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Detention of Families

This article discusses the detention of families in immigration facilities and the legal procedures surrounding bond hearings. It also covers the latest developments and challenges in the field. The article provides practical advice for advocating for client's release and addressing practical issues related to bond hearings.

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Detention of Families

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  1. Detention of Families Kate Lincoln-Goldfinch Virginia Raymond April 24, 2015 Credit to the National Immigration Project, Ranjana Natarajan, and Barbara Hines for legal materials

  2. Karnes

  3. Dilley

  4. 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)

  5. 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

  6. Custody, Bond and Family Detention

  7. 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

  8. 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

  9. 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

  10. 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)

  11. 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

  12. 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.

  13. Advocating for your Client’s Release

  14. 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.

  15. 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)

  16. Who is not eligible for bond • 8 C.F.R. 1003.19(h)(2) • Presented at a port of entry • Expedited removal • Including negative credible fear determination • Withholding of removal only/reinstatement • ICE’s and IJ’s current position • Release on parole or order of supervision

  17. 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

  18. 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

  19. Practical Issues • Strength of “sponsor” • Include affidavit, evidence of legal status and as much supporting documentation as possible • Strategies for undocumented relatives/sponsors • Distant relatives or lack of contact with sponsor • Conflict 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 reside • Don’t forget CAT • Challenges for indigenous women • Asylum office issues NTA with CFI

  20. 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

  21. 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

  22. 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

  23. 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 ICE • DHS reserves appeal and within 1 business day • files stay and within 10 days files appeal • Client 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.

  24. 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)

  25. 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)

  26. Theories • Pre R-I-L-Rcases, 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

  27. 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))

  28. 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.

  29. 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)

  30. 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).

  31. 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

  32. 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.

  33. 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.

  34. 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).

  35. 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?

  36. Rewarding opportunities

  37. We need your help • Karnes Pro Bono Project • Kate Emminger • kemminger@morganlewis.com • Steven Walden • steven.walden@raicestexas.org • Barbara Hines • bhines@law.utexas.edu • Dilley Project • AILA

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