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Montgomery County Maryland Says No to ICE!

8 Oct

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Great news right out of our own backyard.  Montgomery County, Maryland, the county that surrounds most of Northwest Washington DC and the most populous county in Maryland, announced today that its jails would no longer honor detainers issued by Immigration & Customs Enforcement except under very specific circumstances.  This decision places a vice grip on one of the region’s most reliable ICE enforcement pipelines and is further evidence that local municipalities are rejecting the damage done to communities by the heavy-handed enforcement activities of the current administration.  We answer some basic questions about what this change means.

What is a Detainer?

A detainer is a request filed by Immigration & Customs Enforcement with a jail or prison asking the jail or prison t0o continue to detain an individual beyond their release date so that ICE can assume custody over the individual.

Is this like an “ICE hold?”

Yes, an “ICE hold” is a common name for a detainer.

Are there any rules about detainers?

Yes, under U.S. immigration law, ICE may only request that a jurisdiction hold an individual up to 48 hours beyond their scheduled release date (not including holidays and weekends) for ICE to assume custody of a detainee.

Why does ICE issue detainers?

ICE issues a detainer when it learns that an individual being held in local law enforcement custody may be subject to removal from the United States.  The issuance of a detainer is how ICE expresses an interest in an individual.  It does not necessarily mean that an individual is subject to removal.  A detainer allows ICE to assume custody and determine whether to charge an individual with removal.

Is a jurisdiction obligated to honor ICE detainers?

No.  An increasing number of jurisdictions are rejecting ICE detainers as inconsistent with their own law enforcement prerogatives.  Over 250 jurisdictions including the State of California, New York City, Washington DC, Boston, Denver and San Francisco refuse to honor ICE detainers.

What happens if ICE does not assume custody over an individual after 48 hours?

The facility should release that individual.  The authority to detain an individual beyond their release date is limited to 48 hours.  Municipalities that detain individuals beyond that period are at risk of liability for unlawful detention.

Can an ICE hold prevent someone from being released on bail pre-trial?

Many local judges and prosecutors wrongly assume that a person subject to a detainer can not be released on bail pre-trial.  A detainer does not render someone ineligible for release on bond.  Many jurisdictions have assumed that because a detainer exists, bail may not be ordered.  Sometimes if a person gets bail from a judge, the family has a hard time making the payment because the clerk believes she can not take it due to the detainer.  Individuals eligible for bail should seek bail despite the existence of a detainer.  Once the bail has been made, ICE may assume custody.  However, since an individual will not have been convicted of a deportable offense at that time, ICE’s ability to detain may be limited.  Criminal attorneys seeking bail for clients subject to detainers should coordinate with immigration counsel to pursue the most advantageous strategy for the client.

Why did Montgomery County do this?

In April 2014, Maryland Governor Martin O’Malley determined that jurisdictions in Maryland may face liability for detaining individuals after their eligibility for release.  As counties absorbed the impact of this opinion and sought to protect themselves, counties began to rethink the wisdom of cooperating with detainers.  In August 2014, the City of Baltimore stopped honoring detainers followed by Price George’s County in October.  With Montgomery County, Maryland’s largest county, following suit, the momentum against detainers is unmistakable.O'Malley

Why did Martin O’Malley do this?

O’Malley is widely believed to be running for President as a Democrat in 2016.  O’Malley has clearly chosen to take a more aggressively pro-immigrant stand than other potential Presidential candidates.

Nine Ways Obama Could Make Immigration Law Better Without Bothering to Wake Congress

13 Mar

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The House of Representatives passed the Enforce Act yesterday.  This piece of legislation, which is never going to become law, provides a cause of action to Members of Congress to sue the President for failure to enforce the laws as they see fit.  The Enforce Act is aimed squarely at the President’s Deferred Action for Childhood Arrivals program, which has given hope to so many young undocumented immigrants.  How this vote fits with the immigration statement of principles that the House GOP released in January is beyond us.  When in doubt, votes, much more than “statements of principles,” reflect where Congress truly is.  And the House actually managed to get worse on immigration.  So, in case, it is not perfectly clear- THE HOUSE HAS NO INTENTION OF PASSING ANY MEANINGFUL IMMIGRATION REFORM.  IF THE PRESIDENT WANTS TO BE A CHAMPION OF IMMIGRANTS, HE NEEDS TO DO SO ON HIS OWN.  Got it??Grumpy-Cat

My internet marketing professionals tell me that lists are very effective ways to get readers to a blog.  And cats in a foul mood.

