The Institutional Hearing Program (IHP): An Overview

The Institutional Hearing Program (IHP) permits immigration judges to conduct removal proceedings for noncitizens serving criminal sentences in certain correctional facilities. Unfortunately, there is little reliable, publicly accessible information about how the IHP functions. Lack of information notwithstanding, a readily apparent problem with the IHP is that most noncitizens do not have access to attorneys who can represent them in their deportation hearings. Typically, these individuals fare much worse than those with an attorney. 

This fact sheet provides an overview of the IHP’s history and what is known about the way it works. It also highlights some of the due process concerns that surround the program. 


History and Overview of the Institutional Hearing Program 

The Institutional Hearing Program (also known as the Institutional Removal Program) was created in 1988 to identify deportable noncitizens who have been convicted of criminal offenses and initiate removal proceedings against them before they are released from federal, state, or local custody. The creation of the program followed enactment of the Immigration Reform and Control Act of 1986, which stated that: “In the case of an alien who is convicted of an offense which makes the alien subject to deportation, the Attorney General shall begin any deportation proceeding as expeditiously as possible after the date of the conviction.” 

The publicly available information about the IHP and its scope is incomplete. According to a 2004 consultant’s report prepared at the request of U.S. Immigration and Customs Enforcement (ICE), the IHP operates in “federal, state, and local jails and prisons.” But a 2012 report from the Congressional Research Service states that—at least initially—the IHP “focused on a small number of federal and state prisons that held the largest number of criminal aliens,” while a separate Alien Criminal Apprehension Program (ACAP) “covered other jails and prisons.” Yet a 2017 Department of Justice (DOJ) press release announcing the expansion of the IHP references only “federal correctional facilities.” DOJ also states that, at the federal level, the program is jointly administered by the Executive Office for Immigration Review (EOIR) and the Bureau of Prisons (BOP), both within DOJ, together with ICE, which is within the Department of Homeland Security (DHS). 

The number of removals conducted through the IHP grew dramatically for several years after the program’s creation, starting at 1,409 in Fiscal Year (FY) 1988 and peaking at 18,018 in FY 1997. However, IHP removals plummeted after the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). IIRAIRA, along with the Antiterrorism and Effective Death Penalty Act of 1996, added to the list of offenses for which a noncitizen could be deported; it also made it easier to carry out deportations without a court hearing. As a result, the number of removals conducted through the IHP dropped rapidly after FY 1997. 

The Trump administration is seeking to breathe new life into the IHP. On February 20, 2017, then acting Secretary of Homeland Security John Kelly issued the department-wide memorandum “Enforcement of the Immigration Laws to Serve the National Interest.” The memorandum reaffirms the U.S. government’s commitment to utilize the IHP to initiate removal proceedings against noncitizens “incarcerated in federal, state, and local correctional facilities.” 

Roughly one month after the memorandum was issued, the Department of Justice (DOJ) announced that the IHP would expand in federal prisons to a total of 14 BOP facilities and six BOP contract facilities. DOJ gave no indication of how many federal prisons were participating in the IHP prior to the expansion. 


How the Program Works

The IHP—which is part of the Criminal Alien Program (CAP)—commences when designated ICE officers identify noncitizens serving criminal sentences. ICE then makes its own determination regarding whether these noncitizens have committed an offense that constitutes a ground for deportation (or whether the noncitizen is otherwise deportable). 

If the officer determines that the noncitizen is indeed deportable and can have his or her case heard before an immigration judge, rather than face summary removal under the scheme enacted in IIRAIRA, ICE files a “Notice to Appear (NTA)” with EOIR that charges the noncitizen with committing a deportable offense and initiates removal proceedings. Once ICE files the NTA with EOIR, removal proceedings ensue, according to the statute. EOIR schedules an initial hearing before an immigration judge and the noncitizen is notified. The immigration judge reviews the charges and if the judge determines that the noncitizen is in fact deportable, the judge will determine whether the noncitizen qualifies for any relief from removal. 

