Criminal Defense of Immigrants

The executive powers over immigration are split between the Department of Justice (which contains the immigration court system and formerly housed the Immigration and Naturalization Service (“INS”)), the Department of Homeland Security, and the Department of State, which issues visas.  The Departments of Labor and Health & Human Services are also involved, respectively, in workforce issues and issues regarding unaccompanied minors entering the United States.

On March 1, 2003, the INS ceased to exist as an administrative entity.[142]  The former INS was split into three new agencies:

·             U.S. Citizenship and Immigration Services (“USCIS”), in charge of reviewing and granting or denying applications for immigration benefits (e.g., applications for green cards or naturalization).

·             U.S. Customs and Border Protection (“CBP”), in charge of patrolling the border and inspecting and admitting persons and goods.

·             U.S. Immigration and Customs Enforcement (“ICE”),  in charge of removal and enforcement of the immigration laws within the United States.

The immigration courts are administrative courts, under the control of the Attorney General and the Department of Justice.  Although administrative, deportation proceedings are not subject to the Administrative Procedures Act.[143]  Immigration proceedings are also considered civil rather than criminal, and therefore not subject to constitutionally protected rights of criminal defendants.[144]  The specific divisions are:

·             Board of Immigration Appeals (“BIA”).  An administrative appellate court currently made up of 11 “board members” and employing numerous research attorneys, the BIA handles all appeals taken from decisions handed down by an Immigration Judge.  The BIA is located in Falls Church, Virginia, but handles appeals from all immigration courts.  The BIA occasionally issues precedential decisions (generally 1-3 a month) that are binding on all immigration judges.[145]  The decisions of the BIA (precedential or not) may be appealed directly to the federal circuit court with jurisdiction over the state in which the noncitizen was ordered removed.  However, there are numerous restrictions on the scope and level of permitted federal review.[146]

·             Executive Office of Immigration Review (“EOIR”).  The umbrella term for the branch of the DOJ that includes the BIA, the Immigration Courts, and the Office of the Chief Immigration Judge (which mainly handles budget and administrative issues).

·             Immigration Courts.  There are currently 53 immigration courts throughout the United States.[147]  A single court may have additional branches (usually housed in an immigration detention center or federal or private prison).  There are approximately 200 immigration judges (“IJ”).

[142] Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002).

[143] See, e.g., Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (DHS may, without following APA requirements of notice and comment, redetermine detention boundaries, even to the extent that noncitizens arrested in one federal circuit may be subject to the law of a separate circuit); Ardestani v. INS, 502 U.S. 129 (1991); Marcello v. Bonds, 349 U.S. 302, 305-10 (1955).

[144] See, e.g., United States v. Koziel, 954 F.2d 831, 834 (2d Cir. 1992) (ex post facto protections not applicable to deportation).

[145] 8 C.F.R. § 1003.1(g).  Most of these decisions are available without charge at: http://www.usdoj.gov/eoir/vll/libindex.html.

[146] See § 15.37, infra.

[147] See http://www.usdoj.gov/eoir/sibpages/ICadr.htm (last visited 11/29/2006).