CBPOrder entered administratively by ICE/CBP No meaningful judicial reviewNo meaningful judicial review

Federal Criminal Prosecution for Illegal Federal Criminal Prosecution for Illegal Re-entry after Deportation-Re-entry after Deportation- 8 USC 1326 8 USC 1326

Noncitizen re-enters after deportation/removal order Noncitizen re-enters after deportation/removal order by immigration judge or ICEby immigration judge or ICE

Most prosecuted federal crime (8 USC 1325 & 1326)Most prosecuted federal crime (8 USC 1325 & 1326) Latino males biggest target groupLatino males biggest target group 51% of all federal filings involve immigration violations51% of all federal filings involve immigration violations WA state ranks 5WA state ranks 5thth in country for 1326 prosecutions in country for 1326 prosecutions

Severe sentence enhancements when crim historySevere sentence enhancements when crim history

Immigration Detention by DHSImmigration Detention by DHS

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

Immigration Detention by DHSImmigration Detention by DHS In 2006 DHS ended “catch & release”In 2006 DHS ended “catch & release”

Quadrupled # of detained noncitizensQuadrupled # of detained noncitizens

DHS detains over 27,500 noncitizens on any given dayDHS detains over 27,500 noncitizens on any given day

No statute or regulations governing conditions/standards of No statute or regulations governing conditions/standards of confinementconfinement Extensive documentation of human rights violationsExtensive documentation of human rights violations No statutes/regulations governing conditions of confinementNo statutes/regulations governing conditions of confinement Difficult to fight deportation from immigration detentionDifficult to fight deportation from immigration detention

Detention mandatory for most convictionsDetention mandatory for most convictions

Immigration DetentionImmigration Detention

WA noncitizens (adults) are detained at the WA noncitizens (adults) are detained at the Northwest Detention Center in Tacoma.Northwest Detention Center in Tacoma. 1,000 beds - Always at capacity1,000 beds - Always at capacity Proposed expansion of 500 additional beds Proposed expansion of 500 additional beds

underwayunderway Private contracting facility – not operated by Private contracting facility – not operated by

DHS/ICEDHS/ICE Documentation of significant human rights violationsDocumentation of significant human rights violations

ICE routinely transfers noncitizens to distant, ICE routinely transfers noncitizens to distant, remote locationsremote locations

Removal Procedures Review QuestionsRemoval Procedures Review Questions

Diego was convicted of possession of C/S, a Diego was convicted of possession of C/S, a deportable offense. What may happen to him deportable offense. What may happen to him if:if: He is an LPR?He is an LPR? He is undocumented? He is undocumented? Was deported 2 years ago and came back?Was deported 2 years ago and came back?

What if his conviction was for delivery, an What if his conviction was for delivery, an aggravated felony?aggravated felony?

Section IV.Section IV.

Immigration Enforcement in the Immigration Enforcement in the

Criminal Justice System & Strategies for Criminal Justice System & Strategies for Effectively Representing Your Effectively Representing Your

Noncitizen ClientNoncitizen Client

Is the Criminal Justice system compelled Is the Criminal Justice system compelled to enforce immigration laws?to enforce immigration laws?

No federal law requires state and local No federal law requires state and local officials to affirmatively enforce federal officials to affirmatively enforce federal immigration laws. immigration laws.

There is no duty under federal law for state or There is no duty under federal law for state or local law enforcement officials to report local law enforcement officials to report noncitizens. noncitizens.

Is the Criminal Justice system compelled Is the Criminal Justice system compelled to enforce immigration laws?to enforce immigration laws?

There is disagreement whether or not local and state There is disagreement whether or not local and state law enforcement have the “inherent authority” to law enforcement have the “inherent authority” to enforce civil immigration laws.enforce civil immigration laws.

However, federal law contemplates that local cannot However, federal law contemplates that local cannot enforce immigration laws, unless they have a formal enforce immigration laws, unless they have a formal agreement and training from DHS to do so.agreement and training from DHS to do so.

-- 287(g) Agreements287(g) Agreements

Is the Criminal justice system compelled Is the Criminal justice system compelled to enforce immigration laws?to enforce immigration laws?

