Tag: ICE

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Global Pinoy

Undocumented’s options – depart voluntarily or be detained

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Two weeks ago, Rey Galleon, a Filipino who had been residing in unlawful status for several years, was arrested by ICE and decided to depart “voluntarily” to avoid being incarcerated.

According to Galleon’s public statement, the ICE officers gave him the choice of leaving voluntarily or staying in jail for up to six months. For fear of being detained for six months, he chose to depart.

Will the case of Mr. Galleon be a common occurrence for 300,000 Filipinos who are undocumented?

Mandatory detention

Any person who is in the United States is entitled to due process rights under the U.S. Constitution. This includes anyone who is present in the United States in unlawful status. The constitutional protections of due process and equal protection are not limited to U.S. citizens; they also apply to every person regardless of immigration status.

Generally, this means that the right to legal counsel and to a hearing should be afforded a person. While these rights exist, ICE officers may continue to detain a person while awaiting a court hearing. This happens in particular cases where the law limits the exercise of this right to certain individuals who are subject to mandatory detention and those who are arriving aliens.

The following persons are subject to mandatory detention:

  1. those who have criminal inadmissibility grounds;
  2. those with convictions of multiple crimes of moral turpitude, aggravated felonies and controlled substances among others;
  3. those who are inadmissible based on terrorist activities.

Arriving aliens also may not be granted bond hearing and could remain in custody until removed. The law defines an arriving alien as one who is coming to the United States at a port of entry or are seeking transit through the United States at a port of entry.

Release on bond

If an individual is not subject to mandatory detention or is not an arriving alien, either the ICE sets the bond or the immigration judge decides whether an individual is subject to release on bond. Until the arrested individual is heard, he remains incarcerated unless ICE makes a determination of a release on bond.

Generally, ICE counsel will not object to a release on bond if the individual is not a flight risk and other factors exist to show that the individual will appear on the date set for hearing. There is a lot of discretion on the part of the immigration judge on whether the individual is released on bond. It is also during these times when the detainee decides to just depart instead of staying in jail to await the hearing before the immigration judge.

While those who are in unauthorized presence are lumped into one category as being “undocumented,” each case will be treated differently depending on the circumstances of each case.

Given that the DHS has been given additional resources to enforce immigration law not only against those with criminal convictions, but also anyone who is found to be in unlawful status, it is important for those concerned to make timely informed decisions.

Should they decide to stay, they have to know the risks and prepare themselves to take legal steps when ICE comes knocking at their doors. The risk involves incarceration until released on bond. If they are not willing to take the risk, then the difficult decision to depart voluntarily becomes imminent.

Categories
Updates

We’re now facing Trump’s harsh immigration policies

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After eight years of being accustomed to the Obama Administration’s compassionate and humanitarian immigration policies, we’re now witnessing a 180-degree. Enforcement of immigration law will soon be heightened not only against aliens with criminal convictions, but to practically all who are violators of immigration law, including those who have overstayed their visas and those who have committed acts that are considered misdemeanors.

The Executive Order signed on January 23, 2017 relate to border security, admission of refugees and immigration enforcement. Building a physical border wall that extends 2,000 miles along the border with Mexico will cost taxpayers billions. While President Trump says that Mexico will pay for the wall, the pronouncements of Mexico’s President show otherwise. How will this be feasible? Also with a provision in the Executive Order barring political asylum seekers, what will America do with those women and children escaping persecution?

More agents

On immigration enforcement, the hiring 10,000 more Immigration and Customs Enforcement (ICE) officers to arrest non-citizens who have violated immigration law, detain and remove undocumented immigrants already ordered removed in the past are also part of the Executive Order.

ICE together with CBP at the border will be turned into a deportation force with the power to remove any non-citizen without due process, who in the “judgment of the immigration officer” (not an immigration judge) is a risk to public safety or national security.

For the Filipino immigrant who has already fallen out of status, there is grave concern about this aggressive immigration enforcement. There is a marked distinction between former President Obama’s Executive Action and that of President Trump.

In former President Obama’s Memorandum on Prosecutorial Discretion, he categorized certain immigrants that should be subjected to removal. There is a list of priorities that were enumerated emphasizing that those with strong family ties in the U.S. are to be accorded deferred action and will be the last on the list of priorities for removal. ICE was instructed to prioritize those with serious criminal offenses, resulting in record high removal of immigrants with criminal offenses at the same time preserving family unity.

Broad range of targets

On the other hand, Trump’s Executive Order lists a broad range of individuals that are subject to enforcement. The list includes those who (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense, where such charge has not been resolved; (3) have committed acts that constitute a chargeable criminal offense; (4) who have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency; (5) Have abused any program related to receipt of public benefits; (5) Are subject to a final order of removal, but have not departed. There is no ranking or prioritizing in this list and no reprieve from removal is mentioned to those with strong family ties in the U.S.

The effectivity date of Trump’s Executive Orders is uncertain. It is possible that ICE is already immediately acting on it. A day after President Trump signed the Executive Order, a group of ICE Officers were spotted at a non profit child care center in San Francisco, to apprehend a criminal offender. The children and workers at the center were all taken aback and eventually the ICE officers left without arresting anyone. This is alarming considering that there is an existing 2011 ICE Memorandum instructing ICE officers to stay away from sensitive places like churches and schools.

Whether the presence of ICE officers in our cities will be a common sight in the coming days is horrifying to all of us not only to undocumented immigrants. But this is just the beginning. There are concrete steps we can take. We start by writing our legislators and urge them to oppose Trump’s immigration policies of indiscriminately prosecuting and removing immigrants. Legal challenges in court will be filed to attack the constitutionality of Trump’s Executive Actions. We stand in solidarity with all immigrants and stay firm with our principles and values that made America a strong nation of immigrants.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1 888 930 0808 or 415 397 0808)