1. REPRESENTING DETAINED NONCITIZENS
Presented by Claudia Valenzuela, NIJC
November 8, 2017

2. 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

4. Lawyers Make the Difference1
1. Katzmann Study Group, 2011

5. 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.

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

7. I. Overview of the Immigration Detention System

8. 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

9. 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)

10. 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.

11. 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

12. II. Overview of the immigration judicial system

13. 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

14. 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)

15. 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:
(BIA practice manual)
(immigration court practice manual)

16. 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

17. 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)

18. 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

19. III. Hamama Procedural Checklist

20. 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

21. 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:
Prepare Motion to Reopen and supporting documents
File with the Immigration Court and serve DHS

22. Entering an appearance
In order to appear in immigration court, must first eregister:
The form to enter an appearance before the immigration court is the EOIR Form E28:
The form to enter an appearance before DHS is the G-28:
For general

23. 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

24. 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.

25. 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:

26. 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

27. Hamama Resources
Link to sample MTR templates, affidavits, briefing, country conditions: resources/
for technical support:

28. THANK YOU!