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ICE Detention 101:Some Basics for Federal Defenders
Sirine ShebayaFederal Public Defender Criminal Justice Act Training ProgramUnited States Courthouse, Greenbelt, Maryland November 14, 2014
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Presentation Overview
Overarching Q: Should I try to get clients with ICE detainers released, or will that just land them in immigration detention? How do I assess the likelihood of release for my clients if they are transferred to ICE custody?
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Presentation Overview
1.The Basics: Mandatory detention under INA 236(c) and release under INA 236(a)
1.A Brief Foray Into ICE Detention 102: Emerging case law on ICE detainers and the extent of ICE’s mandatory detention authority
1.Concluding thoughts
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The Basics of ICE Detention Mandatory detention under 236(c)
Release on bond or on conditions under 236(a)
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1. The Basics
Your go-to statute: INA § 236, 8 USC § 1226
Provides for mandatory detention of persons removable due to certain criminal convictions (INA § 236(c), 8 USC § 1226(c))
Also provides for release on bond or conditions for those not subject to mandatory detention (INA § 236(a), 8 USC § 1226(a))
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Mandatory detention under 236(c)
Release from criminal custody must be after October 8, 1998 – see Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999); Matter of West, 22 I&N Dec. 1405 (BIA 2000)
Release must be directly tied to basis for detention under INA § 236(c) – see Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA 2010) (overruling Matter of Saysana, 24 I&N Dec. 602 (BIA 2008)
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Mandatory detention under 236(c)
The “when… released” controversy: what happens if ICE does not take custody of the person as soon as they are released from criminal custody? BIA has held that it does not matter; ICE may subject
person to mandatory detention at any time after they are released from criminal custody – see Matter of Rojas, 23 I&N Dec. 117 (BIA 2001)
Fourth Circuit unfortunately concurred – see Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012)
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Mandatory detention under 236(c)
For inadmissible non-citizen (EWI or person seeking admission into US including returning LPR): ONE Crime Involving Moral Turpitude (CIMT)
Petty offense exception (max sentence no greater than 1 yr and time served no greater than 6 mos)
Under 18 and five years before date of application exception Controlled substance offense Various prostitution-related offenses Human trafficking, money laundering, security grounds and
terrorist activities Diplomatic immunity & “serious criminal activity”
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Mandatory detention under 236(c)
For deportable non-citizen (LPR currently in US or person who entered lawfully with inspection): Two or more CIMTs (anytime after admission) One CIMT within 5 years of admission and sentence of at
least one year Aggravated felony Controlled substance offense (other than single 30g or less
MJ possession) Firearms offenses Various security and terrorist activity grounds
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A quick word on CIMTs and Agg Fels
Terms of art, not necessarily obvious (e.g. aggravated felonies can be state misdemeanors)
Law constantly evolving on particular crimes, statutory interpretation
But, for what it’s worth: CIMT = “inherently base, vile, or depraved, and contrary to
the accepted rules of morality”; “per se morally reprehensible and intrinsically wrong...” Matter of Franklin, 20 I&N Dec. 867 (BIA 1994)
CIMT determined by statutory definition, not by facts or circumstances of particular case – see Matter of Short, 20 I&N Dec. 136 (BIA 1989)
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CIMTs and Agg Fels (cont’d)
Aggravated Felonies: defined at 8 USC § 1101(a)(43) Dozens of statutory and common-law offenses, including
but not limited to: burglary; various drug offenses; various fraud offenses; murder; rape; crimes of violence; various more minor offenses if term of imprisonment is at least one year; sexual abuse of a minor; and more…
Bottom line: scrutinize very carefully to determine if crime is an aggravated felony (and consult Maureen Sweeney’s Maryland chart)
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Release on Bond under 236(a)
INA 236(a), 8 USC 1226(a) – persons not subject to mandatory detention may be released on bond (minimum $1500) or on conditional parole
Bond/parole may be revoked at any time and person re-arrested – see INA 236(b), 8 USC 1226(b)
Bond granted unless threat to nat’l security, flight risk or poor bail risk – see Matter of Patel, 15 I&N Dec. 666 (BIA 1976) But see 8 CFR §§236.1; Matter of D-J-, 23 I&N Dec. 572
(A.G. 2003) (asserting broader discretion to detain not limited to flight risk and dangerousness)
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Bond – cont’d
IJs have wide latitude to consider various factors in making bond determinations – see Matter of Guerra, 23 I&N Dec. 37 (BIA 2006), e.g.: Fixed address, length of residence in US Local family ties, employment history Criminal record, pending criminal charges History of immigration violations, manner of entry Etc.
