Detainers & Deportation
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What is an ICE Detainer or Hold?
When a person is arrested and is taken to a local or county jail, Immigration and Customs Enforcement (“ICE”) may place a hold on that person. People often hear that someone may have an ‘immigration detainer’ on them.
What is an Immigration Detainer?
An ICE detainer is a request by ICE to the local jail or local enforcement agency (“LEA”) regarding someone in custody. The request asks the jail to notify ICE when the person will be released, and to hold the person for an extra 48 hours so that ICE has an opportunity to come get them.
Is the Detainer mandatory?
No, the LEA is not required and does not have to notify ICE or hold the person an additional 48 hours.
- An Immigration detainer is not an arrest warrant
- An Immigration detainer is not a criminal warrant
- An Immigration detainer does not mean that the person is a criminal
- An Immigration detainer does not mean that a person is deportable or here unlawfully
When will an Immigration Detainer be placed?
The detainer can be placed at any time by ICE.
When is the Detainer Triggered?
It is triggered the moment a defendant is not otherwise detained by a criminal justice agency.
- Triggered when:
o Bond is posted
o Signature bond is executed
o If lodged at time of sentencing, then when sentence is completed.
o If charges dismissed and you are free to go
o Released on own recognizance
o Sentenced to time served —
- Jails must immediately notify ICE that a detainer has been triggered. It is not triggered at the time the jail notifies ICE.
- Once triggered, local jail may continue to hold the defendant for a maximum of 48 hours in order for ICE to assume custody. Not more than 48 hours
How do ICE agents and officers decide when to place a Detainer?
ICE has certain enforcement priorities. Absent extraordinary circumstances, ICE will place a detainer in the federal, state, local, or tribal criminal justice systems against a person only where
(1) they have reason to believe the individual is an alien subject to removal from the United States and
(2) one or more of the following conditions apply:
- the individual has a prior felony conviction or has been charged with a felony offense;
- the individual has three or more prior misdemeanor convictions; Given limited enforcement resources, three or more convictions for minor traffic misdemeanors or other relatively minor misdemeanors alone should not trigger a detainer unless the convictions reflect a clear and continuing danger to others or disregard for the law.
- the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves-
- violence, threats, or assault;
- sexual abuse or exploitation;
- driving under the influence of alcohol or a controlled substance;
- unlawful flight from the scene of an accident;
- unlawful possession or use of a firearm or other deadly weapon;
- the distribution or trafficking of a controlled substance; or o other significant threat to public safety; A significant threat to public safety is one which poses a significant risk of harm or injury to a person or property
- the individual has been convicted of illegal entry pursuant to 8 U.S.C. § 1325;
- the individual has illegally re-entered the country after a previous removal or return;
- the individual has an outstanding order of removal;
- the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or
- the individual otherwise poses a significant risk to national security, border security, or public safety. For example, the individual is a suspected terrorist, a known gang member, or the subject of an outstanding felony arrest warrant; or the detainer is issued in furtherance of an ongoing felony criminal or national security investigation.
A detainer is not required in each case and all officers should exercise prosecutorial discretion based on the merit of each case as outlined in a John Morton memorandum dated June 11, 2011 entitled Exercising Prosecutorial Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens and other applicable policies.
Who Pays for Holding the Individual longer?
- Taxpayers generally foot the bill – Local agencies expend significant resources to comply with the requests in an immigration detainer, including the cost of detaining individuals an additional 48 hours plus weekends and holidays after they would otherwise be released, administrative resources involved in receiving, maintaining, and effectuating these requests, and staff time in responding to ICE’s requests for notification. The majority of the costs associated with immigration detainers are never reimbursed by the federal government.
- Thus no federal reimbursement is available for immigration-based detention in local jails based on Immigration detainers at the arrest stage, for detainees who are never convicted, or for detainers applied post-conviction to lawfully-present defendants.
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Deportation (removal) is the act and process of formally removing foreign nationals from one country and returning them to their country of origin. The United States considers foreign nationals deportable if they violated U.S. immigration law.
Being in violation of immigration laws is not a crime. It is a civil violation for which immigrants go through a process to see whether they have a right to stay in the United States. Immigrants detained during this process are in non-criminal custody. The Department of Homeland Security (DHS) is the agency responsible for detaining immigrants.
Who can be Removed or Deported?
- Any noncitizen: Any non-citizen who has a criminal conviction. This includes lawful permanent residents (green card holders), asylees and refugees, people who have been granted withholding of removal or temporary protected status, people who are in the process of adjusting status or getting their ‘green cards’, and people on nonimmigrant, temporary visas, such as students, business visitors, tourists, professional employees, and agricultural workers.
