Representing Detained Non-Citizens

1. Representing Detained Non-Citizens Chicago Bar Association October 2006 Presented by Claudia Valenzuela National Immigrant Justice Center

2. Who are Detained Immigrants? • Individuals who have been harmed/tortured or who fear harm/torture in their countries of origin • Newly-arrived undocumented individuals • Undocumented individuals who have lived and worked in US for years • Long-term lawful permanent residents • United States citizens

3. How Many Immigrants are Detained? • As of 2002, there were over 20,600 detained immigrants. (Compared with 7,444 in 1994). • There are over 500 Immigrants detained within the Chicago Office’s jurisdiction. • This includes detention facilities in Illinois, Indiana, Wisconsin, and Kentucky • There are over 300 immigrants currently detained in the State of Illinois.

4. Government Agencies Involved • Department of Homeland Security • Immigration & Customs Enforcement • Includes deportation officers and trial attorneys • Department of Justice • Executive Office for Immigration Review (EOIR) • Includes Immigration Court Judges and Clerks • Board of Immigration Appeals

5. Basic Tools of Immigration Law • Immigration and Nationality Act (INA) • Last major amendments in 1996: Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) and Antiterrorism and Effective Death Penalty Act (“AEDPA”) • Code of Federal Regulations • 8 C.F.R

6. Removability & Admissibility (formerly Deportation & Exclusion) • Grounds of Inadmissibility, INA §212 • Grounds of Removability, INA §237 • Criminal Convictions • Crimes Involving Moral Turpitude • Aggravated Felonies

7. More on Aggravated Felonies • Immigration Standard for Aggravated Felonies is not the same as it is in other areas of law. • Can be Sentence Related • Crimes of Violence • Theft • Burglary • Can be Charge Related • Sex Abuse of Minor • Sexual Assault

8. Removal Proceedings • Immigrants who are detained by the Department of Homeland Security are in Removal Proceedings, which are civil, not criminal. • The government is trying to return them to either their home country or the country where they last resided. • NIJC works to identify and assist individuals who have relief from removal available to them.

9. Removal Proceedings: the Process

10. Step 1: Immigrant is Apprehended • How? • Traffic stops • Upon completion of criminal sentence/release from state or federal custody • At a port of entry • Airports or at the border • Work raids • At immigration interviews

11. Step 2: Arrest is Processed • Where and how are arrests processed? • Role of Investigations • Immigrant taken to nearest ICE processing center or detention facility • (Chicago’s area Processing Center is in Broadview, IL)

12. Step 3: What Happens Next? One of the Following: • Reinstatement • Stipulated Order of Removal • Administrative Order of Removal • Credible Fear/Reasonable Fear interview • Proceedings Commence in Immigration Court

13. Step 4: Notice to Appear and Custody Determination • Notice to Appear Includes Allegations and Charges • Custody Determination decides immigrant’s right to be released from detention.

14. The Notice To Appear (NTA) • Charging document (Includes NTA, warrant and custody determination) • Review allegations & charges

15. Custody Determination • Initial bond set by ICE may be reviewed by an Immigration Judge. • Bond Redetermination happens before formal removal proceedings commence. • Sorry, Not Eligible for Bond • Mandatory Detention INA §236(c) • “Arriving Aliens” (but may be eligible for parole) • Eligible for Bond and Bond Redetermination • Danger to the community? • Flight risk?

16. Parole • Applies to “arriving aliens” • Discretionary determination to release an immigrant not eligible for bond • Sometimes requires a “sponsor” • A United States citizen or lawful permanent resident who resides in US and is employed. • Requires proof of identity • Requires demonstrating immigrant is not flight risk or danger to community. • Criminal convictions may affect parole.

17. Immigration Status for Detained Immigrants • Undocumented • Lawful Permanent Residents • (LPRs or “green-card” holders) • Asylees/Refugees • Asylum Seekers • Parolees • “Long-termers” • On appeal • “Non-removables” • “Absconders” and “Reinstatables”

18. Types of Relief (I want to fight my case) • Cancellation of Removal • For lawful permanent residents • For non-lawful permanent residents (caveat: if served more than 6 months on a criminal sentence, not eligible) • Adjustment of Status • Possible waivers – caveat: 212(h) available for non-LPRs but not for LPRs • 209(c) waiver for refugees • Asylum, Withholding, Convention Against Torture • Citizenship • Former 212(c) • Voluntary Departure (vs. removal)

19. Levels of Legal Review • Administrative Level • Immigration Judge • Board of Immigration Appeals • Judicial Level: Federal Courts (though not always in this order) • District Court (Habeas) • Circuit Court of Appeals (Petition for Review)

20. Special Issues Regarding Representation of Detained Non-Citizens • Remoteness of client • Video-Teleconference hearings • Detention Conditions However……..

21. Importance of Pro Bono Representation • The need for pro bono representation for pro bono counsel for detained non-citizens cannot be stressed enough: Indigent clients+ Complicated proceedings + Various issues (conditions, VTC, etc) = Need for pro bono legal counsel

22. Thank You! National Immigrant Justice Center 208 S. LaSalle, Suite 1818 Chicago, IL 60604 Claudia Valenzuela: cvalenzuela@heartlandalliance.org or 312.660.1308