New York Lawyer's Legal Updates

The Most Important Factor For Success In US Asylum Proceedings: Get Out Of The Detention Center

Author: USA Deportation attorney Alena Shautsova

In the US, detention centers have become the norm for immigrants fleeing from their home countries due to fear of persecution. Previously, when a person was apprehended (arrested) in the US, usually at the border or a port of entry if they immediately claimed asylum, they would be placed into removal proceedings and released on recognizance or bail. So long as they attended their court appearances, they would be allowed to remain in the US non-detained.

A person’s fear of persecution when they are detained vs. when they are released from detention remains the same: they still fear persecution. However, the difference between the detained and non-detained asylee pending cases lies in the opportunity to gather evidence and resources to present a clear and focused case to an Immigration Judge. It is also clear, that the persons remaining in DHS custody while awaiting their hearings before an Immigration Judge are more afraid of something in their home countries than the conditions and limitations they must endure while in DHS custody. Therefore, the deterrence factor from deterring meritless asylum claims becomes less and less relevant as time goes by and a person chooses to remain in custody rather than voluntarily depart the US and abandon their claim. Moreover, as time goes by, the chances of an Immigration Judge granting asylum to a person in detention is less and less, while a person that is non-detained has their chances to improve.

So, who is eligible for release from DHS detention?

  1. A person who is found to have a credible fear.
    1. Now, when a person surrenders themselves at a US border or port of entry, they are automatically placed into expedited removal proceedings.
    2. If they express a fear of persecution, they will be given a credible fear interview.
      1. If they pass the credible fear interview, they will be eligible for release. The person must make the request for release though.
        1. The request can be made to the district director with jurisdiction over the place the person is being detained.
      2. If the person fails the credible fear interview they can request a review of the interview with an Immigration Judge for a second chance at the credible fear determination.
  2. Arriving Aliens
    1. Whether the person entered the US lawfully or unlawfully, as long as they are not placed in expedited removal proceedings they are eligible for release from detention.
    2. A person who seeks admission to the US at a port of entry or a transit visa at a port of entry typically meets the definition of an arriving alien.
      1. The request for release can also be made to the district director with jurisdiction over the detention site.
    3. Criminal grounds for detention can make an arriving alien ineligible for release from detention.
  3. Children
    1. In New York, the age of maturity is determined to be 21 for the purposes of immigration. Therefore, a person will be considered a child arriving at a New York airport up until their 21st birthday.
    2. Other states recognize the age of maturity for immigration purposes to be 18.
    3. If a child is placed in detention, an adult willing to take care of them must:
      1. Notify the district director that they intend to take care of the child;
      2. Explain their relationship to the child;
      3. Ensure the child attends their court appearances;
      4. **Optional (but highly recommended)** Get the child proper representation a/k/a an attorney.
  4. Individuals with Final Orders or Removal Who Cannot be Returned to Their Home Countries
    1. Normally, a person with a final order of removal, deportation or exclusion is ineligible for release from detention. They are also usually placed in expedited removal proceedings.
    2. However, if the country designated for removal refuses to accept the individual, they are eligible for release.
  5. Individuals with Fully Served Criminal Sentences Prior to October 9, 1998.
    1. Criminal records with time served over 23 years ago are rare occurrences, but it should be noted that there is an exception for this circumstance.
    2. Usually, a person with lawful status, for example, an asylee or a lawful permanent resident with a criminal record served prior to 1998 will be detained upon reentering the US for the criminal record. This does not happen every time and sometimes a person will travel for many years without any issues.
    3. If this happens, it is important to contact an attorney ASAP. If an attorney is able to act quickly, it can save a lot of time and money if a person is able to avoid being wrongfully placed in removal proceedings. Even if placed in removal proceedings wrongfully, a person will still have to defend themselves and there is always a chance they can be deported creating further headaches.

If you need help with an Immigration issue or detention, call our NYC Immigration lawyer to receive a confidential consultation at 917-885-2261.

23 October 2020
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