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Montgomery County Maryland Says No to ICE!

8 Oct

MoCo

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.

GUEST BLOG: Special Immigrant Juvenile Status: Maryland Closes Gap with Federal Law to Expand Courts’ Jurisdiction. By Michelle Mendez

25 Aug

This blog post was written by FOBR Michelle Mendez, Senior Managing Attorney at Immigrant Legal Service of Catholic Charities of the Archdiocese of Washington.MM

 

On April 8, 2014, Maryland Governor Martin O’Malley signed into law Chapter 96, which, through a small, technical fix that closes a gap between state and federal law, expands the jurisdiction of an equity court to include custody or guardianship of an immigrant child pursuant to a motion for Special Immigrant Juvenile Status (SIJS) factual findings. 2014Md. Laws, Chap. 96. The law expands the jurisdiction of the court by defining a child for the purposes of SIJS factual finding determinations in guardianship or custody proceedings as an unmarried individual who is not yet 21 years of age thus aligning the definition of child with the federal definition. The idea for this change in law arose from the experience of Catholic Charities Archdiocese of Washington Immigration Legal Services staff as they continued to encounter youth with harrowing life situations that rendered them SIJS eligible but who were already 18 years old. This law goes into effect October 1, 2014, but some judges have already begun accepting cases of those who have already reached the age of 18.

 

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What is SIJS?

There are few groups more vulnerable than immigrant children who are SIJS-eligible. As we have seen with the recent surge of unaccompanied minors fleeing Central America, many have arrived in the United States fleeing APphoto_Immigration Obamaa combination of violence, threats, natural disasters, human trafficking, child labor, and abuse, neglect, and abandonment from their families. Though SIJS-eligible, without competent counsel to guide them through the complexity of this family law and immigration law hybrid relief, these children face the constant threat of deportation and without legal status, access to student loans and work authorization, they face significant barriers to becoming stable, productive members of society. That is why it is imperative that we as attorneys know and understand SIJS.

A Special Immigrant Juvenile is an immigrant child who has been declared dependent on a juvenile court because a state court judge has determined that (1) his or her reunification with one or both parents is not viable due to abuse, neglect, or abandonment and (2) it is not in the best interest of the child to be returned to his or her home country. A juvenile court is defined as “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles,” and can include a juvenile court, family court, probate court, county court at law, or child welfare court. SIJS is the only area of immigration law that incorporates the best interest of the child principle to take into account the special needs of abused, abandoned, or neglected immigrant children. When introducing SIJS back in 1990, Congress designated this task to state juvenile court judges because federal immigration authorities are not equipped to determine the best interests of children. State juvenile judges do not make immigration determinations and instead only determine if the facts required for SIJS are present in a case; U.S. Citizenship and Immigration Services (USCIS) has sole authority to grant SIJS status via the approval of Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant, subject to extensive background and biometrics checks.

SIJS factual findings are issued in state courts in accordance with foster care, guardianship, delinquency, adoption, or sole custody proceedings, meaning that the request for SIJS factual findings must accompany one of these types of filings. Submitting only a motion for factual findings for SIJS will not vest the state court with jurisdiction. Dependency on a juvenile court does not require state intervention; a judge may commit a minor to the care of a private individual through a guardianship or sole custody determination, which was clarified by William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. A finding for SIJS purposes does not require formal termination of parental rights or a determination that reunification will never be possible, but Special Immigrant Juveniles are ineligible from ever sponsoring their parents for immigration status so the “chain migration” arguments do not apply to this relief.

What does Chapter 96 change?

Maryland law already permitted courts to issue SIJS factual findings. However, prior to Chapter 96, juvenile courts in Maryland could only exercise jurisdiction to consider individuals for SIJS up to age 18, which is the age of majority for guardianship and custody matters, even though federal immigration law permits anyone to apply for SIJS who is under age 21. This three-year gap significantly abrogated the federal law and caused undue hardship on the most vulnerable immigrant children. Chapter 96 closes this gap for this discrete class of Marylanders to carry out the will of the federal law on SIJS.