So, here are nine things that the President could do administratively to grant some relief from the deportation machine.  That is, nine things that the President could do without Congress acting.  Any of these steps would ease the deportation crisis and provide relief and assistance to hundreds of thousands of people left hopeless by Congressional inaction.

Now, we have heard a lot from this President that he does not have the authority to simply ignore the law.  That simple statement is true enough.  However, the President does have broad authority to determine how to interpret ambiguous statutory language.  And the Immigration and Nationality Act is pretty darn ambiguous.  For example, Congress has stated that cancellation of removal for people who are not permanent residents is limited to those who have U.S. citizen or permanent resident family members who would suffer “exceptional and extremely unusual hardship” if the applicant were deported.  It is the role of the immigration agencies to define what is “exceptional and extremely unusual hardship.”  Whereas the Board of Immigration Appeals has been pretty stingy with that standard, the agency could depart from such a parsimonious interpretation and create a more generous standard.  The President’s power to fill-in the details and context of statutes was discussed by the Supreme Court in Chevron v. National Resources Defense Council.  In that case, the Supreme Court stated that it will defer to an agency’s reasonable interpretation of ambiguous statutory language.  As a practical matter, where a court finds a statutory command to be ambiguous, it will almost always defer to the agency’s interpretation of the statute.  Most statutory language is ambiguous.  Recently, for example, courts of appeals have found the term “when the alien is released” to be ambiguous as to time.  If an agency’s interpretation conflicts with an ill-expressed Congressional mandate, the Court reasoned, Congress could legislate more specifically.  It is here that the President can use Congressional inaction in his favor.  Since Congress seems incapable of passing any legislation, it is unlikely that the President’s liberalized policies will be overturned by a vengeful Congress.

Another Supreme Court case sheds some light on the powers of Congress vis-a-vis the President.  In INS. v. Chadha, the Supreme Court invalidated a statutory scheme in which the House of Representatives could veto a INS decision to grant relief from removal known as suspension of deportation to a particular individual.  The Court reasoned that the power to decide particular immigration cases has been delegated by statute to the executive and that it violated the Separation of Powers for the Congress to be able to veto a decision regarding a particular individual.  This case shows that Congress may disapprove of decisions that the agency makes, but absent legislation, can not do anything about them.  Again, the difficulty of getting legislation through Congress gives the President a lot of leeway.

Presumably, the President, a constitutional law professor, knows all that, so he is ready to take actions that would dramatically improve the lives of immigrants in America, re-capture his status as “immigration reform champion in chief,” and get himself measured for a monument on the Mall.

