Your Worst Nightmare: Steps to Take After an Arrest Rolando Villalobos, Stanford David A.M. Ware, Ware|Gasparian Wendell M. Wright, Special Agent, ICE NAFSA Region XII Conference San Jose 2012
Preliminary Matters• Introductions• What we will cover• Audience census—what is your expertise/experience level?• Please hold questions until the end• Don’t forget your evaluations!
What is an arrest? Generally, any restraint on a person’s liberty by a law enforcement officer. Usually followed by a criminal charge or immigration Notice to Appear Persons will often not understand that they have been arrested. Questions to ask: Have you ever had an encounter with law enforcement? Have you ever been taken to a police station against your will or been asked to follow an officer to a station? Have you ever been fingerprinted by anyone?
First Step: Determine whether arrest is criminal or immigration• Is the arrest for a local, state or federal criminal offense?• Sometimes this will be obvious (eg, DUI).• Sometimes the source of the information (a relative, friend) will be confused and alarmed, so that information is garbled.• Consider the reliability of the information you are getting (eg, source—friend with person or parent abroad with limited English).
Criminal or Immigration?• If criminal, try to determine which law enforcement agency (color of uniform, car markings, etc; also nature of crime).• If criminal, how do you locate detainee? Campus police can help.• If criminal, is the agency required to verify immigration status, required to report all arrests to ICE?• State laws (AZ, AL). “Show me your papers” upheld by US Supreme Court.• 287(g) agreements• Other federal laws
Criminal or Immigration?• If criminal, do you involve a criminal attorney?• What should your role be in contacting/securing criminal counsel?• Public defender if jail time is possible?• Criminal counsel must clearly understand immigration consequences of guilty plea/conviction.• “Conviction” under immigration laws: guilty plea or conviction by judge or jury, plus imposition of punishment. Different from definition under criminal law.
Authority of ICE - INA 287(a); 8 CFR 287• Interrogate any alien or person believed to be an alien as to his right to remain in the US• Arrest any alien …attempting to enter the US in violation of law• Board and search vessels near the border• Make arrests for felonies relating to admission/removal of aliens• Make arrests – For any offense against the US committed in the officer’s presence – For any felony under the laws of the US, if the officer has reasonable grounds
Criminal Bonds• Generally, handled no differently for non citizen than for citizen.• Generally, bonding company will require payment of percent of actual amount of bond.• Criminal attorney will be versant in posting bonds.• Criminal bond must be posted before detainee can be turned over to ICE, if there is a detainer (next slide). Often criminal authority will discourage detainee from paying bond in light of ICE detainer: wrong.
ICE Detainers or “Holds”• An immigration detainer is a request by ICE to state or local authorities to detain an individual after he or she is eligible for release to enable ICE to assume custody.• The detainer gives the jail the discretionary authority to “hold” the non-citizen for up to 48 hours (two business days) from the time they are eligible for release (typically when the criminal bond is paid).• 48 hours does not include weekends or holidays.
ICE Detainers, Cont’d.• Many state and local authorities will hold non-citizens even without a formal detainer executed by ICE.• Detainer is not a warrant for arrest.• Some state and local jails will not honor detainers.• Detainer is not evidence that a person is deportable.• Officials at the jail can advise whether a detainer has been requested.• Jail officials often discourage people from paying the criminal bond because it will not result in release due to a detainer. However, payment of the bond may move a person’s case forward by starting the 48 hour clock and prompting ICE to take the person into custody.
Finding and Communicating with the Student• Contact the police: – Where is the student being held? – What are the charges? – Who has custody of the student? Police, ICE, etc.? – Is the student eligible for bail? – Has a court appearance been scheduled? When?• Contact ICE: – Where is the student being held? – Has ICE set a bond? – Where will removal proceedings be held? Has a court date been set? – What are the charges?
Finding the Student with ICE• ICE may not share detailed information regarding the charges or upcoming court dates unless contacted by an attorney of record or close family member. ICE will need a person’s name, date of birth, and country of birth.• ICE always uses an “A” or alien number to track people and may provide this information upon request by calling a local ICE office.• A person may be taken into custody several hours before ICE systems are verified to confirm custody.• ICE detainees may be transferred a few times before being placed in a detention facility which may be far from where the person was arrested.
Finding the Student with ICE• Online detainee locator: https://locator.ice.gov/ Typically updated within about 24 hours after ICE takes a person into custody. This provides the name and address of the detention facility where person is held.• Executive Office for Immigration Review automated system: 1-800-898-7180 – Will only give hearing information once ICE has filed Notice to Appear with court. This typically takes several weeks following arrest. – Must use “A” number. – Does not indicate where person is being held.
Communicating with the Student• The student will have very limited access to phones before being placed in long-term detention facility.• Contact the detention facility regarding its procedures for phone calls and other correspondence with the student (detainee). Typically can leave messages for a detainee and they can make outgoing calls at limited hours.• Detainee may need to have money deposited into commissary account in order to purchase phone cards.
