Criminal Defense of Immigrants

 

The Attorney General is required to detain noncitizens subject to a final order of removal during a 90-day “removal period.”[1]  This period begins on the date the removal order becomes administratively final, or, if appealed to federal court, on the date the court issues the final order.[2]  If the noncitizen is incarcerated, the period could also begin on the date that s/he is released from incarceration.[3]  Once this period begins, s/he will be taken into custody pursuant to the warrant of removal.[4]  Any bond that has been posted will be canceled unless it has been breached.[5]  During the removal period, the DHS may not release any person with a final order of removal who has been found inadmissible under criminal and related grounds[6] or terrorist[7] activities.[8]  Similarly, the DHS may not release anyone with a final order who has been found deportable under criminal offenses[9] or terrorist activities.[10]

                If the person is not removed from the United States within the 90-day removal period, the statute provides for release subject to an order of supervision.[11]  However, the regulations shift the burden to the noncitizen to establish eligibility for an order of supervision.  They provide that the Attorney General may continue to detain noncitizens beyond the 90-day removal period unless they demonstrate to the district director’s satisfaction that they are likely to comply with the removal order and are not a risk to the community.[12]

 

                In Zadvydas v. Davis,[13] however, the United States Supreme Court found insufficient evidence of congressional intent to authorize indefinite detention of noncitizens subject to a final order of removal where there is no repatriation agreement with their home country.  For these so-called “lifers,” often from Cuba, Vietnam, and Eritrea, among others,[14] indefinite detention is now only permissible for six months after the final order of removal, unless there is evidence that a repatriation agreement will be reached in the foreseeable future.  Federal courts have habeas power to order release on conditions after a reasonable period when removal is not reasonably foreseeable.  At least one circuit court has held after Zadvydas that periodic review of indefinite detention satisfies due process.[15] 

 

                Although the Zadvydas decision itself dealt only with noncitizens that had been admitted to the United States and subsequently ordered removed,[16] the United States Supreme Court has extended this holding to noncitizens subject to removal from the United States on grounds of exclusion or inadmissibility proceedings.[17]

 

Inadmissible noncitizens or those who committed certain criminal offenses must meet a higher burden before they are released after this removal period.  These include persons who are inadmissible under INA § 212(a) or deportable under the following grounds: INA § § 237(a)(1)(C) (violated nonimmigrant status or condition of entry); 237(a)(2) (certain criminal convictions); or 237(a)(4) (security and related grounds).[18]  These inadmissible or deportable noncitizens may be detained beyond the 90-day removal period if they present a “significant risk of noncompliance with the order of removal.”[19]  They may be held until they demonstrate by clear and convincing evidence that their release would not pose a danger to the community or a significant flight risk.[20]

 

                On February 20, 2003, the Deputy Attorney General issued a memorandum regarding the 90-day removal period:

 

The Immigration and Nationality Act by its terms grants the Attorney General a full 90 days to effect an alien’s removal after the alien is ordered removed under section 241(a) of the Act, and it imposes no duty on the Attorney General to act as quickly as possible, or with any particular degree of dispatch, within the 90-day period. This reading of the Act raises no constitutional infirmity. It is permissible for the Attorney General to take more than the 90-day removal period to remove an alien even when it would be within the Attorney General’s power to effect the removal within 90 days. The Attorney General can take such action, however, only when the delay in removal is related to effectuating the immigration laws and the nation’s immigration policies. Among other things, delays in removal that are attributable to investigating whether and to what extent an alien has terrorist connections satisfy this standard.[21]

 

As expected, the Attorney General interprets the 90-day period as flexible.  The immigration authorities may also give lack of cooperation by the detained noncitizen as a reason for any delay or for refusing to release the noncitizen.[22]

               

There may be new hope, however, for persons granted withholding or deferral of removal who would ordinarily be subject to mandatory and indefinite detention.  The INS released a memo from former INS General Counsel Bo Cooper, dated April 21, 2000, stating that if the INS is not “actively pursuing” a noncitizen’s removal, the noncitizen is not subject to mandatory detention and could be released from detention.  Noncitizens who have been granted withholding or deferral of removal to a specific country come within this category, unless the DHS is actively pursuing their removal to some third country.  The agency decision whether to release such a person must take into consideration “all appropriate factors, including whether the alien poses a threat to the community or flight risk.”[23]

 

                Under a recent regulation, the DHS is required to notify certain countries with treaty relations if a noncitizen from those countries is taken into DHS custody.[197]

[198] INA § 241(a)(2), 8 U.S.C. § 1231(a)(2); 8 C.F.R. § 241.3(a).  The removal period is defined in INA § 241(a)(1), 8 U.S.C. § 1231(a)(1).

