Understanding How to Assist Victims of Crimes
of Violence in Light of ICE Enforcement
Programs & Practices
in the Criminal Justice System
ASISTA Webinar – June 29 , 2011
Presented by:
Ann Benson, Sonia Parras Konrad & Gail Pendleton
This project is supported by Grant No. 2009TAAXK009 awarded by the United States Department
of Justice, Office on Violence Against Women. The opinions, findings, and recommendations
expressed in this document are those of the author (s) and do not necessarily reflect the views
of the United States Department of Justice, Office on Violence Against Women.
Copyright
2011ASISTA
ASISTA All rights Reserved.
Copyright
©©
2011
All rights Reserved.
1
Goals of Session One
 Provide a framework for understanding the intersection
between the immigration and criminal justice systems
 Identify key concepts and issues necessary to effectively
represent survivors who encounter the criminal justice
system
 Outline key ICE enforcement programs & practices in the
criminal justice system
Copyright © 2011 ASISTA All rights Reserved.
2
Presentation Overview
 Section I: The Intersection Between Immigration
Law and the Criminal Justice System (CJS)- highlight of
concerns for survivors
 Section II: Intro to Immigration Detainers: ICE’s
Key Enforcement Tool in the CJS- Tips for representing
survivors
 Section III: ICE ACCESS Programs- latest policy
memoranda assisting survivors
 Section IV: Immigration Detainers Revisited
 Section V: Bring This All Together
Copyright © 2011 ASISTA All rights Reserved.
3
Section I:
The Intersection Between
Immigration Law and the
Criminal Justice System (CJS):
Selected Key Concepts
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4
The General Rule
 Any immigrant who is stopped or arrested by law
enforcement is very likely to have contact with
immigration authorities and risks apprehension by ICE
and placement into removal proceedings - whether or
not the arrest results in conviction or a jail sentence
Regardless of whether cops have 287(g) agreement
An immigrant calling law enforcement for assistance
may be also exposed to potential ICE or CBP
enforcement actions
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5
Convictions can lead to deportation
 Convictions, even misdemeanors, can prevent
undocumented persons from getting lawful status
 Convictions, even misdemeanors, can result in green
card holders and refugees losing their status and being
deported
 Examples: marijuana possession, shoplifting
 Sometimes survivors are charged with crimes of
domestic assault while they are defending
themselves. It is crucial to set the record straight.
Copyright © 2011 ASISTA All rights Reserved.
6
People facing deportation due to
convictions have few rights
 Immigration detention and deportation are often automatic and
mandatory
 Make sure you work on safety planning with your client and
her advocate to take care of children etc.
 People with convictions often do not get to see an immigration
judge
 Ask your client about prior removals or encounters at the
border. Prepare I-246 in advance.
 Even when they do see an immigration judge, the judge often has
no power to stop deportation
 Work with your local ICE director to develop protocols to
represent survivors of crimes of violence.
Copyright © 2011 ASISTA All rights Reserved.
7
CJS Primary Focus of ICE Enforcement
 Apprehending noncitizens through the criminal justice
system (not raids) is now ICE’s primary focus for
enforcement
 In the last 3 years ICE has apprehended over half a million
people through the Criminal Alien Program alone
Copyright © 2011 ASISTA All rights Reserved.
The Pipeline – Jail to Deportation

The ICE ACCESS Programs use the criminal justice
system to channel immigrants into the deportation
system, regardless of whether they have convictions
that make them deportable
 Immigration enforcement now happens at every point of
the criminal system: arrest, courts, jails and
probation/parole
 Concern: Survivors may are less likely to call 911
because due to fear of their abusers being removed
form the country or their older children arrested
when law enforcement intervenes
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9
Overview of the Criminal Justice System
Booking
Into Jail
After Arrest
Arrestee
in Jail
(Pre/Post
Bail
Hearing)
START:
Police
Stop/Arrest
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Bail/Custod
y Hearing
Criminal Charges &
Disposition
(plea/trial/dismissal/
sentence)
Post-Conviction
(appeal, completion of
sentence, release from
criminal custody,
probation)
“Criminal Aliens”
 Term used indiscriminately to refer to any noncitizen
apprehended by ICE through CJS
 Regardless of severity of alleged criminal offenses
 Regardless of whether noncitizen was ever convicted for
any crime
 Sometimes also used against US citizens
 No Legal or official definition
 Between1997-2007, 72% of deportees designated as “criminal aliens”
deported for non-violent offense (Human Rights Watch Report)
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11
Highlights of concerns
for survivors
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Section II
Intro to Immigration
Detainers:
ICE’s Key Enforcement Tool
in the CJS
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13
Immigration Detainers

What are the goals of the ICE ACCESS programs?




