detention of families kate lincoln-goldfinch virginia raymond april 24, 2015 credit to the national...
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DETENTION OF FAMILIES
Kate Lincoln-GoldfinchVirginia RaymondApril 24, 2015
Credit to the National Immigration Project, Ranjana Natarajan, and Barbara Hines for legal materials
KARNES
DILLEY
FAMILY DETENTION FACILITIES Berks County PA: currently about 150 mothers and children
Karnes City TX: currently about 500 mothers and children; planned capacity or 1158 mothers and children (by Dec 2015)
Dilley TX: currently about 400+ mothers and children; planned capacity for 2400 mothers and children (by July 2015)
ARTESIA NM FACILITY: CLOSED June 2014 – January 2015: capacity of 500+ mothers and children
MSPC v. Johnson lawsuit brought in District of District of Columbia Challenges to changed CFI practices Latest developments
CUSTODY, BOND AND FAMILY DETENTION
BONDS AND FAMILY DETENTION PRE-RILR LITIGATION
ICE’s no bond policy for moms and children Mass migration/national security risk arguments Matter of D-J, 23 I&N Dec. 572 (A.G. 2003)
Lengthy hearings
ICE/Respondents’ appeals of bond decisions
RILR V. JOHNSON Challenge to ICE’s no-bond policy
Certified class of all Central American mothers and children who have passed or will pass CFI, after having been subject to ICE custody determination that took deterrence of mass migration into account
PI enjoins ICE from detaining families to deter migration or to consider factor in making custody determination
ICE BONDS POST RILR
Setting bonds after positive CFI of either $7,500 or $10,000, depending on “sponsor” with whom family will reside
No individualized custody determination
IJ bond redeterminations normalized
BOND STANDARDS
Must establish that applicant is not a flight risk and danger to community Matter of Patel, 15 I&N Dec. 666 (BIA 1976) Matter of Guerra, 24 I&N Dec. 37 (BIA 2006)
FLORES SETTLEMENT: HISTORY 1997 Settlement Agreement protecting the rights of all minors in immigration custody.
Preference for “least restrictive alternative,” for release over detention except in cases of danger or extreme flight risk, and detention in non-secure, licensed facilities.
Humane conditions of detention
FLORES: LATEST DEVELOPMENTS February 2015: Plaintiffs’ motion to enforce the settlement: a) non-secure facilities, b) licensed facilities, c) minimization of detention/ no-bond challenge, d) CBP short-term detention conditions.
March 2015: Government motion to amend the settlement agreement, and opposition to motion to enforce.
ADVOCATING FOR YOUR CLIENT’S
RELEASE
CUSTODY PROCEDURES: NO PRIOR REMOVALS
Client and child are placed in mandatory detention under expedited removal statute: INA 235(b)
Client is provided a credible fear interview
Client who passes CFI receives Notice of Custody Determination by ICE, along with Notice to Appear in removal proceedings.
BOND HEARINGS BEFORE THE IJ To request a redetermination of an ICE bond
Bond and removal are separate proceedings
Can request IJ review of ICE bond determination, even if NTA has not yet been filed with Immigration Court.
8 C.F.R. § 1003.19; 8 C.F.R. § 1236.1(d)
WHO IS NOT ELIGIBLE FOR BOND 8 C.F.R. 1003.19(h)(2)Presented at a port of entryExpedited removalIncluding negative credible fear determination
Withholding of removal only/reinstatementICE’s and IJ’s current positionRelease on parole or order of supervision
BOND HEARING Informal
Lawyer may lay out evidence without witnesses
No prohibition on calling witnesses
Judge or ICE attorney may question client
Not generally recorded Judge will issue written decision only if appeal filed
WHAT TO FILE Bond application
Sponsor affidavit and supporting documents
Country conditions to support asylum claim
CFI
Impact of detention on children and asylum seekers
Mental health evaluation
Flores settlement docs
Relevant case law to support asylum claim or other relief In circuit where client will live if released
Humanitarian factors
PRACTICAL ISSUES Strength of “sponsor” Include affidavit, evidence of legal status and as much supporting documentation as possible
Strategies for undocumented relatives/sponsorsDistant relatives or lack of contact with sponsorConflict with information at border or CFI interview
Strength of asylum claim If weak claim, rely on CFI; asylum merits shouldn’t be litigated in bond hearing
Circuit law where client will resideDon’t forget CATChallenges for indigenous womenAsylum office issues NTA with CFI
PRACTICAL ISSUES (2)
Proof of counsel where client will reside
Mental health evaluation to support asylum claim/humanitarian factors
Prepping your client Try to get CDP sworn statement and I-213 before hearing Use of smuggler
BOND FOR CHILDREN Only permissible in limited circumstances under Flores
Judges granting order of recognizance for children Conditioned on release only with mother Flores violation
BOND FOR CHILDREN (2) Strategies for child with positive CFI and mother with positive RFI or negative CFI/ RFI 8 CFR 1236.3(b)(2)- release of parent if no other suitable person Parole for mother Habeas
APPEALS AND STAYS
Must orally reserve appeal at hearing
File written notice of appeal to BIA within 30 days
Briefing schedule issued by BIA
Automatic Stay only available to ICEDHS reserves appeal and within 1 business day
files stay and within 10 days files appealClient will not be released until BIA adjudicates appeal
8 CFR 1003.19(i)(2).
Absent automatic stay, client may post bond and be released, even if either party appeals.
