Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

 Question: I have been in the United States for many years. I think there were several things I could have done in the past to help my situation, but did not know exactly what to do. Unfortunately, I let the opportunities pass because I was afraid to see a lawyer. To be honest, I was afraid they would turn me in to INS. Can you tell me what I can do?

Answer: First, you should not be afraid to see a lawyer. Lawyer’s have what is known as the Attorney-Client Privilege. This means that whatever you say to a lawyer cannot be discussed with anyone. If it is, then there is a very serious violation of the Professional Ethics of Responsibility.

Question: What is the reason for the Attorney-Client Privilege?

Answer: Actually, it is meant to protect people in your exact situation. People must not be afraid to see a lawyer to help them. If they thought that the lawyer would either tell someone, or turn them into INS, people would either not come for help, or would not tell the whole story. Naturally, if they did not tell the whole story, the lawyer could not fully represent them.

I have had clients in the past who did not tell me they had prior deportation orders. When the time came to submit everything, these people could have easily been detained and deported. Luckily, I found out the truth. However, had I not found out the truth, there cases would have been severely compromised.

Question: What happens if I get laid off or have a disagreement with my attorney? Can he or she then turn me in to INS?

Answer: No, the attorney-client privilege stays in tact forever. This means that years after the case is over, the attorney can still not disclose the facts of the case. Immigration is a very unique area of law. This is because many times people are afraid of being deported and assume that an attorney is an American who would either be working on behalf of the government or under an obligation to inform the government. While in some countries that may be true, it is not true in the U.S. An attorney is a person who wants to represent you to help you with your immigration problem. You need not be afraid to go into the office of an attorney. There are many constraints on what an attorney can and cannot do. All of these restraints are made to protect the public. Many times you are afraid and alone. Do not let another opportunity pass to obtain legal status because you think the attorney will call INS. You will only be hurting yourself in the future. In most cases, by helping yourself, you will also help your family. If you want to make absolutely certain that it will not be disclosed, make certain the attorney you are seeing is a licensed attorney. Only after you see an attorney and fully discuss every detail of your case can you get full and complete representation.

Filed under: Deportation, Detention, Immigration Law, immigration provisions, USCIS | Tagged: Deportation, Detention | 1 Comment »

 Question: I am writing from the immigration detention facility. I have had my Green Card for many years, but committed a crime many years ago. After trying to become a U.S. Citizen, they not only denied my application, but put me in detention and deportation. I have heard that there is no way I can be bonded out during the proceedings. Is this true?

Answer: Partially. The United States Supreme Court recently decided a case known as the Kim case. The Court held that the government may detain classes of lawful permanent residents without conducting individualized bond hearings to determine whether they pose a flight risk or danger to the community. The INA lists broad categories of noncitizens that are subject to mandatory detention based on their removability under specific criminal provisions.

After the Court announced its decision, the Bureau of Immigration and Customs Enforcement (BICE) issued a memorandum saying that all persons subject to Kim would receive letters within six months asking them to report for an interview. BICE said it would re-detain individuals who had previously been released after a bond hearing, but who now fall within the mandatory detention provisions.

Question: Is there anyway around the Kim case?

Answer: There may be. The first step in analyzing any mandatory detention case is to determine whether the Kim case even applies. Only individuals who were released from criminal custody after October 8, 1998 are subject to mandatory detention. Thus, if you were released from custody before that time, you are not subject to the mandatory detention.

Also, it can be argued that only individuals who are taken into custody immediately upon their release from criminal incarceration fall within the confines of this case.

Assuming this cannot be argued, a “Joseph hearing” needs to be conducted. A Green Card holder is not “properly included” within a mandatory detention category if the “Service is substantially unlikely to establish at the merits hearing, or on appeal, the charges that would otherwise subject the alien to mandatory detention.” Individuals who prevail at the Joseph hearing are entitled to have a bond hearing.

For example, if the person is charged with removability based on convictions for two crimes involving moral turpitude, consider whether there are possible challenges to (1) the existence of the convictions, and (2) the classification of the crimes as crimes involving moral turpitude. In Matter of Joseph, the BIA concluded that it was substantially unlikely that INS would succeed because Joseph’s conviction was not correctly classified as an aggravated felony. Although Matter of Joseph addressed only the situation where the conviction was wrongly classified as a crime that would trigger mandatory detention, in thinking about whether there is a conviction, take account of the availability of post-conviction relief.

Question: Assuming I cannot prevail at the Joseph Hearing, is there anything else I can do?

Answer: You can bring actions in the U.S. Federal District Courts challenging the mandatory detention. Such factors to bring the attention of the Judge will be the length of the detention and removal from the United States is unlikely. Also, the Supreme Court’s decision was premised on the finding that Kim conceded removability. Individuals intending to challenge removability should state clearly this intention at both the immigration court and in any habeas corpus actions. Cases where the person is challenging deportability may be distinguished from Kim on that basis.

At this point, it will be difficult, but we must continue to argue and fight for the rights of people who are subject to mandatory detention.

Filed under: Deportation, Detention, Immigration Law, immigration provisions, USCIS | Tagged: Deportation, Detention | Leave a comment »