New procedures for Immigrant Detainees under Section 287(g)
By Lena Korial-Yonan, Esq.
Last Updated August 17, 2010
Part Two: General Procedure under Section 287(g)
When an illegal immigrant or immigrant is arrested for criminal reasons, the JSO (Jacksonville Sheriff's Office) or criminal processing agency in your area will check the individual's immigration status through a fingerprint check. The fingerprint check is the most accurate, as any fraudulent names being used will not affect the outcome. As we all know, a person cannot change his or her fingerprints.
If the fingerprint comes back as stating that the person is not a US citizen, then JSO, for example, will contact the local ICE office and alert them that this individual has been arrested. It is then in ICE's discretion whether they will pursue the matter or not.
If ICE determines that they need to get involved, then what usually happens is that even if the detainee pays the bond for the underlying criminal charge, that detainee will not be released due to an "immigration hold." In certain circumstances, ICE may release the detainee on their own recognizance, which means that the illegal immigrant or immigrant is released from detention. Under these circumstances, ICE may refer that individual to the Immigration Judge in Orlando, FL (for our area of Jacksonville, FL) or ICE may require that individual to file an application for immigration relief and then report back to ICE every 30, 60, or 90 days to track their whereabouts.
In many cases, however, ICE will not release the detainee and in fact may require that the illegal immigrant or immigrant with a serious crime or multiple crimes be sent to an immigration jail. In Jacksonville, FL, many of these individuals are transferred to Broward Transitional Center or Krome in Miami, FL. These detainees will need to formally request bond from either their deportation officer or through the Immigration Judge, usually through the assistance of an immigration lawyer.
If the individual requests bond from the Immigration Judge, particularly through the Immigration Court in Miami, FL, they will need to show to the Immigration Judge proof of filing their immigration applications for relief before the Judge will allow the detainee to be released on bond.
Previous to Section 287(g), detainees through their immigration lawyers would tell the Judge that they intend to file a green card application or intend to file for asylum, for example, and the Immigration Judge would allow bond to be issued. Now, however, proof of filing this relief must be provided to the Immigration Judge, as mere statements of intent are usually no longer sufficient to meet the requirements for bond to be allowed for the detainee.
It is extremely difficult for detainees to file their immigration paperwork while they are in jail, because they may need passport style pictures to be sent to USCIS or they may first need to get married before their US citizen fiancйe can legally sponsor them. Also, if bond is denied, then the detainee has to remain in jail while the paperwork gets processed by USCIS, which can take months.
There is one little exception which we have used that has allowed individuals who were previously deported and do not qualify for any form of immigration relief to be released from jail. The exception is that no detainee can be kept in immigration custody for over 6 months unless that person is a threat to the safety of society if they are released. This exception can come in very handy for detainees who were previously ordered removed / deported and the Immigration Judge refused to issue bond because they may pose a flight risk. Unless the deportation officer can reasonably show that they pose a threat to society, that detainee maybe able to be released under this specific exception.
If the immigration Judge grants bond, then that individual still has to appear for court hearings or request continuances from the Immigration Judge, until their case is resolved.
The important point to remember is that illegal immigrants who are in the US without authorization and commit even so-called "minor" driving criminal offenses, like driving without a valid license, will now no longer have to answer just for the criminal underlying charge. Now their immigration information will be obtained through a fingerprint check and the criminal authorities will contact ICE with the information.
It will then be up to ICE to determine the next steps for that detained individual, as explained above. Section 287(g) is yet another program put into effect to curb individuals remaining in the US without authorization and especially to curb local crime being committed by illegal immigrants or immigrants with multiple and / or serious convictions according to immigration regulations.
For Americans, they may welcome this new program.
For illegals or other immigrants who commit these so-called minor offenses, especially in this environment when they desperately want to legalize themselves but cannot due to limits in the immigration law, this is yet another hindrance to their remaining in the US. As many already know, Department of Motor Vehicles has strictly limited whom it will allow to obtain or extend their driver's license.
Part 1 of this article can be found at Part One: News Flash & Background Info
For more information on a recent news flash dated July 23, 2010, please see 26 law enforcement officers trained by ICE to enforce immigration law Graduates join more than 1,200 287(g) trained officers nationwide
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Lena Korial-Yonan, P.A.
9425 Craven Road, Suite 5
Jacksonville, FL 32257
Phone: (904) 448-6646
Facsimile: (904) 448-8221