How Does Chapter 96 Benefit Maryland?

By expanding Maryland courts’ jurisdiction when determining whether immigrant youth qualify for SIJS, Maryland will have more stable families and community members. Through guardianship and sole custody proceedings, private individuals who want to take on the full legal and financial responsibilities of youth who have been abused, neglected, and abandoned can do so, providing an adult role model and easing reliance on state resources. At the tender age of 18, adult supervisiMD mapon makes a critical difference – studies show that involvement of surrogate parents is a key factor in educational achievement and avoiding risks such as alcohol and drug abuse, teen pregnancy, and violence. SIJS youth can gain protection against being forced to return to unstable, life-threatening environments as well as obtain legal status, making it easier to qualify for student loans and attend school, learn English, and work legally. These youth become productive members of society, benefiting Maryland’s economy and increasing tax revenue and consumption. Moreover, SIJS proceedings are fiscally neutral to the state: the Department of Legislative Services determined the changes made by Chapter 96 fit within existing judicial procedures and carry no additional fiscal effect.

With children from Honduras, El Salvador, and Guatemala seeking safety in United States and Maryland having received 2,205 of these children from January 1 to July 7, 2014, Maryland will be able to serve the families of these children better than any other state thanks to Chapter 96. Chapter 96 will allow SIJS-eligible children to pursue this relief consistent with the intent of the Congressional framework, and not needlessly close the courthouse door on them on their 18th birthdays. This is crucial because the number of non-profit and private attorneys with SIJS competency do not meet the demand for representation for SIJS-eligible children so the wait lists are long and the cases slow-moving. Thanks to Chapter 96, the abused, abandoned, or neglected undocumented immigrant children who come to Maryland will have better chances and a longer opportunity of becoming documented, fully-contributing members of our society.

To learn more about SIJS, consider taking a case pro bono case from one of the following reputable non-profits with in-house SIJS expertise and a pro bono program offering mentorship and sample materials:

 

Catholic Charities of the Archdiocese of Washington

Immigration Legal Services

Pro Bono Coordinator Jim Feroli, James.Feroli@catholiccharitiesdc.org

 

Kids in Need of Defense (KIND)

Washington, DC Office

Christie Turner, cturner@supportkind.org

Baltimore Office

Liz Shields, lshields@supportkind.org

 

Catholic Charities of the Archdiocese of Baltimore

Esperanza Center

Managing Attorney Adonia Simpson, asimpson@catholiccharities-md.org

 

Capital Area Immigrant Rights (CAIR) Coalition

Legal Director Heidi Altman, haltman@caircoalition.org

*Detained cases only

 

To learn more about how this law came to fruition, visit: https://cliniclegal.org/resources/articles-clinic/maryland-law-expands-eligibility-special-immigrant-juvenile-status

California Drops a Day and Improves the Lives of Immigrants

22 Jul

jerrybrown

In a move that will help thousands of immigrants, California governor Jerry Brown signed SB 1310 into law today.  This law imposes a maximum sentence of 364 days in prison for those convicted of misdemeanors in California.  The law is set to take effect on January 1, 2015.  Under current California law, a person convicted of a misdemeanor may be sentenced up to one year, or 365 days, in prison.  The change of subtracting one day from the maximum sentence can help many people convicted of minor crimes avoid certain detention and removal from the U.S.

U.S. immigration law attaches consequences to many convictions based upon what the potential sentence is or what the sentence imposed is.  Immigration law treats a suspended sentence as the equivalent of a served sentence.  So, an individual convicted of petty larceny who gets a year in prison with a full year suspended is considered to be an aggravated felon because he has been convicted of a theft offense with a sentence of a year.   Even though the sentencing judge s1.reutersmedia.netdid not see fit to incarcerate, the Department of Homeland Security will jail and likely removal such an individual.  The new law goes a long way to preventing this inequitable result.  For example:

