Articles Posted in Removal/Deportation

Canadian citizen Justin Bieber was arrested early this morning for Driving Under the Influence, Driving with No Valid Driver’s License and Resisting Arrest. Not only will he face possible criminal sanctions, including the possibility of a jail sentence, he could also incur some negative immigration consequences.

Driving with No Valid Driver’s License is not by itself a deportable offense or an offense that would make him inadmissible upon reentry. However, in conjunction with a DUI conviction, the immigration consequences become somewhat more grey.

The Board of Immigration Appeals has been inconsistent on its stance on whether, and when, a DUI is a crime involving moral turpitude. A simple DUI with no aggravators is not a crime involving moral turpitude. Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001). However, a DUI with some attached aggravator may be considered a crime involving moral turpitude. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999). For example, a DUI with an element of knowledge, like driving with a suspended license or driving with no license, can be enough for the conviction to be deemed a crime involving moral turpitude.

The Federal Government’s inability to create a budget has led to a streamlined Federal system during the past two weeks that includes dramatic reductions in the productivity of the Immigration Courts. The Immigration Court in Orlando is currently working with a skeleton crew. Only one Immigration Judge is currently hearing cases. Those cases consist solely of detained immigrants in removal proceedings. All other cases have been delayed until Congress resolves the issue.

Those individuals who have removal hearings pending or have recently received a Notice To Appear will not see any action on their cases until this issue has been resolved by Congress. If you have received a Notice to Appear, you can check to see if a Master Calendar Hearing has been scheduled in your case by calling 1-800-898-7180. This automated system will prompt you for your A number. If you have a pending court date, the system will give you the place, judge, date and time. If your Notice to Appear has not been filed with the Immigration Court yet, you will not appear in the system.

So, your loved one has been arrested and for a criminal charge and ICE has placed a detainer on him. What happens now? Well, the immigration case will not start until the criminal case is over. ICE simply places a detainer on the individual, which means that once the criminal case is over, ICE will be notified by the authorities that the individual is about to be released. ICE then has 48 business hours to take the individual into ICE custody for the immigration case. (This doesn’t mean that you shouldn’t do anything until after the criminal case is over. Often the immigration case will be concluded in a very short time period, so it may be important to start retrieving important documents, information, and evidence well before the immigration case starts).

Once the criminal case is over, ICE will visit the individual and issue that person a Notice To Appear (NTA). An NTA will notify the individual of the allegations and charges related to the immigration case. The individual will then go before an Immigration Judge for a Master Calendar Hearing. At that Master Calendar Hearing, the Immigration Judge will ask the individual whether he admits or denies the allegations and whether he admits or concedes the charges. If the individual admits all allegations and charges, the Immigration Judge will find the individual removable/deportable. The Immigration Judge will then ask the individual if they are going to file for any forms of relief. For example, the individual may be eligible for Cancellation of Removal, Withholding of Removal, Convention Against Torture relief, Asylum, certain waivers, or other forms of relief. The individual will then have the burden to prove that he or she is eligible for the form of relief by filing a complete application along with documentary evidence. After the application is filed, the individual will have an Individual Hearing, which is much like a bench trial, in front of the Immigration Judge. At the conclusion of the Individual Hearing, either at that hearing or at a subsequent hearing, the Immigration Judge will render a decision on whether the individual is granted the form of relief.

Regardless of the Immigration Judge’s decision, the individual may have further options. For example, if the Immigration Judge orders the individual removed from the United States and denies all forms of relief, the individual can appeal the Immigration Judge’s decision to the Board of Immigration Appeals (BIA). The individual also may file for a Stay of Removal.

This is a general outline that explains the law related to bond in immigration cases:

A) GENERAL 1) Bond should be granted unless there is a finding that the individual is a) a threat to national security b) likely to abscond c) a poor bail risk.

2) Bond Procedure a) ICE initially sets bond.

The United States Immigration and Customs Enforcement (ICE) has increased their agents by 25% in an attempt to locate and deport immigrants with criminal convictions. Whether a lawful permanent resident, a visa holder, or an entry without inspection, ICE is looking for any non-U.S. citizen with a criminal record that would lead to a charge of removability. See the San Francisco Chronicle for story.

ICE has instructed its agents to focus on illegal immigrants convicted of a felony or more than two misdemeanors, multiple immigration violations or having used fraudulent documents. It has been reported that ICE agents are to shoot for arrested 50 people per month.

ICE isn’t just arresting and deporting illegal immigrants that satisfy the criteria listed above. Anyone who obtains a new conviction is at risk of being placed in removal proceedings at the conclusion of their criminal case. Often, people believe that minor criminal convictions will not lead to deportation. That could not be further from the truth. Even a withhold of adjudication on a minor criminal charge could lead to removal. A petit theft charge for example could be the basis for removal, as a crime involving moral turpitude.

One of the most pressing issues for an alien charged with a crime is whether he or she can get out of custody during the pendency of the criminal and deportation case. Surprisingly, judges, prosecutors and defense attorneys that ordinarily practice in criminal courts often misunderstand the bonding issues as they overlap between criminal and immigration court. The problem often arises when a criminal defense attorney does not push for a bond, or a lower bond, because they assume the client won’t be released because of a pending ICE detainer.

