1. Your Worst Nightmare: Steps to
Take After an Arrest
Rolando Villalobos, Stanford
David A.M. Ware, Ware|Gasparian
Wendell M. Wright, Special Agent,
ICE
NAFSA Region XII Conference
San Jose 2012
2. Preliminary Matters
• Introductions
• What we will cover
• Audience census—what is your
expertise/experience level?
• Please hold questions until the end
• Don’t forget your evaluations!
3. What is an arrest?
Generally, any restraint on a person’s liberty by a law
enforcement officer. Usually followed by a criminal charge or
immigration Notice to Appear
Persons will often not understand that they have been
arrested. Questions to ask:
Have you ever had an encounter with law enforcement?
Have you ever been taken to a police station against your will
or been asked to follow an officer to a station?
Have you ever been fingerprinted by anyone?
4. First Step: Determine whether
arrest is criminal or immigration
• Is the arrest for a local, state or federal criminal
offense?
• Sometimes this will be obvious (eg, DUI).
• Sometimes the source of the information (a
relative, friend) will be confused and alarmed, so
that information is garbled.
• Consider the reliability of the information you are
getting (eg, source—friend with person
or parent abroad with limited English).
5. Criminal or Immigration?
• If criminal, try to determine which law enforcement
agency (color of uniform, car markings, etc; also nature
of crime).
• If criminal, how do you locate detainee? Campus police
can help.
• If criminal, is the agency required to verify immigration
status, required to report all arrests to ICE?
• State laws (AZ, AL). “Show me your papers” upheld by
US Supreme Court.
• 287(g) agreements
• Other federal laws
6. Criminal or Immigration?
• If criminal, do you involve a criminal attorney?
• What should your role be in contacting/securing
criminal counsel?
• Public defender if jail time is possible?
• Criminal counsel must clearly understand
immigration consequences of guilty
plea/conviction.
• “Conviction” under immigration laws: guilty plea
or conviction by judge or jury, plus imposition of
punishment. Different from definition under
criminal law.
7. Authority of ICE - INA 287(a); 8 CFR
287
• Interrogate any alien or person believed to be an
alien as to his right to remain in the US
• Arrest any alien …attempting to enter the US in
violation of law
• Board and search vessels near the border
• Make arrests for felonies relating to
admission/removal of aliens
• Make arrests
– For any offense against the US committed in the officer’s
presence
– For any felony under the laws of the US, if the officer
has reasonable grounds
8. Criminal Bonds
• Generally, handled no differently for non citizen
than for citizen.
• Generally, bonding company will require
payment of percent of actual amount of bond.
• Criminal attorney will be versant in posting
bonds.
• Criminal bond must be posted before detainee
can be turned over to ICE, if there is a detainer
(next slide). Often criminal authority will
discourage detainee from paying bond in
light of ICE detainer: wrong.
9. ICE Detainers or “Holds”
• An immigration detainer is a request by ICE to state
or local authorities to detain an individual after he or
she is eligible for release to enable ICE to assume
custody.
• The detainer gives the jail the discretionary authority
to “hold” the non-citizen for up to 48 hours (two
business days) from the time they are eligible for
release (typically when the criminal bond is paid).
• 48 hours does not include weekends or holidays.
10. ICE Detainers, Cont’d.
• Many state and local authorities will hold non-citizens even without a
formal detainer executed by ICE.
• Detainer is not a warrant for arrest.
• Some state and local jails will not honor detainers.
• Detainer is not evidence that a person is deportable.
• Officials at the jail can advise whether a detainer has been
requested.
• Jail officials often discourage people from paying the criminal bond
because it will not result in release due to a detainer. However,
payment of the bond may move a person’s case forward by starting
the 48 hour clock and prompting ICE to take the person into custody.
11. Finding and Communicating with
the Student
• Contact the police:
– Where is the student being held?
– What are the charges?
– Who has custody of the student? Police, ICE, etc.?
– Is the student eligible for bail?
– Has a court appearance been scheduled? When?
• Contact ICE:
– Where is the student being held?
– Has ICE set a bond?
– Where will removal proceedings be held? Has a court date been set?
– What are the charges?
12. Finding the Student with ICE
• ICE may not share detailed information regarding the charges or
upcoming court dates unless contacted by an attorney of record or
close family member. ICE will need a person’s name, date of birth,
and country of birth.
• ICE always uses an “A” or alien number to track people and may
provide this information upon request by calling a local ICE office.
• A person may be taken into custody several hours before ICE
systems are verified to confirm custody.
• ICE detainees may be transferred a few times before being placed
in a detention facility which may be far from where the person was
arrested.
13. Finding the Student with ICE
• Online detainee locator:
https://locator.ice.gov/
Typically updated within about 24 hours after ICE takes a
person into custody. This provides the name and address of
the detention facility where person is held.
• Executive Office for Immigration Review automated system:
1-800-898-7180
– Will only give hearing information once ICE has filed Notice to
Appear with court. This typically takes several weeks following arrest.
– Must use “A” number.
– Does not indicate where person is being held.
14. Communicating with the Student
• The student will have very limited access to phones before
being placed in long-term detention facility.
• Contact the detention facility regarding its procedures for
phone calls and other correspondence with the student
(detainee). Typically can leave messages for a detainee and
they can make outgoing calls at limited hours.