Communicating with Third Parties: FERPA• Remember that you are constrained from communicating about the student’s situation outside your campus by FERPA, unless the person is under 18 (parents) or has executed a waiver.• An arrest would not likely meet the FERPA exception for immediate danger to student’s well being.• If you receive calls from the media, refer to Public Information Department on campus; make sure General Counsel is also aware so that there are no FERPA violations.
Immigration Bonds• ICE officials make the first determination regarding bond eligibility within 24 hours of assuming custody. Relevant factors include whether the person is likely to attend immigration hearings and whether he/she may present a threat to the community.• Bond typically must be paid in the full amount (i.e. $5000). The few bonding companies that guarantee immigration bonds typically require substantial collateral.• If the ICE official decides a person doesn’t warrant bond, may request bond from a judge (IJ) in immigration court.• Some serious convictions require mandatory detention and no bond will be possible. Many times IJ will overrule ICE on this issue.
Eligible for Bond?• Some people are not eligible for immigration bonds and are subject to “mandatory detention,” if convicted and released on or after October 8, 1998.• The most common ground for mandatory detention include: – Two crimes Involving “moral turpitude” at any time after admission to the United States; – An “aggravated felony”; – Controlled substance offense; – Firearms offense.
Immigration Bond Proceedings• When bond eligible, the lack of family ties or existence of serious criminal history will typically mean a higher bond.• Minimum bond is $1,500 but may be released on own recognizance.• Evidence considered in bond proceedings: – Letters of support, presence of family and supporters – Proof of family ties, property ownership – Lease or mortgage statement – Taxes, proof of employment, or school records – Arrest history – Possible immigration relief before the Immigration Court
Appeal of Judge’s Bond Determination• May file a bond appeal with the Board of Immigration Appeals (BIA) within 30 days of the judge’s decision.• The BIA can take months to decide the appeal and the judge can order student removed before the decision from the BIA is made. The person will be held in detention while the appeal is decided, which may be months or a year or more.
Legal Counsel• Immigration status complicates almost every legal violation and the detainee should discuss his/her case with an immigration attorney who is familiar with criminal law.• A guilty plea, a plea of no contest, or even attending a program for offenders may impact immigration status and could make a person deportable.
Referring a student / scholar to an attorney Know when to say "no, I cannot advise you on that issue." (Is this relevant to our work at the university?) International student / scholar offices often seen as the "answer to all things international." If you do not advise on PR "green card" issues, then simply state that these issues "are beyond the scope of expertise / advice that we can provide." limit advice to topics related to responsibility (primarily immigration)
Refer a student / scholar to an attorney if... student / scholar has no immigration status or is unlawfully present (Undocumented students, refugee / asylee issues & applications.) If student / scholar has any encounter with police (arrested or charged, has any criminal history.) Reference:Collegial Conversation: When to Refer a Student or Scholar to an Attorney http://www.nafsa.org/Resource_Library_Assets/Networks/ISTA/Collegial_Conversation__When_to_Refer_a_Student_or_Scholar_to_an_Att orney/
Notifying Campus Officials• Detained immigration proceedings, even a request for bond, can take a few weeks to several months.• Follow campus procedure regarding notification of the student’s department, the dean’s office, etc.
How You Can Help• If bond has been set, the student may need help contacting friends or family who can help.• Family may come from abroad. They may need logistical assistance (housing, directions, etc.)• If the student is charged with a violent crime (such as assault or rape) or with a drug-related crime (such as "possession with intent to distribute"), he or she may be temporarily evicted from university housing, even before a trial, and may need assistance locating temporary accommodations.
How You Can Help• Student may be going through both the campus discipline process as well as the criminal and/or immigration process at the same time. You can provide information about the campus judicial system and explain where to get information about the court system.
How You Can Help• When an nonimmigrant visa holder is charged with a crime, ICE usually learns of it through data shared among law enforcement agencies. ICE may contact the school to ask if and when the students SEVIS record will be terminated. Follow the regulations and your office or school policy in determining whether, or when, to terminate the student.• Do not terminate simply at ICE’s request• Even if convicted, if student is otherwise maintaining status and your institution takes no internal action to suspend or expel the student, there is no violation of status until the immigration judge and/or BIA decision is final.• The nonimmigrant can continue normal activities at your institution until this determination is made.• Unless your institution has a rule forbidding enrollment of undocumented students, F’s and J’s can continue attendance even in the face of a negative finding by the IJ/BIA, until removal actually occurs.
How You Can Help• In the case of J’s, you may be required to report the incident to the Department of State. The programs Responsible Officer is required to notify DOS "promptly by telephone (confirmed promptly in writing) or facsimile of any serious problem or controversy which could be expected to bring the Department of State or the sponsors exchange visitor program into notoriety or disrepute."