(1) identify noncitizens
(2) lodge detainers
(3) then, usually, ICE custody or deportation
Detainer is primary tool used by ICE to facilitate
transfer of person from criminal to ICE custody
and deportation

ICE practices and policies about detainers are
confusing and arbitrary
© 2011 ASISTA
All rights
Reserved.
INA Copyright
§ 287;
8 CFR
287.7
14
What is an Immigration Detainer?
 Notifies the jail or police that ICE is interested in this
person; used to track a noncitizen throughout the
criminal process
 ICE files Form I-247 with jail
 Requests jail to inform ICE when person is released
from criminal custody
 Requests (requires?) jail to hold person for additional 48
hrs (excluding weekend & holidays) after release from
criminal custody for ICE to take custody.
Copyright © 2011 ASISTA All rights Reserved.
15
Copyright © 2011 ASISTA All rights Reserved.
How is the detainer triggered?
Pre-trial release on own recognizance or
posting bail
Case against defendant is dismissed
Defendant completes sentence (after
conviction).
In practice, detainer prevents the
person’s release from criminal custody
while their criminal charges are
pending.
Copyright © 2011 ASISTA All rights Reserved.
What happens when detainer
triggered by release?
 Jail calls ICE to alert them of imminent
release;
 Jail holds person additional 48 hrs. for ICE
to pick them up and take into ICE custody
 NOTE: Many jails violate the 48 hr. rule and hold people
much longer (months in some cases) awaiting ICE pick up
Copyright © 2011 ASISTA All rights Reserved.
TIPS FOR REPRESENTING
SURVIVORS
1. FILE SKELETAL APPLICATION UPON ARREST
2. REQUEST EXPEDITED ACTION WHEN NEEDED
3. PREPARE I-246 & FILE. CONTACT ICE DIRECTOR
AND SUPPLEMENT WHEN NOTICE OF ACTION
RECEIVED
4. PAY CRIMINAL BOND IF ANY INMEDIATELY FOR
THE 48 HRS TO START RUNING
5. CONTACT JAIL TO PROVIDE COUNSELIGN
SERVICES, SAFETY PLANING FOR THE CHILDREN
Copyright © 2011 ASISTA All rights Reserved.
Why do detainers matter?
 Nearly all ICE ACCESS enforcement programs
rely on detainers to facilitate transfer from jail to
immigration custody/detention.
 Detainer rules are frequently misunderstood;
jail/police/local governments routinely violate
detainer rules
 To understand how these programs work in your
community, investigate your local jail’s policies
 Critical that criminal defense attorneys find out if
person has detainer, especially BEFORE posting bail
Copyright © 2011 ASISTA All rights Reserved.
20
Section III
ICE ACCESS
Enforcement Programs
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21
ICE ACCESS Programs
287g Program
Criminal
Alien
Program
Operation
Communit
y Shield
Secure
Communiti
es
Rapid REPAT
Operation
Predator
Operation
Firewall
Law Enfcmt
Support Ctr
LESC
Intellectual
Property Rights
Center
Fugitive
Document Customs
Operations and
CrossTeams
Benefit
Designation
Fraud Task
Force
Border
Enforcement
Security Task
Asset
http://www.ice.gov/oslc
Forfeiture/ /iceaccess.htm
22
Equitable
Copyright © 2011 ASISTA All rights Reserved.
