Release Strategy

I think this week was my first “regular” week in Lumpkin. No travel for work, no anomalous goings-on, no surprise late night releases. It was also the first week that I felt like I actually knew what I was talking about some of the time when volunteers asked me questions. I spent the first part of the week in the office drafting, attending various meetings, and calling the Board of Immigration Appeals to find out the status of some SIFI cases that are up on appeal.  I then spent most of Thursday and Friday in the detention center. We signed up three new clients, so Friday morning was all good news, meeting with people to tell them that they now had lawyers.

I also met a Venezuelan man who had just won his asylum case pro se that day. We had declined representation when he contacted us initially because his merits hearing was too soon for us to be able to help, but now that he’s won, we may reopen his case to help him with his bond. Even though he has won his asylum case, if the government reserved the right to appeal, he will have to stay in detention until the appeal period (30 days) is over, or until the Board of Immigration Appeals rules on the government’s appeal. He seemed grateful for our help, but more than anything wanted to talk about how to keep his forward momentum going. “If I have to stay in detention, I want to have something to work on” he told, specifically talking about the procedure for getting his work papers in order.

Given that there’s nothing special to report, I thought I might take the time to give you all a little rundown on what it is we actually *do* in Lumpkin. This will be duplicative (perhaps word for word) for those of you who know me in real life and have had occasion to talk to me about the work I do, so if you’ve already heard it straight from the horse’s mouth, you can stop reading now.

SIFI rolled out in stages, meant to evolve as the program got its feet under it on the ground. Stage One was basically court watching: going into various immigration courts throughout the southeast to figure out what was happening, how things were working, and how we could be most effective as an organization. (SPLC chose to focus on the southeast, as it is the leader in immigration detention: 1 in 6 immigrants in the US are detained here).  Phase Two is about “release strategy”, and is focused on how to get people out of detention. Phase Three is the merits phase. All of the OTG sites are currently in Phase Two, and looking to transition relatively soon to Phase Three.

So what, exactly, is release work? Simply put, it’s how to get folks out of detention to keep fighting for their ability to stay in the country long term. An immigration case for someone who is detained proceeds on two “tracks”. Let’s call them the Relief Track:

Relief track.jpg

And the Release Track:Release track.jpg

In Phase Two, we help people with the steps of the Release Track. When you are first detained by the government, issues a document called the Notice to Appear (“NTA”). This document identifies which category ICE has determined you fall into: “arriving alien”, “Entry Without Inspection” (EWI, pronounced “ee-wee”), or “Entry with Status”. Which category you fall into determines which form of release you’re entitled to: parole or bond.

Classification Form of Release
“Arriving Aliens” •Parole
•Decider: ICE ERO
“Entry Without Inspection” (212 grounds)

Entry with status (visa, LPR, etc.) (237 grounds)

•Bond
•Decider: Immigration Judge through EOIR
•ICE has typically “reviewed” custody & either set a bond or decided to continue detention

An arriving alien is defined as “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport.” 8 C.F.R. § 1.2. 

“Entry without inspection” means that you were apprehended somewhere other than within 100 miles of the border. “Entry with status” means that you initially came into the country legally (e.g. on a tourist visa) but are now out of status for whatever reason.  Almost all of the people who are detained at Stewart are picked up via “interior enforcement” (i.e. not at the border) and thus entered without inspection (EWI) or entered with status, and are therefore eligible for bond. (Bond in the immigration context is identical to bail bond in the criminal context.)  When ICE issues the NTA, it also makes an initial custody determination. Now, in the age of Donald Trump, we are seeing more and more people kept in detention with no bond, although this is almost completely discretionary. If ICE decides not to give you a bond, you are entitled to review of that decision by an immigration judge. And this is where we come in! We then file a “motion for custody re-determination”, asking the immigration judge to reconsider ICE’s initial decision not to give our client a bond.

Parole, on the other hand, is still soley within ICE’s control, so a parole motion is filed with ICE. As I mentioned in a previous post, parole is available to arriving aliens who have been found to have a credible fear of returning to their country of origin. Because we don’t get many arriving aliens, we do significantly fewer parole requests.

Once people are out of detention, they can then move to a (hopefully) friendlier jurisdiction to continue to fight their larger case which will allow them to remain in the country (we’ll talk about forms of immigration relief another time). Being out of custody also allows them to be with their family and friends to get the emotional support that is key to surviving a prolonged legal battle. It also allows them to leave Stewart County, which has an alarmingly low grant rate for bonds (less than 50%), and is a notoriously pro-government, anti-immigrant jurisdiction.  For example, in 2016, Stewart had a 7% asylum grant rate.

Okay, you got all that? Now figure it all out in a language you probably don’t speak, read, or understand especially well, if at all, and do it all from inside a correctional facility without access to the internet. Ready? Go!

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