ICE oddly picky on whom it sends to Immigration Court

Saturday, August 2nd, 2008
By: Jonathan MontagJ.D.

Should an alien lose his or her case in immigration court and after he or she exhausts all appeals, comes the moment when a removal order becomes final and needs to be executed. In the past, the alien, or his attorney, would receive a letter ordering the alien to report to an ICE office for deportation. ICE, claiming few people showed up for deportation in response to these letters, and often move after receiving the letter to avoid being arrested, stopped issuing them. Now, an alien can expect ICE officers to come to his or her home to arrest, detain, and then deport him or her. Early risers, ICE officers like to come early in the morning, like 5 a.m., presumably to catch everyone still at home – remember most of these aliens are hard working people and are out of the house early making our breakfasts, delivering our newspapers, and building our buildings before dawn.

A problem with these earl morning raids is that it can be rather traumatizing to a child to see Mom or Dad hauled off by armed officers at 5 a.m. Also, when the officers come to a house to arrest a deportee, anyone in the house who is removable is arrested and placed into removal proceedings – the process that leads ultimately to a final order of removal. So ICE has come up with a way for deportees to allow their families to avoid this drama – an alien can report to an ICE office and make a plan to surrender for deportation. The alien will not be immediately apprehended. Plans will be made for returning after arrangements have been made for deportation – documents secured, plane tickets bought, escorts arranged, etc. Apparently, the scheme does not apply to aliens who have committed crimes. Judging from the rates of incarceration in this country, the number of courtrooms in the typical jurisdiction, how busy they are, and all the laws there are to break, one can imagine that if interpreted strictly for any crime, a great many people will be excluded from the program. Certainly some people benefitting from the program and even if it many sound a little goofy (a lot of articles have appeared mocking the program), it certainly will do no harm and, even if a failure, it would not have cost a lot of money to implement.

What is really goofy is some of the fine print. ICE officials indicate that if a person who reports to an ICE office does not have a final order of removal, ICE will consider what to do in a case by case basis – meaning that in a great number of cases, the ICE officer will send the person home. The oddness of this is amazing. A person reports to ICE because he or she wants to be placed in removal proceedings (or simply deported) and ICE tells this person to get lost to wait until he or she is picked up in some other way.

The scenario prompts the question – why would someone without a deportation order want to be deported or be placed in removal proceedings? For some, being deported means a free ticket home. I imagine for some people, self-deportation, simply leaving the United States, is prohibitively expensive – needing to buy a passport and a ticket – and so being deported means ICE will pay for it. The Immigration and Nationality Act has a provision for an alien “who falls into distress” to surrender for a free trip home with the understanding he or she cannot come back. INA § 250. A more prevalent reason to want to be placed in proceedings is that an alien needs to see an immigration judge because the immigration judge is the only person who can grant certain benefits to the alien. One often-occurring example is when a person has been in the United States for more than ten years and who has a resident or U.S. citizen parent, spouse, or child who will suffer “exceptional and extremely unusual hardship,” if the alien cannot remain in the United States, an immigration judge can grant that person permanent residence. INA § 240A(b)(1). Another example is when a permanent resident has committed a crime in the past. Only an immigration judge can grant forgiveness, such as former “212(c)” relief or the present Cancellation of Removal for Certain Permanent Residents. INA § 240A(a). Rather than living life with the specter of arrest (at 5 a.m.) or detention at a border after traveling, and fearful of applying to naturalize and risk arrest, some aliens would like to see an immigration judge and be forgiven and put their youthful indiscretions behind them.

These people, needing to go to court, as policy stands now, cannot get in court as long as ICE takes the current position that it will handle these situations on a “case by case” basis – which in actuality means ICE will do nothing. Of course, these same aliens, if found in a house at 5 a.m. would be placed in proceedings. Yet, if they walk into the ICE office at 9 a.m., they are told to leave. This is not theoretical. It has happened to me. I have brought aliens to ICE or called to arrange a surrender and been told by both Deportation and Removal sections and Investigations sections that they do not take walk ins. Even for aliens deportable for past criminal conduct this is the policy. This leaves aliens in a curious situation – afraid of being arrested at an odd hour or inopportune time, but unable to surrender to ICE. Aliens thus have to figure out how to get arrested, by, for example, filing a permanent resident card renewal and hoping a removable offense is detected during background checks that will prompt the initiation of removal proceedings, filing for naturalization and hope the same thing, performing a Chinese Fire Drill at an internal inspection station (many forms of relief become unavailable if the alien leaves the country and tries to come back, so surrendering at a border or at an airport is not possible), or filing an application for asylum and asking to be placed in removal proceedings.

The irony of the situation is that aliens who want to be placed in removal proceedings and report to ICE to be placed in proceedings are not, while aliens who do not want to be placed in proceedings are rousted out of bed at 5 a.m. Commenting on this perplexity, an immigration judge recently stated that the public would be very surprised if it found out that ICE turned away aliens knocking on their door who are removable. A further irony is that this immigration judge terminated the proceeding against an alien who used a clever means to self-surrender. This prompts the question of whether the public would be surprised that an immigration judge terminated a case simply because the alien wanted to be in court. Hopefully, all this irony will cause ICE to change its policy to one, to paraphrase, of “ Give us your overstays, illegal entrants, and criminal aliens, and we will initiate removal proceedings so they can earn the right to stay or be deported.”



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