During a hearing on any application for relief from removal, a noncitizen has the right to submit evidence, review the government’s evidence, and call witnesses. Importantly, a noncitizen has a right to counsel, though the statute specifies that this right is “at no expense to the government.” The judge then issues a final decision. If the judge orders removal, a “final order of deportation” is served on the noncitizen (see Figure 1). 

As with all removal orders issued through this process, a noncitizen has a right to appeal the decision to the Board of Immigration Appeals (BIA) and, in many cases, can seek judicial review before the federal courts of appeals. 


 

Due Process Concerns

A key problem with the IHP is that most noncitizens lack access to attorneys who can represent them in their deportation hearings. A national study of access to counsel in immigration courts found that only 9 percent of incarcerated noncitizens in IHP removal proceedings between 2007 and 2012 were represented by an attorney, compared to 38 percent of non-IHP removal cases. 

Not surprisingly, individuals in removal proceedings who do not have an attorney fare much worse than those with an attorney. The same study found that, in general, only 2 percent of detained noncitizens without attorneys achieved favorable outcomes in their cases, compared to 21 percent of those with attorneys. 

At the federal level, the Justice Department reports that only four percent of the IHP cases completed in FY 2018 had representation. Among cases without representation, 97 percent culminated in an order of removal, compared to 72 percent of cases with representation. As the Supreme Court has noted, discerning the immigration consequences of criminal convictions is “quite complex.” Thus, the importance of counsel is particularly acute for individuals who appear on the IHP immigration court docket. 

In addition to the problem of access to counsel, the manner in which many IHP deportation hearings are conducted raises other due process concerns. Increasingly, immigration judges conduct the hearings by video teleconference (VTC) rather than in person. According to the Justice Department, 54 percent of federal IHP case hearings were conducted by VTC in FY 2018. 

The Trump administration wants to increase the use of VTC proceedings as part of its effort to expand and modernize the IHP. However, a study conducted by Booz Allen Hamilton at the behest of EOIR found that “faulty VTC equipment, especially issues associated with poor video and sound quality, can disrupt cases to the point that due process issues may arise.” Moreover, the study noted that “it is difficult for judges to analyze eye contact, nonverbal forms of communication, and body language over VTC.” 

In other words, noncitizens subject to VTC hearings are at a distinct disadvantage compared to those who appear before a judge in person. While the immigration statute permits that hearings be conducted by VTC, courts have reiterated that these proceedings must nonetheless comport with due process, particularly with regard to the rights to counsel and to examine evidence. 

Source: www.americanimmigrationcouncil.org 

https://www.inmigracionyvisas.com/a4354-Institutional-Hearing-Program.html

Appeals Court Decision Means Hundreds Of Migrants Were Unlawfully Convicted

By Emma Winger

The Ninth Circuit Court of Appeals issued a decision clarifying limits on when federal prosecutors can charge immigrants with illegal entry and reentry into the United States this week. Under this decision, it will be more difficult for the government to criminally charge immigrants who attempt to enter the United States outside a port of entry in order seek asylum. Hundreds of prior convictions are also now potentially invalid. 

The Trump administration has prioritized the criminal prosecution of migrants who cross the U.S.-Mexico border without inspection – most infamously, as part of its “ zero tolerance” policy , where the administration used the criminal prosecution of parents as justification for separating those parents from their children. 

As the administration has increased illegal entry prosecutions, it has simultaneously created new barriers for asylum-seekers attempting to lawfully enter the U.S., including turning migrants back from ports of entry and requiring asylum applicants towait in Mexico while immigration judges consider their asylum applications. 

