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IMMIGRANTS NUMBERING THOUSANDS CAN BE DETAINED INDEFINITELY ACCORDING TO THE SUPREME COURT’S RULINGS

June 22, 2022

IMMIGRANTS NUMBERING THOUSANDS CAN BE DETAINED INDEFINITELY ACCORDING TO THE SUPREME COURT’S RULINGS

Author: New York Immigration Lawyer Alena Shautsova

As the issue of immigration in the U.S. seems to be a never-ending rigmarole subject, new developments are expected at every turn. Most recently, the Supreme Court ruled that immigrants detained in the United States are not entitled to a bond hearing in certain situations. This ruling means that the thousands of immigrants currently held in detention facilities with open immigration cases can remain in detention indefinitely! It does not apply to all immigrants, but rather to those who already have orders of removal, but cannot depart or have additional hearings that must be conducted.

In addition to the Supreme Court’s ruling, the high court also ruled that federal courts do not possess the legal authority to grant class-wide relief to immigrants held in detention. This means that, if detainees want to petition their right to a bond hearing in the future, they can only present their cases individually. This is coupled with the fact that immigrants are not allowed to have legal representation during immigration proceedings.

The ruling of the Supreme Court seems to maintain the existing state of affairs as it concerns the issue of immigration. Many immigrants are currently detained in facilities that are more like prisons. Many immigrants have not been charged with any crime but do not possess the right to a hearing to justify their detention. Some of the immigrants are held in facilities belonging to for-profit corporations such as Geo Group and a host of others. The Court ruling also maintains that immigrants can’t have a bond hearing unless the U.S. government says so. This means that the U.S. government has the discretionary right to decide the fate of detainees. In other words, it will be up to DHS/ICE if the person is released from the detention or not, and if ICE/DHS does not want to release the person, they can keep them there technically, forever.

These  rulings dashes the hopes of immigrants who have been held long enough in detention. The cases which are Johnson v. Arteaga-Martinez and Garland v. Aleman Gonzalez were brought to court by undocumented immigrants who contested they are being held in detention centers for far too long. Their argument was focused on the fact that immigrants who have been held in detention for up to six months or more should be entitled to an individualized bond hearing where the U.S. government has to prove the need for their continued detention.

The immigrants sued the U.S. government while leveraging on a 1996 immigration statute which states that an unauthorized immigrant “may” remain in detention for an extended period if they fail to meet certain criteria. The immigrants argued that since the statute uses “may be detained” instead of “shall be detained,” the right of discretion rests with the judges, hence entitling them to a hearing. The case was further appealed to the Supreme Court where representatives of the Biden administration argued that the law permits the Attorney General of the United States to indefinitely detain illegal immigrants while their cases are undergoing litigation.

Before the Supreme Court’s ruling, the Ninth Circuit Court of Appeals ruled in 2020 that detainees are entitled to a bond hearing. Since the Garland case was presented as a class-action lawsuit, the Ninth Circuit Court of Appeals granted a class-wide relief, thereby extending the right to a bond hearing to every person named in the suit.

However, the Supreme Court countered this ruling declaring that detainees are not entitled to such a bond hearing, hence a class-wide relief can’t be granted on that basis. Therefore anybody who wishes to exercise their right to a bond hearing in whatever form has to do it individually.

Certain observers feel that it is a bit unfair not to grant unauthorized immigrants the right to legal representation, whereas criminals in the U.S. are allowed legal representation. “Especially since their only offense is that they are in search of greener pastures,” according to an observer. Leah Litman, a professor at the University of Michigan Law School filed a brief in support of Gonzalez. She holds the opinion that the decision of the Supreme Court is completely unworkable and unrealistic. Furthermore, she asserted, “It makes it impossible to ensure that everyone who is potentially entitled to a bond hearing will get one.”

Aside from being denied a desired fair hearing, immigrants and advocates have since raised an alarm concerning the manner of treatment meted out to immigrants at the detention centers. Several facilities have been accused of abusing detainees. The Irwin County Detention Centre was shut down alongside another in May 2021. A gynecologist was accused of carrying out forced sterilization on the detained women at the Irwin Center.

Matt Adams, the legal director of the Northwest Immigrant Rights Project who argued the Garland case opines that the decision of the Court raises ethical questions. This is a result of the fact that the ruling contradicts the fundamental principles upon which the U.S system is founded- “that government officials may not lock up a person without at least providing them their day in court to contest whether their confinement is justified.” Although he gives reassurance that the matter will still be pursued as it is not over yet.

What Happens After ICE Arrest

February 9, 2018

What Happens After ICE Arrest

Deportation attorney Alena Shautsova

Recent news brings worry and anxiety to Immigrants: ICE arrests non-citizens in courts, at work, in their homes.  But what actually happens after an individual is taken into ICE custody? The answer to this question depends on individuals’ Immigration history and the exact reason for the arrests.

Individuals with Prior Orders of Deportation/Removal

If ICE picks up a person who has a prior order of removal/deportation, ICE may either reinstate the order of removal and try to physically remove the person from the US; or, if a person has any possibility of relief from the physical deportation, ICe may issue an order of supervision.  A person would have to file an application for administrative stay of removal and ICE would release such a person on an order of supervision.  If the application for stay is granted, a person will be allowed to remain in the US, wait for the resolution of his/her applications here, and legally work in the US.

Individuals Charged With Aggravated Felony 

If ICE arrests someone who does not have an order of removal/deportation but is deportable due criminal conudct, and especially due to an agrevated felony, ICE may choose to remove such a person using an expedited procedure tool,  and will serve on an individual a “Notice of Intent to Issue Final Administrative Removal”.  If an individual does not successfully contest such a notice, he/she may be removed out of the US without seeing a judge.

Other Cases

In the majority of other cases, ICE will have to place a person in INA 240 removal proceedings where an individual will have a right to present a defense to removal in court before an Immigration Judge. A person is likely to be detained for a month or so until the bond hearing takes place, and then a person will be released (once the bond is paid.) Some immigrants, are not eligible for the bond (but even this law provision has been challenged in courts.)

In many cases, I would say in the majority of cases, long-time US residents may have defenses to deportation/removal. Depending on their exact situation, they may qualify for adjustment of status (with a waiver, for example); cancellation of removal; SIJS benefits (for children); or else.

If you need a consultation regarding possible defenses, please call us at 917 885 2261.

 

When ICE Agents’ Actions Can Cause Dismissal Of Immigration Charges?

October 22, 2013

When ICE Agents’ Actions Can Cause Dismissal Of Immigration Charges?

Author: Deportation attorney Alena Shautsova

How many of you think that ICE agents (Immigration and Custom Enforcement Agency) have power to do whatever they want? How many of you have heard stories that they come to a home at 5 am and search the premises and “pick up” illegal immigrants? How many of you think it is legal?

Well, the ICE officers can come to non-citizen’s home, but they still have to confirm their actions to the Constitutional norms and do not have a carte blanche to do whatever they want even if the non-citizen is an undocumented worker. This principal was one more time confirmed by the recent BIA decision in Matter of Ixpec-Chitay, 9/16/13.
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ICE Releases Illegal Immigrants

March 13, 2013

ICE Releases Hundreds of Illegal Immigrants Based on Sequestration Budget Cuts

Author: Law Office of Alena Shautsova

While a polarized U.S. Congress failed to come to terms with sequestration (forced budget cuts), ICE (Immigration Customs Enforcement) released hundreds of illegal immigrants being detained for deportation. The release was prior to and in anticipation of sequestration, which now has gone into effect.

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