The feared ICE (Immigration and Customs Enforcement) — these are the guys who show up at your door or the door of your housekeeper, neighbor or friendly handyman looking to make an arrest.
If you’re a non-citizen, whether a green card holder since age three or an “illegal alien,” ICE agents are much dreaded and rightfully so.
Once picked up by them, your life and the life of your family will change forever, and generally not for the better.
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It doesn’t take much for ICE to make a house call — an angry call from a neighbor who reports there’s an illegal alien living next door, or perhaps a car stop by police for something as simple as a broken tail light.
I recently had a case of a wife (U.S. citizen) who was mad at her husband (non-citizen who’d overstayed his visa) because of the attention he was paying another woman. She called police to report he’d threatened her, and within hours of being held in small-town N.J., the police handed him over to ICE custody. No matter how much the wife now beats her chest and says “I still love him,” or “I want him back,” it’s too late. The immigration judge refused to set bail. He ruled that until the N.J. criminal misdemeanor is dismissed, no bail or bond would be set. In an Alice-in-Wonderland twist, the criminal court ruled that they wouldn’t dismiss the criminal case until the defendant (the alien) was able to come to court. Catch 22? You bet.
My column last week was about Miranda rights and why NOT to speak to police when arrested. Non-citizens in immigration custody get no Miranda rights. They have no privilege to remain silent. [N.B. Their rights are the same as anyone’s in a criminal case, but immigration court is not a criminal proceeding, thus certain rights do not apply.]
Let me explain. An immigration judge can ask the alien (the person who would be the defendant in a criminal setting) any question he likes, and the alien has to answer. Let’s say the alien has an open criminal charge. The immigration judge can ask, “So did you possess the drugs for your own use or to sell?” If immigration counsel (aware that any admissions the alien makes would harm his criminal case) advises his client not to answer, the judge could make an adverse finding and rule the drugs were for sale and not mere possession. (Sale always puts the immigrant in a worse position then simple possession.)
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If the alien lies to the judge, a lie that’s later discovered, that would be perjury and immigration fraud, both of which are red flags and a quick ticket to deportation, even if there is a legitimate argument against deportation.
An immigrant does not have the right to counsel in immigration court unless he can afford it. Being poor is a huge disadvantage. Statistics show that immigrants fare much better in court (as does everyone) when they are represented. For immigrants who can’t afford attorneys — tough luck. There are only a few progressive areas like New York City (and this only recently), where the state has funded local defense organizations to defend aliens in ICE custody. This kind of funding is rare.
Another difference from criminal court is the burden of proof. In criminal court, the defendant bears NO burden. He (and his counsel) can sit in court twiddling their thumbs, saying not a word. But in immigration matters, it’s the immigrant who has to prove the merits of his case. He has to present all the evidence, find the witnesses, and convince the court he deserves the relief he’s seeking.
Criminal defendants benefit from built-in time limits within which they must be brought to trial, let out of jail, or have the case dismissed.
In immigration court, the immigrant can be detained by ICE for as long as it takes for an “individual hearing” to be scheduled. While some jurisdictions try to speed this along, others can take at least a year before the immigrant gets a full review by the judge. Judges are overworked, and there are too many people in the deportation pipeline. Furthermore, the immigrant has no right to bail if he has certain criminal convictions — and these are varied and not necessarily related to whether he’s a danger to society or likely to return to court if bail is set, which are the criminal court standards.
There’s also no statute of limitations in immigration court. A Green Card holder (Legal Permanent Resident) might have committed a crime in 1980. Even if he’s turned his life around, owns a business and has three kids going to med school, he can be deported if ICE learns of his conviction in 2016.
So my advice to immigrants and their families if ICE comes to your door (just like for anyone arrested by law enforcement): do not speak to them. You do not have to. They are looking to make a case against you, and even admitting you’re a non-citizen makes it easier for them to do just that.
While eventually you’ll have to speak to a judge and prove your case, do your best to hire an attorney. Immigration law is tricky, and relief lies for many if they get experienced counsel. Let the attorney instruct you on what to say and when. That’s the best way to save yourself from being deported.
Earlier: The Unmitigated Stupidity Of Confessing
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at [email protected] or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.