  • A noncitizen is deportable for a single conviction of a crime involving moral turpitude committed within five years of admission, if the offense has a potential sentence of one year or more. INA § 237(a)(2)(A), 8 USC § 1227(a)(2)(A).   As of the effective date, a single California misdemeanor conviction will not cause deportability under this ground, because it will carry a maximum possible sentence of 364 days.
  • Conviction of certain offenses becomes an aggravated felony only if a sentence of a year or more is imposed. For example, crimes defined as: crime of violence, theft offense, obstruction of justice, forgery, perjury, receipt of stolen property are only aggravated felonies if the sentence imposed is a year or more.  And, yes, misdemeanors can be aggravated felonies.  However, with the change in California law, misdemeanor versions of these categories of offenses can not be aggravated felonies.  Designation of an offense as an aggravated felony is often very prejudicial to a non-citizen as not only does it establish removability, it causes mandatory detention and serves as exclusion to nearly all forms of relief from removal.

There are myriad other ways that this simple change in the law will aid immigrants and their families.  As Congress remains stuck, inventive advocates are pursuing a variety of creative remedies in a variety of fora to slow down the deportation machine and improve lives for thousands of immigrants, their communities and their families.

 

Arizona loses again, but its citizens win

17 Jun

Today, the Supreme Court ruled 7-2 in Arizona v. Inter Tribal Council of Arizona, Inc. that the state of Arizona cannot separately require an individual to prove he is a citizen in order to register to vote beyond the regulations set forth by the federal government.  This decision stated that Arizona’s additional “proof of citizenship” form was contrary to the National Voter Registration Act, the federal law establishing a specific form for Voter Registration.  The Court held that this form was sufficient evidence of citizenship without additional proof and on that basis struck down the Arizona law requiring a registering voter to prove he is a citizen.

AZ

Although this case was decided under the Elections Clause, where federal law always trumps state law, this is an important decision for those who have had to jump over additional unconstitutional hurdles, simply due to the biases of those who enact and implement Arizona’s laws.  No longer will citizens of Arizona be forced to jump through legal hoops that the Federal Government does not require.  We are hopeful that this reasoning will extend to other states and legislation that has placed additional burdens and barriers on individuals beyond what is required and permitted by the Federal Government.  Although Jeffrey Toobin did not think there were any major Supreme Court decisions today, Benach Ragland believes the enfranchisement of the voters of Arizona is major indeed.

The Supreme Court’s rejection of the theories offered by Arizona officials is another black mark against the litigation strategy the State of Arizona has embarked upon.  In the last year, this is Arizona’s second major defeat at the Supreme Court.  Less than a year ago, the Supreme Court knocked down Arizona’s SB 1070, the “show me your papers” law in Arizona v. United States.   Earlier this month, a federal judge in Phoenix ruled that Maricopa County Sheriff Joe Arpaio had systematically violated the civil rights of the Hispanic citizens of the United States.  While the Sheriff has expressed his intent to appeal, Arizona citizens are questioning the use of state funds to pay for ineffective and hubristic litigation.  How much money has been spent by Jan Brewer and Joe Arpaio to defend indefensible policies?  In  the era of the sequester and failing schools, can Arizona afford Jan Brewer’s and Joe Arpaio’s ego trips to court?

Arpaio

PS- I took this picture myself!  – ACB

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

 

Howdy, Trey Gowdy!

20 Dec

220px-Trey_Gowdy,_Official_Portrait,_112th_Congress

 

Congressman Trey Gowdy (R-SC) was named the Chairman of the House Subcommittee on Immigration and Border Security, a committee that will presumably have a lead role in developing any new immigration law in the coming Congress.   Incoming House Judiciary Committee Chairman Bob Goodlatte (R-VA) announced today that Rep Gowdy would be chair in the new Congress and stated “Rep. Gowdy will play a leading role on immigration reform which is a top priority of the House Judiciary Committee in the new Congress.”

Congressman Gowdy will take over for Congressman Elton Gallegly, who ran the Subcommittee in the last Congress.  Gallegly received an A- from the restrictionist NumbersUSA for support of anti-immigrant measures over the last three years, as did Gowdy.  Goodlatte, the Judiciary Chair, received an A+!  Congratulations, Bobby, now we know why you get the big chair!  Anyway, who is Mr. Gowdy and what does he have to say about immigration?  Unfortunately, it does not look good.

