Update and Primer on Detention and Removal by Attorney Neal Connors (St. Louis)

Many clients and potential clients have been asking me about their rights under the laws of the United States with regard to immigration and the fact of their undocumented status in the U.S.  First, let me be clear that my advice is not based on recent experiences alone but upon a broad overview after twenty years past experience in the practice of immigration law.  Though the field involves rapidly changing and relatively complex issues of law involving federal statutes, agency rules and public policy, a lot remains unchanged.  I recently provided some attorneys attending a conference on immigration law with a presentation on removal and deportation proceedings.  This is one of the most misunderstood areas of immigration practice and cannot be overlooked.  One of the questions I fielded from the attorneys attending the conference was what law applies to immigrants in detention and removal proceedings before Homeland Security, Immigration Courts and/or related agencies.  The answer is simple: all of them.  A big difference in handling various types of immigration cases is the ability to provide informative guidance to individuals and families with tough questions at the outset regarding the future of their loved one or themselves.

First, a simple rule of thumb: with regard to detained individuals at local county jails prior to ICE transfer to U.S. custody, there is a 48-hour window in which ICE can request state and/or local police to hold/detain individuals while they review whether a transfer to ICE custody is appropriate or required.  Most local jails and state’s attorneys are familiar with this practice and have been observant of the regulation which ensures some fundamental rights of due process in these matters.  Once a decision is made whether or not to transfer an individual from state or local custody to ICE control, there is a transition to a local ICE field office where interview of the individual takes place.  Many of the factors affecting whether or not a transfer actually occurs or whether detention is ordered are discretionary factors in which ICE agents review the facts and circumstances of individual cases for family ties, previous deportations, and criminal activity. 

             In several recent cases, I have had individuals who were charged with a state crime who have been transferred out of state custody irrespective of bond in the local or state jurisdiction where the individual was initially arrested.  Undoubtedly, state's attorneys in some jurisdictions may view particular charges involving undocumented persons as secondary to federal immigration issues affecting that person, unless there are significant reasons against transfer to immigration authorities.  And, unfortunately that puts some immigrants in a difficult situation where they may be able to assert their innocence in the underlying case which triggered their initial arrest and involvement with law enforcement in the first place.  I have had both felony and misdemeanor cases where undocumented individuals have either paid their state court bond, and in some cases not, but without a preliminary hearing they have been transferred to federal custody facing removal.  This is something that attorneys should consider in addressing by motion to dismiss charges in state court where there has been no prosecution or conviction of an offense.  However, Immigration Courts consider public safety and risk to the public as a matter of bond eligibility and pending charges are considered in this analysis.  As has always been the case, if there are defenses to state or federal charges to be raised, they need to be raised as soon as possible by the defense attorney in these criminal proceedings.  Otherwise you can expect to have to address in immigration bond and other proceedings these yet unproven charges. 

Some ICE detentions start with a minor infraction or incident involving law enforcement where police confront the question of whether or not the individual's immigration status is relevant.  However, where individuals cannot verify their actual identity with appropriate government, including foreign government, credentials or travel documents, i.e. foreign passport, international driver's license, a referral to ICE for such verification is more likely.  Individuals who mistakenly decide to misrepresent their identity altogether makes it more likely that local law enforcement will contact to immigration officials to investigate and verify status and criminal background.  However, in many cases, where individuals are arrested or picked up for a minor offense, i.e., disorderly conduct, public intoxication, routine traffic violations and the like, a transfer to ICE custody is not certain, nor is continued ICE detention certain once verification of identity and criminal background conducted. 

In most instances, ICE will review the immigration background history of the person from database fingerprinting records on file with the Department of Homeland Security and make a further determination of eligibility for bond, placement in removal proceedings or even release with appropriate Notice to Appear for immigration court.  In the event of the latter, Notice to Appear before an Immigration Judge and Court in any jurisdiction, it is essential to contact an immigration attorney or reputable agency or service which can provide quality legal advice for immigrants.  In many instances, a notice to appear before an immigration judge can be an opportunity in fact to finally adjust one’s legal status or seek appropriate relief which was previously unavailable through administrative means.  It's important to remember that there are two components to immigration law: administrative and judicial, and undocumented persons do not typically have the ability to appear and request relief from an Immigration Judge without government approval with the exception of political asylum cases.

As I stated to members of the National Business Institute in Springfield, Illinois last week, appearance in Immigration Court is not a definitive end to a person’s remaining in the U.S., because appropriate judicial and other legal relief exists to qualified persons with sufficient family ties, number of years residing in the U.S., and a clean record.  Unfortunately this process can be quite complicated and take a good deal of time to resolve successfully. 

Thank you for your inquiries.  I will provide some additional information on forms of relief and other issues affecting removal and deportation in the next segment of this article.

Neal Connors

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