Local and state law enforcement may Local and state law enforcement may cooperatecooperate with Immigration and Customs with Immigration and Customs Enforcement (ICE) in the enforcement of Enforcement (ICE) in the enforcement of immigration laws if it chooses so long as it immigration laws if it chooses so long as it does not conflict with state or local laws does not conflict with state or local laws and/or policies and/or policies

Summary of Federal Law on Imm Summary of Federal Law on Imm EnforcementEnforcement

The Illegal Immigration Reform and The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Immigrant Responsibility Act of 1996 (IIRIRA) = main federal legislation that (IIRIRA) = main federal legislation that addresses ability of state and local agencies to addresses ability of state and local agencies to investigate suspected civil violations of investigate suspected civil violations of immigration law.immigration law.

IIRIRA Provisions IIRIRA Provisions

Responding to “mass influx” of immigrants in Responding to “mass influx” of immigrants in urgent situations (rare) urgent situations (rare)

287(g) Programs – MOUs between ICE and 287(g) Programs – MOUs between ICE and law enforcement to aid in enforcement of imm law enforcement to aid in enforcement of imm laws after receiving training laws after receiving training

Prohibits don’t tell policies, but not don’t ask Prohibits don’t tell policies, but not don’t ask policiespolicies

287(g) Agreements287(g) Agreements

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

287(g) Agreements287(g) Agreements

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

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

No 287(g) Agreements in WANo 287(g) Agreements in WA But significant cooperation by jails/policeBut significant cooperation by jails/police

Current Status of 287(g) Current Status of 287(g) AgreementsAgreements

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

-- In 2006 there were only 8 agencies with In 2006 there were only 8 agencies with MOUs.MOUs.

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

Current Status of 287(g) Current Status of 287(g) AgreementsAgreements

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

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

Don’t Tell v. Don’t Ask PoliciesDon’t Tell v. Don’t Ask Policies

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

It does not, however, require that they collect It does not, however, require that they collect immigration informationimmigration information-- If policy is not to ask, then there is If policy is not to ask, then there is nothing to sharenothing to share

NCIC Database & NoncitizensNCIC Database & Noncitizens

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

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

WA Law & Immigration WA Law & Immigration EnforcementEnforcement

RCW 9.94A.685RCW 9.94A.685Conditional Release for DeportationConditional Release for Deportation

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

Conviction for nonviolent offenseConviction for nonviolent offense Final Order of deportation (removal)Final Order of deportation (removal) Court includes as condition of sentenceCourt includes as condition of sentence

If both prosecutor and DOC consentIf both prosecutor and DOC consent

RCW 9.94A.685RCW 9.94A.685Conditional Release for DeportationConditional Release for Deportation

Enacted over 15 years agoEnacted over 15 years ago

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

Current amendments pending to eliminate Current amendments pending to eliminate prosecutor/judicial consentprosecutor/judicial consent

SMC 4.18.015 SMC 4.18.015 Inquiries Into Immigration StatusInquiries Into Immigration Status

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

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

RCW 10.70.140RCW 10.70.140

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

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

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

Immigration DetainersImmigration Detainers8 USC 1226 & 1357 8 CFR 287.78 USC 1226 & 1357 8 CFR 287.7

8 C.F.R. 287.7(d) provides:8 C.F.R. 287.7(d) provides:Upon a determination by the [immigration Upon a determination by the [immigration officials] to issue a detainer for an alien not officials] to issue a detainer for an alien not otherwise detained by a criminal justice otherwise detained by a criminal justice agency, such agency shall maintain custody of agency, such agency shall maintain custody of the alien for a period of not to exceed 48 the alien for a period of not to exceed 48 hours, excluding Saturday, Sundays, and hours, excluding Saturday, Sundays, and [federal] holidays in order to permit [federal] holidays in order to permit assumption of custody by the Service.assumption of custody by the Service.

Immigration DetainersImmigration Detainers

Regulation is ultra vires because authorizing Regulation is ultra vires because authorizing statute provides:statute provides: Request for issuance of detainer must first come Request for issuance of detainer must first come

from local law enforcement official, not initiated from local law enforcement official, not initiated by ICE;by ICE;

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

What are Detainers or Holds?What are Detainers or Holds?

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

-- Authorized under 8 USC 1357(d) and Authorized under 8 USC 1357(d) and

8 CFR 287.78 CFR 287.7

What are Detainers or Holds?What are Detainers or Holds?

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

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

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

How are detainers issued?How are detainers issued?

