Immigration Proceedings

How do the immigration laws work?

An individual may be detained for an immigration violation, which could include overstaying a

visa, entering the United States illegally, or failing to comply with green card requirements.

There are certain INS officials and Border Patrol officers who are authorized to detain

individuals. Once the person is detained, criminal or civil charges may be filed. The main

difference between civil and criminal immigration cases is that civil cases are intended to lead to

deportation and criminal cases are designed to lead to incarceration.

Specific procedures are outlined below:

1. Civil cases: Before Sept. 11, the INS was required to file civil charges against a detainee

within 24 hours or release the detainee. After the Sept. 11 attacks, the INS passed an emergency

regulation. Now, a detainee must be charged or released within 48 hours or "a reasonable time" if

a national emergency has been declared. See 8 CFR 287. A detainee would, theoretically, be

permitted to file a habeas corpus petition if he felt the time he had been held was unreasonable.

Once charges are filed, the detainee appears before an INS administrative judge to request a

bond, if desired, and to determine whether the detainee has violated an immigration law. INS

regulations provide that the INS must wait at least 10 days before bringing a detainee in front of a

judge. This rule was created to protect detainees' rights, primarily to ensure that they had enough

time to find an attorney before a hearing. Detainees have no right to a government-funded

attorney. They may have a lawyer only if they can afford one or find a volunteer. A detainee may

request a hearing prior to 10 days, but it must be affirmatively requested.

A bond may be denied if the judge finds that there is reason to believe he might escape or pose a

danger to the public. A denial may be appealed to the Board of Immigration Appeals.

The judge must determine whether the detainee is "removable," which is merely a preliminary

finding. If there is no evidence that the detainee is removable, he must be released. If the detainee

is removable, then the judge must consider any defenses the detainee might have. Defenses

include requests for political asylum or other justifications for remaining in the United States.

If there are no defenses, the judge may order that the detainee be deported. If there are defenses,

the judge may order that the detainee is entitled to remain in the United States.

Both the INS and the detainee have the right to challenge the administrative judge's finding.

Appeals go to the Board of Immigration Appeals. Aggrieved parties may then appeal to a U.S.

Circuit Court of Appeals, or a detainee may file a petition for a writ of habeas corpus.

If a detainee loses all appeals, he will be deported. He has the right to choose his destination

country. If they refuse him, he is sent to his country of origin. If they refuse him, he might be held

indefinitely. However, last year, the U.S. Supreme Court held that aliens have some due process

rights. In a case where aliens challenged their indefinite detentions, the Court ruled that the

indefinite detention of aliens raised "serious constitutional concerns." The Court found that

detention should generally be limited to a reasonable time, usually six months. (Zadvydas v.

Davis)

However, the Department of Justice has contended during its September 11th investigation

process that there is an implicit exception for aliens who are "terrorists." Therefore, Ashcroft

issued new regulations that allow the INS to indefinitely detain an alien if the Attorney General

decides that the alien poses a significant risk of committing terrorism.

If someone is held for alleged immigration violations, they may be held indefinitely because, as a

practical matter, it is unlikely that a bond will be granted (due to the concern that the detainee

would escape or cause harm) and the immigration procedures can take years to hold hearings and

finish the appeals process.

2. Criminal cases: INS criminal proceedings are similar to ordinary criminal proceedings, and

ordinary rules of criminal procedure apply. A detainee is entitled to a bond hearing to determine

whether he should be released. A bond may be denied if the judge finds that there is reason to

believe he might escape or pose a danger to the public. A denial may be appealed to the Board of

Immigration Appeals.

The criminal cases proceed like any other criminal case. Evidence must be presented to show that

the accused committed the crime alleged. If the accused is convicted, he will be sentenced and

incarcerated. A convicted person may appeal, following ordinary appeal procedures.

Am I entitled to attend an INS proceeding?