  • Parole in place.  This is the big kahuna of administrative reform.  Parole in place is a mechanism that would allow the agency to “parole” individuals who entered without inspection into the U.S.  While parole is normally thought of as something done to allow people to enter the U.S., parole in place allows the government to parole them from within the U.S.  The administration recently did this for the undocumented spouses of members of the U.S. military, but there is no reason why the concept can not be applied to tens of thousands of others.  Through parole in place, people who have U.S. citizen family members or job offers may be able to adjust their status.  Friends of Benach Ragland (FOBRs) Cyrus Mehta and Gary Endelman wrote the definitive piece on parole in place, so we will not go into excessive detail here.
  • Reconsider Matter of Rojas.  In Matter of Rojas, the BIA held that ICE may hold someone as a mandatory detainee regardless of how long it has been since the individual was released from criminal custody when ICE encounters the immigrant.  Many district courts have held that a person is only subject to mandatory detention if ICE apprehends them “when released” from criminal custody.  By reconsidering Rojas, ICE would allow immigration judges to determine whether particular individuals are dangerous or likely to flee before a removal hearing.  This would have the effect of drastically reducing the detained population.
  • Redefine custody.  Alternatively, ICE could interpret “custody” to include alternatives to detention such as ankle bracelets and home monitoring, as many criminal agencies do.
  • Issue a regulation stating that the separation of a parent from U.S. citizen child is, per se, presumptively “exceptional and extremely unusual hardship.”  This would allow parents of U.S. citizens to have more solid claims to cancellation of removal, removing the biggest obstacle to grants of cancellation of removal.  The INS created a presumption of hardship before when it issued regulations underillegal-immigrants-children-deport-parents NACARA allowing certain Central American and Eastern European immigrants to seek suspension of deportation.  The INS issued a regulation stating that NACARA applicants were entitled to a presumption of extreme hardship.  The immigration agency would be free to limit the presumption of exceptional and extremely unusual hardship, but should begin with the recognition that deporting the parent of a U.S. citizen child is an inherently traumatic act with horrific long term consequences.
  • Issue a directive to ICE and CBP stating that, unless significant criminal issues are present, the agencies should decline to enter administrative removal orders and instead seek removal through removal proceedings in immigration court.  DHS issues a wide variety of administrative removals.  Only about one-third of removal orders are entered by an immigration judge.  The rest are issued by ICE either due to reinstatement of a prior removal order, visa waiver overstays, expedited removal of arrivals and of non-resident criminals and voluntary returns.  DHS could issue a directive (not guidance or suggestions but orders) requiring ICE to bring these cases before an immigration judge, where the individual could apply for relief.
  • Issue a directive to ICE attorneys in immigration court to seek two year continuances in all cases in immigration court where there is no criminal ground of removability and no relief.  This would force ICE to work on the hardest cases and clear the backlog of cases where a person has done nothing more than entered illegally or overstayed a visa.
  • Issue a directive that detainers should only be lodged where a person has been convicted of a deportable offense.  Detainers are issued to people who have been arrested regardless of whether there is a conviction.  Removal proceedings are often started due to an arrest that does not lead to any criminal charge because a detainer has been issued.  Limit detainers only to those who have been convicted of a deportable offense.
  • Issue a precedent decision affirming the low standard for the exceptions to the one year rule for asylum.  The law requires an asylum applicant to seek asylum within one year of entry to the U.S.  There are exceptions to this rule and the statute requires that an applicant must prove the applicability of the exception “to the satisfaction of the attorney general.”  This is the lowest legal standard.  Yet, courts routinely hold applicants to a much higher standard.  The Attorney General can issue a decision making it clear to the courts that the exception to the one year rule should be liberally applied.I-821-TPS-Facts
  • Grant Temporary Protected Status to Mexicans, Salvadorans, Guatemalans, Hondurans, Venezuelans, and Ukrainians.  Temporary Protected Status is granted to nationals of countries where there is disaster or upheaval.  It provides individuals already in the U.S. with temporary status, protection against removal, and work authorization.  It is possible to make a cogent claim to TPS for each of those countries.  Mexico and the Central American countries have been beset by drug and gang violence creating a humanitarian disaster on the ground and Ukraine is the flashpoint of a major crisis in Europe.  These are all legitimate uses of Temporary Protected Status.

The House’s action yesterday makes it clear that the House has no intention of moving on immigration reform.  The only thing that the President has to lose is his dwindling support in the immigrant community.  And he loses that by not acting, rather than acting.

An Open Letter to Rep. Spencer Bachus

21 Mar

Dear Congressman Bachus,

Thank you very much for speaking out about the overuse of detention by Immigration & Customs Enforcement (ICE) in civil proceedings to determine the removability of individuals in the U.S.  By stating and asking “it looks to me like there is an overuse of detention by this administration.  If these people are not safety risks . . . why are we detaining them?,” you have joined the growing chorus of Americans who wonder why the government, during a time of fiscal crisis, spends so much money locking people up during immigration proceedings when they present no danger to society.  You are welcome in our club and we are glad to have you.

