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Immigration Reform 2013

The Immigration Bond

The Immigration Bond

Question: My husband is in detention and deportation proceedings. Can he get out?

Answer: For noncitizens and their families, nothing is more important than the noncitizen’s release from jail. These concerns can sometimes seemingly dwarf the larger issues of removability and relief. Every day, or every second, of detention only serves to increase the anxiety, stress, and impatience of the detainee and his or her family. Some noncitizens are ineligible for bond, either as a matter of law or discretion. Others, at first glance, might seem ineligible for bond but, through creative and persistent lawyering, may one day secure their freedom. This would be through getting an immigration bond.

Question: When my husband was in criminal jail, they stated there was an immigration detainer or an immigration hold. What is this?

Answer: First, immigration detainers prolong the detention of many criminal defendants. A detained noncitizen facing criminal charges is more likely to plead guilty in hopes of getting out of jail. This “rush” to plead could have serious short and long-term immigration and criminal consequences. The immigration detainer remains widely misunderstood by the defense bar. It is a preliminary step in the removal process and does not mean that the noncitizen can or will be removed.

The detainer is a surprisingly feeble legal instrument. Most defense counsel would be surprised to learn that a detainer is a non-binding “request.” The applicable regulation provides that a detainer “serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien.” The regulation provides that a “detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.”

The regulation derives its authority from the Immigration and Nationality Act “pursuant to sections 236 and 287 of the Act and this chapter 1.” The statutory language limits detainers to controlled substance violations. There are also due process concerns when an administrative agency unilaterally prolongs detention without statutory authority or legal standards.

Question: What options exist for someone with a detainer?

Answer: Many federal noncitizen defendants do not receive the benefit of pretrial release. The conventional wisdom among federal defense counsel is that an immigration detainer prevents release and renders any pretrial release futile since the noncitizen will remain detained. Federal law provides a specific mechanism to address detention of noncitizens, and in fact, requires that a noncitizen defendant be treated like any other defendant.

Question: How long can the State facility hold you while the detainer is pending?

Answer: ICE has 48 hours, excluding Saturdays, Sundays, and holidays, to take custody of a noncitizen upon his or her release from criminal custody. If ICE fails to do so, the custody becomes unlawful and the noncitizen can challenge the detention by filing a petition for writ of habeas corpus. If the custodian is a state or local official, the petition will have to be filed in state court pursuant to state procedures.

Question: When my husband was transferred to immigration detention, I did not know where he was. How could I find out?

Answer: If you know his country of birth and name or alien number, you can use ICE’s Online Detainee Locator System at https://locator.ice.gov/odls/homePage.do. If he is housed in a state or local jail, another useful online service is www.vinelink.com.

Question: Some people have said that there is mandatory detention and that some people will not qualify for bond. Can you elaborate and explain?

Answer: Three primary classes of noncitizens are ineligible for bond: (1) certain criminals and terrorists ; (2) “arriving aliens”; and (3) individuals with administratively final orders of removal. For the criminal activity, those who are inadmissible for criminal activity pursuant to INA §212(a)(2);

those who are deportable for committing one crime of moral turpitude if the sentence included a term of imprisonment of a year or more; multiple crimes of moral turpitude; aggravated felonies; controlled substance offenses ; certain firearms offenses , or certain espionage and sabotage crimes or those who are inadmissible or deportable for terrorist activities. 26

Mandatory detention only applies to those who were last released from criminal custody after the expiration of the Transition Period Custody Rules (TPCR) on October 8, 1998.

Question: If the person is under mandatory detention, can the Immigration Judge release him?

Answer: No. However, although the Immigration Judge lacks jurisdiction to release noncitizens subject to mandatory detention, they do retain jurisdiction to determine whether the person is properly included in the mandatory detention provisions. Noncitizens can challenge the mandatory detention classification by requesting a Joseph hearing. In a Joseph hearing, the noncitizen bears the burden of establishing that it is substantially unlikely that the charge of removability, triggering mandatory detention, will be upheld. If the Immigration Judge agrees, the judge will entertain a bond hearing immediately.

