236(c) MANDATORY DETENTION A) …

1 2011 AILA Teleconference/Web Conference 2011 American Immigration Lawyers AssociationSusan Church Outline 236(c) MANDATORY DETENTION : includes all charges where respondent committed an offense: A) INADMISSIBLE BY REASON OF HAVING COMMITTED AN OFFENSE UNDER 212(A)(2) does not require conviction a. 212(a)(2) includes single crime involving moral turpitude; b. Exceptions include: i. petty offense exception (max sentence did not exceed one year and actual sentence did not exceed 6 months) ii. or under 18 exception under 18 and five years before date of application for visa : c. Drug charges involving controlled substance offenses d.

2 TWO crimes involving moral turpitude at any time e. Controlled substance traffickers (a person who the ag knows or has reason to know has been an illicit trafficker in a controlled substance). f. Prostitution and commercialized vice g. Aliens who have asserted immunity from prosecution h. Traffickers in Persons B) DEPORTABLE FOR HAVING COMMITTED ANY OFFNESE COVERED UNDER 237(a)(2)(A)(ii); (A)(iii); (B); (C) OR (D) requires conviction a. Two crimes involving moral turpitude committed at anytime b. One crime involving moral turpitude where the actual sentence is more than one year; (requires a conviction) c.

3 Aggravated felony d. Controlled Substance offense other than single offense of marijuana, under 30 g 2011 AILA Teleconference/Web Conference 2011 American Immigration Lawyers Association e. Firearm offenses f. Miscellaneous Crimes: convicted of espionage, treason, C) Saysana and Arreola SAYSANA v. GILLEN, 614 1 (1st Cir. 2010) MATTER OF ARREOLA, 25 I&N Dec. 267 (BIA 6-23-2010) MANDATORY DETENTION is not triggered unless: The charge for which Transition Period Custody Rules ("TPCR") and only where there has been a post-TPCR release that is directly tied to the basis for DETENTION under sections 236(c)(1)(A)-(D) of the Act.

4 Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), overruled; Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999), modified. In other words there must be a charge, upon which the respondent was released, after October 8, 1998 that falls under 236(c)(1)(A)-(D) PREPARING YOUR CASE Things to DO: Meet with your client! Meet with client s family Obtain letters of Support Review NTA Review all immigration documents!!! Things NOT to DO Promise your client will receive bond Ignore Judge idiosyncrasies Rely only on your client s mother for your facts!!! DOCUMENTS TO OBTAIN BEFORE HEARING Notice to Appear CORI Docket Sheets Plea Waiver Forms Police Reports Letters of Support Employment Verification Tax Returns Photographs Birth Certificates Marriage CertificatesMOTION FOR BOND REDETERMINATION If you have a good faith argument for bond eligibility or for a Joseph Hearing Hearing is 3 days usually don't file if you are out of town or busy!

5 Can prompt filing of NTA as well Not needed if case calendaredPRESENTATION OF YOUR CASE Present a sympathetic picture Are they a good person? Work, friends, family, etc. Health problems of family members or respondent Financial obligations Relationship with children if strong Mitigating factors in criminal matters Have family and friends present What the judge wants to know: Age of your client Where he/she came from How long they have lived here How did they come Do they have any relief Criminal Record USC/LPR Children/Relatives Work historyHELPFUL HINTS: KNOW YOUR JUDGE BE NICE TO THE CLERKS TALK TO THE TRIAL ATTORNEY REVEAL THE BAD STUFF FIRST PROPOSE A REASONABLE NUMBERCALLING WITNESSES PREPARE AHEAD OF TIME DON T CALL YOUR CLIENT S DRINKING BUDDY AS A CHARACTER WITNESS ASK QUESTIONS IN THIS FORMAT: WHO WHAT WHERE WHY WHEN HOW DESCRIBETHE LAW (YIKES) JOSEPH HEARINGS MANDATORY DETENTIONJOSEPH HEARINGS22 I & N Dec.

6 799 (BIA 1999) Respondent is always entitled to hearing to determine whether he/she is subject to MANDATORY DETENTION Argue that Respondent was never in custody Argue Respondent was not convicted Argue Respondent is not removable ON ACCOUNT OF 236(C) requires an arrest be on account of one of the grounds of MANDATORY detentionSaysana v. Gillen, 590 7 (1st Cir. 2009) overturned Matter of Saysana, 24 I&N Dec. 602 (BIA 2008)THE BIA AGREES! MATTER OF ARREOLA, 25 I&N Dec. 267 (BIA 6-23-2010) We now hold that section 236(c) of the Act requires MANDATORY DETENTION of a criminal alien only if he or she is released from non-DHS custody after the expiration of the TPCR and only where there has been a post-TPCR release that is directly tied to the basis for DETENTION under sections 236(c)(1)(A)-(D) of the Act.

7 WHAT IS CUSTODY? Matter of Aguilar-Aquino, 24 I&N Dec. 747 (BIA 2009). Bracelet not custody. Garcia-Garcia, 25 I&N Dec. 747 (BIA 2009). Must request amelioration of terms of release within seven days. 8 (d)(1)(2008).ARRIVING ALIENS Can challenge characterization as arriving alien with Bond Hrg. Ineligible for Bond Redetermination with IJ If proper arriving alien must go to DRO to request reconsideration; appeal in 10 days INA (d)(3)(ii)DEFINITION OF A CONVICTION: INA 101(a)(48)(A) Always check docket sheets to find whether a penalty punishment or restraint on liberty was imposed. Court costs, pursuant to 280 6 shall not be imposed by a justice as a penalty for a crime.

8 HABEAS CORPUS Challenge length of DETENTION even under 236(c) Winkler v. Horgan, 629 F. Supp. 2D 159 (D. Mass. 2009)(one year); Flores-Powell v. Chadbourne, 2010 Dist. LEXIS 913 (D. Mass. 2010)(22 months) + othersHabeas (con't) Definition of custody, , bracelet, different in Federal Court than with BIA Emergency stays--8 (h)(4)(i)(2) & 8 (c) Habeas challenges may be possible with both seek help!LAST BUT NOT LEAST Stick to your guns: Don t let the trial attorney dissuade you Know when to be quiet. Pay attention to your judge. Tell your client not to make faces, noises or side as 24 I&N Dec.

9 37 (BIA 2006) Interim Decision #3544 In re Juan Francisco GUERRA, Respondent File A96 649 951 - New York Decided September 28, 2006 Department of Justice Executive Office for Immigration Review Board of Immigration Appeals (1) In a custody redetermination under section 236(a) of the Immigration and Nationality Act, 8 1226(a) (2000), where an alien must establish to the satisfaction of the Immigration Judge that he or she does not present a danger to others, a threat to the national security, or a flight risk, the Immigration Judge has wide discretion in deciding the factors that may be considered.

10 (2) In finding that the respondent is a danger to others, the Immigration Judge properly considered evidence that the respondent had been criminally charged in an alleged controlled substance trafficking scheme, even if he had not actually been convicted of a criminal offense. FOR RESPONDENT: Jorge Guttlein, Esquire, New York, New York BEFORE: Board Panel: OSUNA, Acting Vice Chairman; MOSCATO, Board Member; ROMIG, Temporary Board Member. OSUNA, Acting Vice Chairman: In an order dated June 7, 2006, an Immigration Judge denied the respondent s request for a change in custody status after finding that he poses a danger to the community.