Although it inexplicably escaped much attention, the Supreme Court finally issued its ruling on Jennings v. Rodriguez late last month. In a 5-3 decision, the high court ruled that non-US Citizens are not entitled periodic bond hearings while being detained by the Department of Homeland Security. The impact of this ruling is momentous and will have enormous ramifications for immigrants-both legal and undocumented-who are apprehended and detained by ICE.
A very disturbing decision came out last week pertaining to the effect of DWIs on immigration custody determinations. The case is Matter of Siniauskas, 27 I & N Dec. 207 (BIA 2018), and it is particularly important and relevant these days given the alarming number of foreign nationals being picked up by ICE agents poaching our municipal court grounds. The gist is this: driving under the influence is "a significant adverse consideration in determining whether an alien is a danger to the community." [Italics added.] Family ties and community roots are relevant factors, but they do not necessarily mitigate the presumed danger to society implicated by a drunk driving incident.
One of the most pressing questions and concerns that a foreign national and concerned family members or friends have after a non-US Citizen is picked up by Immigration and Customs Enforcement ("ICE") is how to secure that person's release. Some are understandably terrified that the individual will just be shipped back to his/her native country; others are afraid that the person may languish in detention indefinitely while immigration court proceedings are pending. Therefore, the foremost consideration is how to get that person released from detention.
Few people may be aware that the much-vilified Secure Communities Program has actually been discontinued and replaced by a purportedly more focused Priority Enforcement Program, or "PEP." The death knell of Secure Communities was actually heard in November of 2014 when DHS Secretary Jeh Johnson released a memo about it, but only recently have ICE officers received training in the implementation and application of PEP.
The rules regarding whether an alien is subject to mandatory detention are found within the Immigration and Nationality Act (INA), particularly Section 236(c). Under section 236(c), mandatory means what it says: the individual must be taken into custody and detained; there is no discretionary release. People with criminal records are usually the ones most vulnerable to detention without bond.
One of the most important questions family members will have upon learning that one of their loved ones has been detained by the Department of Homeland Security is how to get them released. When an Immigration and Customs Enforcement ("ICE") officer arrests or takes an individual into custody, he/she must usually determine whether to release the individual (with the expectation that he/she will show up for a future court date) or set a bond. Sometimes, under certain circumstances-usually when the individual has been convicted of a particular type of criminal offense-he/she may be subject to mandatory detention, meaning that the person is not eligible for release.
In March of 2014, the US Court of Appeals for the Third Circuit issued an important precedential decision that has significant ramifications for aliens held in prisons and jails pursuant to detainers placed by Immigration and Customs Enforcement ("ICE"). The Court ruled in Galarza v. Szalczyk, et. al., that detainer requests are what the plain language says they are: requests. They are not mandatory, and state prisons and jails within the Third Circuit are not bound to hold alien inmates pursuant to them. Individuals and families of individuals affected by this ruling should read the decision and consult with a qualified immigration attorney. What follows is a brief synopsis:
On December 21st 2012, Immigration and Customs Enforcement (ICE), announced the end of the 287(g) program. What does this mean for you? First, a review of what the 287(g) program was, and second, what will ICE replace it with? The 287(g) program allowed ICE to 'deputize' state or local officers to serve as immigration officers. These deputized officers would receive four weeks of training on how to serve as an immigration officer, the deputized officer would be given permission to interrogate alleged noncitizens, and to put a detainer on a detained noncitizen. While there is a full description of how detainers work and impact noncitizens in a previous post, in general, a detainer is a method by which ICE can keep a noncitizen in detention after they should have already been released.
The reason for this ICE dropping the program was because "ICE [had] concluded that other enforcement programs, including Secure Communities, are a more efficient use of resources for focusing on priority cases." The decision is certainly backed up by facts. It has been found that the 287(g) program has been a costly operation for local governments, in part, stemming from ICE not paying for any of the costs associated with it except for training and enforcement of federal law.
Now that 287(g) is no more, the Secure Communities program will take its place. Rather than forge agreements with state and local security agencies to act as ICE officers, ICE and said agencies will instead share information. As local security agencies already share information, such as the fingerprints of individuals who are arrested and booked into custody to the FBI, under the Secure Communities program, the FBI will share that information with ICE. With that information in hand, it will be checked against the Department of Homeland Security's immigration databases to see if those arrested are unlawfully present. If so, ICE will have the opportunity to take action, with a priority on individuals who pose a threat to the public. As such, it is more important than ever that immigrants charged with crimes retain experienced defense counsel who are sensitive to these developments and who can help fashion plea agreements that avoid incarceration.
Not just too long ago, the United States District Court ruled that the Petitioner in a Habeas Action that he was entitled to a Individual Bond Hearing after ICE took the person into custody years later. Just again recently, New Jersey District Court Joel Pisano ruled that mandatory detention did not apply when the Petitioner was taken into custody approximately ten years after he was sentenced to a conditional discharge in New York (for which he was never incarcerated). The Court held that the plain language of the statute requires DHS to take custody of an alien who is subject to mandatory detention immediately when that person is released from custody. In this particular case, the Petitioner 1) was never released from criminal custody and 2) he certainly was not detained immediately: in fact, there was a ten year gap between his criminal case and detention. The Court therefore held that the terms of his pre-removal release are governed not by 8 USC 1226 (C ) (1)--the mandatory detention rules--but rather 8 USC 1226 (a), which allows release on bond. While this case is not precedential, it nevertheless points in the right direction and represents a clear, no-nonsense interpretation of what is essentially unambiguous.