Thus, even though ICE may claim there is mandatory detention, creative lawyering may be able to show the person in detention is not under mandatory detention.

Question: If he is not under mandatory detention, what happens?

Answer: First, ICE will set a bond. Usually it is much higher than the Immigration Judge will set. Therefore, if you cannot pay what ICE is requesting, he should stay in detention for another few days until the first court hearing. There, a bond redetermination hearing will be conducted and most of the time the Immigration Judge will give a bond 5 to 10 times less than what was issued by ICE.

Question: What do you have to show in a bond redetermination hearing?

Answer: You should show the person in detention is not a flight risk and that he has every intention of going to his hearings. Next, show that he will not be a danger to society if he is bonded out.

Question: When the bond is set, what do I do?

Answer: You will go to the designated deportation department at Immigration, pay the bond and get the receipt. Then you will bring that to the detention facility and he will be released and the case should be transferred to a non-detained calendar.

Question: Will I ever get the money back?

Answer: Yes, you will get it back if he goes to all his hearings. If he does not goto a hearing, you just gave Immigration a present.

Affidavit of Support and the 40 qualifying quarters of work

The Affidavit of Support: Do I need it?


Question: I have already worked in the United States for some time. Does my sponsor still need to submit the affidavit of support?


Answer: Under INA §212(a)(4)(C), an alien who seeks permanent residence as an immediate relative or as a family preference immigrant is inadmissible as an alien likely to become a public charge, unless the visa petitioner submits an affidavit of support (INS Form I-864) that meets the requirements of §213A. This requirement also applies to employment-based immigrants, if a relative either filed the Form I-140, or has a significant ownership interest in the firm that did file the Form I-140. Section 213A(a)(3)(A), however, provides that the obligations under a Form I-864 terminate once the sponsored alien has worked, or can be credited with, 40 qualifying quarters of coverage, as defined under title II of the Social Security Act. The affidavit of support regulation reflects this provision.


Question: Assuming that I can show that I have worked 40 qualifying quarters, is an affidavit of support still required if, at the time I seek permanent residence through admission or adjustment of status, I am able to show that I have already has worked, or can be credited with, 40 qualifying quarters of coverage?

Answer: The policy of the Service is that an affidavit of support is not required if, at the time you seek permanent residence through admission or adjustment of status, you can show that you have already worked, or can be credited with, 40 qualifying quarters of coverage.

The basis for this policy is that it represents the most reasonable interpretation of this requirement. The obligations under the Form I-864 come into force when the sponsored alien acquires permanent residence. But if, at that time, the sponsored alien already has worked, or can be credited with, 40 qualifying quarters of coverage, then the obligation will expire at the very moment that it begins. Requiring the affidavit of support in this situation, therefore, would serve no purpose.

Question: What if my parent has qualifying quarters of work, but I don’t. Is there anything that can be done?

Answer: INA §213A(a)(3)(B), specifies how an you can be credited with qualifying quarters worked by someone else. If you can claim qualifying quarters worked by a parent, you may claim all the qualifying quarters worked by the parent before the your eighteenth birthday. Note that the statute does not require the parent-child relationship to have existed when the parent works the qualifying quarters. So you can claim even those of the parent’s qualifying quarters that the parent worked before your birth or adoption. You can also claim qualifying quarters worked by a spouse. However, you may only claim those quarters that the spouse worked during the marriage. It must also be the case either you are still married to the person who worked the qualifying quarters, or that that person is dead.

Question: What if I received public assistance?

Answer: You may not claim any qualifying quarter of coverage worked after December 31, 1996, if the person you worked that qualifying quarter – whether it was you, a spouse or a parent, if you have received any Federal means-tested benefit during the same period.


Will my brother who has mental competency issues be deported?


Question: My brother is in deportation proceedings, but he has mental competency issues. Will he be deported?