The truth, however, is that there will be circumstances where an immigrant is entitled to bond in both the criminal case and the deportation case. But not always. When an alien is charged with a crime, they will often fall under the “mandatory detention” provision of the Immigration and Nationality Act. Under this provision, the alien must be detained during the pendency of the deportation case. Normally, an alien with a criminal conviction will fall under the mandatory detention provision.

So what happens as a practical matter is this: An alien is arrested for a crime. When the alien is booked into the local jail, an ICE agent will often make contact with him or her. The ICE agent then lodges a detainer on the alien. When the alien posts bond on the criminal case, ICE has 48 hours to take custody of the alien and initiate removal, or deportation, proceedings. At that point, a bond decision will be made by ICE and the alien may be able to file a motion for reduction of bond in Immigration Court, before an immigration judge. The alien may also be able to contest that he or she is subject to mandatory detention. However, if the immigration judge determines that the alien is subject to the mandatory detention provision, he or she will remain in custody during the pendency of both the criminal and deportation cases.

The immigration court has suspended its cases in Orlando, as well as Seattle, New Orleans, and Detroit, as part of a pilot program to attempt to identify immigrants who pose a public safety risk and national security risk. This means that those immigrants in removal proceedings who ICE (Immigration and Customs Enforcement) determines does not pose a public safety or national security risk could have their cases administratively closed.

The administrative closure of cases may or may not be beneficial to many immigrants. For example, an immigrant who currently has no legal status and is in removal proceedings may be eligible for a form of relief which may in turn lead to a lawful status. However, if ICE administratively closes the case, the immigrant will remain without lawful status, which would mean that the immigrant is not eligible for a driver’s license and other benefits.

For others, who are here in lawful status, but have been placed in removal proceedings based on a violation of immigration law relating to that status (for example, a criminal conviction, abandonment of lawful permanent residency, etc.), administrative closure would allow the immigrant to maintain their lawful permanent resident status.

A Florida high school student who has excelled in school, becoming the class valedictorian, was able to delay her removal from the country for two years. Unfortunately, she is no closer to gaining lawful status.

Daniela Pelaez committed the unthinkable crime when she was brought here by her parents as a 4 year old child. Her parents entered the country without inspection, and from that moment on, 4 year old Daniela was dubbed an “illegal alien.” Despite her lack of status, she was able to obtain an education and she excelled. Now, an 18 year old senior, she dreams of a life both beneficial to her and to all American citizens. But for her unlawful status, which was obtained when she was barely out of diapers, Daniela would be eligible to obtain an Ivy league education and become a contributing member of our community, like so many immigrants of the past.

Unfortunately for Daniela, the current immigration laws are unforgiving, even to an 18 year old girl who has known nothing but this country for the past 14 years and who was raised, educated, and integrated as an American. Oh, and as a little side note, Daniela’s brother is currently putting his life on the line in the U.S. Armed Forces defending the very laws that are designed to expel Daniela from the only country she has ever known back to a foreign to her.

An American citizen child was recently deported to Columbia because there was nothing to indicate that she wasn’t Columbian.

Fifteen year old Jakadrien Turner was born in Texas. She doesn’t speak Spanish. She and her family have no ties to Columbia. Yet, this little girl was physically deported from her home country to to the foreign land of Columbia in a perfect example of why government oversight is and should continue to be a prized and celebrated American attribute.

The child was arrested on a petit theft charge in Houston, Texas. She made the grave error to give law enforcement a false name and tell them that she was from Columbia. Apparently, that is all it takes for a wayward child to get deported from the United States and physically removed from the custody of the child’s parents.

Jose, a lawful permanent resident, crosses the border into Mexico to retrieve his nephew, a citizen of Guatemala. Jose attempts to bring his nephew into the United States by using his son’s birth certificate for entry. Jose’s son is a U.S. citizen by birth. Jose is stopped at the border and interrogated by Customs agents. During this interrogation, Jose admits to using his son’s birth certificate to bring his nephew across the border. Jose is then issued a Notice to Appear before an Immigration Judge for a removal hearing. During the hearing, Jose moves to suppress his admission because the Customs agent failed to advise Jose that he had a right to hire a lawyer and that any statement that he made would be used against him in the removal proceedings. Is Jose right?

If Jose were charged with a criminal offense, his statements would be suppressed because the Customs agent violated his Miranda Rights. That is, Jose has a right to remain silent, the right to have an attorney present prior to and during any questioning, and the right to have an attorney appointed to him at no cost, if he can’t afford an attorney.

However, Jose was not charged with a crime. He was charged with being removable from the United States for violating the immigration laws. According to the Board of Immigration Appeals in Matter of E-R-M-F & A-S-M, 25 I&N Dec. 580 (BIA 2011), Jose was not entitled to any warnings until he was “placed in formal proceedings.” In other words, until the Notice To Appear was filed with the Immigration Court, which would be long after he was questioned, he is not entitled to be told that he has the right to an attorney being present, at his own cost, before any questioning.