The misdemeanor law criminalizing illegal entry, often referred to as Section 1325 , covers three separate types of conduct: (1) entering or attempting to enter outside an official port of entry; (2) “eluding” inspection by immigration officers; and (3) entering through fraud. Federal prosecutors were charging migrants with “eluding” inspection – the second prong of Section 1325—in cases where the arrest took place far from a port of entry. The Ninth Circuit Court said prosecutors were wrong – that they can only charge a person with eluding inspection if they were arrested at or near a port of entry. Migrants who cross the border outside of a port of entry must be charged under the first prong of Section 1325 – otherwise, the first prong doesn’t serve any purpose. 

This decision is significant because the law limits who can be charged under the first prong of Section 1325 for entering or attempting to enter outside a port of entry. To illegally “enter” the U.S. a person must cross the border and avoid detection by immigration authorities. A migrant who crosses the border and immediately turns herself over to immigration authorities in order to apply for asylum hasn’t unlawfully entered the U.S. 

The Ninth Circuit decision means that many migrants, including parents separated from their children under the “zero tolerance” policy, were unlawfully charged with and convicted of eluding inspection. It further calls into question the government’s widespread practice of prosecuting those who seek refuge in this country, and brings the United States closer to compliance with its international obligations, which forbid prosecuting asylum seekers. No person fleeing violence in their home country should be criminally prosecuted for exercising their right to seek asylum. 

Source: www.immigrationimpact.com 

https://www.inmigracionyvisas.com/a4348-Hundreds-Of-Migrants-Were-Unlawfully-Convicted.html

Certain Detained Asylum Seekers Must Receive a Bond Hearing Within 7 Days

Written by Kristin Macleod-Ball 

Attorney General William Barr announced in April 2019 plans to eliminate bond hearings for immigrants who pass an asylum screening interview after entering the United States. This would have forced many people to remain incarcerated for months or years during their asylum proceedings. However, on Tuesday, a federal court recognized that this fundamental attack on due process is unconstitutional. 

A U.S. district court judge found that the government cannot lock up certain detained asylum seekers without giving a bond hearing before an immigration judge. The Seattle judge ordered that those hearings must take place within seven days of requesting one and that immigration courts must provide new legal protections at the hearings. 

This ruling comes after the Attorney General said, in a case called Matter of M-S-, that he would bar immigration courts from deciding whether to release certain asylum seekers held in immigration detention during their often-lengthy asylum proceedings. 

The district court’s recent decision in the Padilla v. ICE case protects these immigrants’ right to a bond hearing. It is set to go into effect on July 16. It applies nationwide to people who enter the United States between ports of entry, are put into a fast-tracked deportation process called expedited removal, and then pass an initial screening interview about their requests for asylum. The government is likely to ask a higher court to overturn the decision. 

In response to Tuesday’s decision, the White House issued a statement. The statement claims that the decision in Padilla would somehow “lead to the further overwhelming of our immigration system” and that amounted to the judge “[imposing] his or her open borders views on the country.” 

Unfortunately, this is merely more of the same from the Trump administration. The White House regularly sends out harmful, anti-immigrant rhetoric with no basis in fact and attacks the courts when judges uphold the Constitution. In reality, Tuesday’s decision simply protects against the Attorney General’s unlawful efforts to upend a half century of standard immigration court procedure by indefinitely and unnecessarily incarcerating asylum seekers. 

No one should be subject to arbitrary imprisonment while seeking asylum. This decision could protect many immigrants who would otherwise spend months or years locked up by the Department of Homeland Security simply because they are seeking protection in the United States.

 

Source: www.immigrationimpact.com  

https://www.inmigracionyvisas.com/a4294-Asylum-Seekers-Must-Receive-a-Bond-Hearing-Within-7-Days.html

The Judicial Black Sites the Government Created to Speed Up Deportations

Written by Katie Shepherd

As the Trump administration continues to strip away due process in immigration courts, the recent creation of two “Immigration Adjudication Centers” is cause for concern. The two new facilities are called “Centers,” not “courts,” despite being places where judges decide whether to issue orders of deportation.