Answer: Until recently, attorneys and immigration judges had limited guidance about safeguards that

might be available to ensure a fair hearing in immigration court for noncitizens with mental

competency issues. As a result, many such individuals have been ordered deported without

access to counsel or any assessment of their abilities. Others have languished in jail indefinitely

while immigration judges delayed proceedings in the hope that they would find representation or

that their conditions would improve. Extended stays in detention centers, however, have instead

caused people’s conditions to deteriorate, at times resulting in psychosis and catatonia. The lack

of protections has even led to mistaken deportations of U.S. citizens who were unable to prove

their nationalities without assistance.


In May 2011, the Board of Immigration Appeals (BIA) issued a precedent decision setting forth

a framework for immigration judges to follow when hearing cases involving respondents with

mental competency issues. The case is known as Matter of M-A-M.


Question: What statutory protections apply to respondents who lack mental competency?


Answer: Under the Immigration and Nationality Act (INA), the Attorney General “shall prescribe

safeguards to protect the rights and privileges” of respondents for whom it is “impracticable” to

be present at removal proceedings by reason of mental incompetency. Some courts have construed this provision to protect incompetent respondents able to make a physical appearance, but unable to meaningfully participate without representation. Because competency issues may stem from both physical and psychological conditions, which give rise to a broad spectrum of capabilities and needs, the procedural safeguards will differ from case to case.


Question: What protections are persons with mentally incompetency issues given?


Answer: Of the extensive regulations that govern the conduct of removal proceedings, only a handful

address the subject of mental competency. Service of a Notice to Appear upon the person with whom a mentally incompetent respondent providing that an attorney, legal representative, legal guardian, near

relative, or friend may “appear on behalf of” a respondent whose mental incompetency makes it

“impracticable” for him or her to “be present” at a hearing; permitting an immigration judge to waive the presence of a mentally incompetent respondent who is represented by an individual from one of the preceding categories); prohibiting an immigration judge from accepting an admission of removability from an incompetent respondent unless accompanied by an attorney, legal representative, near relative,

legal guardian, or friend, and requiring a “hearing on the issues”. In each case, the regulations

require immigration judges to determine whether a respondent is “incompetent” — without

defining that term — but do not provide any meaningful guidance either for determining

competency for particular purposes or for guaranteeing due process for a respondent who lacks

competency to proceed. That is why the new case from the BIA came out in order to clarify and make law on this issue so it is not as ambiguous.


Question: OK. What exactly does the new case rule on this matter?


Answer: In its precedential decision, Matter of M-A-M-, the Board of Immigration Appeals, for the first time, set forth a test for immigration judges to assess a respondent’s ability to participate in a removal hearing. According to M-A-M-, the decisive factors are whether the respondent understands the nature and object of the proceedings, can consult with the attorney or representative (if there is one), and has a reasonable opportunity to examine adverse evidence, present favorable evidence, and cross-examine government witnesses.


Noting that a respondent is presumed to be competent, the Board explained that an immigration

judge need not apply the M-A-M- test in the absence of any “indicia of mental incompetency.”

However, such indicia may derive from observations of the respondent’s functioning

and behavior by the immigration judge or either party, testimonial evidence, or documentation

submitted as part of the record. Potential indicators of serious mental disorders, which may give rise to competency issues, include difficulty communicating thoughts completely or coherently, perseveration, overly simplistic or concrete thinking, words or actions that do not make sense or suggest that the person is experiencing hallucinations or an altered version of reality, memory impairment, disorientation, an altered level of consciousness or wakefulness, or a high level of distraction, inattention or confusion.


Some respondents who cannot represent themselves in removal proceedings due to competency issues may still have the ability to consent to representation, to assist in their defense, or to stand trial. A mental health diagnosis or diagnosis of developmental disability or has been previously

labeled “incompetent” does not mean that he or she is currently incompetent. Because mental

competency may vary over time, the BIA instructed immigration judges to consider “indicia of

incompetency” throughout the duration of removal proceedings.


Question: If the Judge finds that the person in removal proceedings has some elements of being incompetent, what must the Judge do?


