One of the things that non-citizens fear most is the threat of being deported. A Department of Homeland Security (DHS) attorney will trigger this process by issuing a Notice to Appear (NTA) and alleging that the non-citizen has violated US law and should be deported. This process is called removal proceedings. There are several ways this can happen and I will discuss some of the most frequent paths and what to expect below.
Arriving Aliens – Asylum
Some people attempt to enter the United States without any permission because they have fled their home country out of fear for their lives. It is illegal, however, to enter the US without a visa.
Under our current laws, anyone who presents themselves at the US border and tells the border patrol officer that they fear returning to their country is considered an “arriving alien” and is placed into expedited removal proceedings. They are sent to one of roughly 85 immigration detention centers throughout the US. Whether I agree with the arriving alien law is a different blog post.
The asylum seeker will receive an NTA from DHS. He or she will receive a credible fear interview by an asylum officer and if the officer finds that there is a possibility that the person has experienced persecution or torture or will experience it in the future if returned and this possibility is connected to the person’s race, religion, nationality, political opinion, or membership in a particular social group, he or she will be given an opportunity to speak to an immigration judge. If the officer decides there is no credible fear of returning to their country, an asylum seeker can request an immigration judge to review the officer’s decision. An asylum seeker will then be assigned a court date.
Going to Court
At the Master Calendar Hearing, the judge will ask the asylum seeker if the allegations on the NTA are true or false and if he or she concedes removability. This is called taking the pleadings. It is very important to speak to an attorney before admitting allegations because you may admit allegations that you can challenge or admitting them will prevent you from winning your case. You should also consult an attorney before you concede removability because you may be able to challenge the charge as well. But for most asylum seekers, the only crime they have committed is seeking admission to the US without a valid visa and it is fine to admit the charges and concede removability. They will still be eligible for asylum.
There will be about 30 other detainees waiting their turn to speak to the judge about their cases sitting in the courtroom watching. Families and friends may also come and support detainees at hearings but the officers may limit the number of people in the courtroom for safety. Children may not be appropriate spectators. All proceedings are recorded and transcribed if someone appeals and a crying baby can prevent a clear transcription. It may also annoy the judge.
The judge will usually give the asylum seeker a few chances to find an attorney. If they do not find one, the judge will set a trial date called an Individual Calendar Hearing and the asylum seeker must proceed on his own. There is no right to an attorney like in criminal court where the government pays for a public defender; having a lawyer is a privilege in immigration court. Whether I agree with this is also a different blog post for a later time.
At the Individual Calendar Hearing, the court will be closed for the asylum seeker’s protection and so they feel comfortable talking about abuse or torture they suffered or will suffer. The asylum seeker will sit in the witness box. If they need an interpreter, the court will pay for one. The interpreter will sit next to the asylum seeker and translate the proceedings. If the asylum seeker does not have an attorney and represents themselves (called proceeding pro se), the judge will begin by asking questions to hear the asylum seeker’s story. If he or she has an attorney, the attorney will ask the questions and the judge can ask some at any time as well. This is called direct examination.
When the judge or attorney has finished the direct exam, the DHS trial attorney will ask questions. This is called cross-examination. The asylum seeker or their attorney may object to questions based on the Federal Rules of Evidence, but since it is not a federal court, the Rules are not binding.
The asylum seeker’s attorney may ask for re-direct to make sure that the asylum seeker’s story is told accurately and to clear up any credibility issues.
An asylum seeker may also present an expert witness to back up their story. This can be done with a declaration from a doctor, professor, or anyone who is very knowledgeable about what the asylum seeker is trying to prove or the expert can be called as a witness at the individual hearing.
Depending on the length of time set aside for the hearing and how long questioning takes, the judge may be able to give an oral opinion and say whether or not the asylum applicant won her case. If there is not enough time, the judge has 30 days to issue a written opinion.
If the asylum seeker loses, he or she can appeal within 30 days to the Board of Immigration Appeals (BIA) and must remain in detention during that time until a decision is made. Appeals are difficult legal documents to write and should be written by an attorney. If you want to appeal a decision by an immigration judge, you should consult an attorney.
If the asylum seeker wins asylum, DHS can waive its right to appeal and the asylum seeker will be released within 24 hours. Or, DHS may want to appeal and it has 30 days to notify the asylum seeker if they do. If so, the asylum seeker must remain in detention during the appeal process. DHS may decide not to appeal and then the asylum seeker will finally be released from detention and can begin working immediately and building a new life in the US. Many organizations specialize in assisting new asylees get settled in the United States.
Let’s say that someone has entered the United States legally, received the immigration status of permanent resident, but commits a crime while in the United States. Being convicted of certain crimes (including pleading guilty) will make a non-citizen removable from the United States. The term “removable” means that a non-citizen’s actions have violated US immigration laws and the government can attempt to deport them to his or her home country or a third country, if applicable.
If a non-citizen serves any jail or prison time, this can trigger an Immigration and Customs Enforcement (ICE) hold and you will be transferred immediately to an immigration detention center upon release from jail or prison. Local law enforcement frequently cooperates with ICE to coordinate these transfers.
If someone is transferred immediately upon release to immigration detention, this person is subject to mandatory detention. This means that they are not eligible to request bond when they first arrive at the detention center.
More often than not, someone can have a couple of crimes under their belt from a few years back and then they will get pulled over for a routine traffic stop. Either the officer will ask to see ID and the person cannot provide it or is using a fake id or the officer will see that DHS issued a Notice to Appear. The officer then contacts ICE to take the person into immigration custody.
If someone gets taken into immigration custody in the Seattle area, where will they go?
Here in the Puget Sound area (and all of Washington), the nearest immigration detention center is the Northwest Detention Center located in Tacoma, WA at 1623 East J Street. It is a privately run detention center owned by The Geo Group, Inc. There are roughly 1,600 beds.
They hire and train officers to protect the detainees. The atmosphere at an immigration detention center is very much like that of a jail or prison. If you’d like to see what it’s like inside, click this link to see a video. Detainees wear uniforms in different colors based on the severity of their criminal history. There is even solitary confinement for those who are a serious risk to other detainees and themselves. Lower risk detainees who have no criminal background wear blue uniforms, higher risk detainees who have a non-violent criminal background wear orange uniforms, and the highest risk detainees who have serious convictions wear red uniforms.
What happens next?
An immigration detainee may receive a bond amount from an ICE officer and can request for an immigration judge to re-determine that bond amount. The immigration judge, however, has the authority to either lower, raise or take away the bond amount set by ICE.
For someone who has committed certain serious crimes like murder, rape, drug trafficking, they will be subject to mandatory detention and are not eligible for bond. For detainees who are not subject to mandatory detention, he or she may request a bond hearing and the clerk will schedule one as soon as the assigned judge’s calendar has an opening. There are several ways for someone to be subject to mandatory detention and committing a serious crime is just one example.
Is there a way for someone to get out of detention if they are subject to mandatory detention?
Washington is controlled by case law from the Ninth Circuit Court of Appeals. Currently, immigration judges follow a case that was recently published called Rodriguez v. Robbins that ruled that certain detainees cannot be detained for a prolonged period during mandatory detention and that these detainees should be eligible for a custody hearing before an immigration judge every six months. They will remain in detention if the government has enough evidence that the detainee is a danger to the community or a flight risk and will not appear at future hearings if released on bond. Please contact us if you are not sure if you or our loved one are subject to mandatory detention or would like to request a custody hearing before an immigration judge.
If you or someone you know is in removal proceedings, they should speak to an attorney about their options.