REPRESENTING DETAINED NONCITIZENS Presented by Claudia Valenzuela, NIJC November 8, 2017 www.immigrantjustice.org

Why are Pro Bono Attorneys Important for Immigrants? Non-citizens do not have the right to appointed counsel, even when they are Facing deportation Asylum seekers Mentally ill Detained Children

Lawyers Make the Difference 1 1. Katzmann Study Group, 2011

Objective To familiarize pro bono counsel with the immigration detention system; practice and procedure before the detained docket in the immigration court, and provide practice tips on representing noncitizens in government custody, with a special focus on motions to reopen for Hamama putative class members.

Agenda Overview of the immigration detention landscape Overview of the immigration judicial system Hamama Procedural Checklist

I. Overview of the Immigration Detention System

Civil Detention Immigration detention is civil in nature, i.e. non-punitive and its purpose is to facilitate physical removal. Zadvydas v. Davis, 533 U.S. 678, 699 (2001) Many constitutional procedural protections in the criminal context do not attach in the immigration detention context

Department of Homeland Security Agency created in 2003 Houses all immigration-related agencies: United States Citizenship and Immigration Services (USCIS) Customs and Border Protection (CBP) Immigration & Customs Enforcement (ICE)

Immigration Detention: National Landscape ICE contracts with various entities to detain noncitizens. On any given day, at present, there are approximately 41,000 individuals held in a patchwork of about162 facilities around the country. Many facilities are in remote locations with little to no access to counsel or phones.

Immigration Status Indefinite legal status Not always permanent! Lawful Permanent Residents “LPRs” Indefinite legal status Not always permanent! Persons Lawfully Present but NOT LPRs Asylees Refugees Visitors Foreign Students Work Visas Temporary Protected Status Undocumented Entered without inspection Overstayed visa DACA recipient

II. Overview of the immigration judicial system

The Immigration Courts Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) Board of Immigration Appeals (BIA): administrative appeals unit Immigration courts Immigration judges (IJs): fact-finders

Sources of Legal Authority Immigration and Nationality Act (INA) (largely incorporated into Title 8 of the U.S. Code) Immigration-related regulations (largely incorporated into Title 8 of the Code of Federal Regulations (C.F.R.)) Board of Immigration Appeals (BIA) administrative precedent (largely governs nationwide in the absence of supervening circuit precedent) Courts of Appeals (circuit precedent)

Removal Proceedings Largely governed by statute, INA § 240 and applicable regulations Can invoke Fifth Amendment Due Process Federal Rules of Evidence (FRE) do not formally apply but can be invoked No rigorous motion practice, but see: https://www.justice.gov/eoir/board-immigration-appeals-2 (BIA practice manual) https://www.justice.gov/eoir/office-chief-immigration-judge-0 (immigration court practice manual)

General Categories of Removal Grounds of inadmissibility, INA § 212 (8 U.S.C. § 1182): applicable to those never admitted (entered without inspection, paroled) and LPRs seeking to be admitted after returning from abroad under certain circumstances Grounds of deportability, INA § 237 (8 U.S.C. § 1227): applicable to those who have been admitted (LPRs, visa holders) Burden of proof may shift depending on removal ground

Parties to a Removal Proceeding Immigration Judge (IJ) Department of Homeland Security ICE Office of Chief Counsel (Trial Attorney) Respondent (individual facing removal proceedings Counsel for respondent (optional)

Appeals and Judicial Review Courts of Appeals Hears challenges to removal orders, jurisdiction permitting Board of Immigration Appeals (BIA) Respondent appeals removal order or DHS appeals grant of relief Immigration Judge (IJ) issues removal order or grants relief

III. Hamama Procedural Checklist

Establishing attorney-client relationship Most detention preparation is by phone – contact the detention center to inquire about attorney-client calls At least one in-person visit at the detention facility holding client is encouraged – but not always possible Many facilities do not permit it but arrange for individuals to call attorneys Contact Hamama tech support team to be matched with org or individual who can visit your client in your place Postal mail may be only option

Gathering documents “Get necessary preliminary forms sent to and signed by client (appearances, retainers, releases, fee waiver) Review record Immigration file is known as the “Record of Proceedings” or “ROP” Documents in DHS file is known as the “Afile” Both files may contain different documents Review sample materials and resources: https://refugeerights.org/iraqi-deportation-resources/ Prepare Motion to Reopen and supporting documents File with the Immigration Court and serve DHS

Entering an appearance In order to appear in immigration court, must first eregister: https://www.justice.gov/eoir/internet-immigration-info The form to enter an appearance before the immigration court is the EOIR Form E28: https://www.justice.gov/sites/default/files/pages/attachments/2015/07/24/eoir28.pdf The form to enter an appearance before DHS is the G-28: https://www.uscis.gov/sites/default/files/files/form/g-28.pdf For general

Anatomy of a Hamama MTR Attorney appearance, EOIR Form E-28 Cover letter (not mandatory but helpful) Motion to Reopen Fee or fee waiver (EOIR Form 26A) Application for Relief (primarily will be Form I-589) Affidavit by client Affidavit by expert witness Affidavit by law witnesses Country conditions reports Other supporting documents

Managing expectations Two common questions: How long will I be detained? Will I win my case? Best practice tip: Answer with compassion and honesty – often, the answers to these two questions are difficult to predict with any certainty.

Custody Issues DHS takes position that individuals with final removal orders who are not pursuing a defense to removal are not eligible for bond (some exceptions) Mechanism to consider release is via the “Post-Order Custody Review,” which is decided by ICE If MTR is granted, will need to look at individuals’ criminal record to assess eligibility for bond Prolonged detention challenge? For questions regarding challenges to detention, contact the Hamama litigation team: hamama@aclumich.org

Navigating conditions of detention Lack of adequate medical care Medical Access and Treatment Access to legal materials, law library Ability to make phone calls Ability to practice religion Discrimination Recreation Safety Food Temperature

Hamama Resources Link to sample MTR templates, affidavits, briefing, country conditions: https://refugeerights.org/iraqi-deportation- resources/ Email for technical support: Hamama@heartlandalliance.org

THANK YOU!