HB 5750 (Illinois)

At this year’s AILA Annual Conference, there will be a number of programs dealing with the overlap between immigration law and criminal law, and with post-conviction relief after Padilla.  The “Criminal Law for Immigration Litigators” panel will discuss the need for procedural avenues with which to pursue post-conviction relief, and “Protecting Our Clients: How to Combat Anti-Immigrant Legislation” should provide great ideas for community mobilization.  I highlight these programs because for me, in many ways, 2012 is, has been, and will be about changing post-conviction relief in Illinois.

On February 16, state representative LaShawn Ford introduced HB 5750 to amend the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1, et seq).  The amendment “[a]uthorizes persons who are subject to being confined by the State, local, or federal government as a result of a State criminal conviction to seek a post-conviction hearing in the trial court.”  The Act as it reads today limits post-conviction relief to persons who are subject to state custody, which led to the Illinois Supreme Court’s ruling in People v. Carrera, 940 N.E.2d 1111 (2010) that Padilla relief is unavailable under the Post-Conviction Hearing Act to persons who have successfully completed their criminal sentences.

The result is that if two aliens rely on erroneous legal advice and plead guilty to different crimes, one punishable by 10 years in prison and the other by 2 years probation, and 8 years later they find out that the erroneous advice leads to a drastic immigration consequence, the alien who is still in prison may use the Act to challenge his conviction, but the alien who successfully completed his probation 6 years earlier may not – even if the former is at Shawnee Correctional Center and the latter is in ICE custody 30 miles away at Tri-County Detention Center.

Noncitizens who rely on erroneous advice often do not learn of the disastrous immigration consequences of that advice until years later.  A routine traffic stop may result in mandatory detention and expedited removal, an application for naturalization may lead to immigration court, a family trip abroad could end with deferred inspection.  The Padilla court noted that “[d]eportation is an integral part – indeed, sometimes the most important part – of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes” and recognized the need for a remedy when noncitizens are injured by the erroneous advice of counsel.  HB5750 would ensure that persons with meritorious claims for post-conviction relief in Illinois have a procedural vehicle with which to present those claims.

So, what does this have to do with me?  Fellow AILA attorney (and teacher, humanitarian, and activist) Royal Berg currently serves as co-chair of the Human Rights Committee of the Chicago Bar Association.  Last year he asked me to serve as legislative liaison for the committee, and we began work on what has since become HB5750.  The committee heard from the wife of a man who was in ICE custody as a result of a years-old guilty plea which, he had been told by his attorney, would not constitute a criminal conviction (which was true under Illinois law, but not under immigration law).  We heard about the hardship that she and their children were enduring as a result of his ongoing detention, and we decided to focus on amending the Post-Conviction Hearing Act.  Our proposal was endorsed by the Hispanic Lawyers Association of Illinois, the AILA Chicago Chapter, and the CBA Board of Managers, and last month it was introduced in Springfield by Representative Ford.  The bill is currently before the Rules Committee, and may not advance to the full House until the Fall, or even next year, but in the coming months we will work with groups across Illinois to build support for the measure, in hopes that it will eventually move forward and become law.

It has been great so far to work with so many dedicated attorneys on this important project – I hope to work with many more in the months ahead, and I look forward to learning about similar efforts underway across the country during the AILA Annual Conference.  Please check back for updates on the progress of HB 5750!

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Evento: Recursos Para Negocios Chicos (12/14/2011)

La Chicago Public Library (Biblioteca Pública de Chicago) presenta un evento gratuito en español: Información y recursos para negocios chicos – miércoles 14 de diciembre, 18:30-20:30 en la biblioteca Harold Washington (400 S. State St.).

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There’s an “ICE hold” – now what?

When a non-citizen is arrested by local law enforcement, a bond may be set for their release – but sometimes friends and relatives go to the jail to pay that bond, only to be told that the person will not be released because there is an “immigration hold”, or an “ICE hold”.  What does this mean?  What can be done?  What SHOULD be done?

What it means:

When the non-citizen was taken into local custody, his or her fingerprints were run through some federal databases, and if ICE believes that the person may be subject to removal, they file a “detainer” with the local jail using Form I-247 (the form changed in June 2011, but the old form is still used regularly).  It is not necessary for the fingerprint check to reveal any criminal history, it could just show that there is no record of the non-citizen currently having lawful immigration status.

The detainer is commonly referred to as an “ICE hold” or an “immigration hold”, and what it does is request (not require) that the jail basically do two things: (1) notify ICE in advance of when they plan to release the person, and (2) hold the person for an additional 48 hours – not counting weekends and holidays – beyond that release time so that ICE has an opportunity to take custody of the person.

An ICE hold is not an order of removal.  It does not mean that the person will be removed as soon as you pay the local bond and ICE takes custody.  An ICE hold normally just means that removal proceedings can begin – for many (but not all) this includes the right to be released from ICE custody, to see an immigration judge, and to apply for relief from removal.  Some aliens may be released by ICE on their own recognizance or on electronic monitoring, but others may have to pay a bond.  An immigration attorney should be able to tell you what to expect in each particular case.