[199] INA § § 241(a)(1)(B)(i), (ii), 8 U.S.C. § § 1231(a)(1)(B)(i), (ii).

[200] INA § 241(a)(1)(B)(iii), 8 U.S.C. § 1231(a)(1)(B)(iii).

[201] 8 C.F.R. § 241.3(a).

[202] 8 C.F.R. § 241.3(b).

[203] INA § 212(a)(2), 8 U.S.C. § 1182(a)(2).

[204] INA § 212(a)(3)(B), 8 U.S.C. § 1182 (a)(3)(B).

[205] INA § 241(a)(2), 8 U.S.C. § 1231(a)(2).

[206] INA § 237(a)(2), 8 U.S.C. § 1227(a)(2).

[207] INA § 237(a)(4)(B), 8 U.S.C. § 1227(a)(4)(B).

[208] INA § 241(a)(3), 8 U.S.C. § 1231(a)(3).  The statute provides that these noncitizens “shall be subject to supervision under regulations prescribed by the Attorney General.”

[209] 8 C.F.R. § 241.4(b).

[210] Zadvydas v. Davis, 533 U.S. 678 (2001).

[211] China has recently started refusing to allow repatriation, in some cases, in protest of United States asylum laws relating to China’s one-child policy.

[212] Hoyte-Mesa v. Ashcroft, 272 F.3d 989 (7th Cir. 2001).

[213] Subsequent cases agree that the transitional rules under IIRAIRA § 309 do not apply to noncitizens placed into proceedings prior to April 1, 1997.  Seirra v. Romaine, 347 F.3d 559 (3d Cir. Oct. 29, 2003); Martinez-Vazquez v. INS, 346 F.3d 903 (9th Cir. Oct. 1, 2003) (INA § 241(a)(6), 8 U.S.C. § 1231(a)(6) applies to inadmissible noncitizens ordered excluded prior to April 1, 1997).

[214] Clark v. Martinez, 543 U.S. 371, 125 S.Ct. 716 (Jan. 12, 2005).

[215] INA § 241(a)(6), 8 U.S.C. § 1231(a)(6).

[216] INA § 241(a)(6), 8 U.S.C. § 1231(a)(6); 8 C.F.R. § 241.4(a).

[217] Ibid.

[218] See DOJ Memorandum Opinion online (visited Sept. 15, 2004) at: http://www.usdoj.gov/olc/INSDetention.htm

[219] Lema v. INS, 341 F.3d 853 (9th Cir. Sept. 2, 2003) (removable noncitizen who refuses to cooperate fully in securing travel documents from foreign government cannot meet burden of showing no significant likelihood of removal in the foreseeable future, and such noncitizen’s continued detention is authorized).

[220] The memo is reproduced in 77 interpreter releases 1445 (Appendix I) (Oct. 9, 2000), and available from AILA InfoNet.

[197] Consular Notification for Aliens Detained Prior to an Order of Removal: ICE Final Rule, Fed Reg. Vol. 72, No. 10, 1923 (Jan. 17, 2007) (“This final rule amends the Department of Homeland Security (DHS) regulations governing the detention of aliens prior to an order of removal. The rule updates the list of countries in 8 CFR 236.1(e), which, based on existing treaties, requires immediate communication with consular or diplomatic officers when nationals of listed countries are detained in the United States. The rule adds Algeria, Tunisia, and Zimbabwe to the list of countries and removes Albania and South Korea from the list of countries. In addition, the rule clarifies provisions related to treaties that the United States has with China, Hong Kong, and Poland. Finally, the rule updates the list with Antigua and Barbuda’s official name and by adding clarifying language about provisions governing U.S.S.R. successor states. DATES: This final rule is effective January 17, 2007.”).