- Undocumented people: Undocumented foreign nationals can be deported too, because they entered the United States without any visas or without being admitted by Customs and Border Patrol. Undocumented individuals include those who walk across the border without being inspected by an immigration agent; those who have old deportation orders (“absconders”); those who pay smugglers to enter the U.S.; or those who violate their status by working without permission. Any arrest or conviction will make them more likely to be discovered and targeted by the Department of Homeland Security. Absconders can be deported without a hearing.****** If you know your Alien Registration Number (A#) and want to know whether you have an old order of deportation, you can call 1-800-898-7180. This is the hotline for the immigration court (EOIR). If the hotline says you have a deportation/removal order, talk to a lawyer specializing in deportation before you go to the immigration office, leave the country, or try to adjust your status.
- Can U.S. citizen be deported? U.S. citizens cannot be deported. However, the government can attempt to take away the citizenship of a naturalized citizen if they can show that his/her naturalization application was “fraudulent” or contained certain omissions or mistakes (for example, if a person failed to disclose an arrest or conviction). A person whose citizenship is stripped may be vulnerable to deportation.
How do non-citizen foreign nationals come to the attention of Immigration and Customs Enforcement (“ICE”)?
The Department of Homeland Security (DHS) arrests immigrants in a number of public and private spaces. For immigrants who are at risk for deportation, the following places often trigger detention and deportation:
- Everyday Locations: Workplaces, Homes, Streets, Buses, and Trains: In some states, Immigration agents board Greyhound buses and Amtrak trains, demanding “status documents,” and arresting those who cannot produce them. They may also arrest people on the streets, in their homes, and at their workplaces.
- Police Stops: Sometimes people are pulled over for broken taillights and minor traffic offenses. The police often use these stops to question people about their immigration status and to turn immigrants over to Immigration and Customs Enforcement (ICE).o A police stop is most likely to result in immigration involvement if the person has an old order of deportation – especially since the Department of Justice began entering this information into the National Crime Information center (NCIC) database, which is accessed by law enforcement. In addition, many jails and prisons participate in the Criminal Alien Program, through which ICE agents interview immigrants at local jails and lodge detainers preventing release from custody. Many also participate in ICE’s “Secure Communities” program, through which fingerprints of all arrestees.
- After leaving the country and trying to re-enter: At an airport, seaport, or at the border, immigration agents may detain a non-citizen if they have an old conviction (even a misdemeanor); if the foreign national has false papers; makes a material misrepresentation; has no immigration status, or has a prior deportation order.o Individuals who have had ANY kind of criminal conviction should seek the counsel of an immigration attorney with experience in crime-related deportation before leaving the country.
- When applying for citizenship or adjustment of status: Many people put themselves at risk of deportation when they file an application to adjust their status (Form I-485), or when applying for citizenship (Form N-400) or a replacement or renewal of their green card (Form I-90) when they have old orders of deportation or past convictions. Undocumented people who apply for adjustment of status will be subject to deportation if their application is denied. If you have ANY criminal conviction, talk to an experienced immigration attorney experienced in crime-related deportation before applying for adjustment of status or citizenship.
- After completing a criminal sentence (including probation) or being released from jail/prison:You may be sent to immigration after you complete jail time, probation, or a rehabilitation program. Undocumented immigrants and legal immigrants with a past conviction may be turned over to immigration even if they are acquitted of a crime.
Is There Any Relief From Deportation?
There is very limited relief for people who are before an Immigration Judge. Individuals do not have a right to a court-appointed attorney, although individuals may be able to hire a lawyer or find a pro-bono one who may help.
This area is very complex. Options are limited. Following is a summary of some of the factors that may provide relief from deportation or removal from the U.S.
1. Cancellation of Removal for Lawful Permanent Residents: Cancellation of Removal: You may be eligible for cancellation of removal if:
- you have been a permanent resident (had a green card) for at least 5 years, AND
- you have lived in the US continuously for 7 years after having been admitted to the U.S. (in any status), AND
- You have not been convicted of an aggravated felony.
2. Cancellation of Removal if you are in the U.S. without permission or violated your status in some way if:
- you have been physically present in the U.S. for 10 years, AND
- you have maintained good moral character curing that time (most criminal convictions will prevent you from showing good moral character) AND
- Your deportation would cause “exceptional and extremely unusual” hardship to your U.S. citizen or lawful permanent resident spouse, parent or child.
*** Special rules apply to battered women and children. Call an attorney if you have been battered.
3. Adjustment of Status: You may be able to apply for permanent residency (a green card) if you:
- are married to a U.S. citizen, OR
- have a U.S. citizen child over 21 years of age, OR
- Have a U.S. citizen parent.
You must have an approved petition filed on your behalf before you can change your status before an immigration judge. Contact an immigration lawyer for more information if you are married to a U.S. citizen, have a U.S. child over 21 years old, or have a U.S. citizen parent.
