“Secure Communities” to Increase Immigration Detention: But Don’t Assume that Detention is “Mandatory”

What is “Secure Communities?”

Have you heard? The Obama Administration announced that its Secure Communities Program would be implemented in New York City beginning this week.  Under the program, which has already been implemented in other jurisdictions across the country, the fingerprints of anyone booked by local or state police will be checked in Department of Homeland Security databases to determine, among other things, the immigration status and criminal history of the offender.  Based on the results of a search, DHS officials have the power to ask police to hold the person until he is picked up and detained by federal agents.

Secure Communities provides the Department of Homeland Security with a powerful tool by which it may detain and place non-U.S. citizens in removal proceedings for criminal violations that may have occurred years, if not decades ago.  While immigration  and administrative processing officials have sought to mitigate criticism of the program by assuring the public that it is “decrease[ing] [the] detentions of illegal immigrants stopped for speeding or driving without a license”, the message Secure Communities sends to all green card holders and nonimmigrants alike is clear: be careful.

What can I do if a client, friend, or family member is placed in immigration detention?

It is inevitable that Secure Communities will lead to the detention of a significant number of non-U.S. citizens in New York City who have old criminal records.  And, following clear Board of Immigration Appeals precedent, DHS trial attorneys will argue, and Immigration Judges will hold that the law requires that such “criminal aliens” be detained – without the opportunity for release following a bond hearing – until immigration proceedings are resolved, no matter how old the criminal act.

Don’t buy this argument – skip immigration court and go to federal court.  Many federal district courts across the country, including those in New York and New Jersey, have rejected the position that a “criminal alien” should be subject to mandatory detention when the non-U.S. citizen is picked up and detained by DHS years after the criminal conviction for which he now finds himself “removable.”

If your client, or someone you know or love, has been detained as a result of a criminal conviction from years ago, don’t accept mandatory detention as inevitable – it isn’t.  Find an immigration attorney experienced at obtaining the release from “mandatory” detention in federal court.  Release from immigration detention is a critical first step in resolving a criminal immigration case favorably.