National Sheriff’s Association Conference 2016 ICE Detention Authority defined by the US Supreme Court Saturday, June 25, 2016 Presented by Assistant Director, Marlen Piñeiro

What is a Final Order of Removal? Authority to issue removal orders lies with an Immigration Judge, the Board of Immigration Appeals, a federal court judge, or any authorized Service official The removal order becomes “final” when the alien has waived further due process or immigration proceedings are exhausted

ICE Detention and Post Order Custody Reviews? Required by law Reviews ensure continued detention is justified and in compliance with governing statutes, regulations, and policies. ICE detention authority is limited

Zadvydas v. Davis Legal Cite: 533 U.S. 678 (2001) Resident aliens who had been ordered removed and who were held in custody by Immigration and Naturalization Service (INS) beyond 90-day removal period, due to government's inability to remove them. The Supreme Court held that: The Immigration & Nationality Act post removal period detention provision contains an implicit reasonableness limitation; Unlimited detention time is not reasonable. Presumptive limit to reasonable post removal period detention is six months (180 days). Continued detention beyond 180 days must have a “Significant Likelihood of Removal in the Reasonably Foreseeable Future” (SLRRFF).

Clark v. Martinez Legal Cite: 543 U.S. 371 (2005) Application of presumptively reasonable limits of detention from Zadvydas for all aliens. ICE may detain aliens beyond the 90 day removal period for so long as it is reasonably necessary to achieve removal. Significant Likelihood of Removal in the Reasonably Foreseeable Future must exist Example: Cubans must be on repatriation list

The Removal Period There is only one removal period. The removal period is the initial 90 days after an alien is a final order and is in ICE custody ICE officers are responsible for initiating removal efforts on day 1 of the removal period. These efforts include exhausting all avenues to obtain a travel document and/or effecting the alien’s removal Field personnel are encouraged to engage the Headquarters subject matter experts

The Removal Period Aliens must be notified 30 days in advance of the 90 day Post Order Custody Review (POCR). They may present evidence of the lack of SLRRFF Initial 90 day POCRs apply to Judicial Stays of Removal and documented Failure To Comply (FTC) cases All cases are due a 90 day POCR

Headquarters Custody Management Most cases detained 180 days or more post final order must be referred to ICE HQ Only exception is Failure To Comply and Judicial Stay cases Nationwide Program Oversight Reviews usually at 180 days

Headquarters Custody Management If there is not SLRRFF, alien must be released unless he/she meets “Special Circumstances” (i.e. if alien poses a special danger to the public, has a highly contagious disease, terrorist grounds, or if the Service determines that an alien presents a threat to public safety).

Headquarters Custody Management ICE understands that many aliens released due to lack of removability often violate State or Federal laws, and are re-arrested by other law enforcement agencies HQ provides guidance that affords field offices a mechanism to quickly evaluate repeat offenders, adjust their conditions of release, and effect the alien’s re-release pursuant to those conditions without mandating prolonged detention in the absence of SLRRFF.

Aliens previously released by HQ Aliens released by HQ previously due to lack of SLRRFF who are later encountered by ICE may only be returned to custody by the field for a brief period [to allow the field sufficient time to remove or to establish new conditions of release]

Exceptions to release Cases where field offices believe there is a change in SLRRFF should be referred to HQ for approval to return the alien to custody for removal purposes.

Failure to Comply (FTC) What is a FTC? INA § 241(a)(1)(C): The removal period shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal.

FTC factors to be considered Aliens who have demonstrated a FTC with their removal must have the overt action documented in a timely manner. Aliens who fail to comply may remain in detention, and the removal period is extended beyond 90 days. Alien must willfully/intentionally block efforts to obtain a TD or to be removed. Must be something the alien has control over

FTC documentation Notice of Failure to Comply A letter informing the alien that failed to assist in efforts to obtain travel documents or removal has caused ERO to keep him in custody and extend the removal period; also advises of possible criminal prosecution.