The Centers came out of a “ Caseload Reduction Plan” devised by the Executive Office for Immigration Review (EOIR) as one of several mechanisms designed to reduce the number of cases pending before the immigration courts. This initiative first surfaced in December 2017 ostensibly as one of a series of ways to address the record-high backlog within the immigration court system. In fact, EOIR’s caseload has almost tripled since 2011, from fewer than 300,000 pending cases to 810,000 as of November 2018. This is likely to worsen given the current government shutdown. 

A total of fifteen Immigration Judges currently sit in the two Centers—four in Falls Church, Virginia, and 11 in Fort Worth, Texas. 

It is unclear whether the Centers are open to the public, despite laws stating such hearings must be. All the cases heard by immigration judges in the Centers will be conducted exclusively by video-teleconference (VTC), with immigrants, their lawyers, and prosecutors in different locations. 

According to one source , it’s likely that “thousands of immigration cases will be heard with respondents never seeing a judge face-to-face.” 

The utter lack of transparency around these Centers is alarming, given the documented concerns with the use of video teleconferencing and the current administration’s commitment to speed up immigration court hearings, even at the risk of diminished due process. 

Speeding up cases could benefit detained individuals who often languish for months or even years behind bars before their release or deportation. However, the impact of these Centers overall could be much more ominous. 

The Centers raise serious questions about whether detained immigrants will be disadvantaged by the arrangement. These questions include: 

• How will an individual who is unrepresented and detained in a facility three time zones away from the judge submit critical evidence to the court during a hearing?
• How can an immigration judge adequately observe an asylum seeker’s demeanor for credibility without being in the same room?
• Will the immigration judges be required to postpone hearings if there are issues with the telephonic interpreters, and could this lead to prolonged detention?

Further, only 14 percent of detained immigrants have attorneys and many may not have the ability to adequately prepare for their cases on an expedited timeframe. A very real outcome of speeding up cases in this manner is that many immigrants are deported even though they may have valid claims to stay in the United States. 

Until the government is more transparent with these Centers, there is simply no way of knowing how many detained individuals—including children—have been deported without the opportunity to obtain counsel, and without appropriate safeguards preventing their removal to imminent harm. 

 

 

Source: http://immigrationimpact.com/ 

http://www.inmigracionyvisas.com/a3992-the-government-Created-to-Speed-Up-Deportations.html

DHS To Restart Deportation Cases For Hundreds Of Thousands Of Immigrants

Written by Aaron Reichlin-Melnick

Recently released internal communications at Immigration and Customs Enforcement (ICE) reveal a plan to restart the deportation cases of hundreds of thousands of people whose cases are currently administratively closed. This initiative has the potential to swell the immigration court backlog (currently at 730,000 cases) to over one million cases.

Administrative closure is a docket-management tool which allows immigration judges to temporarily take a case off of their docket. Immigration judges typically grant administrative closure to allow an immigrant to seek relief outside of immigration court or because ICE exercised prosecutorial discretion and decided not to move forward with a case. Once ICE or an immigrant in removal proceedings chooses to move forward with the case, they can ask the judge to “recalendar” the case by placing it back on the docket. .

When Attorney General Jeff Sessions overturned decades of precedent in May 2018 by stripping immigration judges and the Board of Immigration Appeals of their general authority to administratively close cases, he left ICE with the decision to recalendar over 355,000 cases currently administratively closed. The newly-released instructions to ICE prosecutors reveal that ICE intends to recalendar virtually all of those cases. .

ICE prosecutors are instructed to prioritize recalendaring cases where the immigrant is detained, followed by all cases where the immigrant has a criminal record. Next, the agency will prioritize cases where ICE’s most recent motion to recalendar was denied, followed by those that administratively closed over ICE’s objections. Finally, it directs local offices to recalendar the remaining cases through a “case-by-case determination … considering available resources and the existing backlog in the local docket.” .