INS proceedings are handled by INS administrative courts rather than regular federal district

courts. The administrative regulations provide that the proceedings "shall" be open to the public,

but allow for closure if necessary for national security or privacy reasons. See 8 CFR 240.10(b).

Also, the administrative judge may limit attendance due to space constraints, but preference is

given to the press. 8 CFR 3.27.

Although the regulations provide for openness, journalists should expect many September 11th-related proceedings to be closed. On Sept. 21, 2001, Michael Creppy, the Chief Immigration

Judge, issued a memorandum to "All Immigration Judges and Court Administrators," explaining

that "the Attorney General has implemented additional security procedures for certain cases in

the Immigration Court." Among other procedures, judges are supposed to "close the hearing to

the public" and avoid "disclosing any information about the case to anyone outside the

Immigration Court." The rule also restricts immigration court officials from confirming or

denying whether any particular case exists on the docket.

In theory, court closures should be determined on a case-by-case basis. Although court closure

may be permitted when necessary for security reasons, each case should be evaluated on its own

merit to determine whether closure is necessary. The across-the-board closure policy stated in the

Sept. 21 memorandum violated this principle.

On Nov. 1, 2001, the Associated Press reported that INS courts were beginning to open some of

the immigration proceedings. The AP report said that INS spokespersons denied that there had

been a blanket closure of INS proceedings and stated that court closures were determined on a

case-by-case basis. Nevertheless, some immigration proceedings remain closed.

What is the Alien Terrorist Removal Court?

The Alien Terrorist Removal Court was established in 1996, but the INS has not yet used it. The

ATRC provides procedures to remove non-citizens who the government believes are terrorists,

even if they have a green card and are not in violation of any immigration laws.

If a suspected terrorist has a green card, he is given court-appointed defense counsel. If the

suspected terrorist does not have a green card, he is not entitled to court-appointed counsel.

The government may use classified (i.e. secret) evidence against the suspected terrorist to argue

that he should be removed. The defense attorney is permitted to learn about the classified

evidence, but the attorney is not permitted to reveal that evidence to the client or to discuss the

evidence with the client. The alien is permitted to see an unclassified summary, if one is

available.

Otherwise, these cases would proceed like INS civil cases.

When may secret evidence be used in INS cases?

Secret evidence -- classified government documents used as evidence -- may be used in all

kinds of INS cases, but in limited circumstances.

As noted above, secret evidence may be used in ATRC proceedings. In such cases, the

government may use classified (i.e. secret) evidence against a suspected terrorist to argue that he

should be removed from the U.S. The alien is permitted to see an unclassified summary, if one is

available. If the suspected terrorist has an attorney, the attorney may see the evidence, but may

not discuss it with or reveal it to his client.

Secret evidence can be used in some ordinary INS removal proceedings. There are two kinds of

removal proceedings: (1) "inadmissibility" proceedings (when the alien comes to the U.S.

without proper authorization and seeks to get into U.S. territory), and (2) deportation proceedings

(when the alien legally entered the U.S., but has overstayed his visa or failed to comply with

green card requirements).

Secret evidence may be used in inadmissibility proceedings to make an initial showing that the

alien should not be admitted. Secret evidence may not be used in deportation proceedings to

make the initial showing that the alien should be deported. If the government wishes to deport

someone based on secret evidence, they must use the ATRC.

However, secret evidence may be used in any type of proceeding, including deportation

proceedings, to rebut defenses (such as a request for political asylum) raised by the alien. This is

the most common circumstance for the use of secret evidence.

Is there any right of access to "secret evidence"?

Probably not. There are no reported appellate cases ruling on whether a member of the press may

obtain classified evidence, but presumably secret evidence would be treated like sealed court

records to which the press has no right of access. However, the press should certainly argue that

immigration courts should follow the same procedures required to seal records in court

proceedings: evidence should not be deemed "classified" or "secret" until the judge has held a

hearing to determine whether there is a compelling justification for secrecy and whether the order

is narrowly tailored to meet the government's interest.