Answer: When indicia of incompetency are present, an immigration judge must determine whether a

respondent is sufficiently competent to proceed without safeguards.Even if a respondent has been pronounced mentally competent, procedural safeguards may be necessary to ensure a fair hearing in immigration court if, for example, a respondent has a significant history of mental illness, is experiencing an acute aggravation of mental illness, or if the respondent’s condition has changed significantly since competency was determined. By the same token, certain mental impairments would not necessarily preclude meaningful participation in immigration proceedings without safeguards.

The BIA emphasized that measures needed to assess competency will vary from case to case.

For example, an immigration judge could ask the respondent basic questions to assess his or her

ability to understand the nature and object of the proceedings, grant a continuance to enable the

parties to collect relevant documentary evidence, solicit testimony from family or close friends,

or order a mental competency evaluation. When the assessment has been completed, the immigration judge must articulate his or her reasoning and decision regarding the respondent’s competency on the record.


Of course, the Immigration Judge is neither a psychologist or a psychiatrist and is not trained in whether a person has a mental illness. This is why it would definitely be advisable to bring in one of these professionals as an expert witness and to submit reports of the mental condition on behalf of a detailed analysis made on behalf of the respondent.

I can Alien Smuggle and not get Deported?

I can Alien Smuggle and not get deported? Question: I helped somebody get across the border of the U.S., and it was not done in a legal matter. I am now in removal proceedings and they are trying to deport me. Do I have any way of staying here in the U.S.? Answer: First, what you did would be known as alien smuggling. It is when you encouraged, induced, assisted, abetted, or aided an individual who to enter the United States in violation of the law. There are waivers available for this, but it is limited and only in certain circumstances. Who did you smuggle into the U.S.? Question: It was my husband. Can you help? Answer: Yes, there is a Waiver available here. The waiver is only available to residents who have the Green Card, and only when you have encouraged, induced, assisted, abetted, or aided an individual who, at the time of the offense, was your spouse, parent, son, or daughter to enter the United States in violation of the law. The waiver does not apply if the individual assisted anyone else. Question: What do I need to do to apply for the Waiver? Answer: The Attorney General may grant the waiver for humanitarian purposes, to ensure family unity, or when otherwise in the public interest. Immigration judges have authority to grant the waiver in removal proceedings. There is no particular form required to make application. You must establish that you meet the statutory requirements and demonstrate how granting the waiver would serve a humanitarian or public interest purpose or promote family unity. Question: What if I was not married at the time that I smuggled my husband into the U.S.? Answer: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amended the smuggling waiver provision to specify that the family relationship must have existed at the time of the smuggling, rather than at the time of application for the waiver. The change applies to applications filed before, on, or after September 30, 1996, as long as there has been no final determination on the application as of that date. The amendment was drafted specifically to overrule a 1996 Board of Immigration Appeals (BIA) decision that held that the waiver was available if the familial relationship arose after the smuggling incident but before the time of application for relief. In Matter of Farias-Mendoza, the respondent, an LPR, was caught smuggling her boyfriend from Mexico into the United States. She married her boyfriend before the deportation hearing and the BIA held that the waiver was available. It found that to hold any other way would defeat the purpose of the waiver provision, which was to encourage family unity. Congress apparently did not agree. It passed the amendment to foreclose what it perceived to be an opportunity for abuse. Therefore, unless you are applying for this relief prior to 1996 which is not likely, you would have had to have been married at the time that the alien smuggling was committed and you would have to be a Lawful Permanent Resident. Question: Should I get the help of an attorney in Removal Proceeding to help apply for the Waiver since there is no actual form? Answer: It would be a great idea to get an attorney. Just because there is no formal form required, there will have to be put together a Waiver package and there must be witnesses and a trial that is put on for the Judge. It is very discretionary and if not approved, you would be deported.

January 2011 Migration Policy Institute report

A January 2011 Migration Policy Institute report that assesses the implementation, outcomes, costs, and community impacts of the 287(g) program, which enables state and local officers to directly enforce federal immigration law and is now operating in 72 jurisdictions.