You may not be eligible to get a ‘green card’ if you were convicted of a crime involving ‘moral turpitude’ (unless it had a possible sentence of one year or less and you were actually sentenced to six months or less), a drug crime (other than simple possession of 30 grams or less of marijuana), or two crimes where you received a sentence of 5 years or more.
Spouses and Children who are survivors of sexual or domestic violence by a U.S. citizen or permanent resident spouse can file a self-petition for permanent residency, without the consent or knowledge of the abuser. Resources to battered spouses and children can be found at http://www.uscis.gov/tools/humanitarian-benefits-based-resources/resources-battered-spouses-children-parents/resources-battered-spouse-children-parents
4. Deferred Action for Childhood Arrivals: Over the past three years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, including individuals convicted of crimes with particular emphasis on violent criminals, felons, and repeat offenders, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines. Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.
Deferred Action does not give legal status to qualified applicants. However, it stops ICE from deporting recipients of deferred action for a period of two years. If you meet the criteria below and are before an immigration judge, call an immigration lawyer or go to the USCIS website to see if you qualify.
You may request consideration of deferred action for childhood arrivals if you:
a. Were under the age of 31 as of June 15, 2012;
b. Came to the United States before reaching your 16th birthday;
c. Have continuously resided in the United States since June 15, 2007, up to the present time;
d. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
e. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
f. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
g. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Individuals can call USCIS at 1-800-375-5283 with questions or to request more information on the deferred action for childhood arrivals process or visit www.uscis.gov. https://www.dhs.gov/deferred-action-childhood-arrivals
5. Registry: You can get a green card through registry if you came to the U.S. before January 1, 1972 and have lived here ever since. You must have good moral character and not have certain criminal convictions that would prevent you from being admitted to the U.S.
6. Voluntary departure: Voluntary departure is considered a relief to deportation, although it requires you to return to your country. The advantage of voluntary departure over deportation is that it will be easier to return to the United States if you have a legal way to re-enter.
7. Asylum, Withholding of Removal and Relief under the Convention Against Torture – For Resources, please go here.
Asylum: You may be eligible to apply for asylum if you fear harm in your country because of your race, religion, national, actual or suspected political opinion, or membership in a social group (such as a clan, family, homosexuals, women opposed to certain practices, etc.). You must apply for asylum within one year of arrival in the U.S. unless you show extraordinary or changed circumstances.
- Crimes that bar asylum: You are not eligible for asylum if you were convicted of an aggravated felony or a particularly serious crime that indicates you might be a danger to the community, or if you assisted in the persecution of others.
Withholding of removal: You may apply for withholding of removal even if you have an aggravated felony conviction, unless you were sentenced to five years or more of imprisonment. You must show that your life or freedom would be threatened due to your race, religion, nationality, political opinion or membership in a particular group if you return to your country of birth.
Relief under the Convention Against Torture: You may be eligible for relief under the Convention Against Torture if you fear you will be tortured if you return to your country. Criminal convictions are not a bar.
8. 212(h) Waiver: A 212(h) waiver may excuse you for certain crimes if you can prove that removing you from the United States would cause extreme hardship to a U.S. citizen or permanent resident spouse, child or parent. Contact an attorney.
9. 212(c) Waiver: You may be able to have a criminal conviction waived if you pled guilty before April 24, 1996. You must:
- be a permanent resident (have a green card), AND
- have lived in the U.S. lawfully for 7 years, AND
- have not served 5 years or more in prison for an aggravated felony.
10. Citizenship: U.S. citizens cannot be deported. Citizenship law is complicated, but if any of your parents or grandparents are/were U.S. citizens, there is a chance that you are a citizen. Notify the Immigration Judge and consult with an attorney.
- You are eligible to apply for naturalization if you have had your green card for five years or more (or for three years or more if you are married to a U.S. citizen). Although most criminal convictions prevent you from being eligible for U.S. citizenship, you may be able to apply for naturalization and ask the Immigration Judge to stop the case to remove you, if you have maintained good moral character for the past five years.
If You Are the Victim of a Crime
If you are a victim and cooperate with police, you may qualify for a special visa that grants temporary immigration status with a possible future opportunity to apply for lawful permanent resident status.
- S-Visa – is granted to individuals who have agreed to assist the Government in various investigative procedures leading to the arrest of individuals in connection with illegal or terrorist activities.
- T-Visa – gives temporary non-immigrant status to victims of severe forms of human trafficking on the condition that they help law enforcement officials investigate and prosecute crimes related to human trafficking
- U-Visas – give victims of certain crimes temporary legal status and work eligibility in the United States for up to 4 years. PDF Document
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