This last instruction has the potential to seriously limit the effect of ICE’s new policy. Because the agency’s resources are already strained by prosecuting new cases brought under the Trump administration, local ICE offices may not have the resources to recalendar many of the cases included in that last group. However, by indicating that the agency views virtually all 355,000 cases as legitimate targets for future enforcement, any immigrant whose case is currently administratively closed now faces an uncertain future. .

If fully implemented, ICE’s new guidance would have a significant effect on the tens of thousands of people who had their cases administratively closed from 2012 to 2016. Most cases administratively closed had benefited from a favorable exercise of prosecutorial discretion after the Obama administration determined that they were not an enforcement priority. Now, with the elimination of immigration enforcement priorities under the current administration, ICE may haul them back to immigration court again. .

ICE’s plan shows that the agency is eager to seek deportation of all who cross their path, regardless of whether they should be a priority for immigration enforcement or whether the agency will overwhelm the immigration court system in the process. In fact, an independent report commissioned by the immigration courts in 2017 recommended that more cases be administratively closed as an effective tool to reduce the backlog. .

The administration must make smarter use of its limited resources to ensure that enforcement does not needlessly harm countless people who pose no risk to public safety.

 

Source: www. immigrationimpact.com  

http://www.inmigracionyvisas.com/a3871-DHS-To-Restart-Deportation-Cases-For-Of-Immigrants.html

USCIS Is Slowly Being Morphed Into an Immigration Enforcement Agency

Written by Joshua Breisblatt

U.S. Citizenship and Immigration Services (USCIS) issued new guidance to initiate deportation proceedings for thousands of applicants denied for any immigration benefit. This policy change will have far-reaching implications for many of those interacting with the agency, but also signals a major shift in how USCIS operates. 

USCIS was never meant to be tasked with immigration enforcement. Their mandate has always been administering immigration benefits. With its distinct mission, USCIS was created to focus exclusively on their customer service function , processing applications for visas, green cards, naturalization, and humanitarian benefits. 

The new USCIS guidance instructs staff to issue a Notice to Appear (NTA) to anyone who is unlawfully present when an application, petition, or benefit request is denied. This will include virtually all undocumented applicants, as well as those individuals whose lawful status expires while their request is pending before USCIS. 

An NTA (Form I-862) is a charging document issued to individuals when there are grounds for deporting them from the United States. The NTA is issued by Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and USCIS. It must be served to the individual and presented to the immigration court for removal proceedings to be triggered. When someone receives an NTA, they must appear before an immigration judge at an assigned date and location to determine if they are eligible to remain in the country legally or should be removed. 

NTAs are traditionally issued under certain situations, such as terminations of conditional permanent residence, referrals of asylum cases, and positive credible fear findings. 

Beginning immediately, NTAs will also be issued by USCIS: 

• For denials of an initial application or re-registration for Temporary Protected Status (TPS) or a withdrawal of TPS when the applicant has no other lawful immigration status.
• When fraud, misrepresentation, or evidence of abuse of public benefit programs is part of an individual’s record, even if the application or petition has been denied for other reasons.
• When someone is under investigation or arrested for any crime, regardless of a conviction, if the application is denied and the person is removable.
• When USCIS issues an unfavorable decision and the individual is not lawfully present in the United States.

A second policy memorandum issued at the same time as the new NTA guidance makes applicants for Deferred Action for Childhood Arrivals (DACA) the exception to this new NTA policy. 

This move essentially ends all prosecutorial discretion, a key tool used by law enforcement and prosecutors all over the country to effectively prioritize cases. In the past, immigration agencies used prosecutorial discretion when deciding under what circumstances to issue NTAs. 

Past leaders of USCIS have issued memos against the practice of widespread NTA issuance, noting it was impractical, would divert scarce resources, create longer wait times, and clog the immigration courts. Further, denials of immigration benefits applications are often reversed upon reconsideration or appeal. This means that thousands of cases that will ultimately be approved will be needlessly tossed onto the dockets of an already overburdened court system. If an immigration benefit request is approved on appeal, the individual must then seek termination of proceedings, which consumes even more court resources. With over 700,000 cases already in the court backlog , it’s inconceivable for the agency to manage many thousands more. 