• Detainee may need to have money deposited into
commissary account in order to purchase phone cards.
15. Communicating with Third Parties:
FERPA
• Remember that you are constrained from
communicating about the student’s situation
outside your campus by FERPA, unless the person
is under 18 (parents) or has executed a waiver.
• An arrest would not likely meet the FERPA
exception for immediate danger to student’s well
being.
• If you receive calls from the media, refer to Public
Information Department on campus; make sure
General Counsel is also aware so that there are
no FERPA violations.
16. Immigration Bonds
• ICE officials make the first determination regarding bond
eligibility within 24 hours of assuming custody. Relevant
factors include whether the person is likely to attend
immigration hearings and whether he/she may present a
threat to the community.
• Bond typically must be paid in the full amount (i.e. $5000).
The few bonding companies that guarantee immigration
bonds typically require substantial collateral.
• If the ICE official decides a person doesn’t warrant bond, may
request bond from a judge (IJ) in immigration court.
• Some serious convictions require mandatory detention
and no bond will be possible. Many times IJ will overrule
ICE on this issue.
17. Eligible for Bond?
• Some people are not eligible for immigration bonds and are
subject to “mandatory detention,” if convicted and released
on or after October 8, 1998.
• The most common ground for mandatory detention include:
– Two crimes Involving “moral turpitude” at any time after admission to
the United States;
– An “aggravated felony”;
– Controlled substance offense;
– Firearms offense.
18. Immigration Bond Proceedings
• When bond eligible, the lack of family ties or existence of serious
criminal history will typically mean a higher bond.
• Minimum bond is $1,500 but may be released on own
recognizance.
• Evidence considered in bond proceedings:
– Letters of support, presence of family and supporters
– Proof of family ties, property ownership
– Lease or mortgage statement
– Taxes, proof of employment, or school records
– Arrest history
– Possible immigration relief before the Immigration Court
19. Appeal of Judge’s Bond
Determination
• May file a bond appeal with the Board of
Immigration Appeals (BIA) within 30 days of the
judge’s decision.
• The BIA can take months to decide the appeal and
the judge can order student removed before the
decision from the BIA is made. The person will be
held in detention while the appeal is decided, which
may be months or a year or more.
20. Legal Counsel
• Immigration status complicates almost every legal
violation and the detainee should discuss his/her case
with an immigration attorney who is familiar with
criminal law.
• A guilty plea, a plea of no contest, or even attending a
program for offenders may impact immigration status
and could make a person deportable.
21. Referring a student / scholar to an attorney
Know when to say "no, I cannot advise you on that issue."
(Is this relevant to our work at the university?)
International student / scholar offices often seen as the "answer to
all things international." If you do not advise on PR "green card"
issues, then simply state that these issues "are beyond the scope of
expertise / advice that we can provide."
limit advice to topics related to responsibility (primarily
immigration)
22. Refer a student / scholar to an attorney if...
student / scholar has no immigration status or is
unlawfully present
(Undocumented students, refugee / asylee issues &
applications.)
If student / scholar has any encounter with police
(arrested or charged, has any criminal history.)
Reference:Collegial Conversation: When to Refer a Student or Scholar to an Attorney
http://www.nafsa.org/Resource_Library_Assets/Networks/ISTA/Collegial_Conversation__When_to_Refer_a_Student_or_Scholar_to_an_Att
orney/
23. Notifying Campus Officials
• Detained immigration proceedings, even a
request for bond, can take a few weeks to
several months.
• Follow campus procedure regarding
notification of the student’s department, the
dean’s office, etc.
24. How You Can Help
• If bond has been set, the student may need help contacting friends
or family who can help.
• Family may come from abroad. They may need logistical assistance
(housing, directions, etc.)
• If the student is charged with a violent crime (such as assault or
rape) or with a drug-related crime (such as "possession with intent
to distribute"), he or she may be temporarily evicted from
university housing, even before a trial, and may need assistance
locating temporary accommodations.
25. How You Can Help
• Student may be going through both the
campus discipline process as well as the
criminal and/or immigration process at the
same time. You can provide information
about the campus judicial system and explain
where to get information about the court
system.
26. How You Can Help
• When an nonimmigrant visa holder is charged with a crime, ICE usually
learns of it through data shared among law enforcement agencies. ICE
may contact the school to ask if and when the student's SEVIS record will
be terminated. Follow the regulations and your office or school policy in
determining whether, or when, to terminate the student.
• Do not terminate simply at ICE’s request
• Even if convicted, if student is otherwise maintaining status and your
institution takes no internal action to suspend or expel the student, there
is no violation of status until the immigration judge and/or BIA decision is
final.
• The nonimmigrant can continue normal activities at your institution until
this determination is made.
• Unless your institution has a rule forbidding enrollment of undocumented
students, F’s and J’s can continue attendance even in the face of a
negative finding by the IJ/BIA, until removal actually occurs.
27. How You Can Help
• In the case of J’s, you may be required to report the
incident to the Department of State. The program's
Responsible Officer is required to notify DOS
"promptly by telephone (confirmed promptly in
writing) or facsimile of any serious problem or
controversy which could be expected to bring the
Department of State or the sponsor's exchange
visitor program into notoriety or disrepute."