Bottom line: consider all equities carefully; talk to immigration practitioners in your area
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ICE Detention 102: A Brief Foray
Constitutional challenges to ICE detainers (and recent policy changes in MD)
Limitations on ICE’s mandatory detention authority
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ICE Detention 102 - Detainers
Recent court decisions: detainers violate Fourth Amendment when issued without probable cause Miranda-Olivares v Clackamas County, 2014 U.S. Dist.
LEXIS 50340 (D. Ore. Apr. 11, 2014) Galarza v. Szalczyk, 2014 U.S. App. LEXIS 4000 (3d Cir.
Mar. 4, 2014) Morales v. Chadbourne, 2014 U.S. Dist. LEXIS 19084 (D.
R.I. Feb. 12, 2014).
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Detainers – cont’d
Our view: Fourth Amendment requires probable cause and judicial review. Detainers do not satisfy either of these requirements.
New Maryland policies requiring probable cause determination and/or judicial warrant now in effect in Prince George’s County, Montgomery County, Baltimore City Detention Center, and others.
Possible uses for Fourth Amendment detainers arguments for federal detainees?
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Detainers – cont’d
Emerging developments in the Ninth Circuit on detainers and denial of bail: Litigation filed in Ninth Circuit by ACLU of Southern
California challenging denial of bail on the basis of ICE holds – Roy v. County of Los Angeles
Favorable ruling allowing lawsuit to proceed in damages action challenging inability to post bond because of ICE detainer – Mendia v. Garcia
Court struck down Proposition 100, provision in Arizona law denying bail to immigrants – Lopez-Valenzuela v. County of Maricopa
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ICE Detention 102 – Mandatory Detention
Post-removal order: indefinite detention unconstitutional if removal not significantly likely in reasonably foreseeable future – see Zadvydas v. Davis, 533 U.S. 678 (2001); Clark v. Martinez, 543 U.S. 371 (2005) E.g. country does not have repatriation agreement with US
or unlikely to be removed to home country; OR client has won withholding or deferral of removal
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Mandatory Detention 102 – cont’d
Pre-removal order: Prolonged mandatory detention: three circuit courts (3d,
6th, and 9th) and a number of district courts have found prolonged mandatory detention raises serious constitutional concerns, requiring bond hearings for certain categories of detainees Limiting Demore v. Kim, 538 U.S. 510 (2003)
Who is properly subject to 236(c)? The Matter of Joseph argument (cont’d next slide)
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Mandatory Detention 102 – cont’d
Matter of Joseph: An individual is not properly subject to 236(c) if the government is “substantially unlikely to prevail” on charge of deportability or inadmissibility – see Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) In practice, applied only when gov’t claim is frivolous
Constitutional concerns – 236(c) should not apply when: Bona fide challenge to charge of deportability or
inadmissibility; or Bona fide claim to permanent relief from removal (e.g.
cancellation, adjustment, asylum)
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Mandatory Detention 102 – cont’d
Other Issues: Does 236(c) apply to an individual whose removal is
stayed pending judicial review of removal order? Ninth Circuit has said “no” – see Casas-Castrillon v. Dep’t of
Homeland Security, 535 F.3d 942 (9th Cir. 2008) But Third Circuit, though not addressing the issue, appeared
to assume that 236(c) still applies during pendency of stay – see Leslie v. AG, 678 F.3d 265 (3d Cir. 2012)
Constitutional challenges to denial of bond under 236(a) may also be possible in extreme circumstances – see Kambo v. Poppell, No. 07-800, 2007 WL 3051601 (W.D. Tex. Oct. 18, 2007)
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Concluding Thoughts
Law on mandatory detention interpreted very expansively by ICE, but circuits are starting to find limits to its authority to detain
Talk to local immigration lawyers about prevailing practices in your area
Emerging cases finding constitutional problems with ICE detainers are having a strong impact on state and local policies; could be useful for federal defenders as well
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For more information, contact:Sirine Shebaya, [email protected].
If you have a civil rights/immigrants’ rights complaint, call the ACLU of Maryland:(410) 889-8555.
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