ICE ACCESS Programs
 Primary ICE Access Programs:
 Criminal Alien Program
 287(g) Agreements
 Secure Communities Initiative
 Operation Community Shield
 Fugitive Operations Teams
 FY 2010 funding for ICE ACCESS programs = nearly
$1.5 billion
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23
The Criminal
Alien
Program
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Criminal Alien Program (CAP)
Primary enforcement program used
by ICE to apprehend noncitizens who
have contact with the criminal justice
system
Has existed since 1980’s but vastly
expanded in last 10 years
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25
ICE’s stated goals for CAP:
Identify and screen inmates in
federal, state, and local jails and
prisons, AND
Initiate removal proceedings while
people are still in criminal custody
OR transfer people to ICE for
removal proceedings directly from
jail.
Copyright © 2011 ASISTA All rights Reserved.
26
Criminal Alien Program (CAP)
ICE has 119 CAP
“Teams”
Teams have an unknown
number of ICE agents
deployed to jails and
prisons across the U.S.
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27
How CAP Works
 Jail or cops identify foreign-born people
 Asking place-of-birth information at booking (jail)
 Asking identifying info at arrest (cops)
 S-Comm fingerprint checks
 Jail or cops provide ICE with the names and information
of foreign-born people
 ICE lodges detainers against those who cannot prove
U.S. citizenship
Copyright © 2011 ASISTA All rights Reserved.
How CAP Works
 ICE conducts jail interviews of noncitizens in jail
 Before or after detainer is issued
 To gather information used to deport people
 To process people for deportation
 ICE takes people into immigration custody upon release
from jail (criminal custody)
Copyright © 2011 ASISTA All rights Reserved.
Questioning by local police or ICE in jails:
 Almost always without counsel
 Facts from jail interviews help ICE prove deportability
 Pressure people to agree to waive right to see
immigration judge and agree to deportation (stipulation
of removal order)
 TIP: PROVIDE YOUR CLEINT WITH A CARD FROM
YOUR OFFICE REQUESTING YOUR PRESENCE AND
ADVISING NOT TO ANSWER QUESTIONS-MAKE
SURE YOU ARE AVAILABLE
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30
Right to remain silent?
 People have a right to remain silent and
not answer questions about where they
were born or their immigration status
 But no requirement that cops or ICE agent tell
people of this right (no “Miranda” warning)
Copyright © 2011 ASISTA All rights Reserved.
31
CAP Statistics
In FY 2008 alone, ICE began removal
proceedings against 221,085 people through CAP
 46% increase over 2007 total
Currently nearly half (48%) of all noncitizens
in ICE custody apprehended through CAP
 57% did not have criminal conviction (2008)
Fastest growing DHS program:
 Budget increased 253% from FY 2005-2009
 Copyright
FY 2010
budget >$200 million
© 2011 ASISTA All rights Reserved.
32
CAP Statistics
 15 mo. study of CAP in Irving, TX:
 2% of ICE detainers were issued against persons
charged with felony offenses
 98% of ICE detainers issued against persons charged
with misdemeanor offenses
 After CAP was launched, local police arrested
Hispanics for low level misdemeanor offenses in
significantly higher numbers
 (The CAP Effect report - 2009)
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33
Secure
Communities
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34
Secure Communities: What Is It?
 Fingerprints taken at arrest/booking used to
automatically and immediately search for person’s
criminal and immigration history.
 FBI database (current practice)
 DHS databases (added by S-Comm)
 If a database “hit” (arrested person is matched to a
record indicating immigration history), ICE and jail
automatically notified.
 TIP: IF YOUR CLIENT TELLS YOU OF A POTENTIAL
ENCOUNTER IN THE PAST, FINGERPRINT HER
ASAP, FILE SKELETAL CASE, FILE OR PREP
MOTION TO REOPEN IF ELEGIBLE.
Copyright © 2011 ASISTA All rights Reserved.
35
S-Comm: How It Works
ICE then evaluates each case to determine
what, if any, enforcement action will be taken:
 Generally, ICE will issue detainer against person
 ICE will most likely issue the detainer but
submit in writing request for prosecutorial
discretion cc OCC & ICE
ICE claims, on average, the process from
submission of fingerprints to issuance of ICE
detainer takes approximately 4 hours.