However, we do think it is important that you understand the role you played in building the gulag archipelago of immigration detention.  The explosion of immigration detention is a direct result of legislation you voted for, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  This law, more than any decision by the Obama administration, has resulted in the overuse of detention for individuals in removal proceedings.  While you are right to question the overuse of detention by the administration, please do not overlook Congress’, and your, responsibility in forcing the detention of tens of thousands of people, the vast majority of whom are not safety risks.  IIRIRA fueled the explosion of detention in several ways.  First, it expanded mandatory detention to cover lots of people convicted of minor offenses.   Mandatory detention has forced ICE (and INS before ICE) to detain people during the course of their removal proceedings.  These individuals had no right to individualized determinations of their risk to society or likelihood to appear for hearings.  By expanding the classes of people subject to mandatory detention, Congress created a base layer of detainees.  It is true that interpretations by this and previous administrations have increased the potential pool of mandatory detainees, but mandatory detention and its wide reach is a creation of Congress.  Second, IIRIRA labelled many minor offenses as “aggravated felonies,” requiring detention during removal proceedings.  For example, an individual convicted of shoplifting a pair of $100 sunglasses might be sentenced to one year imprisonment, with service of the sentence suspended.  In other words, the criminal court would determine that that individual should not serve jail time unless they do something bad during the year of the suspended sentence.  Under IIRIRA’s overinclusive language, such an offense would be an aggravated felony and subject that individual to mandatory detention.  And IIRIRA made it clear that it did not matter when the offense occurred.  It is hard to imagine that this hypothetical defendant is a safety risk, but the law gives ICE and the immigration courts no authority to release that individual.  Third, IIRIRA created 287(g) partnerships with state and local law enforcement to enforce immigration law.  The explosion of detention is also directly related to the numbers of people coming to ICE’s attention because a local police officer pulls an immigrant over for failing to use a turn signal.  IIRIRA is the impetus to Arizona-style laws, one of the worst of which was passed in your own Alabama, Congressman.  Fourth, by creating the ten year bar to return to the U.S., IIRIRA made it close to impossible for many immigrants to regularize their status.  Thus, individuals who would have been able to obtain residence under previous laws, remained in the U.S. in unlawful status.  When encountered by ICE, they have often been detained in the discretionary determinations of ICE.  It is true that here is an area where the administration’s overuse of detention is due to the refusal to exercise favorable discretion, but please note that many of these people would be legal residents if not for the 1996 Act.  In addition, please recognize the role that the fear of Congressional rebuke plays in ICE’s decisions.  Take a look at the outcry from your colleagues when ICE released 2200 detainees last month in anticipation of the sequester.  Moreover, Congressional intent has been a key building block of the judicial decisions that have legalized the massive detention edifice.  Decisions such as the Supreme Court’s Demore v. Kim, which upheld mandatory detention, and Matter of Rojas, where the Board of Immigration Appeals decided that mandatory detention applies to people released from custody years or decades ago, are underpinned by statements that Congress intended to impose an unyielding policy of detention in IIRIRA.

Finally, Congress has provided ICE with enormous sums of money to spend on detention.  As you know, nature abhors a vacuum.  As Congress states that it intends to tighten spending, the unnecessary detention of the thousands of people who present no real danger to society should be looked at skeptically.  ICE will spend the money Congress gives it on detention.  It is up to Congress to say “no.”

Congressman, thank you for taking a stand against the overuse of detention.  We are glad to have you as an ally and hope that you use your position in Congress to advocate for more sensible immigration policies.  Thanks again for speaking out and we hope that the words are matched with action.

Sincerely,

Benach Ragland LLP

 

New Memo on Detainers- Will it be Followed?

28 Dec

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A persistent and fair criticism of the current administration is that while it has made grand pronouncements of focusing its enforcement efforts on violent criminals and threats to the national security, programs like 287(g) and Secure Communities have scooped far more benign immigrants in their overboard nets.  While the administration has put forward numerous memoranda and made extensive public statements about focusing limited resources on the dangerous and the recidivist immigration violators, the reality has been that, as a result of Secure Communities, immigrants without status and without serious criminal issues encountered by the police either due to a minor offense, while reporting a crime, or while the police look for another individual have been swept into the immigration dragnet, detained and deported.  According to ICE, the government deported over 400,000 people last year and most of them were not “the worst of the worst.”