Let’s discuss the good stuff.  Trey Gowdy is married to a former Ms. Spartanburg and a second place runner-up to Ms. South Carolina.

Now, for the less pleasant stuff.  Trey Gowdy was elected in the Tea Party election of 2010.  A former prosecutor, Congressman Gowdy has no particular expertise in immigration law or policy.  Rep. Gowdy signed onto the “Prohibiting Backdoor Amnesty Act,” a rearguard action by immigration opponents to stop the President from implementing DACA.  The Congressman has been vocal in spreading the lie that the Obama administration has been lax in enforcing the nation’s immigration laws and aggressive in denouncing the Justice Department’s lawsuits against Arizona and other states that have enacted punitive anti-immigrant legislation.

If there is any good news, it is that many prominent anti-immigrant voices believe that the Speaker intends to bypass the Committee and Subcommittee in writing immigration legislation.  Mark Krikorian, of the reasonable-sounding-but-not-very-reasonable Center for Immigration Studies wrote in the National Review that conservatives have little confidence in Speaker Boehner to hold true to anti-immigrant principles, but are hopeful that the Speaker’s power will be diminished after the fiscal cliff negotiations: “But whoever writes the bill, it would seem that the bigger the crap sandwich Republican members have to swallow as the result of any fiscal-cliff deal, the less flexibility Boehner will likely have to force them to go along with his amnesty plans.”

Crap sandwiches, Ms. Spartanburg and Mr. Good Latte!  Merry Christmas from Washington DC.

PS- Nice tie.

This is Personal

30 Nov

One of the burdens I carry is the knowledge that I come from one of the country’s anti-immigrant hotspots.  No, I am not from Arizona, Alabama, Postville, Iowa  or Hazelton, Pennsylvania.  I grew up in Suffolk County on the eastern end of Long Island, New York.  While Suffolk County never passed laws like Arizona’s infamous SB 1070 or Alabama’s even more odious HB 56, Suffolk County gained notoriety for an even more loathsome practice– extreme violence against immigrants.

This phenomenon really got underway in 2004 when Israel Perez and Magdaleno Escamilla, day laborers from Mexico, were lured to a basement in Farmingville, NY with the promise of work where they were beaten and stabbed.  This hate crime occured as local anti-immigrant organizations used more and more inflammatory rhetoric against immigrants and aligned themselves with well-known white supremacists such as Glenn SpencerPBS sponsored a documentary about the violence and its aftermath:

Watch Video | Farmingville: Trailer | POV | PBS.

In 2008, Ecuadorean Marcelo Lucero was stabbed to death on the streets of Patchogue, New York.  Mr. Lucero was walking down the street, when he was attacked by a group of young men who went out to “beat on some Mexicans.”  This episode introduced the world to the practice of “beaner-hopping,” which is an activity where young men would find Hispanic men and beat them in the street.

During much of this time, the County Executive for Suffolk County was a despicable little troll named Steve Levy, who sought national prominence by bashing immigrants at every turn.  Rather than manage the affairs of his county, Levy attacked immigrants, changed parties and sought the Republican nomination for governor.  Levy assumed that he could ride his harsh rhetoric to Albany and never considered whether his words may have contributed to the climate that killed Lucero.   His huge campaign warchest was not enough to buy the nomination for governor and Levy declined to seek another term as executive, handing over $4m in campaign funds to the District Attorney, all but acknowledging serial corruption.

Suffolk County has a new executive, who signed an executive order earlier this month requiring agencies to translate official documents into several languages.  The county has 1.5 million residents, 20 percent of whom speak languages other than English at home. Interestingly, these are the languages other than English most commonly used in Suffolk: Italian, Mandarin, Spanish, Polish, French Creole and Portuguese.

That Levy would be out of office, Lucero’s killer in jail, and Suffolk residents contributing to the re-election of the President committed to immigration reform shows that, even in the darkest corners, the sun light can come in.  I am very relieved.  Mo Goldman, help is on the way!