SECOND BOND DETERMINATION Generally only one bond hearing
Written motion based on material change of circumstances
8 C.F.R. 1003.19(e)
Can be filed even if original bond determination is on appeal. Matter of Valles-Perez, 21 I&N Dec (BIA 1997)
MATERIAL CHANGE OF CIRCUMSTANCES: EXAMPLES More information on strength of sponsor
More information on fixed address
More information on asylum claim
Humanitarian/ hardship issues to mother or children from detention (physical or mental health)
THEORIES Pre R-I-L-R cases, reliance, whether stated or not, on ICE’s mass migration/evidentiary packet
Ineffective assistance of counsel or no counsel
New evidence to strengthen asylum claim or other eligibility for relief
Mental health and humanitarian issues
CUSTODY PROCEDURES: PRIOR ORDER OF REMOVAL Client and child are placed in mandatory detention under expedited removal statute: INA 235(b)
Client with prior removal order has the prior order reinstated, and is detained under INA 241(a)
Client expresses fear, is referred to and passes a Reasonable Fear Interview (RFI), applies for withholding of removal before IJ, but remains detained (under INA 236(a))
REINSTATEMENT
Reinstatement statute: INA 241(a)(5)
(5) Reinstatement of removal orders against aliens illegally reentering. If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
REINSTATEMENT (2)
Process for reinstating prior removal order
No “review or reopening” of reinstated removal order.
Few options for advocacy re. prior removal order (see AIC/ NIP practice advisory)
ADVOCATING FOR A CLIENT IN REINSTATEMENT
Verify compliance with reinstatement statute and regulations. INA 241(a)(5); 8 C.F.R. 241.8.
Apply for withholding of removal. INA 241(b)(3); 8 C.F.R. 208.16; 8 C.F.R. 241.8.
Argue that client is eligible for bond because detention is under INA 236(a) not INA 241(a).
WITHHOLDING OF REMOVAL (3) Restriction on removal to a country where alien’s life or freedom would be threatened(A) In general. Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.
(B) Exception
(C) Sustaining burden of proof; credibility determinations
INA 241(A): POST-REMOVAL ORDER DETENTION (a) Detention, release, and removal of aliens ordered removed (1) Removal period (A) In general. Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the “removal period”).
(B) Beginning of period. The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court’s final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.
(2) Detention. During the removal period, the Attorney General shall detain the alien. Under no circumstance during the removal period shall the Attorney General release an alien who has been found inadmissible under section 1182 (a)(2) or1182 (a)(3)(B) of this title or deportable under section 1227 (a)(2) or 1227 (a)(4)(B) of this title.
REINSTATEMENT AND CUSTODY Custody strategies: Apply for parole with ICE, and set forth humanitarian reasons. Apply for bond before IJ: Set forth reasons why IJ has jurisdiction
over bond. Show that client does not pose flight risk or danger. Apply for bond before IJ for the children under INA 236(a). Make
sure they have separate CFI’s.
DETENTION POST-REINSTATEMENT: INA 236(A) V. INA 241(A) Prior reinstated removal order is not “administratively final” because of pending withholding-only proceeding.
Recent Circuit caselaw: Luna-Garcia v. Holder, 777 F.3d 1182 (10th Cir. 2015); Ortiz-Alfaro v. Holder, 694 F.3d 955, 959 (9th Cir. 2012).
Recent district court cases: favorable (Guerra v. Shanahan, 2014 WL 7330449 (S.D.N.Y. Dec. 23, 2014)) and unfavorable (Acevedo-Rojas v. Clark, 2014 WL 6908540 (W.D. Wash. Dec. 8, 2014).
INA 236(A) V. INA 241(A) AND WITHHOLDING OF REMOVAL
Is the prior removal order administratively final if withholding application is pending? Can it be executed?
Withholding statute: no removal to country from which withholding is sought, during pendency of application.
But: Removal to third countries?
But: Removal without the non-citizen‘s consent?
REWARDING OPPORTUNITIES
WE NEED YOUR HELP
Karnes Pro Bono Project Kate Emminger
Steven Walden [email protected]
Barbara Hines [email protected]
Dilley Project AILA