This practice is due to the combination of two practices.  The first is Secure Communities.  This is the cooperative program between local law enforcement and ICE that checks arrestees (not convicts) against ICE databases.  As a result many individuals stopped for minor offenses, such as driving without a license, are arrested when ICE can not confirm their lawful status.  Ordinarily, individuals stopped under such circumstances are not arrested.  Once arrested, the second practice kicks in when ICE places a detainer on the individual.  A detainer is a request made by ICE to the local police department to hold an individual for 48 hours beyond when they are due to be released so that ICE may assume custody.  Because people arrested for minor offenses are held for brief periods of time in local jails, a detainer placed by ICE has the effect of keeping them detained by the local police department far longer than they would have been without the detainer.  This is one reason that many police departments have resisted and rejected participation in Secure Communities.  When ICE assumes custody, they initiate removal proceedings against the individual, not due to the arrest, but because of the lack of status.  If the individual can not demonstrate that she is likely to obtain some form of relief from removal, ICE will often detain without bond during removal proceedings.  Thus, through the operation of Secure Communities and detainers, many non-criminal immigrants without status have been identified, detained and deported.  This sad procession has undermined the administration’s claims to be focusing on the worst of the worst.

Into this unhappy scenario comes a new memo from ICE Director John Morton issuing new guidelines for the use of detainers.  The director has been a prolific memo writer.  He has issued guidance about ICE’s enforcement priorities and attempted to force a recalcitrant bureaucracy to use its limited resources more wisely.  He has written memos regarding the increased use of prosecutorial discretion to make intelligent decisions about when not to bring removal proceedings, when to terminate removal proceedings and when to exercise discretion not to remove a removable individual.  These memos and his approach to ICE’s responsibilities have resulted in the ICE bureaucracy’s open rebellion against him.  And the continued presence of “Obama, why are you deporting my mama” articles and signs among immigrant youth show that ICE agents continue to resist the administration’s stated approach to enforcement.  So, here comes another memo.  If followed, the memo should have a significant positive impact as it will reduce the number of low enforcement priority immigrants who come into contact with ICE and are, therefore, not placed into removal proceedings.

The detainer memo instructs ICE to be more judicious in the issuance of detainers.  According to the director, ICE should issue detainers against individuals only where: (1) they have reason to believe that the individual is deportable from the U.S. and (2) one of the following factors is present:

  • the individual has a prior felony conviction or has been charged with a felony
  • the individual has three or more prior misdemeanor offenses
  • the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense which relates to: violence, threats, assault, sexual abuse or exploitation, DUI, leaving the scene of an accident, firearms offenses, controlled substance distribution offenses
  • the individual has been convicted of illegal reentry
  • the individual has illegally re-entered the country after removal
  • the individual has outstanding order of removal
  • the individual has been found to have knowingly committed immigration fraud
  • the individual otherwise poses a significant risk to national security, border security or public safety.

Under these guidelines, detainers should be issued much less frequently than they have been over the past few years.  Individuals stopped for driving without a license, arrested for simple marijuana possession, disorderly conduct, underage drinking, petit theft, or other minor offenses should not come to the attention of ICE.  By keeping the immigration detention facilities and the immigration courts free from these low priority individuals, ICE remains free to concentrate on those who present serious public safety and national security risks.  In addition, it has the potential to stop or slow the removal of parents, children, brothers and sisters who are good members of their community except for a momentary and unfortunate interaction with law enforcement.  Properly implemented, the new detainer policy has the potential to drastically reduce the removals of low priority immigrants that have sullied the pro immigrant credentials of this administration.

However, as before, there is a battle going on between the stated desires of the political leadership of ICE and the ICE bureaucracy.  The ICE bureaucracy has proven itself extraordinarily adept at undermining its political leadership and has been in open revolt against the administration for the better part of four years.  Like every other memo and political effort announced by this administration, the challenge will remain in whether they can force an unwilling bureaucracy to yield to the wishes of its civilian leadership.  Lincoln had to fire McClellan, Truman had to fire McArthur and Obama fired McChrystal.  We are not sure who in ICE needs to be fired, but, one way or another, this power struggle will need to be resolved.