GENERAL NOTES ON REPRESENTING PERSONS DETAINED BY INS, ESPECIALLY PERSONS DETAINED OTHER THAN FOR CRIMINAL CONVICTIONS
By Zachary Nightingale1
January 21, 2002
This document contains basic information for use by those representing non-citizens detained by the Immigration and Naturalization Service (INS), specifically non-immigration attorneys, or those new to immigration law, who are representing individuals who are not removable due to criminal convictions. If your client has criminal convictions that cause him or her to be removable, a more detailed analysis of the relevant law can be found elsewhere.
Representation of those detained by the INS is both important and challenging. Congratulations on undertaking this challenge. Hopefully the pointers below will help explain some of the complicated procedural (and some substantiative) aspects of this representation. This list is not exhaustive as there are a number of other good resources concerning the legal parameters of immigration bond practice.
1. Once the INS arrests a non-citizen, it much charge him or her with being removable within a limited period of time. This must normally be done with 48 hours of the arrest, unless the INS has reasonable grounds to believe that the person was engaged in terrorist activities. 8 C.F.R.§ 287.3(d) and USA Patriot § 412. (These activities are listed under Immigration and Nationality Act ("INA") §§ 212(a)(3)(i), 212(a)(3)(A)(iii), 212(a)(3)(B), 237(a)(4)(A)(i), 237(a)(4)(A)(iii), and 247(a)(4)(B), or is engaged in activity that endangers national security.) Furthermore, in order to hold the individual for seven (7) days without issuing charges, the Attorney General must "certify" that he has reasonable grounds to believe the person was engaged in the terrorist activities listed above (this may only be delegated to the Deputy Attorney General and not INS). If the government has such a belief, then the INS must charge the individual within 7 days of the arrest. See USA Patriot § 412, INA § 236A(a)(5). Since all removal proceedings so far have been initiated upon technical immigration violations and not on terrorism grounds, we have yet to see this "certification" process in place.
2. The INS charges a non-citizen with being removable (formerly "deportable") through a charging document known at the "Notice to Appear" (or "NTA"). Before April 1, 1997, this document was called the "Order to Show Cause" (or "OSC"), and any proceedings still pending which were initiated before that date are called deportation proceedings. Most proceedings, including any proceeding starting today, are called removal proceedings.
3. The INS will issue an NTA, and is supposed to serve it on the non-citizen, and serve a copy on the attorney of record. Note: the INS will only consider the non-citizen to have an attorney of record if the form G-28, with the attorney’s name, is on file with the INS (a fax copy to INS is almost always acceptable, and the INS has no basis to refuse to accept such). Many times the INS will require the non-citizen’s signature on the form as well, although usually when the non-citizen is incarcerated, it is difficult as a practical matter to obtain the non-citizen’s signature. You should attempt to obtain your client’s signature as soon as possible, although you should simultaneously insist that the INS treat you as the attorney of record as obtaining the original signature is not possible. Different INS offices will have different reactions/approaches to this.
4. The INS then will file the NTA with the immigration court, thereby initiating the removal proceedings. (Although for various purposes not relevant here, the legal initiation of the proceedings may technically be at a different point). There is no time limit by when the NTA must be filed with the Immigration Court. In practice, the INS may delay the filing of the NTA, and/or the Immigration Court may have a delay in processing the new paperwork and establishing a case. The INS and the Immigration Courts track all non-citizens by the alien number, or A-number, a nine digit number beginning with A, which can be found on nearly all immigration documents. (Note: traditionally non-immigrants in lawful status, such as students or visitors, and those who are undocumented, are not issued A-numbers, unless or until the INS accuses them of having violated their status or of being in the United States illegally; all immigrants are issued A-numbers.)
Once the NTA is filed with the Immigration Court, a custody hearing will be scheduled as soon as there is space on the court’s calendar. In most jurisdictions, there is not a big distinction between a custody hearing for purposes of bond and a custody hearing for purposes of removal proceedings. Although these are technically supposed to be distinct, usually at the beginning of the hearing, the judge and parties will address eligibility for bond, followed by removal hearing itself (if release on bond is not possible). In order to appear before the Immigration Court, you must file form EOIR-28.
5. If a non-citizen is in the custody of INS, then they have the right to request a bond redetermination hearing from the immigration judge – whether or not the NTA has been issued or filed with the Court. 8 C.F.R. § 3.14(a) ("No charging document is required to be filed with the Immigration Court to commence bond proceedings pursuant to §§ 3.19, 236.1(d) and 240.2(b) of this chapter."). Therefore, once a client is in INS custody, you can immediately request (in writing, with form EOIR-28 attached, and with proof of service on the INS) that the Immigration Court having jurisdiction over the place of confinement schedule a bond redetermination hearing. Unfortunately, many immigration court clerks are unaware of this procedure (which is not a common one), and will inform you that they have no record of the case because no NTA has been filed and therefore cannot do anything. Cite this regulation to them, and if necessary, ask that the court administrator be contacted to schedule a bond redetermination-only hearing. If the Court administrator does not follow the regulations, then contact the Office of the Chief Immigration Judge. See 8 C.F.R. § 3.19(c).
