DETENTION, DEPORTATION AND INADMISSIBILITY OF IMMIGRANTS

Arrests and criminal convictions can severely complicate immigration cases and lead to detention, deportation, and bars to re-entry.  The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 greatly expanded the grounds of deportation, the mandatory deportation and detention of many immigrants, and added restrictions of up to life-time bars to re-entry.  Furthermore, it limited the relief available to immigrants convicted of certain criminal actions.  It is essential for immigrants to know their rights when they are arrested and for criminal defense attorneys to contact immigration attorneys before they take pleas on behalf of their clients.

Police Investigations

If an immigrant is stopped by the police for a criminal issue they should remember to be civil and polite while exercising several basic rights:

  1. Immigrants are NOT required to tell police officers their immigration status.
  2. All persons have the right to remain silent, immigrants should not do not incriminate themselves.
  3. Immigrants should immediately state that they want to speak to a LAWYER.
  4. Do not use false identification or documentation.
  5. Never lie about US citizenship, this is a crime in and of itself.

Immigration law is very complicated and there is no simple list of convictions that lead to deportation.  Felonies sometimes do not lead to deportation while misdemeanors sometimes do.  Immigration consequences of criminal convictions vary depending on the current immigration status of an individual, their prior criminal history, and the possibilities of immigration relief.  Furthermore, undocumented immigrants are at risk in the criminal justice system WHETHER OR NOT they are convicted of a crime.  They are at an even higher risk if they have outstanding orders of deportation.   Immigrants should assume that any conviction, disposition, or admission may create an immigration problem and speak to an expert on crime-related deportation.

Deportation vs. Inadmissibility

The effect of a conviction depends on one’s current immigration status.  Therefore, the same offense may have different immigration consequences for undocumented persons and legal permanent residents (greencard holders).  There are two main categories of removal- deportability and inadmissibility.  Some crimes fit both categories, while others can make a person “inadmissible” but not “deportable” or vice-versa.  Deportability applies to non-citizens who have been admitted to the US, such as legal permanent residents.  Inadmissibility applies to people who are seeking admission into the US, including legal permanent residents that travel abroad and seek re-entry.

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Because many offenses can lead to immigration consequences, it is important to analyze the details of offense, including the date, amount in controversy, statute under which the person was convicted and possible criminal consequences.  For example, almost all drug convictions, including violations and misdemeanors for simple possession, can lead to deportation.  Theft offenses, even as minor as shoplifting, can also lead to immigration charges.  In addition, convictions for domestic violence, including violations of protective orders, can trigger immigration consequences.  Gun convictions carry their own separate charges and are very harshly punishable under immigration laws.  There are limited exceptions and waivers available for certain convictions, depending on the charge, sentence, and date of the offenses.

Detention

Immigrants are vulnerable to being detained not only if they are stopped by the police, but also if they leave the country and try to re-enter, finish a criminal sentence, go to probation, or apply for naturalization or any immigration benefit at any immigration office.  Recently, there has been an increase in Immigration and Customs (ICE) enforcement of old final orders of deportation across the US.  It is important to note that when ICE officers go into homes or workplaces to arrest an individual with a final order of removal, everyone in the home or workplace is at risk.

ICE often places immigration detainers on individuals in the criminal justice system.  An immigration detainer is a request by ICE to the police or sheriff’s office to hold an immigrant after the person would normally be released from criminal custody.  Immigration detainers are only valid for 48 HOURS.  This excludes Saturdays, Sundays, and holidays.  Unfortunately, sheriffs and police routinely hold immigrants longer than 48 hours.  If a person is held under an immigration detainer for longer than 48 hours, their attorney may seek for their immediate release.

Bond

Unfortunately many immigrants are subject to “mandatory detention” and are not eligible for bond.  If a person is eligible for bond, a bond can be issued by either an ICE officer or the immigration judge.  Under the regulations, a detainee can file a motion for a bond hearing even before a Notice to Appear (charging document) is filed with the Immigration Court.  At the bond hearing, the judge will first determine whether the detainee is eligible for bond.  If the person is eligible, then the judge will admit evidence and hear testimony to determine whether the person is a flight risk or danger to the community.   It is important to present evidence that shows that the immigrant is eligible for relief from deportation and has ties to the community.  The minimum bond afforded at an immigration detention center is $1500.  Many immigrants use bail bonds specialists to pay their bonds.  These individuals are not associated with the court and typically charge a fee ranging from 10% – 15% and use collateral to ensure the bond.

If the detainee is not eligible for bond they may also seek parole from an ICE officer, though this is much more difficult to attain.  Parole may also involve electronic monitoring though an ankle bracelet.  If a detainee is released on bond or parole their case will be transferred to the local immigration court, while those not eligible for bond will have their cases heard at the detention center.  Because criminal and immigration detention issues are so complicated it is always recommended to consult with a licensed attorney regarding your rights and eligibility for relief.

[AUTHOR gracie]

Grace es abogada de inmigración cubana-americana y natural de Miami. Atendió la Florida State University de donde se graduó Magna Cum Laude como Bachiller en Ciencias Políticas en el 2002. En FSU también realizó estudios de Historia y Latin America. En el 2005 se graduó del Colegio de Leyes del Stetson University con el grado de Doctora en Leyes y recibió el premio de Thomas E. Penick por su servicio a la comunidad en ayuda legal inmigratoria.Grace se especializa en leyes inmigratorias, incluyendo deportación y naturalización, e intenta ayudar a los recien llegados a este país. Ella es miembro licenciado del Florida Bar y habla Inglés y Español.

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