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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.

Bond Hearings and How to Win them and get the lowest Bond

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.


DOS January 2011 Guidance for L visa Adjudications

DOS January 2011 guidance for L visa adjudications, particularly in regard to evaluating claims of “specialized knowledge.”

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.

Organizational Chart for the Texas Service Center

TSC Liaison provides an organizational chart for the Texas Service Center.

Waiver for Possession of Marijuana in a Drug Free Zone

The court found that possession of less than one ounce of marijuana in a drug-free zone in violation of Utah Code Ann. §58-37-8(2)(a)(i) and (4)(a)(ix) is not “simple possession” that would qualify for a waiver under INA §212(h). (Olivan-Duenas v. Holder, 1/26/11)


BIA Pro Bono Project

The Executive Office of Immigration Review (EOIR) press release announcing the 10th anniversary of the BIA Pro Bono Project. The Project was implemented in 2001 to improve access to legal information and increase pro bono representation for individuals being detained while their immigration cases are under appeal.

BALCA on Recruitment Report from ERP

BALCA found that the recruitment report, showing that more than 90% of the applications received came from the Employee Referral Program (ERP), was adequate documentation of the ERP as a method of recruitment notwithstanding the undated notice of the program. (Matter of AQR Capital, 1/26/11).

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