Utilizing this procedure immediately upon the client being taken into INS custody may cause the INS to keep the person in the local district (if that is where the arrest takes place) due to the fact that the bond hearing is scheduled there, rather than transferring the non-citizen to a more remote or inaccessible location. The person only must be in the local district at the time the request for a hearing is made, and thus it is important to file the request as soon as possible before the person is potentially moved far away.
Note that having such a hearing can also achieve many potential goals: (1) having the Immigration Judge set a bond as quickly as possible; (2) encouraging the INS to issue and file the NTA as soon as possible (otherwise having to explain to the judge why they are holding someone without charging them); (3) causing the INS to have to specify what information it has about the individual, or at least give some information about what it is doing; (4) causing the INS to have to produce the individual at a hearing, allowing the attorney to have personal contact with the client.
The Immigration Judge, except in very rare circumstances, will not order a change of venue or order the INS to move an individual who is detained. The choice about where to detain a non-citizen is one that the Courts leave fully with the INS. Once an individual is released on bond (or otherwise), however, then a change of venue is routine if the person lives in the jurisdiction of a different immigration court and so requests a change of venue.
6. Whether the client is eligible for release on bond will be determined by how the INS charges them on the NTA. In the absence of an NTA, you are can argue there is no basis to find the client statutorily ineligible for release on bond. Immigration and Nationality Act ("INA") 236(c) specifies who is not eligible for release on bond. Those with certain criminal convictions are ineligible under the statute for release on bond (however the Immigration Judge has jurisdiction to determine if a non-citizen properly falls under a ground of removability which would preclude release on bond).2 However, the Ninth Circuit and the Third Circuit have recently held such section to be unconstitutional, at least in regard to certain persons. The Ninth Circuit decision, Kim v. Ziglar, ___ F.3d ___ , 2002 U.S. App. LEXIS 277 (9th Cir. 2002), finding the mandatory custody statute unconstitutional is probably limited to lawful permanent residents, and acknowledges that those charged with being removable for terrorism may not merit release on bond. Thus, Kim’s impact on those individuals "certified" by the Attorney General is uncertain. (USA Patriot instituted special mandatory detention provisions for individuals "certified" by the Attorney General- see point 1 above and USA Patriot § 412)3.
Any non-citizen (including non-LPRs) charged with immigration violations other than those criminal convictions listed in INA § 236(c) are statutorily eligible for release on bond. The only exception is for those non-citizens charged with being deportoble for terrorism under INA § 237(a)(4)(B), or inadmissible for terrorism under INA § 212(a)(3)(B). In practice, it is rare for the INS to charge these grounds. More often, the INS will charge the individual with a visa violation, thereby causing them to be eligible for release on bond during the pendency of the removal hearing. Those who are charged with terrorism will most likely have to litigate bond eligibility and removability simultaneously. Otherwise, the bond proceedings and the removal proceedings are technically separate proceedings.
7. If the INS charges that an individual is an arriving alien (ie a non-citizen who has not been admitted into the United States), then the Immigration Judge will not have jurisdiction over the bond request – only the INS itself will have the ability to set a bond. This is distinct from those discussed above who are statutorily ineligible for release on bond at all. Usually, it is the deferred inspections unit (which is a sub-branch of the INS district director) which makes the bond request determinations for arriving aliens. Persons who were admitted to the United States lawfully cannot be charged as arriving aliens (although persons who were paroled on or after April 1, 1997 will be considered arriving aliens at the conclusion of the parole period. Persons who entered without inspection are also not arriving aliens. See 8 C.F.R. § 1.1(q).
8. If the INS has not issued the NTA, then argue that your client is eligible for bond from the Immigration Judge under the regulations. If the INS charges the NTA in such a way that the client is not eligible for bond for one of the reasons above, then investigate whether those charges are valid or proper and contest them if at all possible. The INS may turn out not to have any evidence to support the charges and will either agree to charge the non-citizen differently, or the Immigration Judge ("IJ") may found there is insufficient evidence to sustain the charge.
9. If the Immigration Court finds that it has jurisdiction to consider a bond request, then the factors in deciding whether to grant a bond, and the amount, are the non-citizen’s danger to the community and flight risk. It will important to document these factors as well as possible, with evidence of: the non-citizen’s relatives in the US who have lawful status; non-existent criminal record (or minor crimes); rehabilitation following any criminal activity; a stable place to live; a job to return to, or a job offer of future employment; eligibility for relief from removal (or even voluntary departure), so there is incentive to return to any hearings, and other relevant information. Have friends and family write letters of support and appear, if possible, at the bond hearing (possibly to testify, or just be introduced to the judge).
