ICE Detention 101: Some Basics for Federal Defenders Sirine Shebaya Federal Public Defender Criminal Justice Act Training Program United States Courthouse, Greenbelt, Maryland November 14, 2014

2 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?

3 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

4 The Basics of ICE Detention  Mandatory detention under 236(c)  Release on bond or on conditions under 236(a)

5 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))

6 Mandatory detention under 236(c)  Release from criminal custody must be after October 8, 1998 – see Matter of Adeniji, 22 I&N Dec (BIA 1999); Matter of West, 22 I&N Dec (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)

7 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)

8 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”

9 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

10 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)

11 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)

12 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)

13 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

14 ICE Detention 102: A Brief Foray  Constitutional challenges to ICE detainers (and recent policy changes in MD)  Limitations on ICE’s mandatory detention authority

15 ICE Detention Detainers  Recent court decisions: detainers violate Fourth Amendment when issued without probable cause  Miranda-Olivares v Clackamas County, 2014 U.S. Dist. LEXIS (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 (D. R.I. Feb. 12, 2014).

16 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?

17 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

18 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

19 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)

20 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)

21 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 , 2007 WL (W.D. Tex. Oct. 18, 2007)

22 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

23 For more information, contact: Sirine Shebaya, md.org If you have a civil rights/immigrants’ rights complaint, call the ACLU of Maryland: (410) CLOSING EXAMPLE

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