Undocumented persons with no immigration
history will not be identified through S-Comm
Copyright © 2011 ASISTA All rights Reserved.
36
S-Comm: How It Works
 Gives ICE technological, not a physical
presence in jails
 Unlike CAP and 287(g) programs
 Detainers can be issued without presence of ICE agents in
jails
 However, overlap between CAP and S-Comm
 No MOAs required w/local jails/cops
 No deputization of local police agents
Copyright © 2011 ASISTA All rights Reserved.
37
S-Comm: How It Works
ICE enters into agreement with State
Identification Bureau (SIB)
SIB processes fingerprints of those arrested by
state and local police
ICE provides Standard Operating
Procedures to jail/police
Outlines S-Comm processes and ICE’s
responsibilities
Unclear if local jail/police can opt out
Copyright © 2011 ASISTA All rights Reserved.
38
S-Comm: Where Is It?
As of October 2010, 632 jurisdictions in
32 states, as of April 2011, 1,210 in 41
states
ICE plans to have S-Comm in every
state in 2011
Goal is to have S-Comm in each of
3,100+ state & local jails by 2013
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39
S-Comm: Focus and Priorities
ICE says that it has established
priorities that allow S-Comm to
focus on apprehending “serious
criminals”
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40
S-Comm: Focus and Priorities
 In practice, ICE is using S-Comm to focus
on apprehension of all noncitizens
 Targets people arrested, not convicted
 Who ICE classifies as a “serious criminal”
is inaccurate and misleading
 Includes low-level misdemeanor crimes such as resisting
arrest and traffic offenses
Copyright © 2011 ASISTA All rights Reserved.
S-Comm: ICE’s Statistics
In S-Comm’s First Year (Oct. 08-Oct. 09):
Over 990,000 fingerprint submissions
 Approximately 111,000 records “hits” for persons with both immigration
history and prior conviction or charge
9% of hits were level 1 serious charges or
convictions
86% of hits were level 2 or 3 non-violent or
minor charges or convictions
5% of hits were U.S. citizens
Copyright © 2011 ASISTA All rights Reserved.
42
S-Comm: Funding

FY 2010 appropriation: $200 million.

President’s FY 2011 budget:

For ICE: $146.9 million “to continue FY 2010
progress toward nationwide implementation of
the S-Comm program”

For the Department of Justice:
Over
$11M increase for Immigration Court
System (EOIR) for 125 additional staff to deal with
increased caseloads resulting from CAP and Secure
Communities
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43
ICE
IC
E
Police
287(g)
Programs
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44
What is “287(g)”?
 287(g) refers to a section of the federal
immigration laws (Immigration and
Nationality Act)
 Section 287(g) of the INA allows DHS
Secretary to enter into agreements (MOA)
that give powers to local police to enforce
civil provisions of immigration law
 Without 287(g), police can ask about immigration status
but cannot arrest for possible deportation
Copyright © 2011 ASISTA All rights Reserved.
45
What is a 287(g) MOA?
Task force model
Police have authority to detain
people on civil violations that they
encounter in the course of their
criminal enforcement duties in the
field
Jail model
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46
What is a 287(g) MOA?
Deputized 287(g) officer must attend a 4-week
immigration law training course
All deputized 287(g) officials are supposed to be under
ICE supervision
72 agreements in 26 states
 Rhode Island withdrew January 2011
Over 1,075 officers trained
Copyright © 2011 ASISTA All rights Reserved.
47
The 287(g) Program - History
 Despite ICE’s stated goal of targeting
“serious criminal aliens,” primary and
aggressive focus was on “easy” targets –
those arrested for minor misdemeanors
 Talk to your SART and DART about
their interaction with this program
 2009 GAO report on 287(g)
Copyright © 2011 ASISTA All rights Reserved.
48
What does the new 287(g) MOA do?
June 2009: ICE Expanded
287(g) program with new
standard MOA
New priorities
New requirement to pursue to
completion all criminal charges
New complaint procedures
New ability to terminate MOAs
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49
Problems with the MOA
No mechanism to prevent and address racial
profiling
No clarity re: “recommendation” to pursue to
completion all criminal charges
Ineffective complaint procedures
Same old bad actors signed up with new MOA
Copyright © 2011 ASISTA All rights Reserved.