Convention Against Torture (CAT) Relief

The court ordered Convention Against Torture (CAT) relief, finding that BIA erred in its denial on the basis that petitioner could avoid torture by ceasing to exercise her political rights and remanded for consideration of her FGM claim as a separate basis for relief. (Edu v. Holder, 10/26/10)

Shooting at an inhabited dwelling or vehicle in violation of CA PC §246 is not a crime of violence

The court held that shooting at an inhabited dwelling or vehicle in violation of Cal. Penal Code §246 is not categorically a crime of violence as defined under 18 USC §16(b). (Covarrubias Teposte v. Holder, 10/26/10)

Petitioner ineligible for AOS for presenting US Birth Certificate and continuous Physical Presence ing a U.S. birth certificate

The court found Petitioner ineligible for AOS for presenting a U.S. birth certificate in attempting to enter, and ineligible for cancellation because physical presence was interrupted when he withdrew his application for admission. (Valadez-Munoz v. Holder, 10/28/10)

Immigration Reform Possible in 2010

Question: Has there been any movement on the Immigration Reform Issue?

Answer: Actually there has. A comprehensive Immigration Reform Bill has been submitted to Congress. There are lots of different provisions to this bill and it is not law, but it is a good start.

Question: What are some of the more pertinent provisions?

Answer:  Here is a summary of a few: Recapture of Immigrant Visas Lost to Bureaucratic Delay: The bill recaptures unused employment-based visas and family-sponsored visas and rolls over future unused visas to the next fiscal year. The bill provides new exemptions for certain aliens from cap on immigrant visas. Reclassification of Spouses and Minor Children of Lawful Permanent Residents as Immediate Relatives: The bill reclassifies spouses and children of lawful permanent residents as “immediate relatives” to promote the efficient reunification of families. Spouses and children of immediate relatives who are eligible to “accompany” or “follow to join” the primary applicant may use the same visa petition. Country Limits: Revises per country immigration limits for family-based immigration from 7 to 15 percent of total admissions and eliminates the employment-based caps. 3-Year Unlawful Presence Bar: The bill creates one 3-year bar of inadmissibility for noncitizens that are unlawfully present for more than one year and exempts additional populations. Relief for Orphans, Widows and Widowers: The bill extends the relief given to orphans, widows and widowers in the 2009 DHS Appropriations bill to certain relatives living outside the U.S. Children of Filipino World War II Veterans: The bill exempts the children of certain Filipino World War II veterans from the numerical limitations on immigrant visas. Fiancé Child Status Protection: The bill allows the DHS Secretary or the Attorney General to adjust the status of an individual immigrating to the U.S. on a fiancé visa and any accompanying minor children to conditional permanent residence. Affidavits of Support: The bill changes affidavit of support requirements to require sponsors to provide support at 100% of poverty level instead of 125% of poverty level. Retaining Workers Subject to Greencard Backlog: The bill allows workers who are eligible for adjustment of status to permanent residence but for whom a visa number is not currently available to apply for adjustment. Return of Talent Program: The bill permits eligible aliens to return to their country of origin for two years if their home country needs talent to help rebuild after a natural disaster or conflict. Permanent Partners: The bill defines “permanent partner” and “permanent partnership” as a term of art for inclusion in the INA and incorporates and integrates “permanent partners” into relevant sections of the INA.
Reforms to Specific Employment-Based Visa Categories: The bill permanently authorizes and includes enhancements to the EB-5 program, and permanent authorizes the Special Immigrant Nonminister Religious Worker Program, the Nonimmigrant Nurses in Health Professional Shortage Areas Program, and the Conrad State 30 Program. It creates incentives for physicians to practice in medically underserved communities. Student Visa Reform: Permits foreign students to enter the U.S. with immigrant intent if they are a bona fide student.

There are many more provisions and not all beneficial. However, it is a great step in the right direction. Call and/or e-mail your congressional representative so that they will know their constituents want this Bill to go through.

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