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Mandatory Detention is Limited

In a class action habeas petition brought by noncitizens with criminal convictions subject to mandatory detention under INA §236(c), the Ninth Circuit affirmed the district court’s class certification order and preliminary injunction requiring the government to provide all class members with bond hearings under §236(a). The court held that, under the plain language of §236(c), the government may detain without a bond hearing only those noncitizens with criminal convictions whom it takes into immigration custody “promptly” upon their release from the triggering criminal custody, not those detained long after.

In detention for more than 6 months?

The Second Circuit affirmed the judgment of the District Court for the Southern District of New York, holding that, in order to avoid the constitutional concerns raised by indefinite detention, an immigrant detained pursuant to INA §236(c) must be afforded a bond hearing before an Immigration Judge within six months of his or her detention. Following the Ninth Circuit, the court also held that the detainee must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community.

Lots of authorities in Texas sued for not giving Bond

The Dallas Morning News reports that a federal civil rights suit was filed yesterday by 16 plaintiffs against Dallas County and Sheriff Lupe Valdez over bonds and the use of immigration holds requested by ICE. The suit states: “The moving force for this claim is Dallas County’s practice of refusing immediate release on bond to individuals with immigration holds by (i) refusing to allow bond for those with immigration holds, and (ii) honoring ICE requests to detain individuals subject to an immigration hold, even after those individuals are otherwise cleared for release, in violation of Texas statutes, the Texas Constitution, and/or the United States Constitution.”

Another win for the Law Offices of Brian Lerner

$10,000 bond granted for client whose case was recently denied by the Immigration Judge and who has a 2013 conviction for trafficking 50-100 kilos of cocaine.

Prosecutorial Discretion: How to avoid deportation

Prosecutorial Discretion: A tool to Avoid Deportation

Question: I got into a minor criminal situation and now I am very afraid that I will be placed into deportation proceedings. What can I do?

Answer: There are several forms of relief that you might be eligible for in proceedings. However, one very effective tool that I would look into would be known as Prosecutorial Discretion.

Question: What is Prosecutorial Discretion?

Answer: Prosecutorial Discretion can be used in a variety of different situations. Some examples would include: deciding to issue or cancel a notice of detainer; deciding to issue, reissue, serve, file, or cancel a Notice to Appear(NTA); focusing enforcement resources on particular administrative violations or conduct; deciding whom to stop, question, or arrest for an administrative violation; deciding whom to detain or to release on bond, supervision, personal recognizance, or seeking expedited removal orother forms of removal by means other than a formal removal proceeding in immigration court.

Question: What happens if the Prosecutorial Discretion is granted? What would I get?

Answer: Some will depend upon what exactly you are asking for and where in the proceedings you are. However, generally, if granted, Prosecutorial Discretion can stop a deportation/removal proceeding, or can keep one from being filed in the first place, or can reopen a removal order already issued. It can settle or dismiss a proceeding; grant a deferred action, grant parole, or staying a final order of removal; or it can respond to or join in a motion to reopen removal proceedings and to consider joining in a motion to grant relief or a benefit.

Question: What factors are considered when deciding on whether to grant a request for Prosecutorial Discretion?

Answer: There are a lot of different items that are considered. They are as follows:

– the agency’s civil immigration enforcement priorities;
the person’s length of presence in the United States, with particular consideration given
to presence while in lawful status;
the circumstances of the person’s arrival in the United States and the manner of his or her
entry,particularly if the alien came to the United States as a young child;
the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are
pursuing a college or advanced degrees at a legitimate institution of higher education in
the United States;
whether the person, or the person’s immediate relative,has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in
combat;
the person’s criminal history, including arrests, prior convictions, or outstanding arrest
warrants;
the person’s immigration history, including any prior removal, outstanding order of
removal, prior denial of status, or evidence of fraud;
whether the person poses a national security or public safety concern;
the person’s ties and contributions to the community, including family relationships;
the person’s ties to the home country and condition in that country;
the person’s age, with particular consideration given to minors and the elderly;
whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
whether the person is the primary caretaker of a person with a mental or physical
disability, minor, or seriously ill relative; ;
whether the person or the person’s spouse is pregnant or nursing;
whether the person or the person’s spouse suffers from severe mental or physical illness;
whether the person’s nationality renders removal unlikely;
whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as a relative of a U.S. citizen or permanent resident;
whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as an asylum seeker, or a victim of domestic violence, human
trafficking, or other crime; and
whether the person is currently cooperating or has cooperated with federal, state or local
law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department ofLabor, or National Labor Relations Board, among others.
Question: Can I do this myself?

Answer: It is always possible, but it would be much better for you to obtain professional help. It is not easy to get this approved, but it is certainly possible if done properly.

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