50
Know your Latest Policy
Memoranda Assisting Survivors
Copyright © 2011 ASISTA All rights Reserved.
Section IV:
Immigration Detainers Revisited
Copyright © 2011 ASISTA All rights Reserved.
Back to Detainers: Quick Review
 ICE uses the detainer in ICE ACCESS programs to
flag and pick up suspected noncitizens booked
into local jails
 How detainers impact a person:
 In practice, detainers keep you in criminal custody for a
longer period of time
 Most often, detainers are used to deny criminal bail or
make it higher
 Detainers impact what kind of jail you will be
incarcerated in or what kind of rehab programs you have
access to
Copyright © 2011 ASISTA All rights Reserved.
53
What does ICE need from police or
a jail to lodge the detainer?
 There is no standard of proof to lodge a detainer
 Any evidence of “alienage” will do
 Persons with lawful status (LPR, refugees) without
deportable convictions
 U.S. citizens wrongfully get detainers
 Usually, ICE lodges detainer with place of birth
information or Scomm fingerprint data
 An admission at arrest or during booking that they
were born outside U.S. (or are not U.S. citizens)
 Police or jail gives ICE access to booking information
Copyright © 2011 ASISTA All rights Reserved.
54
How do you remove the detainer?
 Answer: IT IS REALLY HARD!
 Generally, negotiate with ICE Detention and
Removal Offices to lift the detainer
 Usually requires proof of US
citizenship/lawful status
 Develop protocols with SART and DART
and how to respond to survivors when
police intervene on a DV or SA case
Copyright © 2011 ASISTA All rights Reserved.
55
The 48-hour rule on detainers
 The detainer requests that jail/police hold
someone 48 hours after the criminal case is
resolved (e.g. dismissed, sentence
concluded, innocent) OR when bail has been
posted
 Except weekends and holidays
 Being held beyond 48 hours = unlawful imprisonment
This violation could mean liability to local
government or jail (NYC Rikers lawsuit
won $145,000 settlement)
Copyright © 2011 ASISTA All rights Reserved.
56
Section V
Bringing This All
Together
Copyright © 2011 ASISTA All rights Reserved.
How
ICE
Programs
with
the
Criminal
Using
info
from
CAP, ICEInteract
287(g)
JailACCESSUnder
Secure
gets place of
Enforcement
Communities
birth and other
Teams target
database check or
booking
arrestees for
jail interview, ICE
biographic info,
interviews re:
or 287(g) officer
which they use
immigration
issues detainer
to ID
noncitizens to
status
Justice System
While in custody,
ICE or 287(g)
officer conducts
initial/additional
interview of
noncitizen
interview
Arrestee
in Jail
(Pre/Post
Bail
Checks in FBIHearing)
Detainer
& Secure
triggers
Communities
judge to
databases to
deny bail,
ID noncitizens
OR
in system
Booking
Into Jail
After Arrest
START:
Police
Stop/Arrest
Police informally
question detained
people re immigration
status, report to ICE
287(g) task force Police check National
Crime Information
officers target
© 2011
ASISTA All rights Reserved.
Center
(NCIC)
noncitizens for Copyright
database for
civil immigration
immigration law
enforcement
violators
Bail/Custod
y Hearing
Judge grants bail
(usually higher due to
detainer). If bail is
posted, detainer is
triggered and
noncitizen goes into
immigration custody/
detention and
removal proceedings
are initiated.
During or shortly
subsequent to
interview, ICE or
287(g) officer
initiates paperwork
for removal process
(e.g., stipulated
removal, NTA,
expedited removal,
referral for illegal
reentry prosecution).
Criminal Charges &
Disposition
(plea/trial/dismissal/
sentence)
Referral to
US attorney
for illegal
reentry
prosecution
Post-Conviction
(appeal, completion of
sentence, release from
criminal custody,
probation)
Completion of sentence and release
triggers immigration detainer; noncitizen
goes into ICE custody/detention OR