Immigration detention is on the rise. Foreign nationals are being detained for many reasons, including final deportation or removal order or commission of certain crimes. Detention can be a scary experience, both for the foreign national being detained and for the family members of the foreign national, many of whom depend on the detained family member for financial survival.
Adding to the problem of detention is the fact that the U.S. Immigration and Customs Enforcement (“USICE”), the agency within the Department of Homeland Security (“DHS”) that is charged with enforcing the immigration laws in the United States, has increased the activity of transferring detainees from one facility to another, often in remote locations throughout the United States. This not only separates the detainees from his family, but makes it very difficult for the family members to travel long distances to visit the detainee. This is both emotionally and financially burdensome.
And of course, there is the legal aspect of the transfer. A relevant and important consequence of transferring detainees is the fact that the DHS has the sole discretion as to where it will commence removal proceedings against a foreign national. For example, if a foreign national lived in New York before his or her detention, or if he or she committed a crime in New York (thereby violating the New York Penal Code) and served a sentence in New York before being paroled into DHS custody, there is no guarantee that the DHS will begin the removal proceedings in the New York Immigration Court for a foreign national who is detained in DHS custody. The DHS can transfer the detainee to any detention facility in the United States and then start the removal proceedings with the Immigration Court having jurisdiction over the detention facility.
From a lawyer’s perspective, the location of the detention is a critical factor in the removal proceedings. This is because the laws of the jurisdiction where the removal proceedings begin apply in any given case. So if a person committed a crime in New York and would otherwise be subject to the laws of the Second Circuit Court of Appeals (which has jurisdiction over New York) that may be favorable, if the DHS transfers the detainee to Louisiana (which is within the jurisdiction of the Fifth Circuit Court of Appeals), and then begins the removal case there, laws of the Fifth Circuit Court of Appeals would apply, and those laws may not be favorable to the detained person’s situation. Thus, while the detainee may have won his or her case in one jurisdiction, a transfer to another jurisdiction can have the opposite effect.
For years now, we have been litigating and challenging the DHS’ decision to transfer a detainee from one location to another and then to commence removal proceedings, almost always to the detriment of the foreign national’s ability to demonstrate eligibility for relief from removal in the jurisdiction where the proceedings are commenced. There are countless stories of family separations and frustration over the process. It is understandably difficult to understand why someone has to be transferred so far away from their home and family.
The fact that detainee transfers is on the rise is yet another reason for foreign nationals and their families to make sure that the foreign national has competent legal representation if necessary, because unfortunately, not all laws are created equal.
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