10. The INS may attempt to utilize minor issues to demonstrate that the client is not trustworthy or is dangerous, for example, any past minor discrepancies or errors in INS applications, or possession of box cutters or computer equipment. There may be innocent explanations for such - it is important to discuss this with the client so that client (or attorney) can explain such to the Immigration Judge at the hearing. It may be necessary to file a Freedom of Information Act (FOIA) request with the INS to obtain a copy of the INS file before the bond hearing, although this can take some weeks, and would therefore delay the hearing. It may also be possible to review the INS file at the hearing (or part of the file). If necessary, at the hearing you can request that the IJ order an expedited processing of the FOIA (the IJ will not want to do this), and a one week continuation of the hearing to get evidence or discuss the matter with the client out of the presence of the IJ and INS. This may be necessary, as you do not want the IJ to make a bond determination without all of the evidence presented, as it makes reconsideration or appeal more difficult (as discussed below).
11. If the IJ grants bond, then the non-citizen’s family or friends can post the bond one of two ways: either (1) by paying the full amount of the bond in a money order to the INS (be sure the bond payer has client’s A number) which is refunded at the conclusion of the case (or usually six months after); or (2) by utilizing an authorized bail bond agent - this usually requires a home with sufficient equity, the person whose name is on the deed to the home appearing in person at the bail bond company; and a fee of 10% of the bond amount, which is paid annually to the bail bond company and never refunded to client. Note that if the non-citizen fails to appear either at an immigration hearing or at the INS if so requested, then the bond will be forfeited (along with other legal penalties regarding eligibility for future relief).
12. If the IJ sets a bond (or orders no bond) than one or both parties (the non-citizen or the INS) has the right to appeal. At the conclusion of the hearing, each party must state if they will reserve the right to appeal. If waived, then appeal is not possible. If reserved, then each party has 30 days to file an appeal with the BIA. The appeal must arrive at the BIA within 30 days. As well, the INS has the right to file a stay of the Immigration Judge’s decision, which must be filed on the same day as the IJ’s decision. If such a stay is filed on the same day as the decision, then the non-citizen is not permitted to post the bond or be released. If the INS does not file the stay on that same day, they can still file an appeal, but the non-citizen will be permitted to bond out.
13. In actual practice, it has been reported that individuals who attempt to pay the bond are not being released for two weeks, even though there is no stay of the decision. This appears to be illegal, although it is not clear whether the practice is continuing.
14. If the IJ denies bond, it is also possible to file a written motion for reconsideration of the bond redetermination. This motion to provided for in the regulations, but new information not previously available must be presented.
15. Because the INS has the ability to appeal to the BIA, it is crucially important that the Immigration Court’s bond file which will go on appeal to the BIA be well documented with both a brief and documents supporting the non-citizen’s lack of dangerousness or flight risk. This is because no new information is permitted to be presented on appeal to the BIA, and because the BIA almost always decides bond issues based on briefs alone, without oral argument. Moreover, bond hearings are usually not even tape recorded, so the only record of proceeding that the BIA will see on appeal is the written one. If you believe it will be helpful (based on client’s good testimony, most likely) to have the bond hearing recorded, then you can request that the IJ do so, in case an appeal is needed.
16. Sometimes at the bond hearing, it is possible to discuss with the INS attorney off the record what bond amount he or she might find acceptable (ie not worthy of an appeal), and if you know ahead of time how much the non-citizen’s family or friends can afford, you may be able to arrive at a stipulation with the INS about the bond amount. Usually the IJ will accept such a stipulation (especially in the absence of any allegations of terrorism). Sometimes the INS will want to hear some testimony from the non-citizen before agreeing to such a stipulation.
17. It is traditional that persons who are charged with visa violation or overstays are released on a minimal bond, or released on their own recognizance with no bond. The IJ will know this. By statute, if a bond is set, the minimum amount is $1500. It is highly unusual that such a visa violator is held by INS on a high bond or held with no bond set, so you might want to exploit this fact before the IJ by pointing out that the INS has no basis to act in such an arbitrary way – thus forcing the INS’ hand to indicate on the record what evidence it has. In the absence of an assertion of "secret" evidence, then you and client will then have a chance to rebut whatever evidence the INS can produce.
18. Finally, be aware that in some locations, attorneys (and family and friends) arriving for a custody hearing must wait in line to enter the building, and must pass through the security inspection, a process which can take significant time on busy days. All persons must have photo identification, and will be asked to present the hearing notice (attorneys can usually say they are an attorney there for a hearing and be let in, although family members may not be so lucky if they don’t have a hearing notice). Plan accordingly.
19. Good luck and be sure to contact organizations such as the National Immigration Project of the National Lawyer’s Guild (in Boston at leila@nationalimmigrationproject.org) or the American Immigration Lawyers Foundation (in Washington D.C. at nwettstein@ailf.org for assistance.
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