You should know that immigration bonds can be more expensive than local bonds (the minimum amount is $1,500.00), they have to be paid in full (there are no “10% bonds”), and they have to be paid by someone who is a U.S. citizen or permanent resident.  The immigration bond is separate and apart from any bond you would pay at the local level before a person goes into ICE custody.

What you can do:

For a variety of reasons, local jail officers may sometimes seem to say that you cannot post a local bond because of an ICE hold, or that you should not post a bond because of an ICE hold.  They usually will not explicitly say that you can’t post a bond – but they may ask something like “why would you pay the bond?  they are not going to be released anyway.”

This may leave you with the impression that they will not accept a bond, even if they have not actually said that they wouldn’t.  The truth is that under normal circumstances, an immigration hold does not mean that you cannot post a local bond – it means that once the local bond is paid, ICE will be contacted, and the 48 hour period will begin, in the same way it would begin if the person was going to be released because they had a trial and won, or lost a trial and finished their sentence, or for any other reason.  In many cases (but not all), paying a local bond will not change what happens when the person goes into ICE custody (because the local case will still be pending).

If after discussing the case with an immigration attorney your intention is to pay a local bond, then an ICE hold alone should not prevent you from doing so.

What should be done:

This depends on a number of particular factors, including the person’s immigration and criminal history, the charge for which they were arrested, and the ICE office that would take custody of them upon release from the local jail.  It may not always be a good thing for someone to get out of local custody and go into ICE custody.  A person may have a prior criminal conviction that makes them ineligible for an immigration bond, or an old deportation order that would prevent them from seeing an immigration judge – the time in local custody could be used to reopen those old cases so that the person goes into ICE custody in a better position.

Once the local bond is paid, ICE will probably take custody of the person within a few days, and removal proceedings will begin.  This is why it is very important to consult with an immigration attorney before paying a local bond in order to determine what the best course of action would be in each particular case.  It is also important to have representation in the local criminal case.  ICE will not bring a detainee back to local court for scheduled appearances, and this could lead the local court to mistakenly believe that the person has breached their local bond, resulting in a forfeiture and an arrest warrant.

Conclusion:

An ICE hold means that once you post a local bond for someone, they may go into ICE custody instead of being released.  What happens at that point will vary case by case.  The federal case causing ICE custody and the local case causing local custody are wholly independent, but once a local bond is posted, both cases will move forward at the same time.  It is a good idea to consult an attorney prior to posting a local bond in order to develop a strategy for addressing both the local case and the immigration case.

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Obama Administration Announcement: August 18, 2011

Various newspapers and television news programs have been reporting that President Obama has announced a new policy to stop the deportation of undocumented immigrants who do not have criminal backgrounds.  These reports have generated some confusion about the President’s announcement, and there are people using this confusion to take advantage of immigrants.  This post is based on the recent advisory on the subject from the American Immigration Lawyers Association (AILA).  It is intended to provide some information about the recent announcement so that you do not become the victim of an immigration scam.  Please consult with an immigration attorney before taking any action.

What the Obama Administration HAS announced:

The President is forming a high-level group that will:
–  review the approximately 300,000 cases currently pending in removal proceedings to identify cases that should be considered “low priority”
–  formulate rules for federal agents to follow in deciding when to start removal proceedings
–  give direction for cases where final orders of removal have already been issued.

Cases that are considered to be “low priority” may be administratively closed or simply not acted on.  This means “low priority” cases will not receive any status.  Some “low priority” cases will be allowed to apply for an “employment authorization document” (EAD), which can be used to obtain a Social Security number for work, and (in some states) a driver’s license – but an EAD is TEMPORARY, and it does NOT provide any kind of immigration status.

In the future, the criteria for deciding how to handle different types of cases will be explained, but right now, all that has been announced is that the government will review existing cases and close some in order to focus on others.  The government will be doing this – at this time, there is nothing you can do to initiate or advance the process.

What the Obama Administration HAS NOT announced:

There has not been a grant of amnesty of any kind, and there has not been any new immigration benefit created.  There is no status to apply for, there is no fee that can be paid, there is no form that can be completed – anybody telling you otherwise may be mistaken or trying to scam you.

People who are deemed to merit “low priority” treatment from immigration authorities could avoid removal from the US, but they would not be eligible for any temporary or permanent immigration status.

The criteria by which people would be considered “low priority” have not been announced, and there has been no guarantee that people meeting any set of criteria would be automatically given any kind of benefit.  This is why it could be a serious risk for anybody to attempt to put themselves into removal proceedings in hopes of getting a benefit that the government has not defined.

 Do not let yourself fall victim to fraud.

This post is available for download as a PDF flyer in English and Spanish here.

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