Telephonically to agency holding the Telephonically to agency holding the noncitizennoncitizen

Filing Form I-247 with the jailFiling Form I-247 with the jail

Detainer Form – I-247Detainer Form – I-247

A detainer can serve different purposes:A detainer can serve different purposes:

-- Request to DetainRequest to Detain

-- Notice of InvestigationNotice of Investigation

-- or bothor both If the detainer is only a notice of investigation If the detainer is only a notice of investigation

it does not require that the agency with it does not require that the agency with custody of the noncitizen continue to hold custody of the noncitizen continue to hold him/herhim/her

Criminal Records to ICECriminal Records to ICE

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

30 Day Notice to ICE Before Release30 Day Notice to ICE Before Release

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

This is not mandated by any law or regulationThis is not mandated by any law or regulation

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

What does having a detainer mean for a What does having a detainer mean for a

non-citizen?non-citizen? No Release From CustodyNo Release From Custody If granted release by criminal court, ICE will If granted release by criminal court, ICE will

assume custody;assume custody; Once in ICE custody, deportation/removal Once in ICE custody, deportation/removal

proceedings initiated;proceedings initiated; ICE not likely to return minor to juvenile court ICE not likely to return minor to juvenile court

even in pending proceedings, and thus may even in pending proceedings, and thus may result in Failure to Appear.result in Failure to Appear.

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

Agency can maintain custody for a period “not Agency can maintain custody for a period “not to exceed 48 hours, excluding Saturdays, to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit Sundays, and holidays in order to permit assumption of custody by the Department.”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 ICE takes the position that the 48 starts when the jail contacts ICE. This may happen in the following contacts ICE. This may happen in the following situations:situations:

-- Case is still pending but court orders releaseCase is still pending but court orders release

-- Case is dismissed and the person is going to Case is dismissed and the person is going to be be releasedreleased

-- Case is adjudicated and disposition is entered Case is adjudicated and disposition is entered and person will be releasedand person will be released

Solutions: Violations of 48 Hour Solutions: Violations of 48 Hour RuleRule

Habeas corpusHabeas corpus False imprisonmentFalse imprisonment Issue: generally, by the time either is Issue: generally, by the time either is

filed, ICE comes to pick up the personfiled, ICE comes to pick up the person

Lifting or Canceling DetainersLifting or Canceling Detainers

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

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

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

Enforcement Where There is No Enforcement Where There is No ICE HoldICE Hold

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

Defense Strategies Re: DetainersDefense Strategies Re: Detainers

STEP ONE:STEP ONE:

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

Defense Strategies If No Defense Strategies If No Immigration DetainerImmigration Detainer

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

Avoid sentence to/time in jail;Avoid sentence to/time in jail; Avoid disclosure of nationality, immigration Avoid disclosure of nationality, immigration

status or POB;status or POB; Avoid final conviction – file direct appealAvoid final conviction – file direct appeal

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

Defense Strategies If There Is An Defense Strategies If There Is An Immigration DetainerImmigration Detainer

D will go directly from jail into ICE custodyD will go directly from jail into ICE custody Likely to forfeit criminal bond if postedLikely to forfeit criminal bond if posted

Immigration custody vs. staying in jailImmigration custody vs. staying in jail ICE unlikely to produce D for criminal proceedingICE unlikely to produce D for criminal proceeding D may need time to prepare for immigration courtD may need time to prepare for immigration court Is D eligible for immigration relief (lawful status)?Is D eligible for immigration relief (lawful status)?

Defense Strategies If There Is An Defense Strategies If There Is An Immigration DetainerImmigration Detainer

Challenge violations of 48 ruleChallenge violations of 48 rule Jails routinely hold noncitizens longer than the Jails routinely hold noncitizens longer than the

permitted 48 hours;permitted 48 hours; Inform jail of 8 CFR 287.7’s 48 hr. limitInform jail of 8 CFR 287.7’s 48 hr. limit File state habeas petition for releaseFile state habeas petition for release

WDA drafting model pleadingsWDA drafting model pleadings

Disclosure of Immigration StatusDisclosure of Immigration Status

55thth Amendment protects noncitizens from being Amendment protects noncitizens from being compelled to disclose immigration statuscompelled to disclose immigration status Alienage is element of illegal reentry prosecutionAlienage is element of illegal reentry prosecution

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

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

Advice to DefendantsAdvice to Defendants

Do not say anything – do not disclose Do not say anything – do not disclose information regarding place of birth, information regarding place of birth, nationality, immigration statusnationality, immigration status If compelled to say anything, only say “I want to If compelled to say anything, only say “I want to

talk to my lawyer.” talk to my lawyer.” Don’t sign anything;Don’t sign anything; Don’t lie;Don’t lie; Consult with competent immigration counsel.Consult with competent immigration counsel.

washington defender association’s immigration project

Documents