This new NTA policy is both overbroad and short-sighted, not taking into account the practical effects on government resources or the chilling effect it will have on noncitizens needing to apply for or renew benefits. Our complex immigration system will become even more inefficient, burdensome, and confusing. 

Source: www. immigrationimpact.com 

http://inmigracionyvisas.com/a3846-USCIS-Into-an-Immigration-Enforcement-Agency.html

The Sad State of Atlanta’s Immigration Court

Written by Hilda Bonilla MARCH 10, 2017 in Immigration Courts

The Atlanta immigration court is known as one of the worst places to be in deportation proceedings. For years, the judges have been accused of abusive and unprofessional practices and the denial rate of asylum applications alone is 98 percent. 

The latest effort to document this phenomenon comes from Emory Law School and the Southern Poverty Law Center who sent a letter to the Executive Office for Immigration Review (EOIR) this month regarding troubling practices in the Atlanta immigration courts. The letter was based on court observations by Emory Law students, who attended 31 proceedings between August 31 and October 14, 2016. 

Observers found that the immigration judges made prejudicial statements, demonstrated a lack of courtesy and professionalism and expressed significant disinterest toward respondents. In one hearing, an attorney argued that his client should be released from detention because he was neither a threat to society nor a flight risk. In rejecting the client’s bond request, the immigration judge reportedly compared an immigrant to a “person coming to your home in a Halloween mask, waving a knife dripping with blood” and asked the attorney if he would let him in. 

When the attorney disagreed with this comparison, the immigration judge responded that the “individuals before [him] were economic migrants and that they do not pay taxes.” Another immigration judge reportedly “leaned back in his chair, placed his head in his hands, and closed his eyes” for 23 minutes while the respondent described the murder of her parents and siblings during an asylum hearing. 

Other critical problems include disregard for legal arguments, frequent cancellation of hearings at the last minute, lack of individualized consideration of bond requests, and inadequate interpretation services for respondents who do not speak English. The observers also reported that immigration judges often refer to detention centers as “jails” and detainees as “prisoners,” undermining their dignity and humanity and suggesting that the IJs perceive detained immigrants as criminals. Compounding this problem, detained immigrants who appear in immigration court in Atlanta are required to wear jumpsuits and shackles. 

Many of these practices stand in stark contrast with the Executive Office of Immigration Reviews’ Ethics and Professionalism Guide for Immigration Judges, which state, among other things, that “an immigration judge… should not, in the performance of official duties, by word or conduct, manifest improper bias or prejudice” and that immigration judge should be “patient, dignified, and courteous, and should act in a professional manner towards all litigants, witnesses, lawyers, and other with whom the immigration judge deals in his or her capacity.” 

EOIR has been previously criticized for its lack of transparency on providing the public with information about the complaints brought up against immigration Judges, raising questions about the department’s willingness to hold its judges accountable. For these reasons, the American Immigration Lawyers Association submitted a Freedom of Information Act request on December 2016 requesting records on all complaints filed against immigration judges and how the complaints were resolved. The released records showed that many immigration judges have been accused of abusive behavior towards immigrants. 

The letter concludes with recommendations that, if implemented, have the potential to significantly improve the fairness of immigration court proceedings in one of the most hostile jurisdictions in the country. These recommendations include: investigating and monitoring immigration judges at the Atlanta immigration court, requiring immigration judges to record all courtroom proceedings to ensure transparency and accountability for prejudicial statements, investigating the frequent cancellation of hearings, and ensuring high-quality interpretation and availability of sample translations of forms. It is time for EOIR to take these recommendations seriously. 

Photo by Tim Evanson.

Source: http://immigrationimpact.com 
http://inmigracionyvisas.com/a3560-Atlanta-Immigration-Court.html